Habitual Residence of the Child

Divorce is a really tough decision to make. When a couple decides to divorce, it means a great deal for everyone. The divorce brings a complete transformation in the lives of all those are related to the couple. The maximum amount of emotional impact is faced by the child. The child is not able to analyze the situation properly and in not adult enough to fully understand the reason behind the divorce between his/her parents. If the legalities of this procedure are concerned, the habitual residence of the child has to be decided. There are a lot of couples who are choosing the process of Family Mediation in Harlow in order to arrive at a certain conclusion about how and where their child will spend the rest of his/her life.

There was a case about a couple in Pakistan who were facing the same issue about the habitual residence of the child. The Supreme Court made a far-reaching decision about establishing the habitual residence of the child. The Supreme Court, with the help of 3:2 majority ratio, arrived at a conclusion that even after the terms of Article 13 of the Council Regulation Brussels II bis, the court should exercise its inherent jurisdiction based on the habitual residence of the child despite the fact that the child has been living for some months with her mother in Pakistan who was not having any intention of coming back to the UK.

The reason which was presented by the majority was that the application which was left behind by the parent had been filed only 10 after the removal to Pakistan and according to this situation, the fact that the child has been socially integrated in Pakistan and reintegrated in England could not be established. There was some confusion about the fact that the mother of the child has settled herself in her habitual residence in Pakistan but the court gave importance to the fact that in such situations, the child would not automatically have the same habitual residence as her parent. The child is not having the age to understand the complexities of this situation.

The circumstances reached a further level of becoming complex as the parties to the case were a couple having same sex and whose case would not have been acknowledged by the courts in Pakistan. Another thing which was important in this case was that the former partner of the biological mother had no parent responsibilities or rights at all. The viewpoints of the minority from which the couple belonged were expressed strongly and it was found that the likely decision of the foreign court to have a different point of view as compared to the point of view of the courts in England can be the main reason behind the exercising an inherent jurisdiction.

Habitual residence is becoming important criteria for sorting out the relationship issues of various couples. It is an important part of the family law.

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