Habitual residence of children and Relocation

Filed under : Family Law, Mediation

When parents separate and live in different countries there may be a very difficult decision to be made about where the children live and what effect a change of residence has on them.  The laws in Europe and most other countries focus on the “habitual residence” of the children.

The decision on where the children have their residence is based on a factual investigation. For example, a child might be in school in England but actually have a habitual residence in Spain. Referring to European case law, Justice Hayden in a Supreme Court ruling in England – BA Minor EWHC 2174 – stated, in considering where the child is resident, facts should be presented to show “the child’s day-to-day life and experiences; family environment; interests and hobbies; friends etc. and an appreciation of which adults are most important to the child. The approach must always be child driven.”

By far the best approach is for the lawyers to mediate a settlement so that the children have a fixed and stable arrangement, spending time with each parent and keeping regular contact by phone, skype and other means when they are with the other parent.

Relocation of the children may be the only and best option where the custodial parent has to leave Spain. For parents currently living in Spain and having their habitual residence here they will have to seek a relocation order in this country if the other parent does not give their consent. This does not mean that the child’s residence cannot be changed as in some cases this may mean returning to the country of origin if there is no social, family and economic support in the country where they are living.

For more information contact De Cotta Law – info@decottalaw.net – or call on 952 52 7014 for a confidential consultation.