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Habitual Residence, The Hague Conventions and Public Family Law

With the number of people going abroad to escape the family courts it strikes me it is useful to talk about which courts have jurisdiction.

There are two important phrases which apply to determine which court has the power to make a decision. One is "ordinarily resident" and the other is "habitually resident".

When someone is "habitually resident" in England then the local authority in which that person is "ordinarily resident" is responsible for care proceedings. That means that if someone goes to Cornwall on holiday from Birmingham, Birmingham retains responsibility.

If someone is abroad on holiday then they are habitually resident in England, but if they go abroad with the objective of staying there then they become habitually resident abroad. There is a complex question as to when they become habitually resident abroad. The first point is that the English courts consider that if care proceedings have been issued and served then skipping the country does not prevent a court order.

If a court care order is in place then it is normally unlawful to leave the country.

When someone is outside the UK and facing proceedings under the Hague Convention to get children returned then the decisions are taken both by courts in England and also by the foreign courts.

This provides a small amount of information about Hague Convention issues. There is, of course, a lot more.

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R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

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KING’S BENCH DIVISION

R v SUSSEX JUSTICES ex p McCARTHY [1924] 1 KB 256

November 9 1923

Editor’s comments in bold.

Here, the magistrates’ clerk retired with the bench when they were considering a charge of dangerous driving. The clerk belonged to a firm of solicitors acting in civil proceedings for the other party to the accident. It was entirely irrelevant that there had been no evidence of actual influence brought to bear on the magistrates, and the conviction was duly quashed.

LORD HEWART CJ:
It is clear that the deputy clerk was a member of the firm of solicitors engaged in the conduct of proceedings for damages against the applicant in respect of the same collision as that which gave rise to the charge that the justices were considering. It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the…

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