The media is looking into the personal lives of actress Sophie Turner and singer Joe Jonas as their explosive divorce hit the headlines recently. One question which has been raised has been where their two young children will live. Both Sophie and Joe are notoriously private when it comes to their family life but with the recent developments and the USA allowing court papers to be viewed by anyone, the public have been made aware that Sophie has made an application for their two children to be returned to the UK.
Habitual residence: The legal arguments explored
The argument used by Sophie is that the 'habitual residence' of the children is the UK and that they are being wrongfully retained in the USA by Joe. The term habitual residence is extremely important when it comes to assessing the arrangements for children, as it allows the court to determine where the children usually live- and therefore whether or not they should be returned to that country. Sophie has claimed within her court papers that the children have their 'permanent home' in England and that Joe was wrongfully retaining their passports. Joe's position has been stated that the children were born in America and spend a considerable amount of their time there.
Habitual residence and definition within statute
The term habitual residence, despite being of vital importance within the court system, does not have any specific definition within statute, which can present some problems. The meaning of the term has therefore been subject to judicial discretion both in England and Wales and abroad. The courts will look at a variety of different points when considering the issues, such as the day to day lives of the children, any nursery or school they are enrolled with as well as social matters such as clubs and extra-curricular activities. A recent case Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105, showed family lawyers the directions that the courts are looking to take when it comes to assessing the matter of habitual residence with continuing or historical connections with a particular country as part of the court's analysis but not the primary focus.
We're here to help
The issue of international children matters and habitual residence is one which is unfortunately complicated and there are significant amounts of case law which surround moving a child internationally or returning them to the UK. However the expert family law team at Gorvins Solicitors are able to guide you through, providing specialist family and children law advice at difficult times.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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