Habitual Residence: Review of Developments and Proposed Guidelines

Abstract

Habitual residence is a key concept in the scheme of the Hague Child Abduction Convention because it determines the applicability of the mandatory return mechanism. However, the concept is not defined, and over the years there have developed different approaches thereto. In recent years, there has been increasing doctrinal uniformity as a result of wide adoption of the hybrid approach. However, there are real disparities in the way in which this approach is applied by different judges and the question of habitual residence remains one of the most litigated issues under the Convention. This article reviews recent case law developments and explains the disparities. It then proceeds to propose guidelines that might assist in increasing uniformity and ensuring that findings of habitual residence promote the objectives of the Convention.