No5 Chambers

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Changes in the law on habitual residence

By Sara McCarthy

Over the last 12 months, there have been substantial developments in the law on habitual residence following judgments handed down from the Supreme Court, most notably in the cases of Re A (Children: Habitual Residence) [2013] UKSC 60 and the recent decision of LC (children) [2014] UKSC 1, handed down in early January. This article will focus on the changes brought about by these two decisions.

Prior to these judgments and their subsequent implementation, the lower courts had grappled with the uncertainty of balancing the UK tests on habitual residence propounded in R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309 and the European test as outlined in the Court of Justice of the European Union’s decision in Mercredi v Chaffe (Case C-497/10 PPU).

The key concepts in Lord Scarman’s definition in Shah were that the residence must be ‘voluntarily’ adopted and that it must be for ‘settled purposes’…

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