Abstract

In modern times, perhaps ‘habitual residence’ has become the most popular connecting factor in private international law, surpassing domicile and nationality. Especially, in family-related matters, habitual residence has been the ‘go-to’ connecting factor in both national laws and international instruments. Due to its reliance on the ‘factual notion’, habitual residence has been considered the ideal connecting factor for modern society, where people are constantly moving across jurisdictions. This phenomenon has been evident in cases, where determination of a child's residence has been the issue of litigation. The custody of children has always been given due importance in every jurisdiction and has surely received adequate attention in private international law legislation. While there has been no debate about the use of habitual residence in matters of child custody, its diverse interpretations in and across various jurisdictions have resulted in conflicting and confusing decisions. Although habitual residence was adopted so that it can be molded according to the needs of each case, too much uncertainty regarding this concept could hinder justice. There should be some legal certainty surrounding the concept of ‘habitual residence’ even in the absence of a proper definition, so that the courts could serve the ‘best interests of the child.’ The article explores the decisions from the courts of the UK and the courts of the European Union, to discover the common understanding of habitual residence in cases concerning a child.

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