The Determination Of The Child’s Habitual Residence

In China’s Law on Law Application to Foreign-Related Civil Relations which was passed on 28 August 2010, habitual residence finally came to be the principle connecting factor of lex personali. It seems that the question on how to select the connecting factor of lex personali which had been debated for decades in China has been settled. In fact, the question has not been totally solved for the law left the meaning of habitual residence open. As a result, it becomes difficult to determine the habitual residence of parties for the courts. The judicial interpretation issued by the Supreme People’s Court on 7 January 2013 definitely provides that the habitual residence of parties should be determined by two conditions. On the one hand, the place should be the unique center of his/her life except for treatment, labor dispatch service or official business. On the other hand, he/she should be living in the place continuously at least for one year. Obviously, the Supreme People’s Court did not mean to distinguish the habitual residence of adults and children, and provided the same method to determine it. Similarly, China’s academics had been always focusing on whether to select the habitual residence to be the principle connecting factor of lex personali of China’s Law on Law Application to Foreign-Related Civil Relations and hardly referred to the determination of habitual residence, not to mention the habitual residence of children during the past decades. Until now, the child’s habitual residence has not been defined in the legislation or judicial experience. However, it is not the same condition all over the world. The child’s habitual residence has been deemed to be an independent subject for several decades. The 1980 Hague Convention on the Civil Aspects of International Child Abduction which was adopted by a unanimous vote of twenty-three countries present specifically confirmed that habitual residence of children was the principal connecting factor of lex personali in this convention. Following the Child Abduction Convention, both the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children and Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation (EC) No 1347/2000 emphasized the status of children’s habitual residence. Despite its importance, Hague Conference on Private International Law which originally created this concept had made it clear that habitual residence was a "well-established concept" and it left the domestic laws of contracting states to define it. A lack of guidance as to the definition of habitual residence has led to a split among courts on how to properly determine the child’s habitual residence in other countries. Under this circumstance, it is the task for Chinese international private law scholars to study the determination of children’s habitual residence. Now that there is not an authoritative concept for habitual residence, and children’s habitual residence does not have an independent legal status in Chinese legislation until now. Clearly establishing that the child’s habitual residence has an independent legal status is perhaps the prime premise to the determination of children’s habitual residence. On the one hand, it is necessary and significant for the child’s habitual residence to be independent as it is required both from the perspectives of legislation and judicial experience; on the other hand, in condition of the specificity of the child’s subjective and objective factors, it is completely impossible to apply the methods of the determination of adults’habitual residence when the courts attempt to determine the child’s habitual residence. As a result, it is the necessity that the child’s habitual residence needs to be discussed independently. And then, the child’s habitual residence is a general concept, which is a common sense. It may be involved in every area relating to children, such as the capacity for civil rights of a natural person, succession, adoption, custody and so on. In these areas, international child abductions by parents and transnational custody disputes have the closest relation with children. And disputes relating to these two areas are the most common. What’s more, the child’s habitual residence is the most important threshold determination in these two categories of cases. It is an effective approach if the observation of general doctrines and methods to the determination of a child’s habitual residence begins from these two categories of cases. Although the judicial experience is not such sufficient in Chinese courts, China can learn from the cases sentenced before by the courts of America and European countries. It would be extremely useful for China to conclude the general doctrines and methods from these judicial experiences. Finally, the discussion should go back to Chinese legislation. Considering that the judicial resource is limited in China, there should be several directions in legislation and judicial interpretation, so that the determination of the child’s habitual residence could be operable. On the one hand, judges should have proper right of discretion to analyze the merits of each case, on the other hand, some certain factors can be settled insuring the operability. At the same time, more attention should be given to special and complex cases in order to avoid using the general doctrines and methods as a permanent formula. As a result of researching into the judicial experience in the past years, an observation of a natural person, including his or her subjective intention and objective fact would be the most straightforward way to determine his or her habitual residence. It is the question that children normally lack the material and psychological wherewithal to decide where they will reside. Recognizing that children can hardly express their intentions of residence or have a settled purpose of living, it can be concluded that the child’s habitual residence should be the result of the comprehensive examination of factors involved, including the parents’ shared intentions and the child’s social and family environment, which are provided as evidences to the acclimatization and settled purpose from the child’s perspective. Thus, a single inflexible standard is not allowed to evaluate this complicated case.