Habitual problems in applying the concept of habitual residence of children

Abstract Conceived as a simple factual test that will readily identify the jurisdiction best placed to determine disputes concerning children, habitual residence has not proved easy to apply. This article considers the meaning of habitual residence in international instruments concerning children, drawing upon the jurisprudence developed in different jurisdictions. It maintains that the concept of habitual residence of children does not vary according to the instrument involved nor is it a purely factual concept. It considers the relevance of parental intention, explores whether some physical presence is a prerequisite for establishing habitual residence, whether a child can have more than one concurrent habitual residence, and the relevance of the child’s age. This article ends with a discussion of the appropriateness of the concept and what, if anything, can be done to clarify its application.