V. Factors Considered When Determining "Habitual Residence"
Courts consider a variety of factors when determining a child's habitual residence. The factors can be divided into two broad categories: factors regarding intent and factors regarding acclimatization of the child to the country of residence. A single factor usually is not determinative, and courts often need to weigh conflicting factors. This section will list the factors that have been considered by courts and provide brief commentary about each.
A. Factors Related to Parental Intent
• Parental employment - The employment of one or both parents in a country to which the parents recently moved can be evidence of establishing a new habitual residence. Conversely, leaving one's employment in a country can be evidence of leaving a prior state of habitual residence.
• Purchase of home - Purchase of a home also is evidence of establishing habitual residence. Purchase of a home is more likely to be a basis for such a finding than short-term stays with relatives or in a rental apartment.
• Moving of belongings - The movement of family belonging can establish intent to establish a new habitual residence. However, shipping some belongings while keeping other belongings in the state from which one moved can be evidence of not intending to change habitual residence.
• Location of bank accounts - A parent's decision to maintain bank accounts in a country where the parent had lived, despite spending time in a new country, is evidence of the parent's tie to the original country.
• Obtaining driver's license and professional licenses - Obtaining a driver's license or professional license in a new country (or attempting to obtain such licenses) is evidence of intent establish a new habitual residence.
• Marital instability - If the family is moving at a time of marital instability, that can be viewed as supporting evidence that at least one of the parents did not intend to live at the new location indefinitely, and thus there was not intent to establish a new habitual residence. This is particularly true if the parties agreed the move was for a "trial period."
• Citizenship; immigration status; type of visa - If a parent and child come to a country on a tourist visa and do not seek more permanent residency status, that can lead to a finding that habitual residence in the prior country from which the parent and child came was not abandoned. A court has observed, however, "While an unlawful or precarious immigration status does not preclude one from becoming a habitual resident under the Convention, it prevents one from doing so rapidly."
27. As can be seen from the above decisions, the meaning of the expression 'habitually resident' is similar in meaning to 'ordinary resident'.
From a reading of all of the above judgments and authorities it is clear that the question of whether a person habitually resides in a country or place may depend on various facts and circumstances. The term 'habitually resides' or similar terms such as 'ordinarily resides' have not been defined and do not have a technical meaning. However, from the above observations there are some factors or tests which are applicable to decide whether a person habitually resides in a particular place or location. Some of the important tests and factors, are as under:
(i) The quality of the residence and not only the duration of the residence.
(ii) The residence must be actual and bona fide and there must be a regular physical presence that must endure for some time. However, the duration of time must be considered in the facts of each case and given the purpose of the residence in a particular place.
(iii) The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period.
(iv) Education, business or profession, employment, health, family or merely love of the place may be common reasons for a choice of regular abode, and there may be others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
(v) Some of the specific factors that may be considered are: location of bank accounts; location of movables; purchase of a house; obtaining of licenses and residential status or visa type of the person in that place.
(vi) The residence in that place must be something more than casual or a flying visit to a place. It is not a requirement that the person is at a particular place for dwelling always or on permanent uninterrupted basis.
31. It is relevant to note that in the case of Mother v. Father, supra, the parties had taken an apartment for rent in New York for only 3 months and the daughter had started speech therapy and this was sufficient in that case for the Court to hold that the child 'habitually resided' in New York. In Sandip Shankarlal Kedia, supra, this Court held that the wife habitually resided in Dubai, inter alia, because she was a Director of three companies in Dubai and has businesses in Dubai.
IN THE HIGH COURT OF BOMBAY
Arbitration Application No. 49, 50 and 51 of 2017
Decided On: 22.02.2019
Aslam Ismail Khan Deshmukh Vs. Asap Fluids Pvt. Ltd. and Ors.
Hon'ble Judges/Coram:
S.J. Kathawalla, J.
Citation: AIR 2019(NOC) 566 Bom
