Habitual Residence: The New Domicile?

Author(s): Pippa Rogerson

Source: The International and Comparative Law Quarterly , Jan., 2000, Vol. 49, No. 1
(Jan., 2000), pp. 86-107
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

Stable URL: https://www.jstor.org/stable/761579

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 HABITUAL RESIDENCE: THE NEW DOMICILE?

PIPPA ROGERSON*

I. INTRODUCTION

THERE have been several cases reported over the last fe

meaning of "habitual residence"!. This comparatively new ph
in use not only in domestic legislation but also in v
Conventions on the reform of private international la
widespread use by the European Commission. Habitual r
basis for allocating jurisdiction to that State's court, especia
to matrimonial causes and child custody.2 For examp
proposed by the European Commission as a replacement
the new Convention on the Jurisdiction and Enforcement o
in Civil Matters.3 Habitual residence is also extremely
connection with tax matters and social security.4 It is addit
the Immigration Act 1971.5Other than its purpose in allo
tion, habitual residence is beginning to be adopted as a conn
for choice of law, for instance the Rome Convention on Ch
Contract.6 A consumer's habitual residence may dete
applicable to consumer contracts (where there is no ex
law) and a consumer is protected by the mandatory rules of

* Gonville & Caius College, Cambridge.

1. Re A. (Abduction: Habitual Residence) [1996] 1 F.L.R. 1; Re M. (Ab
Residence) [1996] 1 F.L.R. 887; D. v. D. (Custody: Jurisdiction) [1996] 1
(Care Orders: Jurisdiction) [1997] 1 F.L.R. 456; M. v. M. [1997] 2 F.L.R.
Adjudication Officer [1999] 1 W.L.R. 1937; Re A. (Abduction: Habitual
F.L.R. 497; Re S. (Custody: Habitual Residence) [1998] 1 F.L.R. 122.
2. For example, Family Law Act 1996, s.19(2)(b), Domicile and Matr
ings Act 1973, s.5(3)(b), Family Law Act 1986, s.46(1)(b), Adoption Ac
Abduction and Custody Act 1985, Schedule 1.
3. Council Act 22 Dec. 1997 (O.J. 1998 C33/20 31.1.98).
4. See for example Swaddling v. Adjudication Officer C-90/97 The Tim
Fifth Chamber 25 Feb. 1999); Nessa v. ChiefAdjudication Officer [1999] 1
Secretary of State for Social Security, ex p. Sarwar (1995) 7 Admin. L
habitual residence has a developing European and domestic jurisprude
5. According to Rayden & Jackson on Divorce #2.26 n.1.
6. Enacted in the Contracts (Applicable Law) Act 1990. If the appli
been chosen by the parties then the presumption arises that the applicab
habitual residence of the party who is to make the "characteristic pe
contract (Art.4(2)). The use of that presumption and therefore of the nec
the habitual residence of that party is likely to be rare partly because m
have an express choice of law clause and partly because most of the likely
out of commercial contracts in which habitual residence is replaced by th
business. There are no cases reported on this use of habitual residence

86

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JANUARY 2000] Habitual Residence 87

or her habitual residence.7 In addition, a party may in

the law of the country of his or her habitual residenc
or she did not consent to enter into the contract.8 It
habitual residence of the tortfeasor and of the victim
determining the choice of law in tort in the new draft
habitual residence worthy of this almost ubiquitous u
question it would be interesting to look at two thin
meaning of "habitual residence"? It has been delibe
any of the statutes or Conventions in order to p
associated with the alternative concepts of domic
Therefore it has been left to judicial interpretatio
some indication of the way in which habitual residenc
Secondly, is it a satisfactory concept for its various s
particular, is it suitable not just as a rule for allocatin
for choice of law?

II. HABITUAL RESIDENCE IN ENGLISH LAW

ALTHOUGH habitual residence is used in a number of different statutes the

courts have reiterated the principle that the words bear the same meaning
in all cases unless the statute itself provides otherwise.10 This follows from
the rule that the words bear their ordinary and natural meaning and are
not a term of art. Therefore it is not apparently possible to argue that
because of the different purposes of the various statutes the words should
bear a different meaning by taking into account the particular purpose in
each statute. Wherever the concept of habitual residence of a person is
deployed in a statute the determination of his or her habitual residence on
the facts should not differ whether that determination is needed for
jurisdiction, choice of law or taxation. However, on closer inspection o
the cases it becomes apparent that the courts pay mere lipservice to thi
rule and often refer to the purpose of the statute in determining the actual
"habitual residence" on the facts. For example, in Nessa v. Adjudication
Officer part of the reason why an appreciable period of time was

7. Art.5.
8. Art.8.
9. Dicey & Morris: The Conflict of Laws (12th ed. 1993) p.162. However, something
rather close to a definition was laid down by the Committee of Ministers of the Council of
Europe. It has declared that "in determining whether a residence is habitual, account is to be
taken of the duration and the continuity of the residence as well as of other facts of a
personal or professional nature which point to durable ties between a person and his
residence" (cited loc. cit.). For other material attempting to define habitual residence see
Beaumont and McEleavey, The Hague Convention on International Child Abduction
(Oxford, 1999) p.89, n.10.
10. This point was made explicitly in relation to ordinary residence in R. v. Barnet
London Borough Council, ex p. Shah [1983] 2 A.C. 309 at p.340, and taken into habitual
residence in ReJ. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562 at p.578. See too,
Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937.

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88 International and Comparative Law Quarterly [VOL. 49

necessary in order to establish habitual residence was because the

purpose of the statute was to limit entitlement to income support." Also,
in Oundjian v. Oundjian12 French J noted the purpose of the use of
habitual residence was to ensure a proper connection between the
propositus and this country sufficient to warrant the exercise of jurisdic-
tion. He took this into account in deciding whether habitual residence had
been established. There are obviously deeper unexpressed considerations
at work that might explain the more contradictory cases. For instance,
courts considering the habitual residence of children under the Child
Custody and Abduction Act 1985 may be more likely to find that the
children have a habitual residence (rather than none) as otherwise the
children are deprived of the protection of that Act.13 Cases which are
concerned with revenue may have undercurrents of public policy
considerations such as preventing tax evasion. Courts deciding immi-
gration or social security statutes might tend to prevent habitual
residence arising in this country in order to reduce the number of possible
claimants.14 The principle that habitual residence is a singular concept
regardless of context is therefore illusory. Adhering to the expression of
the principle but sidestepping it in practice creates obfuscation because
the fundamental reasons for a decision are obscured. If a purposive
interpretation of habitual residence is the reality, then the purpose must
be clearly expressed. The criticism that there will then be a divergence
between the various uses and meanings of "habitual residence" depend-
ing upon the purposes of the particular statute can be countered by the
argument that this happens already. Making the purpose an explicit part
of the reasoning will cause the results of the cases to become clearer and
easier to predict. Certainty and predictability are perhaps less critically
important in cases allocating jurisdiction than in questions of choice of
law. It is possible to have secondary rules of allocation to deal with
overlaps and gaps in jurisdiction which arise after the event. Nevertheless,
it is often necessary to know in advance which law will govern some aspect
of, say, a contract and so a choice of law rule requires more precision. The
present rules on habitual residence will undoubtedly have to be sup-
plemented if they are to be used for choice of law purposes.
Given that the courts adhere to the theory that the words "habitual
residence" have the same meaning regardless of the statute in which they

11. The Court of Appeal [1998] 2 All E.R. 728 Sir Christopher Staughton at p.733 and
Morritt LJ at p.743. After Swaddling v. Adjudication Officer the decision might now need to
be treated with caution in a European context as the requirement for an appreciable time is
contrary to a communitaire interpretation of habitual residence.
12. [1980] Fam.Div. 198.
13. This fear was expressed by Thorpe LJ in his dissenting judgment in the Court of
Appeal in Nessa v. Adjudication Officer [1998] 2 All E.R. 728 at p.737.
14. As was the result in Nessa v. Adjudication Officer, ibid. See too the House of Lords
[1999] 1 W.L.R. 1937.

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 JANUARY 2000] Habitual Residence 89

are found, how have those words been interpreted? I

Re J. (A Minor) (Abduction: Custody Rights)
Oakbrook held that the term habitually resident
"according to the ordinary and natural meaning
"habitual" and "residence".16 Further, he said th
someone is habitually resident is a matter of f
reference to all the circumstances of the case.17 Cou
appears that a determination of one's habitual re
straightforward, factual decision that does not req
intervention of the courts. However, as the editors o
Conflict of Laws note "there is a regrettable ten
despite their insistence that they are not dealing
develop rules as to when habitual residence m
established." The editors go on to hope that "the
temptation to develop detailed and restrictive
residence which might make it as technical a term o
domicile. The facts and circumstances of each case should continue to be

assessed without resort to presumptions or presuppositions".l"This

sentiment has been reiterated by the courts.19 Nevertheless, of the many
reported cases on habitual residence this decade eight were determined
by the Court of Appeal20 and three decided by the House of Lords.21 At
first sight it is surprising that words with apparently such a commonly
understood meaning need the learned discourse of the higher courts,
complete with the expensive entourage of silks, juniors and solicitors. On
further inspection it becomes apparent that habitual residence is not so
uncomplicated. The courts and the commentators are being rather
disingenuous to suggest otherwise.

15. [1990] 2 A.C. 562, also known sub nom. C. v. S. (A Minor: Abduction).
16. Ibid, at pp.578-9. See too, Levene v. Commissioners for Inland Revenue [1928] A.C.
217; I.R. C. v. Lysaght [1928] A.C. 234.
17. See too Lord Scarman's view in the earlier case of R. v. Barnet London Borough
Council, ex p. Shah that this is "ultimately a question of fact, depending more upon the
evidence of matters susceptible of objective proof than upon evidence as to state of mind"
([1983] 2 A.C. 309 at p.344).
18. 12th ed. 1993, pp.162-3. See too Clive [1997] Jur.Rev. 307.
19. Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887 at p.896; D. v. D. [1996] 1
F.L.R. 574 at p.579.
20. M. v. M. [1997] 2 F.L.R. 263; H. v. H. [1996] 2 F.L.R. 570; Nessa v. ChiefAdjudication
Officer [1998] 2 All E.R. 728; Re F. (A Minor) (Child Abduction) [1992] 1 F.L.R. 548; Re K.
(Abduction: Consent: Forum Conveniens) [1995] 2 F.L.R. 211; Re M. (Abduction: Habitual
Residence) [1996] 1 F.L.R. 887; Re M. (Minors: Residence Order: Jurisdiction) [1993] 1
F.L.R. 495; Re N. (Child Abduction: Habitual Residence) [1993] 2 F.L.R. 124; Re R.
(Wardship: Child Abduction) [1992] 2 F.L.R. 481; Re S. (A Minor) (Abduction) [1991] 2
F.L.R. 1; Re S. (Minors) (Child Abduction: Wrongful Retention) [1994] 1 F.L.R. 82.
21. Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562; Re S. (Custody:
Habitual Residence) [1998] 1 F.L.R. 122; Nessa v. ChiefAdjudication Officer [1999] 1 W.L.R.
1937.

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90 International and Comparative Law Quarterly [VOL. 49

First, the concept of habitual residence contains within itself a

considerable subjective element which necessitates an investigation "into
the minds of men". The word "residence" in normal usage denotes
something of one's "home". This subjective consideration is an important
part of the rules because it distinguishes residence from mere presence. It
also brings with it a need for judicial intervention. The court's decision is
needed to determine the question of where someone is habitually
resident where there is a dispute. It is because there is a dispute that one
cannot rely on the assertions of one party as to their habitual residence.
The court has to decide where someone is habitually resident as an
objective observer of the person concerned. The accretion of cases lays
down guidelines for future examples. There are many examples of cases
in which legal rules to determine habitual residence have been made.
Lord Brandon in Re J. (A Minor) (Abduction) held that the residence in a
country had to be undertaken with "a settled intention" to remain there.
An earlier case on ordinary residence held that the residence had to be
adopted "voluntarily and for settled purposes".22 At the same time, the
subjective element tends to lead to unpredictability as very similar cases
on the facts can be distinguished by almost imperceptible differences in
the "minds of men". The subjective element of the older rules on domicile
has been criticised for this reason.23
In comparison, the only completely objectively determinable fact is
that of presence within a jurisdiction at a period of time. There is no need
for legal rules to determine whether or not one is factually present.24 Mere
presence has been used as a ground for jurisdiction, for example, in
granting the English court jurisdiction25 and in determining whether or
not to recognise a foreign court's judgment.26 Presence is a certain and
predictable rule but it is not an entirely satisfactory one for allocating
jurisdiction to the English court.27 Taken to extremes, it can sweep in
cases which have little connection with this country. As a result, the strict
rule has been tempered by the common law rules on staying of actions in
the English courts on the grounds of forum non conveniens.28 By using
residence instead of presence a similar end is achieved as residence

22. Lord Scarman in R. v. Barnet London Borough Council, exp. Shah [1983] 2 A.C. 309.
23. Fentiman [1991] C.L.J. 445.
24. On the other hand, there are legal rules to deem presence within the jurisdiction
where there is no presence in fact.
25. Maharanee of Baroda v. Wildenstein [1972] 2 Q.B. 283.
26. Adams v. Cape Industries plc [1990] Ch.433.
27. For example, it is explicitly excluded as a ground for jurisdiction to be used against
those domiciled in the Contracting States to the Brussels Convention on Jurisdiction and
Enforcement of Judgments in Civil Matters (Art.3).
28. The Spiliada, Spiliada Maritime v. Cansulex Ltd [1987] A.C. 460 and cases following it.
A similar constraint has not so far been developed in relation to the recognition of foreign
judgments but there are some signs of such a movement (Rogerson [1998] C.J.Q. 91).

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 JANUARY 2000] Habitual Residence 91

requires a more substantial connection with a cou

obviously something different from and more th
However, just as forum non conveniens has detracted
and objectivity of a rule based upon presence, so do
The loss of certainty by the introduction of forum
been ameliorated by the development of principles
the judge's discretion. Likewise, one's habitual res
predictably determined by the addition of legal rules.
legal rules is therefore inevitable.
Secondly, a commonsense understanding of t
requires not only a certain quality to one's presenc
present in the jurisdiction for a period of time. In th
defined as "an appreciable time" and it is anoth
definitions being developed.29There have been conside
determining how long is necessary for an appreciable
tory results. For example, the majority of the Court
ChiefAdjudication Officer3" held that one day was too
an appreciable time but did not go on to say what
have been sufficient. In contrast, Thorpe LJ in dissen
hold that one day was enough. In Swaddling v.
Officer31 it was conceded that habitual residence
eight weeks. In Re S (Custody: Habitual Residence)32
came back to England to try and patch her relation
have reacquired her habitual residence here in even le
In Re B34 a mere month was held to be sufficient. In
the results of the cases is because the concept
"appreciable time" varies depending upon the state of
in question.35 Where that person has definitively a
their mind to live in a particular place for the for
"appreciable time" need only be very short, even a ma
In Nessa v. Chief Adjudication Officer the proposit
left Bangladesh on a one-way ticket, bringing all s

29. Lord Brandon said that this "appreciable time" was nec
intention to reside could be described as habitual (Re J. (A Mi
Rights) [1990] 2 A.C. 562 at pp.578-9).
30. [1998] 2 All E.R. 728.
31. Case C-90/97, The Times, 4 March 1999.
32. [1998] 1 F.L.R. 122.
33. She seems only to have been in England for about six wee
34. [1994] 2 F.L.R. 915.
35. Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937 a
36. This has echoes of the rule of revival of a domicile of origin.
rules however there is a lacuna in habitual residence as someone can lose a habitual
residence easily but take some time to gain a new one (Re K. (Abduction: Consent: Forum
Conveniens) [1995] 2 F.L.R. 211 at p.215).

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92 International and Comparative Law Quarterly [VOL. 49
start a new life here. It is more difficult to determine what is an
appreciable time where someone has not made up his or her mind.
seems however, that the difficulty is due entirely to the vacillating state
mind rather than the length of their stay. Re B37 is an example of a res
which is very difficult to explain. The propositus had emigrated to Cana
from England in 1980. In 1992 she returned to England intending to sett
here with her children. She was in the event only here for a month. She
then went back to Canada for a couple of months to attempt
reconciliation with her husband. This two month period was held no
sufficiently appreciable time to lose her newly acquired habitual res
ence in England and re-acquire one in Canada. On the other hand, a mere
month's stay here was apparently sufficient for her to have acquired th
new habitual residence in England. It is possible to argue that as th
propositus returned to Canada for the second time she did not sever
connection with England sufficiently to be able to re-acquire her habitu
residence in Canada.38 However, this does not explain the discrepanc
between the length of time necessary to acquire her habitual residence i
England and Canada. The real difficulty is that she had no sett
intention to reside in England while there was a possibility of patching
her marriage nor did she want to stay in Canada if her marriage fail
Such cases are not unusual and are inevitably going to lead to contrad
tory conclusions. The court's decision is expressed in terms of decid
what an "appreciable time" might be but in fact the court is deciding th
case on whether or not the person's intention is sufficiently settled. Som
of the results of these rather disconcerting cases39 may be justified on
different basis. Many of them are cases where the habitual residence of
parent is being determined in order to decide whether the court h
jurisdiction to decide care and control of a child under the Ha
Convention on Child Abduction. The possible vacuum which is creat
by the rule that holds it possible to lose a habitual residence much m
easily than to acquire one40 leaves children with less protection. The cou
may lean against decisions which do that and also may tend towar
deciding that the parent is habitually resident here in order that
English court has jurisdiction. That explanation describes what happ
but provides no useful analysis for future decisions.

37. [1994] 2 F.L.R. 915.

38. This would be an example of a "detailed rule" exhorted against by both the courts
academic writers, see text to nn.17-19 above.
39. See too, Re F. [1992] 1 F.L.R. 548 (one month sufficient to acquire habitual residen
in Australia); V. v. B. [1991] 1 F.L.R. 266 (two months necessary); A. v. A. [1993] 2 F.L.R
(eight months insufficient).
40. Habitual residence can be lost immediately upon leaving a country with a sufficien
fixed intention never to return (Re K. (Abduction: Consent: Forum Conveniens) [199
F.L.R. 211 at p.215).

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JANUARY 2000] Habitual Residence 93

Some other cases demonstrate that "settled purp

moving to a country without any really established d
particular. It is possible to acquire a habitual reside
determination or firm decision to make it a perm
example, in Re B (Minors) (Abduction) (No.2)41 the
mother's home in Germany to try and resolve their d
held that their intention was only to "wait and se
months in Germany habitual residence there had b
have been important that the parties had disposed
Scotland before moving to Germany but it is not
disposal was an example of "burning their boats" but
enabling a period of consideration before a fresh s
whether in Germany or elsewhere.42 Where it is d
really settled purpose to remain in a country, the
found has an air of artificiality. An extreme instance
College London v. Newman,43 a case on ordinary re
a New Zealander who had been travelling for thr
aimless drifter who has spent his time in wha
descriptively called colloquially 'bumming' around
no evidence that he ever spent more than a couple
country. It would be hard to say that the propositus h
settle anywhere at all but he was nevertheless
ordinarily resident in Europe. This is a case on the
alternative conclusion would have been to find him resident in New
Zealand where he had left three years previously. But no doubt h
intended to return "home" to New Zealand eventually, after finishing his
itinerant existence and studies. His domicile would clearly have been i
New Zealand, and there is a strong argument that it was with that country
that he had his strongest connections. Otherwise he could be found to be
resident nowhere (which a layman would at least understand). That
conclusion would have disastrous consequences for choice of law and s
another, albeit possibly artificial or inappropriate, solution has to b
found.

Nevertheless, it is important to notice that at one end of the spectrum of

cases, the objective facts become totally dominant in determining
someone's habitual residence. As Clive has noted, once a person has been
objectively present in a jurisdiction for some time, the mere fact of having
remained there overwhelms all other, subjective, arguments." He
demonstrates that if residence has lasted longer than a year (even with

41. [1993] 1 F.L.R. 993.

42. See too Re B. (Child Abduction: Habitual Residence) [1994] 2 F.L.R. 915.
43. The Times, 8 Jan. 1986, Court of Appeal.
44. [1997] Jur.Rev. 307.

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94 International and Comparative Law Quarterly [VOL. 49

absences for holidays or work) then notwithstanding that the residence is

only for a limited purpose, it is considered a habitual residence by the
courts. Even where it is clear from the facts that the person whose
habitual residence is under consideration desperately wants to live
somewhere else and is only staying in a country because circumstances
force her to, the fact of living in that country for over a year outweighs that
desire.45 It appears that the subjective arguments of lack of connection
with the country or a wish to leave will not prevent habitual residence
from being acquired. In Re A46 the children of a family posted to Iceland
by the US airforce were found to be habitually resident in Iceland
notwithstanding that they would not stay in Iceland beyond their posting
and had no connection with Iceland other than a physical presence. The
mother had tried to argue that the Icelandic airforce base was "little
America" in order to avoid the conclusion that they were habitually
resident there. She proved that they rarely left the base even to shop.
Indeed, schools, housing and other facilities were all provided for by the
airforce in the base compound. Nevertheless, the children's habitual
residence was to be determined purely by reference to the objective fact
of them remaining in Iceland for two years.47 It is interesting to investigate
the position of who is a prisoner or whose stay in a country is completely
involuntary or enforced in some way. One could argue that whatever the
circumstances of someone's residence in a country, once that person has
lived there over a year, notwithstanding the lack of voluntariness of their
residence becomes an objective fact. It cannot very easily be said that such
a person is "resident" anywhere other than that country. On the other
hand, the courts seem to accept, at least obiter, that the complete lack of
voluntariness in such cases precludes any settled intention or voluntary
intention to remain.48 This exception undermines any suggestion that
there is a point at which the question of habitual residence can be
completely objectively determined. It adds to the uncertainty of the
results in the cases as the matter of "voluntariness" is a question of

45. M. v. M. [1997] 2 F.L.R. 263. It was found that the family only went to and remained in
Scotland after leaving Spain in order to earn enough money to live in England. Having lived
in Scotland for two years, the propositus was found to have been habitually resident in
Scotland notwithstanding that she only went to Scotland reluctantly and never wanted to
stay there.
46. [1996] 1 F.L.R. 1.
47. Such a rule has the obvious benefit of clarity and certainty but it is inflexible and there
is always the possibility of inappropriate conclusions resulting from it. In Re A by deciding
that the children were habitually resident in Iceland all that happened was that the Icelandic
courts would have been given jurisdiction. However, on the facts those courts were not. It
must be arguable, however, as a connecting factor in a choice of law rule whether habitual
residence would have been satisfactory. Would Icelandic law have been appropriate given
the lack of real connection between the children and Iceland and their strong connections
with other countries?
48. R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309 at p.344.

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JANUARY 2000] Habitual Residence 95

degree. For example, the court's conclusion in Re A w

abroad on non-active service do acquire habitual r
are posted, as it is no different from a business
abroad on business. Joining up to the armed force
employed by an international firm are the same.
argue that one does not voluntarily reside where sent
However, the court made it plain that soldiers on
acquire habitual residence where they are sent. It m
just as one accepts that a posting abroad is pos
employment with an international firm so a person jo
aware that they may be posted abroad on active se
knowledge of the possibility of a foreign posting
acceptance of employment where a foreign posting is
one denying the acquisition of a habitual residence
a public policy explanation for this particular result a
involve being part of an occupying force and therefo
issues. Nevertheless, the exception shows that even "v
an entirely clearcut rule.
Other cases show, however, that even if the presenc
for a very specific reason one can still be found to be
that country. This is so even though that reason o
limited period of time if in the event one stays for l
Kapur v. Kapur is usually cited as authority for this p
it is not quite watertight. There was plenty of eviden
wanted to remain in England for longer than his a
was passing the bar examinations and indeed had been
That case can be contrasted with another first instance decision in Re S
(Minors) (Child Abduction: Wrongful Retention)so where habitual resid-
ence in England was not acquired because the parents were only in
England for a limited period of one year. The difference may be explained
by the evidence in Re S that the parent had returned to Israel, so it was
proven that he did not intend to reside here. Also, by the fact that in Re S.
the period of time in which habitual residence had to have been acquired
was only six months. We have seen that the objective fact of remaining for
a longer period can outweigh any intention of the propositus. Likewise, a
restricted right to remain in a country due to immigration controls is
insufficient to prevent habitual residence being acquired where one has
again actually resided for over a year."' This can be contrasted with the
position where the residence in England is unlawful (due to some breach
of immigration rules) then the propositus cannot rely upon that unlawful

49. Kapur v. Kapur [1984] F.L.R. 920.

50. [1994] 1 F.L.R. 82.
51. Kapur v. Kapur ibid.

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96 International and Comparative Law Quarterly [VOL. 49
residence to establish habitual residence.52 This result can only be
explained on the basis of public policy as in such circumstances it is clear
that the propositus has a settled intention to remain here. Cases in which
residence has continued for a year or more must make up the great
majority of likely disputes, but are unlikely ever to need the attention of
the courts as the result is certain.
At the other end of the spectrum where the stay in a country has either
been short or where the person has been staying in two or more countries
the objective fact of presence is less determinative. As was argued earlier,
most of the difficult cases are decided by reference to the person's
intention to make a country his or her "home". This qualitative,
subjective notion of a home has to be circumscribed by legal rules in order
to give the rules some stability and certainty. Without the legal rules the
uncertainty requires more judicial decisions as each case would have to be
decided ad hoc on its particular facts. It is for these reasons that the
earnest desire to keep the concept of habitual residence free of judicial
intervention is misplaced and impossible in practice.

III. HABITUAL RESIDENCE COMPARED WITH OTHER TYPES OF

RESIDENCE

HABITUAL residence is a relatively new concept in English do

Ordinary residence has a much longer pedigree. It might be inte
look at the development of ordinary residence to see if the
indications for habitual residence. There is some debate whether these
two are different or not.53 On the one hand, there is a more than semantic
difference between "habitual" and "ordinary". One could argue that if
something is habitual it is more consistent and more long-lasting than
merely being ordinary.54 Also, it only makes sense for Parliament to use
"habitual" instead of "ordinary" if the words have a different meaning.
On the other hand, "residence" implies that it is part of one's ordinary and
habitual life so the two merge. There is also English and European
caselaw which indicates that there is no difference in result between

52. R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309 at p.343.
However, the propositus may still be liable to tax as being ordinarily resident her
notwithstanding the unlawfulness of his residence (R. v. Secretary of State for the Home
Department, ex p. Margueritte [1992] 3 All E.R. 909). The different result in the tax cases
being an example of the different policy issues. That proves the argument that notwithstand-
ing what the courts may say there are indeed different meanings of residence and also that
the different purposes of the statutes using habitual residence lead to those differen
meanings.
53. Lord Slynn did not decide this point in Nessa v. Chief Adjudication Officer [1999] 1
W.L.R. 1937 at 1941 although he did not think that the two were synonymous.
54. Lane J. in Cruse v. Chittum drew a parallel between the acquisition of a habitual
residence and domicile of choice to show that ordinary and habitual residence are not the
same ([1974] 2 All E.R. 240 at p.243).

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JANUARY 2000] Habitual Residence 97
habitual, ordinary and plain simple residence. In Hopk
the judge said that the adjective "ordinary" adds noth
"residence". In Swaddling v. Chief Adjudication Offic
Court of Fifth Chamber held that "residence" in Article 10a of
Regulation No. 1408/71 meant "habitual residence" and had a communit
wide meaning. The court went on "In that context, account should b
taken in particular of the employed person's family situation; the reasons
which have led him to move; the length and continuity of his residenc
the fact (where this is the case) that he is in stable employment; and h
intention as it appears from all the circumstances". This description
would cover mere residence, ordinary and habitual residence in Englis
domestic law. However, the ECJ would not accept that a certain
minimum appreciable time was necessary to establish residence o
habitual residence. This finding is in stark contrast to Lord Slynn's
Opinion in Nessa v. Chief Adjudication Officer which upheld th
minimum appreciable time requirement as a necessary part of estab-
lishing residence as "habitual".56 No particular minimum time has been
required to establish ordinary residence in this country so the "apprec
able time" requirement is the only possible distinguishing featur
between ordinary and habitual residence. At the domestic level, as in the
European context, there is some evidence that there is no differenc
between residence, ordinary or habitual residence. In M. v. M. the Cour
of Appeal held that ordinary residence and habitual residence were
subject to the same rules. Millett LJ said "there cannot be any practica
distinction between the more traditional concept of ordinary residenc
and the more fashionable concept of habitual residence for the same
requirement that the residence should be habitual, that is to say voluntary
and settled, is present in both."57 It is possible to argue that over time th
various forms of residence tend to overlap and converge, but there is
danger in this. There is a great deal of caselaw, particularly taxation cases,
on the meaning of ordinary residence. Like habitual residence the courts
have reiterated that ordinary residence is a matter of fact,58 and that the
words have a natural meaning.59 Notwithstanding those sentiments th

55. [1951] P. 116 at pp.121-122.

56. Contrast the dissenting judgment of Thorpe L.J. in the Court of Appeal [1998] 2 Al
E.R. 728, at p.737.
57. [1997] 2 F.L.R. 263 at p.273. See too Butler-Sloss LJ's judgment.
58. Reid v. I.R.C. (1926) 10 T.C. 673 at p.681. The courts can only therefore upset th
decision of the Commissioners in very limited circumstances.
59. R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309.

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98 International and Comparative Law Quarterly [VOL. 49
cases concerned with ordinary residence require some degree of perma-
nence60 and of voluntarily choosing to remain in a country,61 which may be
broadly analogous to "an appreciable time" and "settled intention" relied
on by habitual residence. The analogy is striking in the definite similarities
between habitual residence's "appreciable time" and ordinary resid-
ence's "permanence". The results of the determination of residence in
both cases are very contradictory and depend on other factors for
explanation. Some tax cases both on residence simpliciter and on ordinary
residence show that the degree of permanence necessary can be very
slight indeed. In Commissioners of Inland Revenue v. Lysaght a taxpayer
was found to be ordinarily resident in the United Kingdom. This was
notwithstanding the fact that he had sold up his home here and gone to
live in Ireland. He returned to the United Kingdom fairly regularly and
stayed in hotels for one week in four but spent the rest of his life in Ireland
at his home which was clearly, a fortiori, his ordinary residence.62 This
followed the companion case of Levene v. Commissioners of Inland
Revenue in which someone who had sold up his home in England and
went to Monaco where he stayed in a series of hotels but returned to
England for periods of time amounting to about five months a year was
also found to be ordinarily resident here.63 The results of both cases are
slightly surprising at first sight, particularly Lysaght, and quite unsuitable
for allocation of jurisdiction to the English courts but even more so for
choice of law. Nevertheless, these tax cases may possibly be explained.
First, in neither case had the propositus done quite enough to shake off
entirely a residence that had given rise to a liability to tax that he had
already acquired in this country. Secondly, the House of Lords were at
pains to hold that these were questions of fact, and having done so could
not upset the decisions of the Commissioners. In contrast, in the more
recent case of Goodwin v. Curtis64 the Court of Appeal held that a man
who owned only one house in which he lived and slept for five weeks
before completion of its sale was not ordinarily resident there for
purposes of claiming exemption from Capital Gains Tax. The court held
that his residence there was insufficiently permanent, being merely
temporary. It was certain that the taxpayer would be leaving that
residence at the end of five weeks but the result is that for those five weeks
he was not ordinarily resident anywhere. The cases could be reconciled on
the basis that in Goodwin v. Curtis the stay in that house was for a

60. Brokelmann v. Barr [1971] 2 Q.B. 602, 611-2. In other cases this "permanence" has
been described as for "settled purposes", see R. v. Barnet London Borough Council, ex p.
Shah [1983] 2 A.C. 309.
61. R. v. Barnet London Borough Council, ex p. Shah [1983] 2 A.C. 309.
62. [1928] A.C. 234.
63. [1928] A.C. 217.
64. [1998] S.T.C. 475.

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JANUARY 2000] Habitual Residence 99

duration which was limited at the time it commen

was a regular if shorter stay on each occasion. The con
those cases may be unattractive as the line betwe
(which is sufficient to establish habitual or ordin
temporary one (which is not sufficient to qualify
residence) is rather difficult to draw. However, on
the habitual residence cases where a limited purpos
sufficient, one can see that the stay had been for a re
than five weeks, usually for at least six months.65 The
much closer to the line where the objective fact of re
for a long time takes over from the subjective in
Nevertheless, the result of Goodwin v. Curtis un
lacuna when one might be without an ordinary or,
residence. For choice of law purposes this lacuna wo
If the rules on habitual residence and ordinary
more then it will have to be accepted that it is possib
one habitual residence as well as none. Also, that h
be established by shorter periods of time than even e
are several short periods over a longer time. Habit
even less suitable as a connecting factor for choic
possible governing laws creates conflict or gap
determinative of the issue in a case. The result would be confusion and
unacceptable uncertainty, particularly in commercial contracts where
certainty is relatively important.

IV. HABITUAL RESIDENCE AND DOMICILE

THERE are many statements in the courts that habitual resid

follow the law of domicile as Lord Donaldson said in Re J "th
is not to be treated as a term of art with some special m
However, we have seen that identifying one's habitual re
quite as straightforward as it appears at first sight. The u
decision in the cases where the propositus has remained in a c
than a year is exacerbated by the focus on subjective elem
inherently less precise. We argue that this is inevitable in
cases because they are indeed difficult cases. It may be salu
the fate of domicile. Some 140 years ago Lord Cranw
remarked that "by domicile, we mean home, the permanent h
you do not understand your permanent home I am af
illustration drawn from foreign writers or foreign langu

65. Kapur v. Kapur [1984] F.L.R. 920 (resided in England over a yea
remain here longer).
66. [1990] 2 A.C. 562 at p.578. See too, Re M. (Abduction: Habitual Res
F.L.R. 887 at p.896.

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100 International and Comparative Law Quarterly [VOL. 49
much help you to it."67 Since that time the concept of domicile as one's
permanent home has become so overlayered with legal rules as to be
subject to coruscating criticism by Lord Scarman among others. In R. v.
Barnet London Borough Council, ex p. Shah he noted "The long and
notorious existence of this difficult concept in our law, dependent upon a
refined, subtle, and frequently very expensive judicial investigation of the
devious twists and turns of the mind of man."68 Indeed domicile has been
considered such a tortuous concept that it has provoked the reforming
zeal of the Law Commission. At that point the Law Commission did not
adopt habitual residence as an alternative as being too indeterminate,
preferring to change the more unacceptable rules of the law of domicile.69
Nevertheless, given the history of the development of the rules on
habitual residence over the past decade, it does not take too much
imagination to foresee a time early in the next millennium when similar
sentiments could be applied to habitual residence. For it is in the very
nature of the common law to have to decide cases which are at the
borderlines even with a rule which is generally very clear. It is then
impossible for legal principles not to evolve from this inevitable accretion
of decisions in these marginal cases and some contradictory or artificial
consequences result. If habitual residence is to retain its appeal as a
concept with a factual, objectively ascertainable basis then the courts will
have to bear this in mind. In particular it may be as well to reiterate that in
many cases (such as those in which the propositus has remained in a
country for more than a year) the objective fact of remaining becomes
almost conclusive.
There are already some parallels with the rules of domicile which can
be drawn and this trend has been noticed by the Court of Appeal.70 There
is an obvious overlap between the two as "residence" is a common factor.
The editors of Dicey & Morris argue that little more than presence is
necessary to establish domicile but go on to cite many of the tax
authorities on residence.71 The focus in domicile tends to be placed upon
the intention to remain permanently or indefinitely and, as we have seen,
the settled intention to reside is also a consideration in establishing
habitual residence. Another example of a similar rule can be seen where
in order to be habitually resident one must be present in the jurisdiction at
the same time as having a settled intention to remain here.72 This has clear
resonances with the rule in domicile that one must acquire the factum and

67. Whicker v. Hume (1858) 7 H.L.C. 124.

68. [1983] 2 A.C. 309 at p.345.
69. Law Commission Report No.168 on the Law of Domicile (1987).
70. Nessa v. Chief Adjudication Officer [1998] 2 All E.R. 728 at p.737.
71. Dicey & Morris: The Conflict of Laws at pp.126 et seq.
72. Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887.

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JANUARY 2000] Habitual Residence 101

animus manendi at the same time.73 Nor can habitual resi

wanting to leave the present residence but not actually
other hand, just like losing a domicile of choice, habitual
lost in a day by leaving a country with no intention t
dominance of the domicile of origin or one's "real hom
the fact that it is easier to obtain a habitual residence in a
one has already resided.76 Similarly in the law of do
difficult to shake off a domicile of origin.77 The most m
between the two concepts comes in the treatment of thos
the propositus has an intention to remain in a countr
particular purpose or for a specifically limited time. T
prevent a domicile of choice from being acquired,78 bu
prevent a finding of habitual residence.79 However,
largely a matter of degree.

V. HABITUAL RESIDENCE AS A CONNECTING FACTOR FOR CHOICE OF

LAW

IT is quite probable that the concept of habitual residence will be a

for other Hague Conventions both for allocation of jurisdiction
connecting factor for choice of law. However, exporting a con
which the caselaw has been decided for the purpose of jurisdiction
concept for locating a legal system to decide a case can have un
consequences. Both for the concept itself (which may have to m
take account of the different purposes) and with possibly di
results in locating an inappropriate law. The role of a connectin
for choice of law is rather different from that for jurisdiction. W
matter is one of jurisdiction an English court has to decide w
someone is "habitually resident" in England and need not conce
whether that person is additionally "habitually resident" else
Therefore, someone might be habitually resident in two places or
jurisdictional cases it matters little that two courts have ove
jurisdiction. It is more of a problem that no court has jurisdiction
claimant cannot vindicate his rights and the defendant can a
impunity. It was argued earlier that the courts have said that
residence, like ordinary residence, has a plain and natural mea
that therefore one cannot argue that there is a different defi
habitual residence depending upon the statutory purpose for which

73. Bell v. Kennedy (1868) L.R. 1 Sc. & Div. 307 at p.319.
74. Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887.
75. Re J. (A Minor) (Abduction) [1990] 2 A.C. 562.
76. Nessa v. Chief Adjudication Officer [1999] 1 W.L.R. 1937 at 1943.
77. Winans v. A.-G. [1904] A.C. 287 at p.290.
78. Udny v. Udny (1869) L.R. 1 Sc. & Div. 441.
79. See text to nn. 48-50 above.

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102 International and Comparative Law Quarterly [VOL. 49

adopted. Nevertheless, it is worth reiterating that the tax cases in

particular amount to a special corpus of law and that it may not be
advisable to follow their results wholesale for different purposes.
Adopting the conclusions of these cases for determining habitual
residence could lead to some very unfortunate results. Importantly, the
policy underlying the various taxes might lead in a different direction
from the policies underlying matters of jurisdiction and even more so
from choice of law. The court in interpreting a tax statute may wish to
prevent tax evasion and so to make the concept of residence as wide as
possible. Some evidence of this can be found: as Viscount Sumner notes in
I.R.C. v. Lysagh8? "A man is taxed where he resides. I might almost say he
resides wherever he can be taxed". It is also apparent from the companion
case of I.R. C. v. Levene"8 that it is much more difficult to prove that one
has no ordinary residence. The cases following Lysaght indicate that very
little connection is needed to acquire an ordinary residence in order to be
liable to taxes of various kinds in this country. There is therefore an
imbalance in the way in which the rules operate which is inappropriate for
choice of law purposes. Although choice of law rules must lead to a
suitable law to determine the issue, they should be neutral as to which
particular law chosen. It was also explicitly held in Lysaght that it was
possible for someone to have two ordinary residences at the same time.82
Of course, the English court need not concern itself overly with these last
points where all it is determining is a question of liability to tax in
England. However, there are more powerful comity and other public
policy questions at stake if the court adopts wholesale the ordinary
residence rules for habitual residence. It would be extraordinary to argue
that the English courts had jurisdiction to determine the care of any child
of Mr Lysaght, based upon his habitual residence here. It would be even
more astounding to suggest that a consumer contract entered into by Mr
Lysaght should be governed by English law, particularly if the alternative
were to be Irish law. The point is not entirely satisfactorily answered by
the argument that secondary rules would be developed to establish one of
these habitual residences as the one to govern such questions. It would be
clearer and more logical to have rules which determine a single habitual
residence as that is what a choice of law rule requires. Certainty in
advance of any litigation is an important and often overlooked require-
ment of a choice of law rule, especially for contractual matters. One way
of achieving this would be to end the pretence that "habitual residence" is
capable of a single meaning regardless of the context in which it is used.
Another reason to be wary of the tax cases is because the entire tax system

80. [1928] A.C. 234 at p.245.

81. [1928] A.C. 217.
82. [1928] A.C. 234 at p.245.

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JANUARY 2000] Habitual Residence 103

is geared around years of assessment. Although th

ordinary residence at any point in the year is sufficient
tax83 it is clear that the proportion of time within a par
important factor.84 It may be that an explanation of th
Goodwin v. Curtis is that in relation to a tax year of 36
too few to justify being described one's main residence.
no necessity to reside within specified beginning and en
other cases not concerning liability for tax.
It is also apparent that the cases allocating jurisdict
Convention on Child Abduction raise very particular po
example, the special rules preventing one parent
changing a child's habitual residence reflect the ne
handedness between parents. This policy overrides wher
otherwise be said to be habitually resident." Also, th
described as litigation of a sui generis nature; neit
inquisitive.86 The courts have said that they need a
solution." The cases which are deciding whether so
resident in England in order that the court may take ju
be decided at an early stage of proceedings and as eff
usually on affidavit evidence alone without much argum
connections of the child to the jurisdiction in order to
that country forum conveniens are what is importan
which the Hague Convention on Child Abduction w
application for return of an abducted child almost imm
child's removal. Therefore a court may have to mak
child's habitual residence within weeks of a change
the parties' residence in the preceding period may
either as a result of or as a cause of the family break u
McEleavey point out, there is no reason to disallow
residences.89 Flexibility and therefore uncertainty
dictability in the rules allocating jurisdiction can be
purpose and are even desirable in these special circum
is ensuring the best outcome after the event. Although
cases may also have to be decided quickly it is much mo

83. Davies, Booth's Residence, Domicile and UK Taxation (Butter

1997) para.2.05.
84. For example, see the method of assessment of the time M
country in the years 1920-24 [1928] A.C. 217 at p.220.
85. See for example D. v. D. (Custody: Jurisdiction) [1996] 1 F.L.R.
Jurisdiction) [1995] 1 F.L.R. 767.
86. Re N. (Child Abduction: Habitual Residence) [1993] 2 F.L.R.
87. Re B. (Minors) (Abduction) (No.2) [1993] 1 F.L.R. 993.
88. Re F. (A Minor) (Child Abduction) [1992] 1 F.L.R. 548.
89. Beaumont and McEleavey, Hague Convention on Internat
pp.90-1.

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104 International and Comparative Law Quarterly [VOL. 49

interval between the cause of action arising and the issue of the writ will
be longer and more settled. It is habitual residence at the time of the issue
of the claim form which will be important for jurisdiction. However,
choice of law rules need to be more certain. It is often important to be able
to know in advance which system of law's rules will apply in order to
prevent litigation. Adopting rules developed in the special circumstances
either for taxing statutes or for the Hague Convention on Child
Abduction would lead to unworkable results. In cases concerned with
choice of law, it is very important that a single legal system is identified, no
more and no less. If two legal systems are identified, we have to have
further rules to choose between them if they give a different result on the
facts of the case. If no legal system is identified there is no answer to the
problem raised by the particular case.
Might it be possible to solve these difficulties? Certainly for jurisdiction
and similar purposes the use of rebuttable presumptions such as that
found in s.41 of the Civil Jurisdiction and Judgments Act 1982 provides
more certainty in many of the difficult cases without sacrificing flexibility
unduly. Such a presumption would not answer the problem of overlap-
ping habitual residences nor that of gap where no habitual residence can
be found. For choice of law it is imperative that the lacuna in the present
rules is avoided. It was, after all, because one could never be without a
domicile that the doctrine of revival of one's domicile of origin was
necessary. That doctrine came in for particular reproach, but none of the
alternatives uniquely answers the difficulty either. This would also be true
in the case of habitual residence. If someone has left a country taking all
their belongings with absolutely no intention ever to return there but at
the same time has to be habitually resident somewhere. Either leaving
their old habitual residence unchanged or giving them a habitual
residence in the country to which it is believed that person intends to
make his or her home is artificial.90 The former residence has been left
behind definitively and it is because one cannot conclusively determine
the new habitual residence that the problem arises. Such a rule will also be
uncertain for the same reason. It might be possible to compromise on
some rule such that habitual residence must be acquired after a fixed
period of remaining in a country (such as three months) and an old
habitual residence continues for the same period after having left a

90. Although in some cases the intention may be sufficiently clear, see Macrae v. Macrae
where Somervell LJ said "Ordinary residence is a thing which can be changed in a day. A
man is ordinarily resident in one place up till a particular day. He then cuts the connection he
has with that place-in this case he left his wife; in another case he might have disposed of his
house-and makes arrangements to make his home somewhere else. Where there are
indications that the place to which he moves is the place which he intends to make his home
for at any rate an indefinite period, then, as from that date he is ordinarily resident at th
place to which he has gone." ([1949] 2 All E.R. 34 at pp.36-7).

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 JANUARY 2000] Habitual Residence 105

previous residence unless a new habitual residence

The compromise would increase certainty but would
That artificiality is a price possibly worth paying even
case of the perpetual itinerant.
There will have to be some rules to enable discrimination between
habitual residences where two or more habitual residences have been
found. This problem has been addressed in I.R. C. v. Plummer91 in relation
to domicile. In that case Hoffmann J looked to the chief residence (o
two) to determine where the propositus was domiciled. He followed th
domicile case of Udny v. Udny in which Lord Westbury defined a domicile
of choice by reference to a man's sole or chief residence. The result in tha
case could be criticised as the chief residence was held to be England
where the propositus was at school and university, rather than where she
spent her holidays and on the evidence intended to live once she had
finished her education. One could argue that the propositus had much
more voluntary settled intention to "reside" where her family lived rathe
than where she was boarding at school. Although education has been seen
to be a settled purpose giving rise to a habitual residence, in no case h
merely being at school in another country been sufficient of itself to ma
that country the habitual residence.92 On the other hand being at school i
this country has been enough to found ordinary residence in th
country.93 Plummer was a case on liability to tax and therefore may have
been subject to special considerations.94 The difficulty lies in establishing
principles to decide which residence is the chief one. An arithmetic
solution based on the number of days (or nights) spent in each residen
might be attractive as simple to determine. However, one could only d
the sum after the event and within specific dates. This is not a suitab
method for determining a choice of law rule which needs to be clea
looking forward in time. It might also be open to manipulation by th
propositus. If other principles are used, such as some factors pointing
more strongly than others, there seems little reason not to adopt tho
principles in determining a single habitual residence from the beginning.
The danger in this approach might be that those principles become
determinative to the exclusion of objective facts. That would be especially
true as the principles are likely to be focused on the intention of the
individual to make a particular place his "home", as happened i
Plummer. Again, in deciding these difficult cases of dual or lack of
habitual residence the court will have to reiterate that the decisions are

91. [1988] 1 W.L.R. 292.

92. For a case holding explicitly that being sent abroad to school was not of itself sufficient
to acquire a new habitual residence in the country of the school see Re A. (Wardship:
Jurisdiction) [1995] 1 F.L.R. 767.
93. Miesegaes v. I.R.C. (1957) 37 T.C. 493 at p.500.
94. For example, the propositus spent more days in each year in England.

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106 International and Comparative Law Quarterly [VOL. 49

not of general application so that habitual residence does not follow the
same path as domicile.
VI. CONCLUSIONS

THE domestic rules determining one's habitual reside

reasonably well in most circumstances. Although there
uncertainty in cases in which the propositus has been residin
less than a year, this is inevitable. It is impossible to remove
subjective element which is inherent in the whole concept of
rather than mere "presence". Habitual residence seem
successful in allocating jurisdiction and is very likely to be ad
basis of jurisdiction for the Hague Conference on Private
Law's new Convention on International Jurisdiction and F
ments in Civil and Commercial Matters. This might lead
different problem from that of dual or lack of habitua
decided by a single State's courts. Unless all states def
residence" in the same way, there will be obvious cases o
jurisdiction between States. For example, if a defendant is
State A to be habitually resident in State A and by State B to
resident in State B, both States will have jurisdiction
Convention. Similarly a gap of jurisdiction is possible, say, if
is considered to be habitually resident in State B by State A a
by State B. The overlap could be answered by rules on lis alib
in the Brussels and Lugano Conventions on the same sub
possibility might be to use some device similar to that used i
relation to the domicile of corporations.95 The issues of
jurisdiction and lack of jurisdiction should be addre
Convention.
There are perhaps insurmountable disadvantages in adopting the
habitual residence rules for choice of law as opposed to jurisdictional
purposes. In particular, the rules are not well adapted to choose a single
place nor to avoid gap. Whether there should be any more assimilation of
the ordinary residence rules into habitual residence probably needs more
careful consideration by the courts. The ordinary residence rules raise
further complexities if they were to be adopted for choice of law purposes,
as they easily lead to two or more concurrent ordinary residences. Also,
the flexibility of the rules may be unsuitable for choice of law where
certainty in advance is important. In addition, the possible appropriate-
ness of the habitual residence in certain cases can be questioned. The tax
cases and those on the Hague Convention on Child Abduction may have
such distinct functions as to make the habitual residence rules for those
purposes not generally applicable. It is difficult to see exactly how the

95. Civil Jurisdiction and Judgments Act 1982, ss.42(7), 43(7).

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JANUARY 2000] Habitual Residence 107

courts can backtrack from their pronouncements that

has a singular meaning regardless of statutory context
a single habitual residence suitable for choice of la
achieve these ends is likely to lead to more detailed rul
of artificiality or inflexibility as has been evidenced by
It is therefore important, even in jurisdiction cases,
explicit in the reasoning adopted in each case and b
purposes of the concept of habitual residence.

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