THE CONCEPT OF HABITUAL RESIDENCE Dr E. M. CLIVE THE JURIDICAL REVIEW 1997, Part 3 <* page 137> Dr Eric Clive analyses the nature of the statutory concept of habitual residence. He supports the view of the House of Lords that it is a simple concept to be applied by concentrating on the ordinary meaning of the two words and the facts of of the particular case; and he suggests that, in the interests of uniformity among countries, it should be kept simple and not be subject to additional "spurious legal propositions". Nature of the concept FN01 (a) A simple, non-technical statutory concept The attraction of the concept of habitual residence has always been that it is a simple, non-technical concept that can be applied directly to the facts of cases. It has been chosen as a connecting factor in many modern international instruments and statutes precisely because it is not like the common law concept of domicile. Habitual residence is a statutory concept. Some of the most important statutes in which it is used are derived from Hague Conventions. The Hague Conference has consistently refused to define "habitual residence" either positively or negatively -- for example, by providing that certain situations will not result in a change in habitual residence. This has been quite deliberate. FN02 The United Kingdom Parliament has Q130 failed to define the concept. It follows that it would be wrong to purport to lay down a series of legal propositions about the meaning of habitual residence. That would not only convert the concept into a technical legal concept like domicile but would also greatly increase the risk of the concept acquiring different meanings in different countries. It is encouraging to note that the English Court of Appeal has recently criticised judges of first instance for purporting to make habitual residence <* page 138> into an artificial legal construct. FN3 There may now be a good chance of getting back to the two fundamental propositions laid down by the House of Lords in the case of In Re J. in 1990. FN04 Lord Brandon of Oakbrook in that case said that the expression "habitually resident" is: "not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains." He also said that; "the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case". FN05 (b) A time-related concept Habitual residence is a time-related concept. The idea of residence in a place implies a certain passage of time. So does the word "habitual". There is no difficulty in this time-related aspect of habitual residence when the concept is used, as it sometimes is, in relation to a specified period of time -- e.g. one year's habitual residence as a basis of jurisdiction in divorce. FN06 However, the concept is also used very frequently in relation to a particular moment in time. Where, for example, was a child habitually resident immediately prior to a wrongful removal or retention? FN07 Where was a child habitually resident when a court assumed jurisdiction to deal with a question of parental responsibilities or rights? FN08 Where was a child habitually resident when a question arose as to whether A. or B. had parental responsibility or rights? FN09 When used in this way there is an implied reference to a period of time, although it is not inherently necessary that the period of time must precede the moment at which habitual residence is to be ascertained. As no set period is specified it has to be an implied reference to a rather vague period -- what some judges have referred to as an "appreciable period". FN10 <* page 139> The two elements in the concept The two elements in the concept of habitual residence are "residence" and the quality of being "habitual". (a) Residence "Residence" is not the same as physical presence. Dictionary definitions of "residence" refer to the place where a person resides or lives, a person's abode or dwelling. A person who lives on one side of a border and works on the other will regularly be physically present in one country but resident in another. A person can be present in a place as a tourist. or while in transit or for short-term business or professional or family purposes, without being resident there. However, there are borderline situations. A person who rents a holiday cottage for a fortnight and who is asked in the local shop "Where are you living?" might quite reasonably interpret the question as referring to his or her local and temporary residence and might quite reasonably give the name of the holiday cottage in response. (b) Habitual The chief sense of the word "habit" given by dictionaries is a settled disposition or tendency to act in a certain way. The word "habitual" has a corresponding meaning. FN11 In the present context the word "habitual" performs two functions. First, when there is a specified time for which habitual residence must endure, the word "habitual" makes it clear that the residence need not be continuous. Habitual residence can persist notwithstanding occasional absences. Secondly, the word "habitual" makes it clear that what is meant is not occasional residence, or some short-term, temporary residence. A holiday cottage might be a person's occasional residence or a person's temporary residence for a short time but it would not be his or her habitual residence. FN12 Similar functions could be performed by words like "ordinary" FN13 or "normal" FN 14 or "usual". FN15 <* page 140> The easy cases The cases where the concept of habitual residence can be applied quite easily are those where there is adequate geographical stability and adequate duration. If at the relevant moment a person has been living in one country apart from occasional short-term absences for a sufficiently long period then most ordinary users of language would say that he or she was habitually resident there. In such cases questions as to the purpose of the residence become irrelevant. They are pushed into the background by the brute facts of geography and duration. What is a sufficiently long period cannot, of course, be precisely defined but it is an interesting mental exercise to begin with a period of, say, 15 years and gradually work downwards until one begins to have hesitations and to feel the need for further information. By way of illustration here are some cases where the judges seemed to feel that there was enough duration to outweigh such factors as the temporary purpose of the residence. In Zenel v. Haddow FN16 the Lord Ordinary found that after 15 months a child was habitually resident in Australia notwithstanding averments that there was no settled intention on the part of the parents to remain in Australia. He said: "It seems to me that, while intention is undoubtedly a very important consideration, there must come a stage when the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place." This finding was upheld on appeal. In a recent Swedish case, Johnson v. Johnson FN17 the Supreme Administrative Court had to deal with a case where an American court had confirmed an agreement between the parents of a child that they were to have custody on an alternating basis -- just over two years with the mother in Sweden followed by two years with the father in the United States, and so on, with the father being given substantially shorter periods of custody in the later years. At the end of the first period in Sweden the mother retained the child in spite of an attempt by the father to use the Hague Abduction Convention to obtain return. The question was whether by that time the child had become habitually resident in Sweden. The Supreme Administrative Court had little difficulty in holding that she had. It noted that the child had been staying with the mother in Sweden for more than two years when the question of return became relevant and had adjusted to circumstances in the place where she was living. The fact that the stay in Sweden was initially intended to be limited in time did not prevail over the brute facts of location, duration and settlement. In the recent English case of Re A. (Minors) (Abduction: Habitual Residence) FN18 the question was whether children were, at a certain moment, <* page 141> habitually resident in Iceland where their father had been stationed as a U.S. serviceman on a military base. The family had been in Iceland for about two years at the relevant date. The court held that the children were habitually resident in Iceland. Their settled residence there prevailed over the fact that the father's posting was temporary and was expected to last only for some three years. In a case decided in September 1996 by the Quebec Court of Appeal it was held that children who had been in California for three years with their parents were habitually resident there. The court regarded the intentions of the parents as immaterial in a case such as this. FN19 The author of this article has not come across any case where a person has been found not to be habitually resident in a country where he or she has lived for a year or more. Less easy cases Where the period of residence is less than a year there are decisions both ways. Much depends on purpose or intention in this type of case and judges are much more likely to find that a temporary purpose for the residence prevents it from being habitual residence. For example, in one English case FN20 the parents of a child came to England from Israel on a year's sabbatical leave. After six months the question arose whether the child was habitually resident in England or Israel. It was held that the child was still habitually resident in Israel. In another English case FN21 it was found that a child who had been in Pakistan for less than a year for temporary educational purposes was not habitually resident there. And a family who spent two or three months in Michigan in transit between military postings probably did not acquire a habitual residence there. FN22 In a Scottish case in 1995 it was held that a child was not habitually resident in Scotland when the child had come to Scotland with his father for four months, during a trial separation between the parents. The understanding between the parents was that the father and child would return to Canada at the end of the four month period. A return ticket had been bought for that date. FN23 On the other hand an English court has held that a child who was sent from Canada to stay with her father in Minnesota for a school year was habitually resident in Minnesota when removed by her mother after some four months. FN24 It seems that when a person is living in a country for a temporary purpose <* page 142> and has been there for months rather than years it will depend on the circumstances of the particular case whether a habitual residence is acquired. FN25 Change of habitual residence. The most difficult cases on habitual residence are usually those where the question is whether there has been a recent change in habitual residence. In such cases, the element of adequate duration is absent or doubtful and it is necessary to have regard to such factors as purpose and intention. It is clear, first of all, that an existing habitual residence in a country is not lost by the mere fact of leaving the country for a temporary absence which is intended to be of short duration -- for example, for "a relatively short holiday". FN26 This is the conclusion at which one would arrive on the ordinary meaning of "habitual residence". On the other hand it seems equally clear that an existing habitual residence in a country can be lost immediately if the person in question leaves that country with the intention never to return. FN27 A person who has sold house and furniture and set off for a new life in another country would not be using words normally if he or she claimed to be still habitually resident in the old country. Purpose or intention is all important in such cases. A variant on the above case is the situation where a person is in another country for a temporary period and then changes his or her mind and decides to stay on a long-term basis. In such cases, provided the new purpose is a settled purpose, there would be an immediate loss of the old habitual residence. FN28 One of the most interesting questions in relation to the concept of habitual residence is whether there can be an immediate acquisition of a new habitual residence or whether there must always be a certain lapse of time before a new habitual residence can be acquired. What answer would ordinary usage suggest? Suppose that a family which has always been resident in Scotland moves to England for employment reasons. The intention is to move on an indefinite long-term basis. On the day of the move the furniture van comes and transports all the furniture to the new house in England. That evening the family move into their new home. Clearly they are no longer habitually resident in Scotland. Must it be concluded that they have no habitual residence or could it, consistently with the ordinary meaning of words, be said that they were habitually resident in England as soon as they moved into their new home? It seems to me that if they were asked where their permanent or usual or ordinary residence was they would reply that it was now in England. <* page 143> Habitual residence is a weaker concept than permanent residence and a similar concept to ordinary or usual residence. It therefore seems to me that it would be quite appropriate to regard England as the new habitual residence of the family as from the time when they take up residence in their new home with the settled purpose of living there on a long-term basis. There is always an implied reference to a stretch of time in the concept of habitual residence but it does not seem unreasonable in such circumstances to have regard to the time stretching ahead from the date of the move. The new home is the place where the members of the family now live, and the place where they have a settled disposition to live for an appreciable period of time. It is their new base -- their new centre of gravity. There are conflicting judicial views on this question. On the one hand there is a statement in the House of Lords, not necessary for the decision in the case, that a new habitual residence cannot be acquired in a single day but takes an appreciable period of time to acquire. FN29 That obiter dictum has been repeated parrot fashion in a number of later cases. On the other hand there are statements that no minimum period is required for the acquisition of a. new habitual residence. FN30 If those statements mean what they say FN31 then they are clearly inconsistent with the other view that a minimum period of appreciable duration is required. In one case the English Court of Appeal regarded a month as enough where there was a settled intention to emigrate. FN32 It was said in that case that: "The court should not strain to find a lack of habitual residence where on a broad canvas the child had settled in a particular country. FN33 It is legitimate on this view to ask whether, if a month is enough, a week or a few days or one day would not also be enough provided the move to the new country is not for a short-term temporary purpose. There is indeed a statement in a more recent English Court of Appeal case to the effect that at least in some cases a new habitual residence can be acquired immediately. FN 34 It now seems fairly clear that the original obiter dictum was unwise and unnecessary. It was unwise because, with the increasing importance of habitual residence as a connecting factor, it is not sensible to have a situation in which people are routinely without a habitual residence. It was unnecessary because it is not at variance with ordinary usage to say that a person who is living at a place other than for short-term temporary purposes who has a settled disposition to <* page 144> continue living there for an appreciable period, is habitually resident there even if he or she has only just arrived. Cases where there is no habitual residence A person may have no habitual residence. There may, as we have seen, be cases where an existing habitual residence has been abandoned but a new one has not yet been acquired. Even if, as has been suggested above, a new habitual residence can be acquired as soon as a new residence is established with the settled intention that it should be a long-term residence, there may still be cases where a person, having abandoned an existing habitual residence, is in transit to his or her new habitual residence. FN35 There may also be cases, at least in theory, where a person leads such an internationally nomadic life that he or she could not be said to be habitually resident in any one country. Cases where there are concurrent habitual residences It would seem to be possible for a person to have two. or more concurrent habitual residences. A retired person could quite easily have a flat in Edinburgh and a cottage in the English lake district and could spend equal amounts of time at both places. A child might spend alternate weeks or months with his or her separated parents. In such cases most ordinary users language would say that there could be two habitual residences. There are statements in Scottish cases to the effect that a person cannot have two habitual residences at the same time FN36 but these statements do not seem to be justified by statute or ordinary usage and are inconsistent with statements made in the House of Lords in relation to ordinary residence. FN37 The habitual residence of children Habitual residence continues to a primarily factual concept in the case of a child. The concept must be applied so far as possible in the same way as for an adult. There is no such thing as a dependent habitual residence. FN38 However, in those cases where intention or purpose is relevant -- for example, where it is necessary to decide whether an absence is intended to be temporary and shorterm -- the intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child's residence. This is <* page 145> not to introduce a legal technicality into the law on habitual residence, as is implied in one Scottish case. FN39 The technicality is already there in the law on decision making for children. Difficulties may arise where both parents have an equal right to fix the child's place of residence and where their intentions appear to differ. In some cases it may be possible to conclude on the evidence that in fact they had the same intention. FN40 If this is not possible and there is a genuine difference then the conclusion must be that there is no settled purpose or intention. The position is like that of an adult who cannot decide whether a move is short-term or long-term. In such a case the habitual residence would not be changed until a lengthy period of time had elapsed. It has been said in several British cases that where both parents have the right to fix the place of the child's residence, the child's habitual residence cannot be changed by one parent without the consent of the other. FN41 This type of statement seems inherently suspect. It has all the marks of the kind of technical legal rule which should not be imported into the law on habitual residence. FN42 Any such technical rule would have to be carefully qualified if it were not to lead to absurd results. Suppose, for example, that a child has lived for 15 years in a new country after a wrongful removal. It would be an abuse of ordinary language to say that the child had been habitually resident for all of that time in the country from which he or she had been removed and had not become habitually resident in the new country. There is no such technical rule in the United Kingdom statutes which use the concept of habitual residence. FN43 Indeed there is at least one statutory provision which clearly implies that a child's habitual residence can be changed by a wrongful removal. FN44 There is a provision in the new draft Hague Convention on Children which seems to carry the same implication. FN45 The truth of the matter, it seems to me, is that where both parents have the right to fix the child's place of residence and where they are not in agreement on that question, there is a lack of the type of settled intention which enables habitual residence to be changed quickly. Accordingly it will take a considerable period of time for a child to acquire a new habitual residence after a wrongful removal. <* page 146> Eventually, however, brute facts will prevail. FN46 This way of looking at the matter avoids the creation of an unjustified technical rule, and allows more realistic results to he reached in a wide range of cases. The newborn child If it takes a tract of time to establish a habitual residence then a newborn child does not have a habitual residence. But if that view is rejected then a newborn child born in the country where his or her parents have their habitual residence could normally be regarded as habitually resident in that country. Where a child is born while his or her mother is temporarily present in a country other than that of her habitual residence it does seem. however, that the child will normally have no habitual residence until living in a country on a footing of some stability. Involuntary residence It is sometimes suggested that involuntary residence cannot be habitual residence. FN47 There is, however, no trace of such a requirement in the statutes or the underlying treaties and it seems to be an example of just the sort of unnecessary technical accretion which the courts have otherwise condemned. It may be that it is an unfortunate carry-forward from tax cases on ordinary residence. FN48 It is good to see that the idea that involuntary residence could not be habitual residence was not supported in a recent Scottish case. FN50 It seems clear that as a matter of ordinary usage a person exiled to an island for a number of years, as in the case of Napoleon, would be said to be habitually resident on the island. FN50 Unlawful or precarious residence The mere fact that someone is lawfully resident in a country -- for example, because he or she does not have the correct immigration papers -- would not necessarily prevent the acquisition of habitual residence. It is the same with <* page 147> residence which, although not unlawful, is precarious -- because, for example, it is on a limited entry permit. If the unlawful or precarious residence continued for long enough the ordinary user of language would no doubt conclude that it had developed into habitual residence. FN51 The unlawful or precarious nature of the residence would however tend to prevent the rapid acquisition of a new habitual residence. It may also be the case that as a matter of public policy an unlawful resident would be prevented from founding on the unlawful residence in order to gain certain privileges or achieve certain legal results. FN52 Conclusion The House of Lords has stressed that habitual residence is a simple concept which should be applied by concentrating on the ordinary and natural meaning of the two words which it contains and on the facts of the particular law. It should not be embellished by technical rules. The thrust of this article is that the concept can and should be kept simple. The two words "habitual" and "residence" are quite capable of doing ail the work which is required of them without the addition of spurious legal propositions. This approach increases the chance of a measure of uniformity across countries. That is already important under the Child Abduction Convention. It will become even more important if the new draft Convention on Children which was concluded at the Hague in October 1996 is widely ratified. Footnotes ---------------- 01 Apart from treatments in the standard textbooks there are useful commentaries on the concept of habitual residence in Slone. "The habitual residence of a child". (1992) 4 Journal of Child Law 170; Crawford, "Habitual residence of the Child", 1992 J.R. 170 and Leslie, "Recent Scottish Cases on Habitual Residence", 1996 S.L.T. (News) 145. American cases are discussed in Silberman. "Hague Convention on International Child Abduction: A Brief overview and Case Analysis", (1994-95) 28 Family Law Quarterly 9 at pp. 20-24. 02 Attempts were made to include partial definitions of habitual residence in the new draft Hague Convention on Children (Convention on Jurisdiction. Applicable Law. Recognition. Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children) which was concluded on October 19, 1996. These attempts were rejected, partly because of difficulties with the actual amendments proposed and partly because it was considered undesirable to have special definitions of habitual residence for the purpose of only one Convention. 03 Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887 at p. 896 04 In Re J (A Minor) (Abduction; Custody Rights) [1990] 2 A.C. 562; [1990] 3 W.L.R. 492; [1990] 2 All E.R. 961 05 [1990] 2 A.C. at p. 578; [1990] 3 W.L.R. at p. 504; [1990] 2 All E.R. at p. 965. 06 See, e.g. Domicile and Matrimonial Proceedings Act 1973 (c. 45) s. 7 (jurisdiction in divorce based on habitual residence for one year prior to the commencement of proceedings). 07 See e.g. art. 3 of the Hague Convention on the Civil Aspects of Internatinall Child Abduction. 08 See e.g. Farnily Law Act 1986 (c. 55), s. 9. 09 See Children (Scotland) Act 1995 (c. 36) s. 14. Questions on the habitual residence of children become much more important internationally if the new draft Hague Convention on Children (see n. 1 above) is widely ratified. Under the draft Convention the habitual residence of the child is the primary ground of jurisdiction and the main connecting factor for purposes of applicable law. See articles 5 and 15 - 17. 10 See. e.g. In Re J. (A Minor) n. 4 above. [1990] A.C. at pp. 578-579, [1990]3 W.L.R. at pp. 504-505; [1990] 2 All E.R. at pp. 964-965. 11 In Dickson v Dickson, 1990 S.C.L.R. 692 Lord Caplan at p. 699 said that "By mere reference to the dictionary I am inclined to give 'habitutal' its particular meaning of 'customary' or 'normal'." 12 A point inade by Lord Caplan in Dickson v Dickson, above n. 11 at p. 698. "Whatever habitual residence may or may not be, it certainly does not embrace a period of extraordinary residence such as might occur during the course of a relatively short holiday." 13 See. e.g. R. v Barnet L.B.C. Ex parte Shah [1993] 2 A.C. 309 at p. 340; [1983] 2 W.L.R. 16; [1993] 1 All E.R. 226; Kapur v. Kapour [1984] F.L.R. 920; Cameron v Cameron 1996 S.L.T. 306 at p. 310. Care has to be taken, however, in drawing conclusions from cases on ordinary residence. "Ordinary" is sometimes interpreted by reference to its antithesis "extraordinary" and that is not necessarily helpful in relation to habitual residence. A residence undertaken for extraordinary reasons could well be or become a habitual residence. 14 See. e.g. Cameron v Cameron, above n. 13. at p. 313. 15 The concept of "usual residence" was used in the (now repealed) Marriage (Scotland) Act 1856. See Gray v. Gray; Cooke v. Taylor 1941 S.C. 461 (sailor who spent most of his life at sea had his usual residence at his parent's house in Scotland where he spent all his periods of leave; man working and living in England in lodgings did not have his usual residence in Scotland although spent his holidays at his parents house there). 16 [1993] S.L.T. 975; 1993 S.C.L.R. 873. 17 Judgment of the Supreme Administrative Court, May 9, 1996. [Case No. 7505-1995) -- kindly made available to me by Mrs Janicra Janeborg, Legal Advisor at the Ministry of Justice, Stockholm). 18 [19961] 1 All E.R. 24. 19 Benoit v Diab, September 27, 1996.(No 500-09-002645-968) (report kindly made available to me by Mme. L Lussier). 20 In Re S. (Minors) (Abduction: Wrongful Detention) [1994] 1 All E.R. 237 21 Re A. (Wardship: Jurisdiction) [1995] 1 F.L.R. 767 22 Re A. (Minors) (Abduction: Habitual Residence) [1996] 1 All E.R. 24 at p. 32. It was not, however, necessary to decide this question in the case. 23 Findlay v Findlay (N0. 2), 1995 S.L.T. 492 24 Re S. (A Minor) (Abduction) [1991] 2 F.L.R. 224. 25 See, Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887 at pp. 992-993. 26 See, e.g. Dickson v Dickson . n. 11 above. 27 See In Re J. (A Minor) (Abduction) [1990] 2 A.C. at p. 578; [1990] 3 W.L.R. at p. 504; [1990] 1 All E.R. at p. 965; Dickson v Dickson, 1990 S.C.L.R. at pp. 699 and 703. 28 See Re M. (Minors) (Residence Order: Jurisdiction) [1993] 1 F.L.R. 495. 29 In Re J. (A Minor) (Abduction) [1990] 2 A.C. p. 579 by Lord Brandon of Oakbrook. 30 See, e.g. Cameron v. Cameron, 1996 S.L.T. at p. 313. 31 They may not mean what they say. They may just be a loose and inaccurate way of saying that no fixed minimum period is required. 32 Re F (A Minor) (Child Abduction) [1992] 1 F.L.R. 548 33 At page 196 by Butler-Sloss L.J. The judge noted that it was important for the successful operation of the Abduction Convention that a child should have where possible a habitual residence as otherwise he could not be protected from abduction from the country where he was last residing. 34 Re M. (Minors) (Residence Order: Jurisdiction) [1993] 1 F.L.R. at p. 503 by Hoffmann L.J. The case which the judge had in mind was where a child came into a home which was already the habitual residence of the parent entitled to fix the child's place of residence. 35 An example is the period which the service family in Re A. (Minors) (Abduction: Habitual Residence) [1996] 1 All E.R. 24 spent in the United States of America while in transit between a posting in England and a new posting in Iceland. 36 Dickson v Dickson 1990 S.C.L.R. at p. 703; Cameron v. Cameron 1996 S.L.T. at p. 310. 37 Levene v. Inland Revenue Commissioners [1938] A.C. 217 at p. 232; R. v. Barnet L.B.C. ex parte Shah [1983] 2 A.C. at p. 342. 38 See Re M. (Abduction: Habitual Residence) [1996] 1 F.L.R. 887. 39 Rellis v. Hart, 1993 S.L.T. 738 at pp. 740 - 741. This case can be contrasted with Re M (Minors) (Residence Order: Jurisdiction) [1993] 1 F.L.R. 495. 40 See. e.g. Dickson v. Dickson, above n. 11 (mother said child had returned from Australia to Britain for a holiday; father said child had return for permanent settlement; father's account preferred); Re F. (A Minor) (Child Abduction), above n. 32 (father said move to Australia was for a holiday; mother said it was for emigration; mother's account preferred; 19 packing cases taken). 41 See e.g. Dickson v. Dickson, above n.11 at p. 703; Findlay v. Findlay (No. 2), above n. 23. 42 See Re M (Abduction: Habitual Residence) above n. 3 43 There is, however, a provision in the Ontario Children's Law Reform Act (R.S.O. 1990. s. 22(31) to the effect that the removal or withholding of a child without the consent of the person having cusrody of the child does not alter the habitual residence of the child unless there is acquiescence or undue delay in commencing due process. 44 Family Law Act l996 (c. 55). s. 41. 45 Art. 7, para 1. 46 For a finding by a German court that a child was habitually resident in Germany after 15 months notwithstanding an unlawful and attempts by one parent during that period to recover the child, see the decision by th OLG Dusseldorf December 16, 1983 (1 WF 336/83; Fam RZ 1984, 194, note F. W. Bosch). The Supreme Administrative Court of Sweden has said that while it would be contrary to the aims of the Hague Child Abduction Convention to recognise that a removal by parent against the will of the other could automatically change a child's habitual residence it would be equally contrary to those aims to regard such a removal as a permanent obstacle to the establishment of a new habitual residence. Decision of December 20, 1995 (No. 4936/1995). These decisons are summarised in Les Nouvelles Conventions de La Have: leur application par les juges nationaux, Vol. IV (1994) 69 and Vol. V (1996) 169. 47 See, e.g. R. v Barnet L.B.C ex parte Shah, above n. 13 at p. 344. 48 See Inland Revenue Commissioners v. Lysaght [1928] A.C. 234 at p. 243. 49 Cameron v Cameron, above n. 13 at p. 311. 50 The court in Cameron also gave the examples of Robinson Crusoe on his island or Nelson Mandela on his. 51 See R. v Barnet L.B.C. ex parte Shah, above n 13 at p. 342 52 See R. v Barnet L.B.C. ex parte Shah, above n. 13