A Teleological and Child-Sensitive Interpretation
assessment, which looks broadly to the centre of gravity of a child’s life, the place
where the current centre of a child’s life is located. A detailed rendition of this
complex area of the law is not called for here; rather, a trifecta of interconnected
themes can be distilled, which assist understanding of the notion of a habitual
residence from a child’s perspective.
First, there has been widespread recognition by the courts that the effective centre
of a child’s life may, in certain instances, more usefully be expressed in terms of
persons, not territory. Scholars and courts have readily discerned that, in particular,
for young children, their primary point of contact is with their family environment
and respective caregiver or parent, as they are too young to acclimatise to their
broader social environment in country territory.113 The second related point is that
courts in various jurisdictions (while by no means consistent) have found in the case
of young children (predominantly infants) that their habitual residence inheres to
shared parental intentions as to the child’s residence and may follow that of a parent
despite that child never having resided on that territory, reflecting the reality that
young children primarily integrate into a social and family environment.114 As held
by the Court of Justice of the European Union in Mercredi v Chaffe:115 ‘as a general
rule, the environment of a young child is essentially a family environment,
determined by the reference person(s) with whom the child lives, by whom the child
is in fact looked after and taken care of’.116
The third point of guidance from the international family law context relates to
the notion of habituality. Given the distinct temporal and developmental
differences between adults and children, what is habitual to an adult may not be
habitual to a child. In the case of SK v KP,117 the New Zealand High Court
observed that, even if the ‘habituality’ in the notion of habitual residence can be
shortened for adults who are capable of making independent decisions, this would
not be appropriate for children because they simply cannot make such decisions.
Children need time to adapt to their surroundings. As young children do not have
the same independence or autonomy as adults, their habits and ties to a territory
will naturally take longer to establish.
Exactly how a child’s family environment, or more precisely, the parent–child
relationship, may inform the notion of a habitual residence in the context of
refugee status determination is explored in the following Part.
B
Shared Parent–Child Aspect as Conduit for Transference of Characteristics
The CRC, as the lead international convention on the rights of children, depicts
the close relationship between parent and child, where children are presented with
dual capacities, as both vulnerable persons in need of protection and as rights113 Mercredi v Chaffe (Court of Justice of the European Union, C-497/10PPU, 22 December
114
115
116
117
2010) 8–9 [52]–[54] (‘Mercredi’); Delvoye v Lee, 329 F 3d 330, 332–34 (3rd Cir 2003);
Aude Fiorini, ‘Habitual Residence and the Newborn: A French Perspective’ 6(2)
International and Comparative Law Quarterly 530.
Mercredi (n 113) 9 [53]–[54].
The Court of Justice of the European Union was called to give a preliminary ruling on the
question of the appropriate test to interpret the notion of a habitual residence in arts 8 and 10
of the Brussels II Regulation: Council Regulation (EC) No 2201/2003 of 27 November 2003
concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial
Matters and Matters of Parental Responsibility, Repealing Regulation (EC) No 1347/2000
[2003] OJ L 333/1.
Mercredi (n 113) 9 [54].
SK v KP [2005] 3 NZLR 590.
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