The legal paradox of child’s habitual residence

How to uniformly understand a factual concept?

Abstract

In legal theory there have been several attempts at proposing a
definition and explain for this legal institute. The main significance of
this legal institute is that is a modern one and is not burdened by several
definitions. It is accepted that the determination of habitual residence is
a matter of facts, rather than legal definitions.
In fact, one of the main reasons why this institute has its “glory” over domicile is that there is a
need to avoid confusion, which has arisen due to an unclear
understanding of the circumstances, which primarily contribute to the
establishment or loss of domicile. As one commentary explains, "this
has been a matter of deliberate policy, the aim being to leave the notion
free from technical rules which can produce rigidity and inconsistencies
as between different legal systems.”
On the other hand there is a certain paradox, in all of the cases in
which there is a need to determine the habitual residence (especially in
common law countries), as they tend to define the subject as well as
create a list of factors, or circumstances, which will quantify to amount
to the creation or loss of habitual residence in a certain territory. These
circumstances, together with the absence of definitions in the Hague
Conventions, create space for a different understanding of habitual
residence before the courts of different legal systems. It is up to the law
of the forum to determine, in each factual situation, whether the parents
or child/children have habitual residence. The vast number of judicial
decisions allows for the proper understanding, and the correct
determination of habitual residence.