Towards an autonomous concept of the child's habitual residence in the European and International Private Family Law

Abstract

The present work introduces a series of controversial issues related to the interpretation of the autonomous concept of habitual residence, in which specific legal instruments will play a leading role, mainly the Brussels II-bis Regulation and the 1980 Hague Convention, since, in particular, we will focus this study on the determination of the child´s habitual residence, a common aspect that both include and that none provide an accurate definition of this legal precept. The main issue will consist of the great difficulties the Courts face when identifying where the child habitually resides, a problem that arises even more in cases of international abduction. The case-law of the ECJ will play a key role in establishing a number of criteria that may determine a connecting factor in accordance with the interests of the child. On this basis, a comparison will be made with the habitual residence of the adult to clarify if we face the same issue under the same conditions.