(1) Please provide a copy of paragraphs recorded in the current “Policies and Procedure Manual” which refers to the term “habitual residence” and its meaning in current and prior child support legislation.
The Child Maintenance Service consideration and guidance in relation to Habitual Residence is based on Commissioner Edward Jacobs’s interpretation of the case law and Commissioners decisions which have been made in the past.
Commissioner Jacob’s notes in Section 44 of the Child Support Act are not available to view on line they are only available in hard copies of the ‘Child Support The Legislation’ (ISBN 978 1 906076 993).
(2) Please provide a copy of any other recorded information about interpretation of the phrase “habitual residence” that is consulted by CMS case workers for example DWP / CMS protocols, standard operating procedures, guidance notes, policies, notes, training manuals, and/or similar documents.
Annex A contains Decision Making Guidance in relation to Habitual Residence.
The term ‘habitual residence’ is not defined in child support legislation and so should be interpreted in accordance with existing case law, which generally conveys that habitual residence is a regular physical presence for a settled purpose which lasts for an appreciable period of time.
Account should be taken of a person’s intention to follow a settled way of life in a particular place. A person does not have to be present in the UK all the time to be habitually resident. They may be habitually resident in more than one country, or in none.
There are no right or wrong decisions on habitual residence. It is possible for different caseworkers to attribute different significance to an individual factor and, even when all the factors are considered as a whole, the result will often depend on the individual caseworker’s impression, with the result that different caseworkers may quite properly come to a different conclusion on the same facts.
And if any party is unhappy with a habitual residence decision, they have the legal right to ask us to look at our decision again and to appeal against it.
They go on to say:
The caseworker will need to make a decision on habitual residence based on the information available to them and what they are able to obtain.
Deciding whether a person is habitually resident in the UK is a decision that a caseworker must make having considered all the facts available to them. It’s probably worth reiterating that there is no right or wrong decision on habitual residence even if a different caseworker or a tribunal would take a different view, what is important is that all the relevant facts are considered.
A Commissioner’s decision (CCS/1307/01) highlighted “that there is a margin of judgment in which different tribunals may legitimately analyse the same facts differently”.
Also, one adjudicating authority cannot change the decision of a person of the same level of authority unless the facts have been clearly interpreted incorrectly or new facts have come to light which were not previously available.
That’s an interesting guidance note for case workers. What it is broadly saying is that a case worker can make a decision and that irrespective of whether another case worker or tribunal would make a different decision then they’re safe from having their decision overturned by “a person of the same level of authority unless the facts have been clearly interpreted incorrectly or new facts have come to light which were not previously available”
We’ve bolded the words and phrases you need to take special notice of.
You need to take this part into account too:
Occasional presence should not be regarded as habitual.
To decide whether an absence is temporary the caseworker should look at the following:
1. the length of the absence
2. if and when the absence is likely to end;
3. the purpose of the absence;
4. the intention to return.
and then there’s this which ultimately sums up the intention behind the habitual residence legislation and guidance:
In a more recent Commissioner’s decision (CSCS/06/06), the Commissioner stated:
“While one cannot give general guidance because so much depends on the circs of each case … there must at minimum, in my view, be evidence that he has “burned his boats” with respect to continuing residence in this country; where, utilizing as analogous in reverse, the factors suggested by Lord Slynn in Nessa v CAO … the person leaving takes all his possessions, does everything necessary to establish residence in the new country before going there, seeks to take a family, already has “durable ties” to the new country of residence and severs ties with his former home, some or all of this may suggest he has ceased to be habitually resident in the latter country. Someone who goes abroad to take up a job without these sorts of indicators, however, would not, in general, lose their habitual residence immediately”
Reciprocal Enforcement of Maintenance Orders (REMO)
Reciprocal Enforcement of Maintenance Orders (REMO) is the name used in the UK for international claims for family maintenance, the process by which a person may claim financial support from an expartner living in a different country.
In the UK, the courts process REMO claims.
The UK has arrangements with more than 100 countries and territories that allow a person living in one jurisdiction to claim maintenance from an ex-partner living in one of those countries or territories.
For REMO information and a list of the applicable countries and territories view the UK government site here:
In a Family Law system designed for combative parents there is no real allowance for the views of children and any understanding of how Family Law ultimately impacts on children most of all.
We speak for the children in Family Law so that, finally, the children have a voice.