07th Apr 2020

The Legal Status of Children – Part 2

By James Pirrie

In Part 2 of this blog series (part 1 found here), we revisit the legal status of children, looking at how the legal status of children is affected by the concepts of:

  • Nationality
  • Domicile
  • Habitual residence

Just to make it more challenging:

  • Whilst Nationality references the nation (the United Kingdom)
  • Domicile and Habitual Residence relate to jurisdiction – a legal territory – in this case with the parties travelling from various parts of inner London to the delivery rooms at University College Hospital, “England and Wales” (usually shortened to E&W)

Nationality goes to immigration: different jurisdictions deal with the point differently but in the UK, because Dee was born in the UK and at least one of her parents was British, Dee is British too.

Domicile is the jurisdiction to which, ultimately, we are connected (we may be based for work in the UAE for 2, 5 or 10 years but we ultimately intend to come back to Norfolk … E&W is our domicile.  Habitual Residence is the jurisdiction in which we are based at any one time with a degree of permanence (UAE in the above example).

These concepts matter in relation to certain types of legal obligation for example domicile in England and Wales is crucial as regards making a claim against our estate if we die (s1(1) Inheritance (Provision for Family and Dependants) Act 1975).

The rules are that:

  • A child takes
    • Generally the Domicile of her father, unless:
    • As here, the father was not married to the mother at birth, in which case it is the mother’s domicile that the child ‘adopts’.
    • (This is called a domicile of dependence and will follow any change of her parents’ domicile until replaced by her own choices as regards her permanent base once she is over 16).
  • Dee is clearly habitually resident in E&W and this matters because:
    • She cannot be moved from this jurisdiction (save for holidays) without the agreement of any persons with parental responsibility unless she has the permission of the court.
    • As seen above, if Bea seeks to take her out of the UK [yes, now we have reverted to concepts of nationality] permanently then she commits a criminal offence.
    • It is the courts of England and Wales that will be making any decisions about Dee’s welfare if there is a disagreement about them. (Council regulation (EC) no 2201/2003 & Family Law Act 1986).

In part 3 of this blog series, we look at what happens when a child becomes ‘a child of the family’ and the financial claims that can be made by the Bea, the mother against Abe, her husband in respect of herself and her child.  

The author James Pirrie is a director at Family Law in Partnership. He specialises in complex financial issues and non-adversarial and cost-effective approaches to divorce and separation including mediation, arbitration and collaborative law. James helps clients to take control of the issues that affect them, clarifying priorities, exploring all the options and identifying the best way forward. For further details, please contact James at E: jp@flip.co.uk, T: 020 7420 5000 or visit James’s website profile here.