GLOBAL CHILDHOODS

Children belong to families, to communities, to nations and to the world, and sometimes these different types of belonging lead to conflicts. The reality of globalisation is that children's lives are dynamic: they move with their families, they move to join new families, and they move independently. They move with and without documentation or permission, in and out of countries where they hold citizenship. Sometimes children stay put while their parents move away, for work or for love, by choice or compulsion. As a result of this movement, a child's sense of identity and belonging may be layered and complex.

For international family law, the reality of children and families in motion creates two sets of problems. The first is addressed by conflict of laws rules on jurisdiction, choice of law, and recognition of judgments, which attempt to assign decision-making responsibility to one of the multiple places where a child has significant ties. In international cases, the Hague Children's Conventions rely on habitual residence as the primary connecting factor for assigning jurisdiction and for other purposes. This approach recognises that older notions of domicile and nationality are no longer adequate to define the connections between people and places. Yet the use of habitual residence has risks as well. It may tend to freeze the status quo, even for children and families with deeper ties to other places. There is the potential in these cases for the inquiry into habitual residence to become the whole analysis, defining where children will remain, rather than just its first step.

A second set of legal problems in these cases, less well explored, comes from the laws governing citizenship, immigration, and asylum that regulate cross-border movement. There may be considerable tension between the lived experience of children and their families and the hard realities imposed by these rules. This tension surfaces in immigration cases, but it is also a factor in parental responsibility and child abduction disputes. With its focus fixed on habitual residence, however, international family law sometimes fails to notice the central role of nationality and immigration status in many parenting disputes.