Finnish Supreme Court: A Child in Transition May Lack Habitual Residence

The author of this post is Katja Karjalainen, who is a professor at University of Lapland, Finland.

In its decision of 4 December 2025 (KKO:2025:102), the Finnish Supreme Court clarified that a parental agreement on intended habitual residence is irrelevant under the 1980 Hague Child Abduction Convention (the 1980 Hague Convention) and that a child without any established habitual residence cannot be returned under the same instrument.

Background

In the summer of 2025, two parents and their 21-month-old child travelled to Finland from Australia, where the family had lived since the child’s birth. Two weeks after the family arrived to Finland, the father left the family home with the child to a shelter.

Before leaving Australia, the parents had enter into an agreement stating, among other things, that the entire family would relocate to China in October 2025, via a temporary stay in Finland. It was also expressly agreed that the father was not entitled to separate the child from the mother or, without her consent, take the child to spend a night away from the family home. Any breach of these terms would entitle the mother to immediately terminate the contract and to relocate independently with the child.

Relying on the agreement, the mother argued that her consent for the child’s stay in Finland had been revoked. She requested that the child should be ordered to return to Australia pursuant to the 1980 Hague Convention. The father, for his part, argued that a return could not be ordered because the child’s habitual residence was no longer in Australia, following the parents’ joint agreement to move.

Decision

Referring to the agreement between the parents, the Helsinki Court of Appeal ordered the child to be returned back to Australia. However, the Supreme Court overturned that decision.

According to the Supreme Court, the parents’ shared intention to move permanently away from Australia together with the actions reflecting that intention, meant that Australia could no longer be regarded as the child’s habitual residence immediately prior to the alleged wrongful removal. In these circumstances, the fact that the father did not return the child to the parents’ shared home in Helsinki after taking the child to a shelter did not constitute a wrongful removal or retention outside the state of his or her habitual residence. Therefore there were no grounds to order the child to be returned to Australia.

At the same time, the Supreme Court noted that the child’s habitual residence could not be regarded as having shifted to Finland. The stay in Finland had been brief and intended to be temporary, which prevented Finland from being the child’s new habitual residence at the relevant time.

Comment

The case resembles how the so‑called ‘shuttle custody agreements’ are decided in the Nordic jurisdictions. In such arrangements, parents attempt to stipulate in advance how the child will spend certain periods of time in different jurisdictions during successive periods. Nordic Courts have not given weight to such parental agreements for assessing the habitual residence of a child  (see e.g. Supreme Administrative Court of Sweden’s judgment RÅ 1996 ref 52).

Both the shuttle custody cases and the present judgment illustrate that habitual residence is not a matter of agreement. Nor does a relocation agreement necessarily protect the left‑behind parent if the child’s former habitual residence has been lost while no new habitual residence has yet been established in the agreed jurisdiction. This is problematic, as it indirectly rewards fraudulent behaviour by a parent who is more familiar with the Hague return mechanism.

In essence, the case demonstrates that consent for a child to leave a jurisdiction cannot be efficiently withdrawn once given. However, the case should also serve as a reminder that although parental agreements on where the child will live may carry weight in custody proceedings, Hague Abduction cases require that habitual residence is based on objective factors.