Family Law Hub

AC v NC [2021] EWHC 946 (Fam)

The American father, living in the USA, had applied for an order for his four-year-old son's immediate return there under the 1980 Hague Convention. The son had dual nationality and lived with his mother, a British national, in England. The son had been born in England. A marital settlement agreement had been agreed to the effect that the mother and child would relocate to the UK, with the child spending his school breaks with his father in the US, a minimum of three visits. The pandemic and quarantine restrictions had prevented this from happening as planned, and the father had filed a petition with the Circuit Court of his state for contempt and to modify custody. Mostyn J noted that "it is elementary that the 1980 Hague Convention can only be invoked where the child's habitual residence has not changed to the new state prior to the alleged act of removal or retention". The question of habitual residence was one of pure fact. In this case, there was no possible basis for saying that the removal was not lawful, and Mostyn J was completely satisfied that the mother had not harboured a dishonest intention to later deprive the father of his spending time rights. There had been no wrongful removal, nor any wrongful retention, and the Convention was not engaged because the son had plainly acquired habitual residence in England by the time in question. The father's application was dismissed.


Published: 02/05/2021

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