Family Law Hub

Habitual Residence

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  • The father appealed from the dismissal of his application under the 1980 Hague Convention. The judge had decided that the child was habitually resident in Australia rather than France at the date of the retention in England and Wales, and thus in her view the Hague Convention did not apply. The Court of Appeal determined that the child had been habitually resident in France, but, since it was an issue in other pending cases, Moylan LJ addressed the issue of principle: whether there was power under the 1980 Convention to return a child to a state other than that in which they had been habitually resident. In Moylan LJ's view, "the 1980 Convention applies whenever the child is habitually resident in a Contracting State, other than the requested state, at the date of the alleged wrongful removal or retention", and "there is power under the 1980 Convention to order that a child be returned to a third state". This question had been expressly considered at the time of the convention's drafting and a proposal that the return should always be to the state of habitual residence had not been adopted. To confine Article 12 as suggested would fail to protect children from the harmful effects of their abduction. While Baker LJ and Phillips LJ agreed as to the child's habitual residence in France, they declined to express an obiter view on the issue of principle. Baker LJ warned of the danger of judges thinking that the degree of integration in a second country had to be equivalent to that enjoyed in the first for a child to acquire habitual residence. Judgment, 18/09/2020, free
  • The mother appealed from a return order made under the 1980 Hague Convention. She contended that the judge had been wrong to decide that the children were habitually resident in Germany at the date of her wrongful retention of them in England. It was submitted on her behalf that the judge had focused on whether the children had lost their habitual residence in Germany, rather than on the relevant question of whether their residence in England had acquired the requisite degree of integration and stability. In Moylan LJ's view, the appeal had to be allowed. On a proper application of the appropriate test, the children had been habitually resident in England at the date of their retention, and thus the father's application under the 1980 Convention had to be dismissed. Simler LJ and Sir Stephen Richards agreed. Judgment, 25/08/2020, free
  • The father applied under the 1980 Hague Convention for the return of his three-year-old son to Australia. The mother resisted the application on the grounds of habitual residence in England, acquiescence, and a grave risk of physical or psychological harm to the child, or his being in an otherwise intolerable situation, if the court required his return to Australia. Theis J decided that the defence on acquiescence would not have succeeded, but the mother had established that the protective measures put in place would not have been sufficient to reduce the risk to a level that fell below the Article 13(b) threshold. Either way, Theis J had already reached the conclusion that the son's habitual residence at the relevant time had been in this jurisdiction, and thus there had been no breach of Article 3 of the Hague Convention. The father's application was dismissed. Judgment, 12/08/2020, free
  • An application by the father for the summary return to Australia of two children aged 5 and 8. The children had lived in Australia up until April 2019, when the family moved to England. The British mother filed for divorce in January 2020. The father alleged that the move to England had been planned with the intent to divorce him here, that he had been misled into thinking that they would be in England for only two years, and that his consent to the move had been vitiated by that dishonesty. Part of his case was that the mother had overreacted to an incident where he had hit the children with a belt in her absence. Lieven J did not accept that the mother had deliberately tricked the father into coming to England, and she cautioned against "an unfortunate tendency to try to analyse parents' relationships as if they were contractual agreements". The mother's reaction to him hitting the children had been wholly reasonable. At the time of the divorce papers being filed, Lieven J decided, the children had been habitually resident in England. She declined to make a return order under the inherent jurisdiction. She did not have the material that would allow her to determine that it was in the children's best interests to return to Australia. If the father wished, he could make an application under the Children Act and then apply for a specific issues order for their relocation, allowing the matter to be properly considered on full evidence. Judgment, 04/08/2020, free
  • The mother applied under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention 1980), and in the alternative under the inherent jurisdiction, for the return of her eight-year-old son to Russia. She contended that the father had wrongfully removed or retained the child in 2019. The father opposed the applications, raising issues of whether, at the relevant time, the child had been habitually resident in Russia and the mother had had rights of custody, whether the child would be at risk following a return, and whether the child objected to a return. The father's own prior applications, including for prohibited steps orders, had been stayed pending determination of the mother's applications. Cobb J found that the son had developed a sufficient degree of integration in life in Russia, while living there for ten months or so, to acquire habitual residence. The removal had indeed been in breach of the mother’s rights of custody. He did not believe that the son would be likely to suffer the “severe degree of psychological harm which the 1980 Hague Convention has in mind” (per Lord Donaldson) and the father therefore failed in his case under Article 13(b). Cobb J did not regard the son's objection to returning as being powerfully expressed or adamant. He reached the conclusion that a return to Russia was in the son's interests, where fully-informed welfare-based decisions could be made in a court to which both parents had ready access. Judgment, 27/07/2020, free

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  • Tim Scott QC of 29 Bedford Row tries to make sense of what might happen to international family cases after 29th March next year and reviews a few recent key international finance cases. Recorded September 2018. Webcast, 07/10/2018, members only
  • Timothy Scott QC rounds up all the latest developments in international family law touching on case law and policy developments such as how the Maintenance Regulation is operating 2 years on, an update on BIIR cases and staying proceedings and Hemain injunctions. Webcast, 09/10/2013, members only

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