Family Law Hub

Habitual Residence

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  • A four-year-old girl with British citizenship had been taken to Egypt, and the court had to determine whether she had been habitually resident in England and Wales before then and thus wrongfully removed, and, if she had not, whether the court had jurisdiction to order her summary return. The father contended that the removal was pursuant to the terms of an order made in Beirut. Both parents were Lebanese nationals, and both were currently in England, the child having been left with family members of the father. The mother had accused the father of domestic violence. MacDonald J was satisfied that the child had been habitually resident in this jurisdiction, and that the court retained jurisdiction under the inherent jurisdiction of the High Court. The daughter was a British citizen and both parents were here and intended to remain here, making this the appropriate forum for determining the welfare issues. Returning the daughter from Egypt would create the best chance of her resuming contact with her mother, and there was no one in Egypt with parental responsibility for her. She should be returned from Egypt. The existence of the Beirut order did not prevent this. Judgment, 17/03/2020, free
  • An application by the father pursuant to the Hague Convention 1980. The child was born in Brazil but the family had subsequently moved to England. The parents had been on an extended visit to Brazil when the mother left with the child, first to the USA and then returning to the UK. The father argued that the child was habitually resident in Brazil and that this was a wrongful removal. Judd J held that, while the family had not yet decided where they would live in the long term, the mother and child were habitually resident in England. Given the mother's long-standing residence in the UK and the plans that she and the father had made, she did not lose her habitual residence during that trip to Brazil. Though the father no doubt felt wrong-footed and insecure when the mother left, the plan to return to England had not changed and he had not revoked his consent to that. The father's applications were dismissed. Judgment, 04/02/2020, free
  • The parents were British and Jordanian nationals, who married in Jordan in 2010 and moved to England in 2011. The mother applied for a declaration that their six-year-old son was habitually resident here, and for an order prohibiting the father from removing the boy from the care of the mother or from this jurisdiction, and from making further applications regarding the child in Jordan. The father argued that the Kingdom of Jordan was the appropriate legal forum for determination of the welfare issues. MacDonald J was wholly satisfied that the child was habitually resident in the jurisdiction of England and Wales, where he had been born and had lived for all but sixteen months. It was therefore the natural and appropriate forum for the welfare issues to be determined. Judgment, 03/01/2020, free
  • The father appealed against an order for the two children to be returned to Russia. Moylan LJ, Peter Jackson LJ and Arnold LJ decided that both the father's appeal regarding habitual residence and the mother's cross-appeal regarding repudiatory retention would be dismissed, but that the judge's order made under the inherent jurisdiction would be set aside. When the 1996 Hague Convention applied, recourse could only be had to the inherent jurisdiction if permitted by the code established by the Convention. Here, there was no gap in the scheme of the Convention to justify exercising the court's inherent powers. The right course was for the mother's application for enforcement of the Russian court's order to be determined as soon as possible. Judgment, 03/12/2019, free
  • The father applied for the summary return of the daughter to Malta, pursuant to the Hague Convention 1980. The defence raised by the mother was that the child was not habitually resident there. The child was 21 months old and had lived initially and mostly in England, but had also spent time in Belgium, the Czech Republic, Slovakia, Hungary, Italy, Malta and France. None of the contemporaneous correspondence between the parents illustrated a desire on the part of the father for the daughter to return to Malta, held Mr Teertha Gupta QC, sitting as a High Court judge. The child's habitual residence was always in England because she moved too often to be integrated anywhere else. Any proceedings concerning her would need to be in the Family Court in England. Judgment, 02/12/2019, 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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