Family Law Hub

Habitual Residence

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  • The father appealed from an order determining that the proceedings concerning the parties' children were subject to the 1996 Hague Convention for the purposes of the lis pendens provisions in article 13. The father had commenced proceedings in England and Wales, while the mother had commenced proceedings in Russia. The father contended that the 1996 Hague Convention did not apply to the English proceedings because of the effect of article 61 of Council Regulation (EC) No 2201/2003 (Brussels IIa). His case was that the children were habitually resident in England and Wales when those proceedings commenced, and thus, as set out in article 61, Brussels IIa applied. He submitted that the judge had misinterpreted articles 61 and 62 of Brussels IIa. In Moylan LJ's view, the outcome was clear. If the children were habitually resident in England and Wales when the English proceedings commenced, Brussels IIa applied to them, including the jurisdiction provisions, and article 13 of the 1996 Hague Convention did not apply. Newey LJ and Baker LJ agreed. The appeal was allowed and the judge's determination was set aside. Judgment, 24/08/2021, free
  • The father sought the summary return of his two sons, aged 6 and 4, to the Republic of Zambia, invoking the court's inherent jurisdiction. The children had lived with their mother in England since August 2020. The mother resisted the application, submitting that the children had acquired a new habitual residence in this jurisdiction, and that the court thus had jurisdiction to conduct a full welfare enquiry under the Children Act 1986. Roberts J decided that the children were habitually resident in England, and had been at the time of the father's application. It was of particular significance that the home in which they now lived had been specifically purchased as a family home, with the specific consent of the father, before his change of heart about moving. There was no reasonable basis on which to conclude that a return to Zambia was in the children's best interests, given, for example, the father's precarious financial position, and the mother's previous unhappiness there. The cumulative effect of a return in the circumstances was likely to be wholly inimical to the interests of the children, who were now settled in their homes and schools in this jurisdiction. Roberts J thus refused the father's application for summary return. Judgment, 23/08/2021, free
  • The applicant sought a declaration that she was currently married to the respondent, and brought her application pursuant to the provisions of ss 51 and 55 of the Family Law Act 1986. The parties agreed that they had been married in 2017. The questions included whether the parties had gone through a customary divorce procedure in Ghana, at which neither party was present, as claimed by the husband, and whether that divorce would be recognised here. Cobb J was satisfied that a customary divorce and its registration had taken place in Ghana. However, both parties had been habitually resident in the United Kingdom throughout the year immediately preceding the Ghanaian divorce ceremony (s 46(2)(c) FLA 1986), and so the divorce could not be recognised in England and Wales. The wife was entitled to pursue her petition for divorce in this jurisdiction. Judgment, 19/08/2021, free
  • The mother, born in England, appealed against an order under the Hague Convention for the summary return of her son to South Korea. After the family travelled to South Korea in December 2019, the mother had been granted a three-month tourist visa. On her case, she had then been unable to return to England until the maternal grandmother came to assist her departure in March 2020, at which point they had left, with the child, and without informing the father. The principal issues now were the determination of the child's habitual residence and the judge's approach to Article 13(b) defences. The mother also raised issues concerning the differences between the judge's ex tempore judgment, a supplemental judgment, and the final approved judgment. Baker LJ decided that the judge had been entitled to conclude that the child had acquired habitual residence in South Korea shortly after his arrival, but the assessment of the Article 13(b) defence had been flawed. It was unclear whether or not the judge had concluded that there was in fact an Article 13(b) grave risk. It was unclear whether the judge had found that there was no risk of the father removing the child from his mother's care or alternatively that there was a risk but it was ameliorated by his undertaking not to do so, notwithstanding that it was unenforceable in the Korean court. The judge's analysis of the protective measures had also been flawed. It was not therefore necessary to go on to consider whether the process adopted by the judge was procedurally unfair or amounted to a procedural irregularity. Lewis LJ and King LJ agreed, and so the appeal was allowed. The question of whether the mother could establish a defence under Article 13(b) would be remitted for determination by another judge of the Family Division. Judgment, 03/08/2021, free
  • The court had two questions to consider. Was the 12-year-old son habitually resident in the jurisdiction of England and Wales? If so, should the court grant the mother's application for an order under its inherent jurisdiction requiring the son to be returned from the jurisdiction of Pakistan? The father contended that the son was now habitually resident in Pakistan, where he was attending a private school. A report from the Cafcass Family Court Adviser detailed the son's understanding of the circumstances by which he came to be in Pakistan, including that he and his parents had discussed him attending school in Pakistan prior to his mother taking him there in October 2020, and that he had understood he would be staying there for a significant period of time. MacDonald J decided that the boy had demonstrated a degree of integration in a social and family environment in Pakistan sufficient to ground the conclusion that he was habitually resident there. For example, the boy had settled into his new school and clearly saw that education as his gateway to personal success. Accordingly, this court did not have jurisdiction, and the mother's application was dismissed. Judgment, 30/07/2021, free

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