Family Law Hub

Habitual Residence

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  • The three-year-old daughter was a British citizen who had lived with the maternal grandmother in India since 2018, after the mother returned to England without her. The father had applied for summary return under the inherent jurisdiction of the High Court. The mother had applied for a specific issue order for "permission to change jurisdiction of the child", which Mostyn J took to be an application for a declaration that the child was habitually resident in India. A preliminary issue arose regarding whether the court had jurisdiction in the case. Mostyn J found as a fact that the daughter was now habitually resident in India and thus there was no jurisdiction in this case under Brussels II article 8. He also found as a fact that at no time up to 26 August 2020 had the mother unequivocally accepted that the English court had jurisdiction to deal with parental responsibility issues concerning her daughter. In his judgment, it would be wholly unprincipled, and a wrong exercise of the court's powers, for him to make orders on the father's application pursuant to the High Court's inherent powers in circumstances where the father had not established jurisdiction under either Brussels II or sections 1–3 of the Family Law Act 1986. His judgment was that the jurisdiction of the court depended on the territorial reach of Brussels II article 10. A question was referred to the Court of Justice for an urgent preliminary ruling: "Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?" Pending receipt of the answer to the question the proceedings would be stayed. Judgment, 09/11/2020, free
  • 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

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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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