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Family law - Court of Appeal considers habitual residence of children
11 October 2011
On 10th October 2011 the Court of Appeal delivered Judgment in the case of Re H-K (Children) (2011).
Two children were born in Australia to their Mother, a British national and Father, an Australian citizen. The parents' relationship deteriorated and the family came to the England for one year. Thereafter the Father returned to Australia with the Mother remaining, with the children, on the assurance that she would return to Australia a few months later. She in fact had no intention of doing so.
The Father brought proceedings under the Hague Convention of the Civil Aspects of International Child Abduction 1980 on the basis that the Mother's refusal to return the children should be considered a wrongful retention in breach of his rights of custody. This issue was whether the children were habitually resident in Australia at the time of retention. The Judge in the Court below found for the Father and ordered the return of the children. The Mother appealed. The Appeal was allowed. The Court found that it was possible to find that habitual residence in England had been acquired despite the fact that the move was only temporary.
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Andrew Petchey, Partner
