Habitual residence: intention
European Court of Justice, August 21st 1992
Re B. (Minors) (Abduction) (No. 2) [1993]
The children, two boys, were 3 2/3 and 2 1/4 at the date of the alleged wrongful retention. They had lived in England, Scotland and Germany. The parents were married and had joint rights of custody.
On 20 January 1992 the family moved to Germany. On 19 July 1992 the family travelled to England. The purpose of the trip was the subject of dispute.
On 22 July 1992 the father began matrimonial and family proceedings. On 30 July 1992, the mother made a cross-application in the family proceedings and took out an originating summons under the Child Abduction and Custody Act 1985 for the return of the children to Germany.
On 19 August 1992 the High Court dismissed an application by the father that the Convention proceedings be stayed or dismissed on the grounds that the mother had participated in the substantive proceedings brought by the father in England.
Habitual residence
Habitual residence depends solely upon showing a settled purpose continued for an appreciable time. A detailed inquiry into presumed intention is inappropriate, it is normally sufficient for the court to stand back and take a general view. A settled purpose is not something to be searched for under a microscope. If it is there at all it will stand out clearly as a matter of general impression. Convention proceedings are summary by their nature. If they are to be dealt with fairly and expeditiously there must be an element of peremptoriness in the court’s approach to their hearing. Time does not allow for more than a quick impression gained on a panoramic view of the evidence. The essential nature and purpose of the family’s sojourn in Germany, namely to provide a base for reconciliation and for planning a fresh start, had been a settled one. Consequently, the children had been habitually resident in Germany immediately before their retention in England.
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