Temporary relocation to the UK: habitual residence?
What if a child relocates from South Africa to the UK for a defined temporary period in one last attempt to save the marriage? Does this change the habitual residence? If the father decides to keep the child in the UK, is this parental child abduction?
Partner Carolina Marin Pedreño assisted by Trainee Solicitor Abigail Reading acted for the mother in her successful application for a return order pursuant to the 1980 Hague Convention after the parties’ 2 year old child was wrongfully retained in this jurisdiction by the respondent father.
Saving the marriage
The facts of the case are unusual and centre around the mother and the child traveling from country B to this jurisdiction (where the father lives) for a defined temporary period in one last attempt to save her marriage to the father. The father signed a document confirming that if the marriage did not work, the mother and child could return to country B where they had lived for two years continually prior to the travel on or before a specified date. After the parties decided that the marriage could not be saved 4 months into this defined period, the father confiscated the child’s passport preventing the mother returning to country B with the child. The mother subsequently issued an application seeking a return to country B pursuant to the 1980 Hague Convention.
In reaching her decision, Mrs Justice Theis addressed the following important issues in her judgment:
The intentions of the parents
The issue of the child’s habitual residence and whether it remained in country B where the child had lived for a period of two years continually prior to the mother travelling with the child to this jurisdiction for an agreed temporary period in one last attempt to save the parties’ marriage. It was held that the child was not considered to have acquired habitual residence in this jurisdiction during that temporary period, despite having been registered at nursery here and having attended extra-curricular activities here. It was considered that those arrangements needed to be put in place on a practical level and that they needed to be considered within the context of the temporary arrangement agreed by the parents to see whether they could repair their marriage. The intentions of the parents, in particular the main carer, was of particular relevance in reaching this decision.
Travelling does not equal consent
Whether in travelling to this jurisdiction from country B for a defined temporary period to try to save the parties’ marriage, the mother consented to the child coming to this jurisdiction. The court determined that no consent was given on the basis that the mother sought continual reassurances (including by way of written agreement which was provided by way of a signed affidavit by the father) she could return to country B if the marriage failed on or before the specified date.
The relevance of the divorce procedure in South Africa
The relevance of the country in which divorce proceedings are issued on the child’s habitual residence. The father had issued divorce proceedings in country B and had served these on the mother shortly before the mother travelled to this jurisdiction for the defined temporary period with the child. In those documents, the father had confirmed that the child’s habitual residence was in Country B. It was therefore considered by the court that in issuing divorce proceedings in country B, the father accepted the child’s habitual residence in country B prior to the travel to this jurisdiction but also, that in receiving these documents shortly before travelling to this jurisdiction, the mother was provided with further reassurances that the father accepted that the child was habitually resident in country B which ultimately enabled her to travel to this jurisdiction with the child.
Summary by Abigail Reading
Read more about child relocation and child abducion in the UK.
Read more about Carolina Marin Pedreño.
Read more about International Child Abduction
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