Can chidren gain habitual residence despite many relocations?
High Court of Justice, London, UK
3 March 2023, WC2A 2LL
This case concerns an application made by the applicant mother, W, under the Hague Convention 1980 for the return of two children, X, aged 8, and Y, aged 3, to the United States of America.
Carolina Marin Pedreno and Forum Shah, assisted by trainee solicitor Isabela Maculan successfully acted on behalf of the applicant mother, instructing Jacqueline Renton of 4PB.
Habitual residence
The key point in this case was that of habitual residence and whether the children had become habitually resident in the USA while in that country. The father submits there were 28 moves over the 9 month period, after the children moved from the UK to the USA.
Grave risk due to mental issues
In addition, the father (Z) also raised grave risk of harm as a defence under article 13(b), relying on a long history of local authority involvement with the family and concerns as to the children’s wellbeing in the mother’s care. The original final hearing, listed for December 2022, was adjourned until March 2023 to allow the parties to obtain expert evidence from an immigration expert in the USA as to Z’s options to travel to the country and from a psychiatrist as to W and Z’s mental health.
Integrated in a social and family environment
The Court considered that this case had a complex background and that it was important to observe the wider canvas of the case when determining the issue of habitual residence. The Court was satisfied that the move had been agreed by both parents and, from the children’s perspective, they had the continuity and stability of their mother remaining their primary carer, with the father being present for the majority of the time, with them being home schooled and taking an active part in the local Jewish community as well as visiting family and friends. Despite outstanding matters being discussed between the parents, the children integrated in a social and family environment in the USA.
A risk, but not grave
In relation to the 13(b) defence, the court found that, although there was a risk, bearing in mind the background of the case, it was not grave in the situation that exists now and looking forward and the 13(b) defence had not been established.
Religious court accepts jurisdiction
It was also difficult to establish jurisdiction for the children in this case as a six-month residence period is required by the courts of the relevant state in the USA to accept jurisdiction over the children. Nevertheless, the religious court relevant to the family, that being the Bais HaVaad Rabbinical Court as the family is of Orthodox Jewish faith, did so.
Return order to the USA
The Court granted the mother’s application for the return of the children to the USA in the care of their mother.
Read more about international child abduction.