Habitual residence – UK

by | Feb 9, 2023

By Forum Shah, Dawson Cornwell – London, UK

Family Court, London, UK

July 29 2022, WC2A2LL

The team from Dawson Cornwell reprisented the applicant father in this case.

The father, a Spanish and British national, sought the return of a child aged 4 to the Kingdom of Spain. The mother is a British, Serbian and Hungarian national. The child was born in England and has British nationality. The father and mother met in England in 2014. Following the child’s birth, the father and mother began discussing the prospect of relocating as a family within Europe. Potential work opportunities arose for the father in Ibiza and Spain in 2019 and 2020. The father’s work plans were delayed due to the pandemic. The move to Spain eventually took place in May 2021. The mother and father initially stayed with the father’s sister and moved into their own accommodation in September 2021.

Trips to the UK

The parents separated in March 2022. By this point, the mother had travelled to England with the child on three occasions. She made a further trip over Easter and returned to Spain. She then informed the father she wished to travel to England again with the child. The father refused. The mother travelled to England where she later informed the father that she and the child would not be returning to Spain. The mother issued proceedings in the domestic English courts and the father issued proceedings in the Spanish court.

Habitual residence of the 4 year old child

The father made an application for the return of the child to Spain. The mother argued that the child was not habitually resident in Spain as at the date of the wrongful removal. This was because the child had been in England until the family departed for Spain and that he had made frequent visits to England thereafter. The mother argued her intention was important as she never intended to remain in Spain permanently and that the pandemic forced them to remain in Spain. The Judge cited the test as set out in the case of Re B (A Child) (Custody Rights: Habitual Residence) [2016] 4 WLR 156. This is where the court has to look at the facts in a straightforward way without applying any legal sub rules or glosses. The Judge stated that Spain was a country with which the child was already familiar as members of the father’s family live there. The families home in London was rented out and the father contacted the embassy in London to remove himself from the register of Spanish nationals residing in England. The child was enrolled in nursery in Spain and whilst he remained registered at a doctor’s surgery in England, he was treated by doctors in Spain.

Sufficient degree of integration

The Judge considered contemporaneous WhatsApp messages between the parties where they were discussing a new property in Spain. The Judge found that, as at 13 May 2021, this child had acquired a sufficient degree of integration into his home, school and social life in Spain and he had acquired habitual residence in that jurisdiction. The Judge considered the integration in Spain took place fairly rapidly due to the already existing roots in Spain.

Grave risk

The Judge went onto consider the mother’s Article 13(b) defence of grave risk of harm. The mother’s case was that the father consumed drugs and alcohol to excess and that this would have a negative impact on the child. The Judge was not persuaded that the mother has made out a defence in this case in relation to a grave risk of sufficient magnitude to this child at the hands of his father to bring it within the intended scope of Article 13(b).

Soft landing

The Judge was satisfied that the father had proposed appropriate soft landing measures, including maintenance and to move out of the home for the mother and child to live in.

The Judge commented that such decisions regarding where a child should live should be made by courts in the place where the child was last living. The Judge referred to the wider policy considerations of the 1980 Hague Convention, which have existed for many years to protect children.

 

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