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New Judgment on International Child Abduction and Determining Habitual Residence

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Alex Laing of Coram Chambers acted in the just-reported case of AB v CD [2017] EWHC 1021 (Fam). The case concerned international child abduction and the determination of habitual residence.

For background, a toddler was born in Spain and remained living with his mother until summer 2017. His mother was Spanish and his father had lived in England for some time. In June 2017, the child began traveling between England and Spain with the parents, and throughout the remainder of the year. In December the mother returned to Spain with the child.

The parents differed in their accounts as to whether they had intended for the child to be returned to England, and whether the child had become habitually resident in this country.

The father applied to the High Court of England and Wales for the summary return of the toddler. The mother, in Spain, opposed that application, arguing that the English court had no jurisdiction to make orders under Brussels II Revised because the child was habitually resident in Spain. The High Court made a number of orders for the return of the toddler with which the mother did not comply, sticking to her argument that the English court had no such power.

The case came on for final hearing before Mr Justice Keehan, in which he provided a useful summary of the key principles that a court must take into account when determining habitual residence. These principles are set out at paras 5 – 6 of his Lordship’s judgment and merit reading in full.

Alex successfully persuaded Keehan J that the English court had no jurisdiction to order the return of the toddler, that his habitual residence was in Spain and that, therefore, it was the Spanish court that should make decisions about the toddler’s welfare. Keehan J discharged the previous return orders and the toddler and mother remained in Spain.

The case is available here: http://www.bailii.org/ew/cases/EWHC/Fam/2018/1021.html

Based on this case, Alex has put together a useful note on determining habitual residence when disputes arise, which is available via Family Law Week: http://www.familylawweek.co.uk/site.aspx?i=ed190031 .

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