fbpx

Cross-Border Child Abduction and Habitual Residence – Guideline Ruling

20th November 2020 By

A parent who wishes to move from one country to another with his or her child must first obtain the consent of the parent left behind. That principle of international law is easily stated but, as a guideline Court of Appeal ruling showed, applying it in a way that protects the child’s welfare is often a much more complicated matter.

The case concerned two children, aged six and eight, who were born in Germany, where they spent the first years of their lives. Both their parents were also born in Germany. After the parents’ marriage came to an end, the father agreed that the mother could move to England with the children for 12 months or so.

After disagreements arose concerning the level of contact between the children and their father, the parents engaged in mediation. An approximate date for the children’s return to Germany was agreed and a letter of intent signed by the parents stated in terms that the children’s home would remain in Germany.

The mother, however, later announced that she would not be returning to Germany with the children. She had by then formed a relationship with a man in this country, whom she had since married, and was heavily pregnant with his child. The children had settled quickly in England and were doing well at English schools.

The father’s response to the mother’s decision was to launch proceedings under the 1980 Hague Convention, which enshrines the international ban on cross-border child abduction. In ordering the mother to return the children to Germany, a judge found that they remained habitually resident in the country of their birth and it would not be intolerable for them to go back there.

In upholding the mother’s appeal against that outcome, the Court noted that she had always been the children’s primary carer and that they had predominantly lived in England for a year prior to her decision. Whilst not diminishing the importance of their links to Germany, the Court found that the extent of their integration and the stability of their lives with their mother in England meant that they had become habitually resident in this country. The father’s application was dismissed.

Source: Concious

Latest News

Court Sanctions Leg Amputation for Man Lacking Mental Capacity

24th April, 2024 By

The courts are often called upon to sanction treatment for patients whose ability to make decisions for themselves is impaired. In a recent case on point, the Court of Protection had to decide whether it was in the best interests of a man with mental health issues to have his right leg amputated above the knee. The man, aged 60, was taken to hospital by his niece. He was found to have an ulcerated leg. He had a history of paranoid schizophrenia, and believed that the sores on his leg...

High Court Grants Parental Order Despite Previous Adoption

18th April, 2024 By

In law, adopted children are regarded as having been born to their adoptive parents. The Family Division of the High Court recently considered whether that fact precluded a parental order being granted under the Human Fertilisation and Embryology Act 2008 (HFEA) in respect of a child born via surrogacy. A couple who lived in the USA had entered into a surrogacy arrangement with another woman. An adoption order naming the couple as the child's parents had been made by a US court and was automatically recognised under UK law. However,...

Flat Owner Not Liable for Pre-existing Structural Issues

16th April, 2024 By

When building owners carry out works on their property, are they liable for damage to adjoining properties that results from pre-existing structural issues? The Court of Appeal recently provided welcome clarification on that question. The owner of a ground-floor flat wished to extend it by building out into his garden. He served notices on owners of adjoining properties, as required by the Party Wall etc. Act 1996. The works caused the rear wall of two adjoining properties to drop by about 2 mm, which led to internal walls and floor...

Challenge to Will's Validity Rejected by High Court

12th April, 2024 By

The best way to ensure your assets will be distributed as you wish is to have your will professionally drafted by a qualified solicitor. In a recent case, a challenge to the validity of an elderly man's will was dismissed by the High Court. The man had previously made a will in 2011, leaving most of his estate equally to his three children. In 2018, by which time one of his sons had predeceased him, he made a further will, leaving the residue of his estate to his other son...