Key Issue: Determining Habitual Residence and Child's Objections in International Child Abduction Case.

Citation: [2023] EWHC 2752 (Fam)
Judgment on

Introduction

In the recent High Court case of B v G: EWHC-Family 2023 2752, presided over by Mr. David Lock KC sitting as a Deputy High Court Judge, critical legal principles surrounding international child abduction and custody were examined and applied. Central to the case was the application of the Convention on the Civil Aspects of International Child Abduction (“the Convention”) and the Child Abduction and Custody Act 1985 (“the 1985 Act”). The case hinged on determinations of habitual residence and the objections of the child, A, against a backdrop of a family’s grief and loss.

Key Facts

  • The case involves the Father’s application for A, his daughter, to return to Spain after her Mother’s death.
  • The Respondent is A’s grandmother, G, who argues against A’s return, initiating UK Family Court proceedings.
  • Both sides agree A was habitually resident in the UK after moving there in 2020.
  • A was intended to move permanently to Spain following her Mother’s death—a plan established by both parents.
  • A eventually expressed objections to returning to Spain, leading to her retention in the UK by her grandmother.
  • The court was faced with deciding whether A had attained habitual residence in Spain and whether her objections should prevent a return order.

The court applied the following legal principles:

Habitual Residence

Habitual residence is a key factor in determining a child’s status under the Convention. A child is usually considered habitually resident where there is a degree of integration in a social and family environment. Parental intent is relevant but not determinative. The child’s views and integration are central to this determination. Notably, a person ceases to be habitually resident in one country when they depart with the intention of residing long-term elsewhere, and they may acquire new habitual residence immediately upon arrival, particularly if joining immediate family.

Wrongful Retention

The Convention sets forth that if a child is wrongfully retained, the court shall order the return of the child unless an exception applies.

Child’s Objections

Article 13 of the Convention provides an exception where a child objects to being returned and has reached an appropriate age and maturity level. This discretion depends on the child’s objections and their depth, the influence of adults on the child, and the child’s overall well-being.

Outcomes

The court found that A ceased to be habitually resident in the UK and became habitually resident in Spain when she moved with the intention of a permanent stay. Despite A’s objections to returning to Spain, the court held it would honor the original plan agreed upon by her parents. The child’s objections were taken seriously but ultimately did not override the decision that living with her Father in Spain was in A’s best interests, primarily because her concerns could be addressed with appropriate undertakings.

Conclusion

In B v G, the court was tasked with dissecting complex emotional landscapes against clear-cut legal standards. It underscored the principle that the intentions and agreements of parents with parental responsibility carry significant weight, and reiterated the importance of the child’s habitual residence as a cornerstone of international abduction and custody law. The meticulous investigation into A’s lived experience, coupled with the legal principle that a child can quickly acquire a new habitual residence, paved way for a return order back to Spain. Despite A’s objections, the court decided in favor of stability and continuity in adherence to her parents’ agreement, setting a clear precedent for balancing children’s wishes against their best interests in cases of international relocation disputes.

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