Re A. (Abduction: Habitual Residence) [2007] 2 FLR 129

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The core issue for the Court was whether the child had acquired a habitual residence in Washington State during the 8 days he spent there between arriving and the parents’ deciding to end their marriage. To this end the Court cited the definition of Lord Brandon in the House of Lords’ ruling Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT cite: HC/E/UKe 2] that for a habitual residence to be acquired there must be a settled intention to remain and an appreciable period must have elapsed. The move was in the form of a permanent relocation; the family home in England had been sold and the family’s possessions were shipped to the US. The Court noted however that the mother had been a reluctant participant and she had participated to save the marriage. Nevertheless the Court concluded that on arrival she had a settled intention to remain. That intention did though evaporate very shortly thereafter. The Court then considered whether 8 days of residence was sufficient to amount to an appreciable period of time. Sumner J held that such a period was by itself too short, but even if it could be sufficient it was not on the facts of the case as the mother had changed her mind about the relocation very shortly after her arrival. The consequence was that the child did not have a habitual residence on 8 September.
Consent – Art. 13(1)(a)
The Court considered in the alternative the exception of consent. It found that the father had consented to the child going back permanently to the UK. Turning to the exercise of discretion the Court ruled that all of the child’s connections were with England, he had spent no more than 2 weeks in the United States, therefore a return order would not be made.