Re R. (Abduction: Habitual Residence) [2003] EWHC 1968

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The issue before the Court was where was the child habitually resident in March 2003. If there was to be a wrongful retention that child had to be habitually resident in Germany. There was significant dispute between the parents as to the nature of their stay in Germany. It was the mother’s case that the posting was essentially temporary and short-term in nature and for a maximum period of six months. The father sought to argue that the posting was for an indefinite period and for at least six months. The trial judge ruled that the plan and understanding of the family was that they were going to Germany for a particular project and for a short time which would be no longer than six months. However, in the light of existing case law the trial judge ruled that the family was habitually resident in Germany. The residence was for a settled purpose, albeit one which would be fulfilled within a comparatively short duration and the residence had endured for an appreciable period. The trial judge also noted that the family had only one home and that this could only be said to be in Germany. The trial judge affirmed that the determination of the issue of habitual law was to be made in accordance with English law. In his conclusion the trial judge stated that had he had any discretion in the application he would have exercised it against the father. Although obliged to order the return of the child he noted that this might not be the most appropriate outcome.