N v N (Child Abduction: Habitual Residence)
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Year | 2000 |
| Court | Family Division |
Child abduction – Habitual residence – Family moving to Spain from England – Mother returning to England with children – Prior to departure each parent having different country of habitual residence – Where children habitually resident.
Following their marriage in England in 1993 the mother and father had three children who were all born, and habitually resident, in England. In 1999 the family home was sold and the parents discussed the possibility of going to live abroad with the children. On 13 November 1999 the family left for Spain. Whilst the father claimed that the decision to relocate to Spain was made after extensive and careful consideration, the mother stated that the final decision was made at the last minute amid renewed matrimonial difficulties, and she only participated in the venture as an experiment or as an exploratory period of attempted reconciliation. On 15 February 2000 the mother, having decided to leave the father for good, returned to England with the children without telling him. Thereafter the father applied for the summary return of the children to Spain under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985. Whilst it was common ground that the children were habitually resident in England until the family left for Spain, the mother contended that since she had not lost her habitual residence in England, there had been no common intention to change the children’s habitual residence which was still England and accordingly that there had been no wrongful removal within the terms of art 3 of the Convention. On the assumption that the father had become habitually resident in Spain, the court was therefore faced with the unusual situation immediately prior to the mother and children departing for England of each parent living with each other and the children but each having a different country of habitual residence. In those circumstances the issue arose as to where the children were habitually resident.
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a Article 3 of the Hague Convention provides, so far as material: ‘The removal or the retention of a child is to be considered wrongful where—(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention . . .’
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Held – A parent could not establish that a child’s place of habitual residence had changed where he alone of the parents with whom the child was living had lost the habitual residence that he shared with them and had become habitually
resident elsewhere. In the instant case the children did not lose their habitual residence in England or become habitually resident in Spain at any time before they left that country with their mother on 15 February 2000. It followed that the father’s application would be dismissed.
Cases referred to in judgmentAkbarali v Brent London BC, Abdullah v Shropshire CC, Shabpar v Barnet London BC, Barnet London BC v Shah [1983] 2 AC 309, [1983] 1 All ER 226,[1983] 2 WLR 16, HL.
J (a minor) (abduction: custody rights), Re [1991] FCR 129, [1990] 2 AC 562; sub nom C v S (orse Re J) (minor: abduction: illegitimate child) [1990] 2 All ER 449, [1990] 3 WLR 492, [1990] 2 FLR 442, CA; affd Re J (a minor) (abduction: custody rights) [1991] FCR 129, [1990] 2 AC 562, [1990] 3 WLR 492; sub nom C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961, [1990] 2 FLR 442, HL.
KM (a minor) (habitual residence), Re[1996] 2 FCR 333; sub nom Re M (abduction: habitual residence) [1996] 1 FLR 887, CA.
Nessa v Chief Adjudication Officer[1999] 3 FCR 538, [1999] 4 All ER 677, [1999] 1 WLR 1937, [1999] 2 FLR 1116, HL; affg [1998] 1 FCR 461, [1998] 2 All ER 728, [1998] 1 FLR 879, CA.
S (minors) (child abduction: wrongful retention), Re[1994] 1 FCR 83, [1994] Fam 70, [1994] 1 All ER 237, [1994] 2 WLR 228, [1994] 1 FLR 82.
ApplicationThe father applied under the Convention on the Civil Aspects of International Child Abduction (the Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985 for an order that the three children be returned to Spain after the mother took them to England. The case was heard and judgment was given in chambers. The case is reported with the permission of Black J. The facts are set out in the judgment.
Michael Nicholls (instructed by Kingsley Napley) for the father.
Richard Todd (instructed by Gordons Cranswick) for the mother.
Cur adv vult
16 June 2000. The following judgment was handed down.
BLACK J.The plaintiff father applies for an order under the Hague Convention for the return of the children: N born 16 December 1994 (aged five); O born 5 March 1996 (aged four); and C born on 27 July 1997 (aged two) to Spain following their removal to England by their mother on 13 November 1999 (see the Convention on the Civil Aspects of International Child Abduction (the Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985).
Under art 3 of the Hague Convention, the removal of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal.
Where there has been a wrongful removal in terms of art 3, art 12 requires that the immediate return of the child is to be ordered. However, art 13 qualifies the mandatory terms of art 12 and, in certain circumstances, allows the court a discretion as to whether the return of the child is ordered.
The defendant is the children’s mother. She does not dispute that the father has rights of custody with regard to the children under Spanish law by virtue of the fact that the parents are married or that her removal of the children to England is capable of being a breach of those rights of custody. However she resists the father’s application for the return of the children on the basis that: (1) the children were not habitually resident in Spain when she returned with them to England and there was therefore no wrongful removal within the terms of art 3; and (2) there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation (art 13(b)) and the court should exercise its discretion not to order their summary return to Spain.
The factsThe parties were married on 20 April 1993 in England. The marriage is still subsisting although the mother began divorce proceedings in the county court by a petition dated 25 February 2000.
Prior to leaving for Spain on 13 November 2000, the family’s connections were predominantly with England:
• Apart from a period of seven months: when the mother worked as a nanny in Madrid, and the period spent in Spain between November 1999 and February 2000, she has never lived in any country except England. She is a British citizen. Her family all live in England.
• The father originates from Iran where he still has family and owns a property which is let. However he also has a sister who lives in this country and, apart from three visits to Iran during the course of the marriage, he has lived in England continuously from 1988 until the family left for Spain. He obtained British citizenship in the early 1990s.
• The children were born in England. Until the trip to Spain in November 1999, they had never lived in any country except England. They are British citizens and, save for the Spanish they picked up recently, speak only English.
• The parties and the children all have British passports. The father has also got an Iranian passport which appears to have expired.
• There were no family or other connections with Spain prior to the parties going there in November 1999.
For most of the marriage, the family lived in the London area. Latterly, the father had...
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