Re A (Abduction: Habitual Residence)

JurisdictionEngland & Wales
Judgment Date1996
Date1996
Year1996
CourtFamily Division

Child abduction – Parents setting up home in Greece – Mother coming to England to give birth to child – Deciding not to return to Greece – In accordance with agreement with father taking child to Greece for six weeks to discuss future arrangements – Mother failing to keep agreement and returning to England prematurely – Father seeking peremptory return of child to Greece – Whether child had acquired habitual residence in Greece.

The mother, who was English, and the father, who was a Greek national, married in 1994 and set up home in Greece. In due course the mother became habitually resident there. In 1995 the mother became pregnant and by agreement she came to England for the birth of the child and a boy was born on 12 February 1996. Subsequently the mother had doubts about returning to Greece with the child but following discussions with the father it was agreed that she would take the child to Greece in mid-July, that they would remain until the end of August 1996, and that she would take him to Greece for a similar period in succeeding years. Nothing was settled as to any other period of the year except that the mother and child were to remain in England. On 14 July 1996 the mother and child went to Greece but, in breach of what had been agreed, the mother brought the child back to England on 4 August 1996. The father commenced proceedings 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, seeking the peremptory return of the child to Greece. It was agreed that under both Greek and English law both parents had rights of custody, that those rights were being exercised by the father at the time of the removal, and that he neither consented to nor acquiesced in the removal. The essential question was whether on 4 August 1996 the child was habitually resident in Greece.

Held – Habitual residence referred to a person’s abode in a country which he had adopted voluntarily and for settled purposes as part of the regular order of his life for the time being. Where the habitual residence of a young child was in question, the element of violition would usually be that of the person or persons who had parental responsibility for the child. Further, before a person could be said to be habitually resident in a country he had to be resident there and although he did not have to be physically resident there at all times he could not be resident in one country while remaining throughout physically present in another. In the present case, prior to 14 July 1996 the child had never resided in Greece and therefore could not be said to be habitually resident there before that date. As both parents had parental responsibility for the child the only evidence of their common intention as to his residence was their agreement that he should reside

in Greece from 14 July to the end of August 1996. Although habitual residence in a country could be for a short duration, the purpose of the period spent in that country was relevant. Here, the purpose was akin to holiday contact and could not amount to habitual residence. Therefore the father’s application would be dismissed.

Cases referred to in judgment

Akbara v Brent London BC, Abdulla v Shropshire CC, Shapbar v Barnet London BC, Shah v London BC, Barnet London BC v Shah [1983] 1 AC 309, [1983] 1 All ER 226, [1993] 2 WLR 16, HL.

B (minors) (Hague Convention) (No 2), Re[1994] 1 FCR 394.

J (a minor) (abduction: custody rights), Re [1991] FCR 129, [1990] 2 AC 562; sub nom C v S (a minor) (abduction) [1990] 2 All ER 961, HL.

KM (a minor) (habitual residence), Re[1996] 2 FCR 333, CA.

M (minors) (residence), Re[1993] 1 FCR 718, CA.

V (a minor) (abduction: habitual residence), Re[1996] 3 FCR 173.

Originating summons

The father of a young child issued an originating summons 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, seeking the peremptory return of the child to Greece from where he alleged the mother wrongfully removed the child. The case was heard and judgment was given in chambers. The case is reported with the permission of Stuart-White J. The facts are set out in the judgment.

Mark Everall QC and Elizabeth Rylands (instructed by Bendles, Carlisle) for the father.

Henry Setright (instructed by Margaret Bennett Solicitors) for the mother.

Cur adv vult

13 August 1997. The following judgment was delivered.

STUART-WHITE J.

The proceedings before me concern A, born on 12 February 1996, thus now about 18 months of age. He is the child of the marriage of his parents, whom I shall call the father and the mother. The father is a Greek national, whose home and extended family are on the Greek island of Zante. The mother is English.

The father, by his originating summons under the Child Abduction and Custody Act 1985 and the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), alleges that on 4 August 1996 the mother wrongfully removed A from Greece, and more particularly from the island of Zante, in breach of the father’s rights of custody and thus unlawfully abducted him. He seeks a peremptory return of the child to Greece. In order for him to succeed the father must show that at the time of the alleged abduction the child was habitually

resident in Greece. Though a number of other defences have been deployed on behalf of the mother, the issue of habitual residence is central to my decision in this case, and arises in circumstances which, so far as I know, have no precise parallel in any of the numerous reported cases.

The facts are to some extent in dispute. I have heard the oral evidence of both the mother and the father and I have in addition read their statements and affidavits and the statements and affidavits of certain other witnesses which were put in evidence by one side or the other. Before I set out the facts it is necessary that I should say something about the reliability of, and the weight to be attached to, the evidence of the father and the mother respectively. The father gave evidence through an interpreter. His answers were not always answers precisely to the questions asked. His memory may well, on certain matters, have been less than perfect and may from time to time have been moulded to some extent by what he had wished to be the facts. Whilst it is difficult to form a clear view on this when evidence is given through an interpreter, I gained the distinct impression that clarity of thought was not one of his more...

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