Re B (Minors) (Hague Convention) (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Year | 1994 |
| Court | Family Division |
WAITE, J
Child abduction – Hague Convention – Child Abduction and Custody Act 1985 – nature of the proceedings – whether a court injunction restraining the removal is an unlawful retention – whether acquiescence to stay for the hearing is acquiescence to the retention.
A British father and a German mother had married in July 1988 and had two children who were now aged 2 and 3 years. The family lived in the United Kingdom until January 1992 when they moved to Germany with the children. The father joined them there to resolve their differences. In July 1992, on the pretext of a holiday, the father took the family to England. In fact the father had taken the view that the marriage was at an end and used this opportunity to obtain an injunction restraining the children's return to Germany until the family proceedings were heard. The mother applied for their release on the basis that they were being unlawfully retained under Article 3 of the Hague Convention and argued that German law would have deemed their retention unlawful.
Held – allowing the mother's application to return the children to Germany: (1) The court only takes an overview of the evidence. The question as to whether there is habitual residence is whether there is a settled purpose to live there for an appreciable length of time. The Hague Convention is a summary procedure – its very nature is an urgent one -and the court will not investigate into the presumed intention of the parties.
(2) The father states that he was only in Germany to effect a reconciliation but he was there with a settled purpose and for an appreciable period. Obtaining an injunction can constitute an act of unlawful retention for these purposes.
(3) Acquiescence to stay in the United Kingdom for the duration of the hearing does not constitute acquiescence to the unlawful retention.
Statutory provisions referred to:Child Abduction and Custody Act 1985 Sch 1: Hague Convention on the Civil Aspects of International Child Abduction, Articles 3, 12 and 13A.
Supreme Court Act 1981, s 18.
Cases referred to in judgment:AF (A Minor) (Abduction), Re[1992] 1 FCR 269.
J (A Minor) (Abduction: Custody Rights), Re [1991] FCR 129; [1990] 3 WLR 492.
Kapur v Kapur [1984] FLR 920.
P (GE) (An Infant), Re [1965] 2 WLR 1.
R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309.
V v B (Child) (Abduction) [1991] FCR 451.
Jeremy Rosenblatt for the plaintiff.
Heather MacGregor for the defendant.
MR JUSTICE WAITE.These proceedings under the Child Abduction and Custody Act 1985 and the Hague Convention arise from the breakdown of the marriage between a British father and a German mother. They have young children aged 3 and 2.
The family lived in Britain until January of this year when they moved to Germany. In July 1992 they came to England for a short holiday and the father, taking the view that the marriage was at an end, used that as an opportunity to start matrimonial and family proceedings in this country in which he has obtained a temporary injunction restraining the children's return to Germany until those family proceedings are heard.
There is some dispute as to whether that step amounted to a retention of the children for the purposes of Article 3 of the Convention, but the principal debate in this case has centred on the question whether, assuming that it did, the children were habitually resident in Germany immediately before such retention took place. If they were then there is no dispute that German law would render the retention wrongful within the terms of the Convention as a breach of the joint custodial rights which both parents enjoy under the German legal system.
The concept of habitual residence has been the subject of a considerable body of authority, much of it recent. Those cases are Re P (GE (An Infant) [1965] 2 WLR 1; R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309; Kapur v Kapur [1984] FLR 920; Re J (A Minor) (Abduction: Custody Rights) [1991] FCR 129; V v B [1991] FCR 451 and Re AF (A Minor) (Abduction)[1992] 1 FCR 269.
Three principles relevant to this case emerge from those authorities. 1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.
2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.
All that the law requires for a "settled purpose" is that the parents' shared intentions in living where they do should have a sufficient degree of continuity
about them to be properly described as settled.
3. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no...
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