The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The child had been removed wrongfully. The mother was not to be allowed to create a risk of psychological harm to her child, and then use that to resist his return home.
Lord Donaldson MR spoke as to habitual residence: ‘I think it is a very interesting question whether J. and his mother could establish habitual residence in this country as at the moment when they arrived in this country in circumstances in which they had every intention of staying here indefinitely and of settling here. But I do not think, with respect to the argument, that that is the point. The question is: did J.’s habitual residence in Australia, which certainly existed up to 21 March, continue thereafter? It may take time, I do not say it does, to establish habitual residence, but I cannot see that it takes any time to terminate it’ and ‘If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the Convention. I add for completeness that a ‘right to determine the child’s place of residence’ (using the phrase in the Convention) may be specific – the right to decide that it shall live at a particular address or it may be general, eg ‘within the Commonwealth of Australia’.’
Judges:
Lord Donaldson MR, Butler-Sloss LJ
Citations:
[1990] 2 AC 562, [1989] 2 All ER 465, [1989] 1 WLR 654, [1989] 1 FLR 403
Statutes:
Child Abduction and Custody Act 1985 S1 a3 S1 a5 s1 a13
Jurisdiction:
England and Wales
Cited by:
Appeal from – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – Nessa v Chief Adjudication Officer HL 3-Nov-1999
Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to . .
Approved – In re P (A Child) (Abduction: Consent); (Abduction: Custody Rights) CA 28-Jul-2004
The father sought the return to the USA of his daughter, brought here by her mother. The father had custody, but the mother said he had consented to the child being brought here.
Held: The issue of consent did not affect the question of the . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – AF v M B-F FD 22-Feb-2008
The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish . .
Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Lists of cited by and citing cases may be incomplete.
Children, International
Updated: 06 May 2022; Ref: scu.200333