The two children, aged 5 and 4, were both born in Latvia where their parents originated from. The parents moved to England to work, initially leaving the children with the maternal grandparents but subsequently returning as a family and living together for nearly 2 years before moving back to Latvia.
When the parents' relationship broke down the court authorised the father's aunt to care for the children while the parents returned to England separately. Three months later the mother returned to Latvia with the intention of removing the children to England. The parents came to an agreement whereby the 4-year-old child would return to England with the mother and the 5-year old would remain with the father. The agreement was to last for 6 months by which time if the father had not secured a flat in Latvia the 5-year old could also be permitted to go to England with the mother. The father returned to England and the 5-year old remained in Latvia with a relative and commenced school.
After 6 months the mother returned to Latvia and removed the 5-year old under the belief that she was entitled to do so because the agreement had expired. The father applied for a return order under the Hague Convention 1980.
On the facts both children had been habitually resident in Latvia on the respective date upon which they were removed based on the fact that the parents always intended to educate the children in Latvia and that they must have been habitually resident in Latvia in order for the court to permit their residence with the aunt.
It was clear from the agreement that the father had consented to the younger child's removal but he had not done so in respect of the older child and by the time they were removed the mother was aware of his objections.