Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
(Family Division; Sir Mark Potter P; 21 December 2006)
The father and mother had married in Kurdistan, but had made their home in the UK; the child had been born in the UK. When the child was 19 months old, the family travelled to Kurdistan. Shortly afterwards the father returned to the UK, leaving the wife and the child with the paternal grandmother. The mother stated that the move had been represented as a business trip and holiday; the father's case was that he and the family were relocating with the intention of making their home in Kurdistan. Within a matter of months the father had divorced the mother, who signed an agreement approved by the Kurdistan court granting custody of the child to the father. The mother saw the child every week at the home of the paternal grandmother for about one week, after which the father refused to allow her any further contact with the child. The mother made her way to England, and applied for wardship in respect of the child, now 4 years old. A hearing was held to decide whether the court had jurisdiction; the question in issue was whether the child was habitually resident in England or in Kurdistan.
The court had no jurisdiction because the child was not habitually resident in England and Wales. Although the court accepted the mother's account as substantially true, after the divorce the mother had accepted the father's intention that the child should reside in Kurdistan, until she left Kurdistan herself. In any event, the question of habitual residence of a child was not always determinable by reference to the combined intention of the parties; it ultimately depended upon whether it could properly and realistically be said that the child was habitually resident in England and Wales.