Spotlight
Family Law Awards 2020
Shortlist announced - time to place your vote!
Court of Protection Practice 2020
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
CB v EB [2020] EWFC 72
(Family Court, Mostyn J, 16 November 2020)Financial Remedies – Consent order – Application for set aside – Property values left husband with lower sums than anticipated – FPR...
No right (as yet) to be married legally in a humanist ceremony: R (on the application of Harrison and others) v Secretary of State for Justice [2020] EWHC 2096 (Admin)
Mary Welstead, CAP Fellow, Harvard Law School, Visiting Professor in Family Law, University of BuckinghamIn July 2020, six humanist couples brought an application for judicial review on the...
Controlling and coercive behaviour is gender and colour blind but how are courts meeting the challenge to protect victims
Maryam Syed, 7BRExamining the most recent caselaw in both family and criminal law jurisdictions this article discusses the prominent and still newly emerging issue of controlling and coercive domestic...
Roma families face disadvantage in child protection proceedings
Mary Marvel, Law for LifeWe have all become familiar with the discussion about structural racism in the UK, thanks to the excellent work of the Black Lives Matter movement. But it is less recognised...
The ‘Bank of Mum and Dad’ – obligations and scope for change
Helen Brander, Pump Court ChambersQuite unusually, two judgments of the High Court in 2020 have considered financial provision for adult children and when and how applications can be made. They come...
View all articles
Authors

ABDUCTION: TPC v JMJ [2009] EWHC 638 (Fam)

Sep 29, 2018, 17:20 PM
Slug : tpc-v-jmj-2009-ewhc-638-fam
Meta Title :
Meta Keywords :
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Mar 27, 2009, 07:29 AM
Article ID : 85947

(Family Division; Sir Mark Potter P; 27 March 2009)

The Welsh mother and the Spanish father married in Spain and had five children together. After the family had lived in Spain for 12 years, the mother and children moved to Wales for 14 months, with the father's consent, while a new family home was constructed in Spain, with the aim of improving the children's English. During their stay in Wales, the children and mother stayed with the maternal grandparents. Although the arrangement had been that after the children had spent one academic year in Wales, the family would be reunited in Spain, during the stay in Wales the mother decided that she did not want to return to Spain, and wanted a divorce. However, after the father assured the mother that if things did not work out he would personally accompany them back to Wales to live and resume their schooling there, the mother agreed to return to Spain as originally planned. The mother and children moved back to Spain, and the children started attending Spanish schools again. However, within 3 months, the mother returned to Wales with the children. The father brought proceedings in Spain, and sought the children's summary return under the Hague Convention. The mother argued that the children were habitually resident in England and Wales.

The children had at no stage ceased to be habitually resident in Spain, therefore when they returned to Spain after spending a year in Wales, they had merely been physically returning to the place of their habitual residence after a temporary absence for educational purposes. Where there had been an agreement between the parties as to the basis on which the children would be sent or taken to another country for a temporary purpose, in particular that of education, that would not alone be sufficient to change their habitual residence. Where both parents had equal rights of custody, neither could unilaterally change the habitual residence of the child, so the mother's change of mind while in Wales had not had the effect of changing the children's habitual residence. The court therefore did not have to consider what the effect of the parents' discussions as to the future of the marriage if the difficulties persisted after a return to Spain, or whether the time spent in Spain after the return had re-established habitual residence in Spain. The court approved the conclusion in Re S [2008] EWHC 1873 (Fam) that it would be wholly undesirable to apply different tests for habitual residence in the context of the Hague Convention depending on whether the case was European. The 'centre of interest' test could not readily be applied to a child, not least because the test encompassed a subjective element of intention. However, even applying the 'centre of interest' test, the conclusion in this case would be the same.

Categories :
  • Archive
  • Judgments
Tags :
Authors
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from