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New judgment on habitual residence takes lockdown into account: Re I and L (Children): [2020] EWHC 893 (Fam)

Date:29 MAY 2020

A father's application for a prohibited steps order preventing the mother and the children returning to South Africa following a holiday in England was refused. It was in the children's best interests to return to their home in South Africa where they were habitually resident.

The applicant father (mother’s first husband) who lives in England was legally represented. The mother (a litigant in person) lives in South Africa with the two children aged 8 and 6 and her second husband.

The father used the fact of the children’s presence in England for agreed contact over Christmas 2019 to secure jurisdiction under section 3(1)(b) of the Family Law Act 1986. Father’s application was for a prohibited steps order to prevent the mother returning to South Africa with the children.

Mostyn J conducted a welfare-based hearing to determine whether the children should return to the place of their habitual residence with their mother or whether they should stay in England in the primary care of the mother with significant contact with the father. On that basis the mother would have to live apart from her new husband unless he...

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