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

Date:27 MAR 2009

(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.