Assessing child residence in international custody case

1 November 2011

An interesting recent case highlights the importance of assessing residence status when a court decided how to award child custody. A couple who had two children – a boy aged 8 and a girl aged 2 – could not agree on where they should live following a one year stay in the UK, the home country of the mother. The father is an Australian citizen. The couple had come to live in the UK for one year, after which they had agreed they would return to Australia. The mother was British (although had the right of residence in Australia) and had been plagued with homesickness throughout her time abroad, which compounded the difficulties in the relationship, hence the reason for an extended stay. They set up home in a property belonging to the mother that she had inherited from a relative, in an area where she had friends and family around her. A place had been arranged for their son in the local school. However, at the end of the year, when the family were due to return to Australia, the mother refused to go and kept the children with her. This was contrary to the agreement. She had kept up the pretense that she was going to return, purchasing plane tickets and making arrangements with the father’s family back in Australia for their arrival back at their home there.
The father sought an order from the court that the mother would need to return the children to Australia. He based his case around the Hague Convention on the Civil Aspects of International Child Abduction, 1980, and argued that the mother’s actions amounted to a wrongful retention of the children in breach of his custody rights.  The main question to be resolved was where were the children ‘habitually’ resident at this time? In the first instance, the court decided that they were habitually resident in Australia, and ordered the mother to return them to that country. However, the mother appealed this decision. The judge had to look at whether their life in England was settled or transient. The fact they had established a home, the son was in school and the parents were either undertaking part-time work or living on state benefits was not enough for the first judge, who stated that the parents would both need to have intended to see the move as a permanent change of habitual residence, clearly something that had not been agreed upon in this case. However, this approach was not favoured by the appeal judge.
On appeal, the court decided that the judge had made an error in the way the question of domicile had been looked at. They fact they had ‘packed up’ their lives in Australia and established a new one in England was enough to show that the stay was not simply transient. At the time of the action, the children were clearly settled with their mother in her home country and therefore the appeal court overturned the previous ruling.

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