Our News

Mother wins fight to keep her children in England

04/11/2011

A mother has succeeded in keeping her children with her in England, even though she had promised their father that she would return with them to Australia.

The case involved a British woman and her Australian partner. They had two children aged eight and two who were born in Australia.

The couple began to have difficulties in their relationship and they agreed to come to England for a year. The father later returned to Australia. The mother remained in England with the children on the understanding that she would return with them to Australia a few months later.

However, she had no intention of returning and failed to do so. The father began proceedings in England under the Hague Convention. The court found in his favour.

The judge found that although the children were living in England at the time, that was only a temporary arrangement and their habitual residence was in Australia. The mother should therefore return them to Australia.

However, that decision has been overturned by the Court of Appeal. It held that the judge had failed to bear in mind that habitual residence could be acquired even though the move had originally been considered as temporary.

The judge had been swayed too much by the fact that the father had always intended that the children should return to Australia. However, the father’s intention did not over-ride the fact that the family’s habitual residence had been established in England.

If you have any issues regarding child residency matters please contact a member of our family law team to arrange your intial 30 minute free consultation.