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Children to be returned to the US, High Court rules

A mother who bought her three children from the United States to England has lost her legal fight against their father.

R v A concerned a couple who originally came from Zimbabwe. After their marriage they moved to California and their two eldest children were born in the state. Later they  relocated to England on what the father claimed was a temporary basis to allow the mother to undergo a Caesarean section. After the birth of their third child, they then returned to the US.

Shortly afterwards, however, the mother took all three children back to the UK without the father. He then launched legal proceedings, seeking a return of the children  under the Hague Convention on the Civil Aspects of International Child Abuse, an international agreement which allows children taken from one participating country into another to be returned. Both the UK and the United States are signatories.

Sitting in the Family Division, Mrs Justice Parker considered the issue of the children’s ‘habitual residence’, a legal concept, meaning the place where a person usually lives, which is used to determine Hague Convention applications.

She concluded that the father was a much more impressive witness, who had presented consistent and convincing evidence. The mother, by contrast, “appeared to make things up as she went along.”

The couple’s visit to England had been a strictly temporary arrangement, the judge determined, and it had always conditional on the family’s return to the US. The mother’s later departure had been “planned, surreptitious and deceptive” and had involved what the father saw as the ‘kidnapping’ of the children.

The couple had never owned a home in England the father remained habitually resident in the United States while pressing for the return of his children. As a result, ruled Mrs Justice Parker, the two oldest children were habitually resident for legal purposes in the US. The youngest child was initially habitually resident in the UK from a legal perspective as she had been born in this country. However, when the family returned to the United States, the girl took on the habitual residence of the rest of her family.

The judge granted the father’s request for a return of the children.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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