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Court upholds ruling on habitual residence

The Court of Appeal has upheld an earlier ruling that a 12 year-old girl should not be returned to Brazil.

Re S (A Child) concerned a Brazilian mother and a British father. They met in the UK and lived here until 2013, only holidaying in the mother’s native country. Therefore the girl, referred to a ‘G’, and her younger brother ‘J’, both grew up in England.

The couple’s marriage ended in 2011 and the father moved out the following year. Sitting in the Court of Appeal, Lady Justice Black noted that the father had “begun a relationship with another woman in circumstances which were particularly hurtful for [the mother] and difficult for G.”

The mother decided that she wished to return to Brazil with her children and applied for permission to do so. As is usual in requests for permission to relocate abroad, a social worker was asked to assess the views of the children. They expressed a willingness to move to Brazil, but the social worker believed that this was at least partly because they knew how keen their mother was to move.

The children’s father initially opposed the mother’s application but later agreed, and permission was granted in June 2013. They left at the beginning of August and the children began attending a private school in Brazil.

They returned to England the following January to visit their father. After their return, they were “very upset” for a while because they were “because they were missing their father and their home life in England.”

The parents struggled to reach a financial settlement following their divorce. During the course of discussions, the mother emailed the father about their financial situation, “unhelpfully” copying it to the children. G subsequently emailed her father herself, expressing her frustrations about the split and her father’s alleged reluctance to pay the fees for her new school. The girl said she might be “too angry” to see her father if he wouldn’t pay the fees.

Contact dropped off for a period, but later in the year, the children travelled over to see their father again. Lady Justice Black noted how the father’s recollection that he was unsure the children would get off the scheduled flight but they did and subsequently reconciled during a holiday in France.

During this trip, G announced to her father that she did not, in fact, want to go back to Brazil. She persisted in this decision and told her mother of her wishes.

The first judge to rule on the case concluded that G was expressing a preference not for her father over her mother but for England over Brazil, and said that she had stated her wishes “in a mature, rational way”.

Subsequently, the mother, who had been staying in England for the financial proceedings, travelled back to Brazil, along with G’s younger brother who went with her of his own accord. The mother then launched proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, seeking the return of G.

But the Judge ruled against her, saying that G had not been ‘habitually resident’ in Brazil – that it is to say, she still maintained significant legal and personal links to England. Consequently, remaining in this country did not constitute a breach of the Convention. In addition, she had clearly objected to be returned to Brazil.

To quote Lady Justice Black:

“G objects to being returned to Brazil and is of an age and degree of maturity at which it is appropriate to take account of her views.”

The mother’s subsequent appeal was dismissed. The girl had expressed a clear and strong preference for England and this had allowed the Judge to exercise her judicial discretion and act on her objections.

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. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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