Two children brought to Australia by their now deceased mother should be returned to their father in Australia, the High Court has ruled.
The unnamed English woman lived in Darwin, in the country’s Northern Territory, with an Australian husband who is of Aboriginal descent The Guardian reports. They married a decade ago but eventually divorced. Two years ago, the mother was diagnosed with cancer and travelled back to England with her children for treatment. According to the paper, the husband agreed to let her take their eight year-old daughter and seven year-old son back with her so they could have a holiday while she underwent medical treatment.
But back in England, the woman decided she did not wish to return to Australia after all, consulting lawyers without telling her husband. As her illness progressed, she drew up a will stating in no uncertain terms that she did not wish her two children to be sent back to their father. It stated that they should “have little or nothing to do” with him, adding:
“Under no circumstances do I wish my children to be returned to their biological father in Australia, as this would be extremely detrimental to their lives.”
Instead they should be brought up by relatives in England, she insisted. Since her death late last year, the two children have lived with their grandparents.
The father applied in the English courts for the return of his children, against opposition from his ex-wife’s parents. He argued that the children’s ‘habitual residence’ (usual place of residence for legal purposes) was Australia as they had been born and raised there. The father also insisted that he had never agreed to the children relocating permanently to England.
Sitting at the High Court in London, Mr Justice Roderic Wood ruled in his favour. The man’s ex-wife had misled him, the Judge declared, and she had been wrong to keep them in England without his consent.
Neither child had objected to returning to Australia to see their father, Mr Justice Roderic Wood noted, and neither appeared to have been told of any plans to stay permanently in the UK. They had left Australia without saying goodbye to their friends and left many treasured possessions behind in the country.