A boy who had moved back to Australia with his mother should rejoin his father and brother in England, the High Court has ruled.
The case concerned a couple who moved to England and then Scotland with their two boys in October 2015.
Just a few months later, however, in January last year, the mother travelled back to Australia for a brief visit. While she was away, the father took the two boys and abruptly relocated to England. They began attending new schools there.
During the subsequent legal wranglings, a key point of contention was the boy’s habitual residence, as this was the metric which would be used to decide where the brothers should live. Was it Australia, Scotland or England?
High Court Judge Mr Justice Keehan came to the conclusion that the siblings had lost their Australian residence but not lived in Scotland for long enough to acquire habitual residence there. At a subsequent hearing he explained his reasoning:
“… the family, as a whole, left Australia on a plan to settle into new life in Scotland – albeit they first came to England and moved to Scotland in October 2015. On the basis of them leaving as a family on a settled plan, agreed between the parents, to begin a new life in Scotland, I was entirely satisfied… that on the facts of this case, taking into account in particular the numerous occasions that the family had moved between Australia and England, that both [the brothers] had lost their habitual residence in Australia by the time the mother’s application [for their return] was made to this court on 6 February 2016.”
In addition, he continued:
“Because of the short and itinerant nature of their time in Scotland, I found that the boys had not acquired that degree of social integration in that remote part of Scotland, and it meant that they had not acquired habitual residence in Scotland.”
Instead they had acquired habitual residence in England.
A family court judge eventually ruled that one of the brothers should return to Australia with his mother. The second did wish to go back and so stayed in the UK with his father. But he was only there for a short time before the father appealed this ruling.
At that point, said Mr Justice Keehan, the first brother’s residence habitual residence remained in England despite his trip back to Australia. He had only been there for a couple of months and lived an unsettled life with his mother.
The High Court Judge overturned the earlier ruling and declared the boy should not remain in Australia but instead return to the UK to live with his father and brother. The mother attempted to appeal this, arguing that the Judge had not properly considered the issue of habitual residence and that the father had pressured the brother into saying he wanted to stay in the UK.
But the boy had consistent in his views, the Judge concluded, and there was no evidence to suggest undue parental pressure.
The Judge explained that the boy had been extremely upset when told that he would have to return to Britain, insisting that he hated his sibling and father. But Mr Justice Keehan was unperturbed.
“That reaction from JL was entirely anticipated by me in the judgment that the news that he was going to have to live with his father and IL in this country, away from his mother, would cause him emotional distress, but I was satisfied, as I remain, that that would be short-lived.”
The family had agreed to undergo counselling and receive support to help them adjust to the new arrangements.
You can read the full ruling here.