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Family Law

The leading authority on all aspects of family law

13 DEC 2011

ABDUCTION/ HABITUAL RESIDENCE: FVS v MGS [2011] EWHC 3139 (Fam)

(Family Division; Holman J; 18 November 2011)

The Spanish parents lived together for 18 years, had one child and were not married. The parents moved to UK for a fixed period for the father's employment. There was a chance to increase the period and the father was keen but the mother wished to return to Spain but agreed to remain in UK as the child was enrolled at school. The parents had major a argument prior to travelling to Spain for a holiday. The father returned to the UK and mother and son remained in Spain. The child travelled to the UK to see the father, but when the mother returned to collect him and travel home to Spain, the father made a without notice application for prohibited steps and residence orders. The mother issued Hague Convention proceedings for the child's return to Spain. The father's applications were stayed.

Issue as to where the child was habitually resident at time of retention.  The child and family reporter were unable to elicit child's views (6 years old). Habitual residence of parents and child must have been the same at the relevant period.

They had been habitually resident in UK, especially so after it was agreed they would remain for an extended period of the father's employment. They moved for settled purposes, as part of regular order of lives, for time being, more than merely temporary. The father had not agreed to the child returning to Spanish school and nothing had been resolved as to their living arrangements. Nothing had occurred to displace habitual residence of family in UK . Hague proceedings dismissed.

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