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(Family Division, Moor J, 19 April 2012)
The English father and American mother married and had a child together in England. When the mother took the child to the USA to visit the maternal grandmother she failed to return. The father subsequently visited the child and eventually the mother and child returned to England and participated in mediation.
The mother and father drew up a one-year agreement which provided for the child to travel between the USA and England to spend time with each parent. The agreement did not make provision for a change of habitual residence. The father also instructed a solicitor to write to the mother in terms that he was only consenting to the temporary removal of the child and that he was in no way consenting to his removal beyond the one-year period.
Upon the mother's return to the USA she initiated divorce proceedings and was granted an ex parte order giving her custody of the child and prohibiting the child's removal from the USA in clear breach of the agreement with the father. The mother failed to take the child to the UK for contact as per the agreement and stated she would remain in the USA during the divorce proceedings.
The father initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 applied for a declaration that the child's place of habitual residence remained the UK.
The judge held that the child was habitually resident in the UK on the date the mother returned with the child to the USA and she was unable to alter that residence unilaterally without the father's consent or order of the court. The declaration of habitual residence was granted. The mother had clearly unlawfully retained the child in the USA in breach of the agreement.
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