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(Family Division, Peter Jackson J, 3 December 2012)
The Nigerian parents placed their 2-year-old child in the care of his maternal aunt and uncle, who had leave to remain in the UK, and returned to Nigeria. The parents signed a document stating the the aunt and uncle were the child's guardians and next of kin. For 5 years they took responsibility for the child, arranging his schooling and day-to-day care, while the parents occasionally visited him.
When the parents visited the child, now 7, with his older brother they abducted him and flew home via Dubai. The aunt and uncle were granted a residence order and the parents were ordered to return the child. Proceedings were transferred to the High Court and the judge found the child's place of habitual residence was the UK and set a deadline for the child's return. The mother claimed that the aunt and uncle knew of her plan to return the child to Nigeria and had been given a document stating that they were no longer the guardians and next of kin of the child. They denied this and claimed to have been unaware of the parents' plans.
The parents submitted that as the child was now habitually resident in Nigeria the English court did not have jurisdiction to determine the matter.
The judge attached considerable weight to the length of time the child had spent in the UK. The parents could not change his habitual residence by exercise of will when they had had very little input into his life for the past 5 years. The child was habitually resident when the orders were made and the English court, therefore, had jurisdiction to make the orders it did.
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