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Family Law

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30 JUL 2009

ABDUCTION: Re S (Habitual Residence) [2009] EWCA Civ 1021

(Court of Appeal; Thorpe and Thomas LJJ and Coleridge J; 30 July 2009)

Although the family's residence in London had lasted only 7 to 8 weeks before the family's plans were disrupted, giving rise to the dispute as to habitual residence, at the point of arrival in England the family had intended to live as a family in London for as long as the father's work kept him based in England and the family could afford accommodation. While intention was not enough, the judge had been entitled to find that intention, together with residence for 7-8 weeks, had established habitual residence on the facts.

The court did not accept the father's submission that such a finely balanced case should be decided by asking 'where is the child's real home'. In Re A (Area of Freedom, Security and Justice) (C-523/07) the European Court of Justice had favoured a fact-based enquiry into habitual residence, rather than a centre of interest test.

The reality of the life of this family was comparable to the life of any family in which the breadwinner's career and his need to make provision for his family carried him abroad for indefinite periods, depending on the nature of the work contract that from time to time he was able to secure. This was a family that had moved across only one European border in pursuit of the right of the citizen to work anywhere within the European member states. In such circumstances, even if the family's principal home, in which the bulk of their worldly goods was stored, was a constant, the constancy of that primary home did not prevent the acquisition of habitual residence in the work country if the other elements within the defined principles of acquisition were satisfied.

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