ABDUCTION: RS v KS (Abduction: Habitual Residence) [2009] EWHC 1494 (Fam)

26 JUN 2009

(Family Division; Macur J; 26 June 2009)

The parents were Lithuanian; the father worked in Sweden and visited the mother and child in Lithuania at regular intervals. Before the child's 2nd birthday the father consented to the child going to England with the mother, for a holiday. Unbeknownst to the father the mother had already consulted lawyers about the state of the marriage. The mother remained in England, but applied to the Lithuanian court for a divorce, child maintenance and residence. The Lithuanian court granted the mother residence of the child, aware that the child was living in England, but, following the father's appeal, the matter was remitted for a retrial by the Lithuanian courts. In the meantime the father sought summary return of the child under the Hague Convention. Initially there were delays because of funding issues for both parents, followed by delays generated by the slowness of both parties to respond to directions. In particular the father failed to attend court on a number of occasions. Eventually, despite the father's failure to attend, the case went ahead. The judge decided to hear the mother's oral evidence because the affidavit evidence of both parties was unclear and contradictory.

This had been a case of wrongful retention subsuming a wrongful removal: prior to the removal to the UK the mother had had no intention of returning the child to Lithuania in accordance with the agreement reached with the father and therefore the father's consent to the trip had been obtained by deceit. The mother had then retained the child beyond the agreed date of his return. The relevant date for the purpose of assessing whether the father had commenced proceedings after the expiration of one year was the date on which the child should have been returned to Lithuania under the 'agreement'. The 12-month period had therefore not elapsed before the father issued proceedings. However, the child, now aged 4, was now integrated so completely within his new life in time, location and physical and social environment that he could only be described as 'settled'. Undue delay and settlement could, in appropriate circumstances, constitute the basis of an argument that the child would be exposed to an intolerable situation if summarily returned to the country of habitual residence. This was such a case: if the child were returned, the child's life would be unduly disturbed. The court exercised its discretion to refuse summary return of the child.

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