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(Family Division, Parker J, 27 March 2013)
The parents originated from Zimbabwe and the father's family were now resident in the USA while the mother's lived in England. After the marriage the couple moved to California where their two oldest children, now aged 12 and 7, were born. During the marriage the family relocated to England on what the father claims was intended to be a time limited arrangement for the mother to have a caesarean section delivery of their third child, now aged 2, while the mother claimed it was an arranged relocation. Thereafter they returned to the USA for a short period before the mother removed the children and travelled to England without the father.
The father initiated Hague Convention proceedings seeking a summary return of the children to the USA. The main issue that fell for determination was whether the children were habitually resident in the USA at the time of the mother's removal.
The mother was an unimpressive witness who was inconsistent and appeared to make things up as she went along. The evidence of the father and his witnesses was coherent, consistent and convincing. Parker J found that the father's original agreement for a relocation to England was given for a temporary period, for a limited purpose and was conditional upon return. The stay was periodically extended due to medical complications following the birth of the third child. When they returned to the USA the mother presented as intending to make the return permanent.
The mother's removal of the children had been planned, surreptitious and deceptive. The father had in no way accepted the removal and referred to them as having been kidnapped.
The stay in England did not become a regular order of their lives and they did not own a home here. The father did not agree to the family remaining in England and pressed for their return. The father's agreement to a temporary removal and his continuing habitual residence in the USA distinguished this case from Al Habtoor v Fotheringham. The two older children did not therefore cease to be habitually resident in the USA. However, the youngest child, as a consequence of being born in England was habitually resident here until the family's return to the USA but by the time the mother removed the children from the USA for a second time she had adopted the habitual residence of the rest of her family.
The mother's defences of consent and grave risk of harm were not made out and a return order was granted.
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