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(Family Division, Pauffley J, 11 April 2013)
The British mother and father had two children, aged 4 and 2, and relocated to Canada where they were granted permanent residency. Three months after they had permanently relocated the parents relationship broke down and they reached an agreement whereby they would care for the children on alternate weeks within the family home.
The father took the children's passports and despite assuring the mother that he would not remove them, he flew back to the UK with them claiming they would return within 10 days. However, he failed to return and notified the mother that he would only do so if his solicitor instructed him to do so. Thereafter the mother initiated Hague Convention proceedings for a summary return of the children to Canada.
The father's defence was that while it had always been their intention to move to Canada there was an agreement that if one of them didn't settle then they would return to the UK. In circumstances where they retained a property in the UK and separated only 3 months after the relocation, the children remained habitually resident in the UK.
On the totality of the evidence, there was no conclusion other than the children had become habitually resident at the time of their removal to the UK. The evidence in support of that case was overwhelming: the parents had over a period of several years, engaged in the process of applying for permanence residency in Canada; the parents had resigned from their jobs in the UK and shipped their belongings to Canada; the children were enrolled in school and nursery; the parents were establishing their careers there. There was no evidence that the parents had made an agreement to return to the UK if one of them failed to settle in Canada. The court granted the mother a return order.
The practice title for family lawyers engaged in/dealing with issues European and worldwide