A mother should be allowed to keep her children with her in England even though she had detained them against their father’s will.

That was the decision of the Court of Appeal in a case involving a family that had lived in both the UK and Australia.

The mother, who was English and the father who was Australian, had met and had two children in Australia. The family lived in Australia and the mother and children had several extended visits to England.

In April 2017, the mother obtained a school place in England for the older child, without the father’s knowledge. She also began arrangements to have her possessions shipped to England.

Three months later she took the children to England because her father was terminally ill. He died in September and the oldest child started school in England in the same month.

The mother told the children’s father in December 2017 that she needed to stay in England with her family for a while.

However, in March 2018 she revealed that she wasn’t going back to Australia and the father began proceedings to have the children returned to him.

The court ruled in favour of the mother. The judge held that she had not acted in a clandestine way, and that it was not until March 2018 that she had decided not to return to Australia, by which time the children were habitually resident in England. Their roots in Australia were shallow.

However, the father argued that the judge hadn’t given enough weight to various pieces of evidence that suggested that the mother had intended to stay in England as early as July 2017.

The Court of Appeal upheld the judge’s decision. It held that the mother had been a credible witness and the judge had conducted an appropriately critical appraisal and been entitled to reach her conclusion.

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Case Citations: [2019] EWCA Civ 283 / RE G-E (CHILDREN) (HAGUE CONVENTION 1980: REPUDIATORY RETENTION & HABITUAL RESIDENCE) (2019) / CA (Civ Div) (Longmore LJ, Flaux LJ, Moylan LJ)

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