A father has failed in his bid to have his son returned to the UK from Spain. In refusing his application, the High Court gave some useful guidance on how to determine a child’s habitual country of residence when parental disputes arise.

The case involved a couple who met in the UK but then moved to Spain shortly afterwards. The father was British, and the mother was Spanish. Their son was born in Spain in 2016. When he was nine months old, the couple moved to England for a few months.

They then returned to Spain but separated shortly afterwards following the father’s adultery. He went back to England, but the mother refused to go with him and refused to return their son to the UK.

The father claimed the mother was wrongfully retaining their son in Spain, but the High Court ruled against him on the basis that the boy should be considered habitually resident in Spain.

It said that a young child would usually have the same habitual residence as his or her carer, especially when still an infant. The mother was his primary carer and he had spent the first nine months of his life in Spain among his maternal family.

He had very substantial connections and roots to his family in Spain. Prior to coming to the UK, he was habitually resident in Spain. When the family left Spain in June 2017, the court was not satisfied that he acquired residence in the UK.

There was no evidence that he had lost his habitual residence in Spain. He retained and had very substantial connections with Spain and with his maternal family.

It followed that there was no wrongful retention of the child in Spain on or after January 2018 and that the English court did not have jurisdiction in relation to any issue concerning him or his upbringing.

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Case Citations: [2018] EWHC 1021 (Fam) AB v CD (2018) Fam Div (Keehan J) 11/04/2018