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Child can stay with mother in his place of habitual residence

A mother has successfully appealed against a decision ordering the return of her eight-year-old son to Germany under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The mother was Ugandan and the father was German. Their son was born in Uganda in 2014.

The relationship ended and the father returned to Germany. The boy spent time living with each parent in their respective native countries, although there were disputes over the length and terms of these stays.

In 2017 the boy was granted a German passport but spent from May 2018 to April 2019 with his mother in Uganda attending nursery. During this time the father spent extended periods in Uganda.

On 29 April 2019 the father took the boy to Germany and did not return him to Uganda.

The mother claimed it was intended to be a short-term visit and repeatedly asked the father to return her son to her in Uganda.

In January 2020 the mother travelled to England and claimed asylum. In September 2020 the father took the boy to the UK and left him there with the mother.

The basis and longevity of the boy’s stay in the UK were disputed. He attended school and then the Covid-19 pandemic prevented travel between the UK and Germany.

The mother began proceedings for a child arrangements order. The father applied for the boy’s summary return to Germany, claiming that the mother had wrongfully retained him.

The judge held that, despite the father’s unilateral action in taking the boy to Germany in 2019 and keeping him there, the boy became habitually resident there.

The father had not consented to the boy staying long-term in the UK from September 2020; rather, the period had been extended by Covid-19 restrictions.

She ordered the boy’s return to Germany.

However, the Court of Appeal overturned that decision. It noted that the judge had been wrong to consider Germany as the boy’s habitual residence.

He had spent the past few years living in the UK and began attending school, albeit because of the travel restrictions enforced during the pandemic.

Case citation: [2022] EWCA Civ 1423 [2022] 11 WLUK 1 Judge Baker LJ

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The contents of this article are general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.

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