A father has been told that he cannot invoke the Hague Convention to have his children returned to Austria after their mother took them to live in England.

The Family Court was told that the children were British citizens born in the UK in 2012 and 2019 and were aged nine and two.

The parents had a volatile relationship. The mother alleged that the father was controlling and violent, had affairs, and had raped her on two occasions. Her case was that the father had family in Austria, he set up a business and moved there in June 2019, and she and the children joined him in July 2019 for a trial period to try to save the marriage.

In February 2020, the mother returned to England with the children permanently. She claimed that the father had agreed to their return; however, he asserted that he had agreed to what he believed was only a weekend break.

The father applied for them to be returned to Austria under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The court ruled against him. It held that for him to successfully argue that the mother had wrongfully retained the children in England in February 2020, the children had to have been habitually resident in Austria at that point.

The court was satisfied that neither child had achieved the requisite degree of integration in Austria to establish habitual residence. Rather, they had remained habitually resident in England. Consequently, the retention was not wrongful under the Convention.

That conclusion was based on the fact that the eldest child was born in the UK, was a British citizen with a UK passport and lived in England for the first seven years of her life. She attended school in England and had friends she had known since nursery.

Accordingly, she had a deep connection with England, established over several years since birth.

The youngest child had a lesser connection given her age, but it was still a strong one. Both children were habitually resident in England prior to their departure to Austria in July 2019.

The court was satisfied that, at the time the mother and children travelled to Austria in July 2019, it was the mother’s intention that the move was for a trial period and the father was aware of that.

Although the children were registered as residents on arrival in Austria and had a right of abode there, it was necessary to consider the stability of that residence.

First, the eldest child’s attendance at school in Austria was irregular to the extent that the father had been fined for her absence. There was no evidence that she became integrated within a friendship group among her peers, participated in school or social activities, or developed German language skills.

Second, the children lived in a highly dysfunctional home, characterised by frequent arguments and domestic violence that had resulted in the children’s family life becoming the subject of investigation by the Austrian police and assessment by Austrian social services.

Third, their six-month residence in Austria was not uninterrupted. They had briefly returned to England and were then separated from their mother for six weeks in Austria, further disrupting any integration there.

Fourth, there had been an additional level of conflict involving the father and his relatives in Austria, further militating against the children developing a degree of family and social integration while there.

Fifth, the youngest child’s social and family environment was associated with those on whom she was dependent. Although the father was well settled and integrated in Austria while the children were there, the mother was not.

Sixth, the eldest child had made clear that she continued to view the concept of home as applying only to England.

For all those reasons, the children’s family and social lives were highly unstable and disrupted such that they had not achieved the requisite degree of integration in Austria to end their habitual residence in England.

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Case Citations: K v T [2021] EWHC 1525 (Fam) MacDonald J

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