A mother has won her appeal against a court order that she should return her two children to Germany to live with their father.

The decision means the children can continue to live with her in England.

The children and parents had all lived in Germany since the children were born. The parents separated in 2017. In July 2018, the mother and children moved to England to live with the mother’s new partner after the parents signed a letter of intent, agreeing that the mother and children would remain in England until approximately 2019.

The children began attending school in England. They continued to spend time with the father but lived predominantly in England between July 2018 and July 2019. In July 2019, the mother found out that she was pregnant and decided not to return to Germany.

The father applied to have the children returned to Germany under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The judge found that the mother had wrongfully retained the children at the end of July 2019, in breach of the agreement. He decided that the children had not “lost” their habitual residence in Germany by July 2019, so remained habitually resident there.

The Court of Appeal has overturned that decision. It held that if the judge had asked himself the “essential question” of whether the children had achieved a sufficient degree of integration into a social and family environment in England such that their residence there was habitual, there was no doubt that he would have concluded that they had.

Instead, the judge wrongly relied on the parents’ intentions and the time the children were spending with their father and other family members in Germany.

Those were important factors but did not counterbalance the degree of integration that the children had established in England. The children were habitually resident in England at the date of their retention and the father’s application under the Convention had to be dismissed.

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Case Citations: [2020] EWCA Civ 1105RE M (CHILDREN) (HABITUAL RESIDENCE: 1980 HAGUE CHILD ABDUCTION CONVENTION) (2020), CA (Civ Div) (Moylan LJ, Simler LJ, Sir Stephen Richards)

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