R-v-A: [2013] EWHC 692 (Fam) Parker J 27.3.13
In this case Parker J found as a fact that the mother and 2 children came to England for a temporary purpose and that their stay had been extended by agreement. The father remained in the US throughout and expected the mother and children to return in due course. However the children remained in England for over 2 years and a 3rd child was born in England.
The mother and all 3 children returned and spent several months in the US. Parker J found as a fact that this was presented by the mother as a permanent move.
The mother then removed the children to England and the father sought their return under the Hague Convention
The judgment is interesting because it concludes that despite being present in England for over 2 years the 2 children retained habitual residence in the US. Of particular importance were the fact that the father remained in the US throughout and that the purpose was a temporary one - even with extensions. The 3rd child could not be habitually resident in the US without ever having visited there: see the Court of Appeal decision in ZA. Had the father moved with them, even on a temporary basis, their habitual residence may well have changed - the decision of the CA in H-v-K would probably have required such an outcome.
The judge also concluded that had she been wrong about the children maintaining their habitual residence in the US throughout their absence, that when the children returned to the USA, ostensibly on a permanent basis they regained habitual residence and that the 3rd child acquired habitual residence very quickly.
A return was ordered.
The report contains an thorough review of the authorities on habitual residence which is of interest.
http://www.bailii.org/ew/cases/EWHC/Fam/2013/692.html
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