A question of ‘habitual residence’

Susi Gillespie looks at the decision in RE: ALCOTT (1) [2016] EWHC 2413 (Fam) and the question of ‘habitual residence’ in child abduction cases under the Hague Convention

There are many benefits to having parents from different countries and culture – in many cases it can mean children growing up speaking more than one language, and with a wider world view than many of their contemporaries. Sadly though, if these relationships break down, the situation can be more complicated than a relationship breakdown where both parents remain in the UK. A recent high profile case involving a former CBBC children’s television presenter, Katy Ashworth, looked at the question of ‘child abduction’ – when one parent takes the child (or children) to a different country and highlights the importance of the child’s ‘habitual residence’.

The Facts

The couple, Katy Ashworth and Ben Alcott, had been in what could be described as an ‘on off’ relationship since 2011. They had one child. Ms Ashworth was always the child’s main carer, and had always lived in the UK. Mr Alcott was Australian, and although he had been renting a house in London in 2011, he subsequently returned to Australia. Ms Ashworth and the child visited Australia for holidays in September 2014 and October 2015.

In April 2016, Ms Ashworth visited Australia with the child and stayed with Mr Alcott. The visit lasted 3 nights. Ms Ashworth returned to the UK at that point, taking the child with her after she found evidence of Mr Alcott’s relationships with other women. Following her departure, Mr Alcott made an application for the child to be returned to Australia, arguing that he had been abducted.

The Decision

The only issue in this case was whether the child was ‘habitually resident’ in Australia at the time Ms Ashworth took him back to the UK after the 3 night stay in April 2016. Where a child is ‘habitually resident’ in these types of case always depends on the facts. The judge took the opportunity to look at previous cases where habitual residence has been considered. He also made it clear that he preferred Ms Ashworth’s evidence over that of Mr Alcott.

In looking at the facts, the judge acknowledged that there had been some discussion and planning between the couple relating to the possibility of Ms Ashworth and the child moving permanently to Australia, but decided that the nature and stability of the relationship between Ashworth and Alcott was crucial to whether she intended the move to be a permanent one. The judge decided that the child remained habitually resident in the UK and Mr Alcott’s claim that the child had been abducted failed.

Comment

This was always going to be a difficult case for Alcott to win given that the child had never lived in Australia and Ashworth had only gone to Australia to see him for a few days, despite discussion of a proposed ‘permanent move’. It seems to have been clear to the judge that any permanent move was dependant on the success of their relationship. The evidence pointed to Mr Alcott’s complicated personal life and the judge thought that this undermined any question that the child had become habitually resident in Australia.

Other cases on habitual residence are less clear cut. If you are looking to argue that a child is habitually resident in one country, you need to appreciate the careful fact finding exercise that has to be carried out, to establish how deeply the child (or children) are integrated in one place of residence or another. The factors that will come in to play include the reasons for – or circumstances under which the child travelled to the other country, how much pre-planning was involved in the move, and how many of those people central to the child’s life also moved to the new country. In some cases, a child can acquire habitual residence somewhere in a day – in other situations it can take far longer.

If this affects you – or you are concerned that a partner or former partner may try to remove your child to another country, we can help – call us on 020 3733 1194 or fill in our contact form and we will call you back!

9 thoughts on “A question of ‘habitual residence’

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