Posted by Emilie Haine on 3rd November 2016

Parental child abduction occurs when a parent takes a child away from their place of habitual residence without the other parent’s permission or a court order.

Place of habitual residence

Determining a child’s ‘place of habitual residence’ is usually quite straightforward. The issue becomes complicated when a child moves around, as they cannot be habitually resident in more than one country at the same time. So if a child moves from one country to another, when does their habitual residence change? This issue was highlighted last month in the well publicised case of ex-BBC presenter Katy Ashworth, star of CBeebies show ‘I Can Cook’.

Alcott v Ashworth

Ashworth was in a long distance relationship with Ben Alcott. Ashworth lived in the UK with their child, while Alcott lived in Australia. In April this year, Ashworth and the child travelled to Australia to join Alcott. However, just a few days after arriving, Ashworth discovered that Alcott had been cheating on her and returned to the UK with their child.

Alcott accused Ashworth of abducting their child. He applied to court under the Hague Convention seeking return of the child to Australia. He said that Alcott’s move was intended to be permanent and, as a result, the child had become habitually resident in Australia. Alcott said that the move had been a trial to see if the relationship would work long-term.

The court found in Ashworth’s favour, deciding that the child had never acquired habitual residence in Australia and therefore was not wrongfully removed. The judge concluded that Ashworth’s move to Australia was based on a fundamentally flawed premise. If she had known the true state of affairs, she would not have moved to Australia even for a trial period.

Conclusion

Each case like this will turn on the particular facts. The court will look at where the child is ‘integrated in a social and family environment’, and this depends on many factors. If a child has recently moved, the court will look at the extent to which they have put down roots in the new country. In general, the deeper the child’s integration in the ‘old’ state, the slower they become integrated enough into the ‘new’ state that their habitual residence changes. If a move has been heavily planned, for instance sorting out school or nursery etc, then the child is likely to become integrated more quickly.

Ashworth’s case was quite straightforward – the court decided that she was simply returning the child home to the UK. However, these cases can be very complex, and there is a need for careful consideration when moving abroad with a child, whether on a temporary or permanent basis.

For more information or to find out how we can help you, contact Jane Chanot, Head of our Child Abduction team or call +44 (0)1392 421777.

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