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International Child Abduction and the Seesaw of Habitual Residence

International child abduction disputes often hinge on a single question: where is the child habitually resident? As one case showed, however, in a world where peripatetic families move from country to country for work or social reasons, that question can be much easier to pose than to answer.

The case concerned parents who were born in Georgia of Georgian parents. Their four-year-old daughter was also born in Georgia and spent the first few months of her life there. The family subsequently moved to Belgium, where the father had spent part of his childhood, and later to England where his mother lived.

They remained in England for 17 months before going to Georgia on holiday. Their stay there was extended to seven months due to travel restrictions arising from the COVID-19 pandemic and medical and dental treatment required by the child. After the marriage broke down, the father callously, and in plain breach of the mother’s custody rights, boarded a flight to London with the child.

The mother’s response was to launch proceedings in England under the Hague Convention on the Civil Aspects of International Child Abduction. She sought an order requiring the child’s summary return to Georgia. The success of her application, however, depended on her establishing that the child was habitually resident in Georgia when her father removed her.

There was no dispute that the child had put down sufficient roots during her time in England to become habitually resident here. The trip to Georgia was initially intended to be a holiday, rather than a permanent move. Ruling in the mother’s favour, however, the High Court found that, prior to the child’s removal, the seesaw of her habitual residence had shifted from England to Georgia.

Both parents were of Georgian background and nationality and, although they spoke some English, they were happier using their mother tongue. The mother was always the child’s primary carer and, prior to her removal, had decided that their future would be in Georgia. Both parents had extensive family links to Georgia and their daughter had settled there, making friends and enjoying ballet classes.

Ordering the child’s return to Georgia, the Court noted that custody decisions concerning her would in future be made by Georgian courts. However, it was clear that both parents needed to play a major part in her life and that her time should be divided between them in a practical and pragmatic manner.

11 October 2021
Last Updated
29 November 2021