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Court declines to return child to mother in cross border dispute

November 27th 2023

The Family Court has refused to return a five-year old girl to her mother in Germany, even though it accepted that she had been habitually resident there before her father took her to England.

Shannon Bateson, Solicitor in our family law team reports on this recent case.

The case involved a Polish couple who had met and started a relationship while living in England.

Their daughter was born in England in 2018.

The family returned to Poland at the start of the COVID-19 pandemic and spent two years there. In June 2021, the mother went to Germany to stay with family for two to three months and took the daughter with her.

In May 2022, the family moved to England, but the mother and daughter returned to Germany in July 2022.

The mother and father’s relationship deteriorated between July and December 2022.

The mother asserted that, following a Christmas holiday in England to which she had agreed, the father had wrongfully retained their daughter in breach of an agreement that he would return her to Germany on 5 January 2023.

The mother contended that the girl was habitually resident in Germany.

The father resisted the request to return her on the grounds that the mother had consented to her remaining with him in England.

The court found in favour of the father.

It accepted that Germany had become the girl’s country of residence. However, it found that the mother had consented to her remaining in England.

The following findings of fact were made:

  • On 7 November 2022, the mother told the father that they would all live together in England and that she would arrive in January 2023.
  • Acting on that information, the father had found a flat in England. He consulted the mother and she had agreed to his actions.
  • On Christmas Eve, the mother told the father that her plan was to fly to England on 9 January. As a result, they agreed that the daughter should stay in England with the father. The mother’s consent was clear and unequivocal.

This was therefore one of those rare cases where the retaining parent had proved consent.

It followed that what occurred on 5 January 2023 was an agreed and planned relocation of the daughter from Germany to England and not a wrongful retention.

As consent had been proved, account had to be taken of the effect of a return to Germany on the girl’s welfare.

She had been living in England for almost the same amount of time that she had spent in Germany. In addition, she was born in England and had spent the first two years of her life here.

Importantly, she attended school and was learning EnglishShe also had an aunt and cousin living nearby. Her degree of integration into the social and family environment in England was considerable.

Her father had spent most of his adult life in England, had settled status here, strong family and other ties, was permanently employed and no longer owned a property in Poland.

The daughter’s life in England was stable. Her best interests were met by her remaining in England.

For more information about the issues raised in this article or any aspect of family law please contact Shannon on 01228 516666 or click here to send her an email.

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