Buscador de jurisprudencia

The mother is a Colombian national, the father a British national and the child a Colombian national who had recently been granted British citizenship at the time of the hearing. 

The mother and father married in 2014 and had a child in 2017 in Colombia. The parents separated in 2018. In 2020 the parties reached an agreement on the share care of the child. 

In December 2023 the father travelled to England with the child, with the agreement of the mother. This was the first time the child had visited the UK.

The original travel permit had a return date of April 2024. She enrolled in school in England but her place in Colombian school was kept and paid for. The mother later agreed that the child should stay in England until the end of July 2024 to finish the school year. 

The mother made an application for return under the 1980 Convention. The father asserted that at the time of the alleged wrongful retention the child was habitually resident in England. 

Application dismissed. The child’s habitual residence was in the UK and so the retention was not wrongful.

Note that this decision was subsequently overturned on appeal in Re F (A Child) (Habitual Residence) [2025] EWCA Civ 911, INCADAT Case Number: 1619.

Removal and Retention - Arts 3 and 12

The relevant date that the wrongful retention started should be considered to be 30 May 2024 despite the fact that there was clear evidence that the mother agreed for the child to remain in England until the 30 July. The judge stated that the mother’s agreement must be seen within the context of her strong unambiguous wish for the child to be returned. 

The judge found the child to have been habitually resident in the UK at this date and so the retention was not wrongful. 

Habitual Residence - Art. 3

The child was well integrated in her life in Colombia and was close with family and friends there. However, the judge stressed that she did not consider whether the child had lost their habitual residence in Colombia but rather focused on whether she had gained habitual residence in England. 

After an assessment of the circumstances and the child’s degree of integration, the judge found that the child was habitually resident in England and Wales.