Children’s Living Arrangements, Habitual Residence and Overseas Jurisdiction

Child playing with building blocks

The recently reported case of AB and BC concerned two teenagers of Spanish parents. Despite repeatedly telling their guardian and the High Court that they wanted to continue living with their mother in England, the Spanish Court ordered that they live with the father in Spain.

In what was a long-running dispute, with proceedings starting in Spain in 2013, the children have lived in the UK ever since the end of 2013. When the Spanish court order was made, the mother removed the children from Spain and the father then obtained an enforcement order for their return. Various subsequent applications and hearings took place leading to this hearing of the mother’s appeal against enforcement.

The relevant law is contained in the Regulation BIIa, the Senior Courts Act 1981 and Children Act 1989. The judge found that ‘on any objective and neutral analysis both children are habitually resident in England. They have lived here since 2013, are settled here and fully integrated into their school and education as well as in their peer group and social environment’.

The judgment gives a detailed analysis of the factual background and the legal framework, as well as the foregoing proceedings in England and in Spain. It concluded: ‘It is hard to see any other logical conclusion based on their habitual residence and proximity other than that this court has jurisdiction and that the best interests of AB and BC are best served, as recommended by their guardian, by remaining living with their mother in England.’

The mother’s appeal was successful.

For further information on Family Law especially in relation to foreign disputes, why not contact one of Alexander JLO’s expert family law team and see what we can do for you?

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