Many families will be spending time away on holiday in August. The return to school and work is always difficult but for families who live apart or have to return to different countries this can be even more difficult. Perhaps the children have spent time visiting their mother or father in Spain and have to return to school in their country of residence.
The basic principle of European and Hague Convention countries is that the children will have their habitual residence in the country where they spend most of their time and are educated and have their friends and activities. However, this is not always the case as they may be at school in another country and retain their habitual residence in Spain.
These are questions of fact that have to be ascertained by the lawyer and ultimately by the courts if agreement cannot be reached. This can happen when one of the parents decides not to return the children to the country of habitual residence after a holiday.
The provisions of the Hague Convention applies in many countries such as South Africa and Australia as well as all European countries. If your family is faced with this dilemma before making the decision about whether to return it is vital to either have a written agreement with the other parent or to obtain a court order to change the residence.
An application to remove the children from the country of habitual residence is made in the court of First Instance where the children live. In one such court case an English Judge has taken the highly unusual step of writing personally to a 14 year old boy about his decision on where the boy was to live. The father wanted the son to move to Scandinavia and the Judge had talked to the boy about his future. This was the fifth case on the boy’s residency and custody.
The Judge told the boy that although he might not like the decision he was confident that “it is the right order for you in the long run. Whatever each of your parents might think about it, I hope they have the dignity not to impose their views on you so that you can work things out for yourself.” In cross jurisdictional matters that can be so difficult to mediate it is refreshing to see a Judge prepared to explain his decision to the person most affected, the child, and to bring to an end a stressful series of court hearings.
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