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International Child Abduction - Habitual Residence is Often the Crucial Issue

The outcome of international child abduction disputes very often depends on a single issue – where is the child concerned habitually resident? That was certainly so in the case of a toddler with an English-born mother and an Israeli father.

The parents were both Jewish. The mother met and married the father after moving to Israel, where she acquired Israeli citizenship. Their son was conceived following IVF treatment and the mother returned to England to give birth. She and the child remained in the UK thereafter. The father launched proceedings under the Child Abduction and Custody Act 1985, seeking the child's summary return to Israel.

Ruling on the matter, the High Court was not unsympathetic to the father's case that the child was habitually resident in Israel. He could reasonably have expected that the mother, having married him and become an Israeli, had intended to make Israel her permanent home and that she had invested in a life there with him. Due to her role as primary carer, the child's habitual residence was closely linked to her own.

However, the Court found that the mother's primary emotional connection remained with England. She had been brought up here and retained close business, social and family links to this country. Currently living with her parents, she had enrolled her son, who was approaching his second birthday, in numerous educational clubs and intended to send him to kindergarten here.

Although mother and son had travelled to Israel several times since his birth, he had spent about 76 per cent of his young life in England. That statistic in part resulted from travel restrictions imposed due to the COVID-19 pandemic. The Court ruled, however, that the father had failed to establish that his son was habitually resident in Israel. His claim, therefore, necessarily failed.

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