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Father wins appeal over where his daughter should live

Posted: 10th December 2013   In: Family Law - Berkhamsted, Family Law - Luton

A father has won his appeal against a judge’s decision that his daughter should be sent back toSpainto live with her mother.

The case involved a couple with four children. The father was British and the mother was Spanish. The family had spent most of their time living in theUK, but when the couple’s relationship broke down in June 2012, the mother returned toSpaintaking the children with her.

The children, who were Spanish nationals, returned to theUKin December to spend Christmas with their father. When they were about to go back toSpainin January, the 12-year-old daughter, told her father that she wanted to stay in theUK.

The three younger boys also said they would prefer to stay although they did not feel as strongly as their sister.

The father began legal proceedings to ensure the children could remain in theUKwhile the mother took action to have them returned toSpain.

The UKcourt held that the children were habitually resident inSpainand that by keeping them in theUK, the father was breaching the mother’s human rights.

The judge noted the daughter’s strong objections but considered that they were not determinative and should not prevent her being returned toSpain.

The Court of Appeal has reversed that decision. It said that the judge had not given sufficient weight to the fact that most of the daughter’s life had been spent inEngland. Her objections to returning toSpainwere very strong and considerable weight should be given to them.

The court then considered the position of the boys and the fact that if they were returned toSpain, they would be separated from their sister. It was impossible to tell whether that would put them in an intolerable situation.

The Appeal judges decided to send their case back to the family court so the issues could be examined in greater detail and as quickly as possible.

Please contact Siobhan Thompson or Shashi Gorsia if you would like more information about the issues raised in this article or any aspect of family law.