A woman has won her battle to keep her children in England, even though she told their father that she would bring them back to Australia.

The children involved were born in Australia and had a British mother and Australian father.

When the couple experienced problems in their relationship, they decided to move to England for a year. The father later returned to Australia. The mother remained in England with the children on the understanding that she would return with them to Australia a few months later.

However, she had no intention of returning and failed to do so. The father began proceedings in England under the Hague Convention. The court found in his favour.

Habitual residence could be acquired

The judge found that although the children were living in England at the time, that was only a temporary arrangement and their habitual residence was in Australia. The mother should therefore return them to Australia.

However, that decision has been overturned by the Court of Appeal. It held that the judge had failed to bear in mind that habitual residence could be acquired even though the move had originally been considered as temporary.

The judge had put too much emphasis on the fact that the father intended for his children to move back to Australia. The fact that the family had established a habitual residence in England should have been taken into account.