27 May 2014
Résidence habituelle - art. 3
Recours accueilli, retour refusé
The Danish Act No. 793 of 27 November 1990 on International Enforcement of Custody Decisions, etc. (International Child Abduction), Sections 10 and 11
(Børnebortførelseslovens §§ 10 og 11)
The mother and father got married in the United States of America in October 2006. They lived there with their two children, born in 2007 and 2008, and had joint custody. The mother was pregnant with the couple’s third child. In December 2010, the mother travelled to Denmark with the children with the father's consent because she wanted to give birth to their third child in Denmark. The child was born in July 2011. The mother promised several times to return to the United States, but remained in Denmark with the children. One of the reasons for this was the Danish grandmother’s illness. In February 2013, the mother informed the father that she did not intend to return to the United States. The mother wanted to stay in Denmark and eventually move to Jordan with the children and her new boyfriend. In consequence of this, the father applied for return of the children to the United States on 9 April 2013.
The Supreme Court (third instance) determined that the children’s habitual residence had changed from the United States to Denmark during the period in which the father consented to them being in Denmark (December 2010 - February 2013). By the time that the father had opposed the children's continued residence in Denmark they were habitually resident there therefore not unlawfully retained. Therefore, the Supreme Court ruled that the retention was not wrongful and that the children should not be returned to their father in the United States.
In the first instance decision the City Court ordered that the retention was wrongful in accordance with Article 3, as the children had a permanent residence in the United States immediately prior to their retention in Denmark in February 2013. The City Court also found that the father’s request for the return of the children was filed within 1 year of the unlawful retention as set out in Article 12. The High Court upheld the City Court’s decision.
The Supreme Court found after a comprehensive assessment of the case, that the children had changed their habitual residence from the United States to Denmark during the period in which the father consented to them being in Denmark (December 2010 – February 2013). By the time that the father had opposed the children's continued residence in Denmark they were habitually resident there therefore not unlawfully retained. The Supreme Court found, that the mother had established herself in an apartment in Denmark close to her family, that the mother had started an education in Denmark and that the children had started school in Denmark. The Supreme Court also found, the father, who was familiar with the circumstances, visited the children in Denmark and that the children had now been in Denmark for more than 2 years with their mother.