AL HABTOOR v FOTHERINGHAM [2001] EWCA Civ 186

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(MRS JUSTICE BRACEWELL)
[2001] EWCA Civ 186Venue B1/2000/3145, Royal Courts of Justice, Strand, London WC2A 2LL, Thursday 15 February 2001
Between
AL HABTOORAppellantFOTHERINGHAMRespondent
Before
Lord Justice ThorpeLord Justice LawsMr Justice Penry-DaveyMARK EVERALL QC and HENRY SETRIGHT (instructed by Messrs Dawson Cornwell of London WC1R 4QT) appeared on behalf of the appellant father.LIONEL SWIFT QC and JEREMY ROSENBLATT (instructed by the Family Law Consortium of London WC2E 8PS) appeared on behalf of the respondent mother.Date 15 February 2001

LORD JUSTICE THORPE:

The

[1]central issue raised by this appeal is whether at the date of issue of the mother's summons in wardship, 10 February 2000, this court had jurisdiction to make orders in respect of her son Tariq born in England on 13 April 1991. The background is complex but important. Mrs Justice Bracewell, who in a reserved judgment of 15 September 2000 decided that she had jurisdiction, reached that conclusion on affidavit evidence alone. Despite the considerable conflict of evidence that developed as the affidavits were filed the trial proceeded on a direction given on 18 April 2000 for determination without oral evidence of the question of whether or not this court had jurisdiction. Therefore in the fact finding exercise the court of trial holds no particular advantage over this court and in setting out the relevant facts I prefer to rely primarily on such contemporaneous documents as are available rather than on the contentions of the parties which are plainly influenced by the strong emotions that the case has engendered.[2]Sara Fotheringham, who I will call the mother, is British. In 1990 whilst working as a air hostess she met Rashid Al Habtoor, who I will call the father, in Dubai, which is his country of origin. They had an affair which ended after she discovered her pregnancy. Having given birth without the father's involvement she registered her son in the names of Tariq Rashid Fitz-Gibbon. The following year she met Neil Fotheringham, who for simplicity I will call Neil. In 1994 they married and in the following year their first son was born. On 26 June 1995 the mother and Neil joined in Tariq's adoption without any notice of application to the father. In 1997 their second child was born. In the summer of 1998 the mother decided to approach the natural father. In a letter posted in September she explained that the time had come to inform Tariq of his background. She asked whether the father would be prepared to have contact with him. The father responded positively and solicitors were instructed to discuss arrangements for contact and financial support. The father belongs to an extremely affluent Dubai family and would plainly have been in a position to provide material benefits that neither the mother nor Neil could afford. Terms were readily agreed subject to DNA testing to prove paternity. Tariq's first meeting with his father took place in May 1999 shortly before paternity was confirmed by the DNA test result. In the father's family it is clear that his own father, Khalaf, exercises overall financial control. He has a luxurious home in this jurisdiction and during the summer the mother, Neil and Tariq spent a number of weekends as his guests. An agreement developed for the Fotheringham family to relocate to Dubai under Khalaf's auspices and at his expense. He would provide a house, a car, a job for Neil, schooling for the children and medical expenses. In preparation for the move the mother and Neil executed a change of name deed substituting Tariq Rashid Al Habtoor for the adoptive names of Tariq Tristan Fotheringham. Shortly thereafter a British passport was issued to Tariq in his new names and Neil signed an employment contract as a PE teacher in Dubai. It was on 5 September that the family arrived in Dubai on visitors visas to commence the new life. In order to secure a position in Dubai as a working expatriate family both entry and residence permits were necessary. Tariq was granted a residence visa on 28 September. No doubt as the son of a national that process was easily achieved. At a later stage the father obtained a United Arab Emirates passport for Tariq. On the same day an entry permit was issued to Neil by the United Arab Emirates Ministry of Interior. On 10 October, the mother, at the father's request, visited the local court and executed a power of attorney to enable land to be purchased in Dubai in Tariq's name. It is not open to expatriates to own real property in the Emirates but Tariq's status as an Emirati could be used to enable a home to be acquired in his name. In the same week an employment contract was given to Neil at an hotel owned by the Al Habtoor family. The teaching job had not materialised and his post at the hotel was designated administrative supervisor although it seems that he was to act as assistant recreation manager. The duration of the agreement was said to be 'unlimited as from 2.10.1999'. The hotel then applied for his residence permit which was issued on 17 October expiring 16.10.02. Neil immediately sponsored an entry permit for the mother and their two children leading to the grant of residence visas to the mother and their two children in the following month. In the interim there was an exchange of e-mails between Neil and the maternal grandparents. Neil's e-mail gives the family news. He said:
"Everything is plodding along fine and we are back to some sort of normality. Tariq is being a bit of a problem as he is listening to his cousins too much and saying that I'm not his daddy but I've just been promoted to being his second daddy."
[3]He reported on the mother's condition, she having conceived another child. In their response the maternal grandfather reported:
"I am seeing a letting agent and an estate agent tomorrow - one for how much rent the other as to the value of the property."
[4]This advanced the plan to rent, if not to sell, the family home in England. As part of the relocation package the Al Habtoor's had paid between £8-10,000 to meet the cost of refurbishing the property for letting. They had also paid the sum of £4,000 to kit out the new home in Dubai.[5]On 20 November the mother wrote to Khalaf's PA seeking reimbursement of medical expenses and clarification of the arrangement for the provision of return tickets to enable the maternal grandparents to visit Dubai annually. Finally the letter referred to the outstanding claim against shippers for damage to their possessions whilst in transit. There are three documents that throw light on how much of their household and personal possessions accompanied the family to Dubai. First there is the list of items on the damages claim against shippers. It is an extensive list including many items that were clearly precious to the couple. By contrast there is an inventory taken on 3 December of the items left behind and a list of the items put into store shortly before the taking of the inventory. A comparison of these three lists suggests that more was shipped than was left behind.[6]On 13 December the mother began a letter to her own mother. On the same day she sent a letter to Khalaf. On the following day Khalaf responded and the mother completed her letter home. These letters are important and revealing. I quote the first four paragraphs of the letter home, which were of course written on 13 December:
"Well I'm finally putting pen to paper - so to speak. I hope that Daddy has now updated you with all our gossip but this letter will cover some of the same ground anyway. Primarily we are composing a letter to forward to Khalaf to illustrate our dissatisfaction at the way we are being treated. It will be interesting to see how he reacts. My personal feeling is that he will say lump it or leave it as he feels he's invested quite enough in us already. In which case we will look to repatriate, as there is not enough incentive to stay here away from our families whom we miss terribly. The timing of repatriation would all depend on if I could sort out having the baby in Dubai. So we shall see. Of course he may be very gracious and offer us what we want or alternatively very angry and want us to leave immediately!! It's a bit of an anxious time, I'm half tempted to wait until after Christmas to approach Khalaf but Neil hates not knowing the outcome and wants to be able to plan accordingly which I do understand. I think I should warn you that if we do repatriate within the next year then we would have to get down on bended knees and ask if we can stop with you for a while. We know it can work and it would be the most financially sound option for us to consider. With Neil's salary and the rental money we would be able to pay off some debts and get our finances more manageable before taking on the outgoings of our own home again. We would get out of your hair on Neil's long weekends and I would do all your housework!! Anyway I hope the idea is not too awful for you to consider. Obviously this option will be discussed at length depending on the outcome of our discussion with Khalaf."
[7]It is then necessary to set out the mother's letter to Khalaf and his response in full:
"Dear Khalaf Ramadan Mubarak. We apologise for writing to you but we feel it is the best way to express our concern over certain issues that have arisen since arriving in Dubai. While we appreciate what has been provided for us, in our opinion there are still areas that need to be addressed. You have kindly made available to us a villa, job, schooling and car. However this is what we already have in England and therefore only natural that we should have the equivalent necessities in our new life in Dubai. What you offered in England was a better quality of life for all of us. You described Dubai as this wonderful place that was cheaper to live in with a higher standard of living and all together a better place to bring up our family. You said to Sara 'You are family now'. The children have settled in well into their new environment and we are very pleased with the schooling for the children where they are truly flourishing. However this alone does not compensate for not being close to our family and friends. We all miss our families terribly and it was a point Sara raised with Lina, which in turn she agreed (on your behalf) that we could have annual return tickets for our parents to come out and visit us. This has not materialised. Another point raised with Lina was that we still needed to finance our home in England, as it would be left empty while refurbishment work was being carried out and then getting the house ready for rental may take some time to co-ordinate from abroad. She advised us that she would discuss this matter with you. Unfortunately, we did not pursue this issue to a satisfactory conclusion and we are now left in the dire situation of trying to finance our home in England as well as our home in Dubai, which is not proving feasible. We believed that our quality of life would be enhanced in Dubai, but the reality of this has been very different. In particular the medical care we receive. We naturally expected to receive the same services that we get in England but our medical cover is quite deficient in many areas. There is no dental care, which costs a fortune in this country, which is entirely free in England for children and pregnant women. Also Sara's maternity needs are not covered by our insurance, it costs 600 dirhams a time to see the gynaecologist and will cost in the region of 12,000 dirhams to have the baby privately. These are expenses that we just can't afford. (It would appear that Sara cannot attend the Al Wasl government hospital because of the technicality of where her health-card is registered.) It is unfortunate that our residence visas and medical insurance could not have been sorted out for our arrival, consequently we have incurred extra expenditure which we had not calculated for and which we could have been given an allowance towards. Neil's job aspirations have not matched up to what was expected. In England he earned a better salary with pension, albeit taxed and he had two days off a week to spend with his family. He also had a structured promotional plan, which meant we could budget for the future. Here there seems to be no obvious career enhancement, no annual increase in salary or bonus scheme, which puts Neil in a financially worse position than in England. The cost of living in Dubai is definitely no cheaper than in England which of course has illustrated a deficiency in our salaries as we believed our incomes would have greater purchasing power here. Another area of note is that Sara doesn't feel comfortable when she comes to your house to socialise, as she had very much wanted to become good friends with your daughters. This is due to incompatible lifestyles, they have maids who deal with their every need and therefore have the freedom to sit around chatting and having tea while Sara does not have that kind of luxury. Other issues relate to the fact that the children would be able to have satellite TV, we had naively believed this would be set up in the villa when we arrived but in fact it will cost us around 300 dhs a month plus installation. That a maid would be easy to organise, when we wanted one, but in the meantime we could borrow maids from your house to help us out. Dina made it quite plain that it was unacceptable for us to use your maids, as it was inconvenient for your family not to have your full complement of staff. Her comment to one of the maids being 'you don't do work for those people'!! Finally we would kindly request that as Tariq is now settling down with his new family that we alternate weekends as we miss him so much and very rarely get any quality time with him. He loves spending time with his brothers and cousins so we can do alternate weekends between the three of us and thus satisfy everyone. We have not written this letter to offend you; we merely feel you would not be happy if we were not content. By putting these issues in a letter we hope you have time to appreciate our concerns. We will respect the decisions that you make. Yours sincerely Neil and Sara Fotheringham" "
Tuesday 14 December 1999 Dear Neil and Sara Thank you for your letter. The contents of which have been noted and my comments are as follows: Regarding paragraph 3 of your letter. Dubai - I did not describe Dubai as a cheaper destination. I described it as a good place to raise children where it is safer and where there is better schooling. Regarding paragraph 2 of your letter. Villa - We are paying around US$20,000 for the villa in which you are living. We also paid for the furniture which was chosen by you both and which Lina monitored and sent the money to pay all the bills. Such villas are all occupied by executives of big companies and only a few people have the chance to live on such a compound. I cannot compare whether this house is better than your house in England, I have no right to do so, but this is the best accommodation which is given to executives in the top American, European and Arab companies. Car - We have given you a full option Pajero and this cost us a lot of money. A similar one is used by me personally. If we had given you a car that is equivalent to your car in England then we would have given you a car that is worth approximately £4,000 or £4,500, but because we like you both and respect you both and because we care a lot about Tariq and his brother and sister; we gave you the Pajero for Sara to drive for the children. Regarding paragraph 5 of your letter . Tickets - We will give airline tickets for Sara's parents only as promised by Lina. This will be every year and Lina will find the best connection. We reserve the right to choose which airline the tickets will be issued on. Regarding paragraph 6 of your letter. Your house in England - This is not true. We were sitting together the two of you and myself and Lina was not with us. You showed the bills to me which were in excess of £8,000. I can confirm this by the cheques from my cheque book which were written by one of you for the full amount. Earlier you said the cost was £6,000 or £7,000 then it suddenly jumped much higher, but because of our commitment and because we want to help you this is why I agreed to it. Regarding paragraphs 7 & 8 of your letter . Healthcare - The health service which you are used to having in England is a National Health Service and is not private healthcare. I have personally visited the National Health hospitals in High Wycombe and I have seen the patients queuing and sitting in the waiting room, waiting to be called without any respect shown to them. There is government healthcare here in Dubai for residents and visitors of all nationalities. The fact that Sara is having to use the Al Maktoum hospital, that is her mistake. Neil, you should sit with your Personnel Manager and check about this and follow up. I'm sorry but I cannot do your work for you. You should arrange with your Personnel Manager to have Sara's card changed and then she can transfer to Al Wasl Hospital, which is used by our family and also by the Royal family. You are treated as Grade A among our executives and we cannot do more. If you think there is a chance for you to get a better job in another company then I will give you all the support and you can still live in the accommodation paid by me, I will do this because of Tariq. Regarding paragraph 9 of your letter . Neil's job - As I have mentioned above, you are in a free country and there are no labour unions and no compulsory employment. If there is a better chance in another company then Neil will have my full support and my recommendation. Regarding paragraph 10 of your letter Sara and my daughters - My daughters live in my house. They have grown up like this and I cannot change that. Sara lived in her own house in England. I have a lot of respect for the independence of the families in England who have several children and take care of their house and take care of everything themselves. However because labour is cheaper in this country that is why the families have maids to help them. Regarding paragraph 11 of your letter Satellite TV - I remember that there is central satellite TV for everyone in your compound. If not then we are supposed to supply this as part of our contractual obligations. I will have this checked and Man Halabi who is head of our real estate division will look into this matter. I think that satellite TV is a luxury and I don't believe that you have it in your house in England - I think that the television which you have is the national television. However, we don't mind putting the satellite TV in your compound, as this is part of our commitment. Housemaid - We can sponsor your housemaid for you. You can go and choose one from one of the local recruitment agencies and you can agree the salary with her. Then we can sponsor her, but you must pay her. Regarding paragraph 12 of your letter Alternative weekends for Tariq - We are unhappy about this and your suggestion is unacceptable. Tariq is not socially relaxed, he feels tense and we are trying to tame him - for him to come to our house it is like being released from a cage. Your children are screaming worse than ours are. At least with us Tariq has a private teacher who is teaching him discipline and quietness and definitely we want him to be with us and to be aquatinted with his cousins and to learn the background of his country for his future. I can say that what I promised you in England I think that I have delivered with additions. We always treat you Neil and especially Sara and Tariq as special to all of us and we always care about you; but remember we are not used to such things like your moaning and claiming things from us. It is up to you to make a decision. Of course we like Tariq a lot and we want to give Tariq to a better education and a better standard and this is to the benefit of you Sara as his mother. As for the future, if you don't wish this for the future of your son, I don't think that we have the time to worry because we have our own problems and commitments and responsibilities. In the near future as soon as Sara and Rashid agree on certain documents then Tariq can have his UAE nationality and we can buy him a house or build him a house in his name and then you can live with him forever. Yours sincerely Khalaf Al Habtoor"[8]When the mother resumed her letter home having received Khalaf's response the mother wrote:
"Well Khalaf received the letter last night and we got an immediate reaction which was as I thought. He was not angry just he feels that he has provided us with a very adequate package so really can't see that we need anymore. They are however organising Al Wasl for me and also a maid, so by the time you come out I should have actually visited the hospital. Neil and I feel that as the package stands it is not sufficient compensation for being away from home but we will plod along and see how things pan out. Apparently Rashid was most concerned that he might not see Tariq if we went home - I don't know why as he hardly sees him from one month to the next as it is. Well I'm now going to organise Christmas with renewed vigour, I need to go and get the big pressies for the kids and all of Neil's pressies. We're getting Tariq a remote control all terrain car - he will be able to take it wadi bashing!! Cameron - a bike and Annabel a tricycle. I've also bought Annie a baby with travel cot so she gets used to the idea before April. Thinking about your idea, I really would like you to come out when the baby is born - I can't imagine you not actually holding the baby for the first three months of its life. We will discuss this option when you come out in February and see what solution we can come up with. Also be prepared to do a little baby shopping in February just so I can have your input on what I think I'll need."
[9]The baby referred to in the final paragraph was expected to be born in April. Thus the letter demonstrates that in mid-December the mother was planning to have her baby in Dubai and hoping to arrange for her mother to visit not only in February but soon after the birth of her child.[10]The relationship between the Fotheringhams and the Al Habtoors broke down over the arrangements for Christmas. Tariq had been spending the Arab weekends with the Al Habtoor family. They asked to have Tariq over Christmas, the mother refused leading to confrontation. During the course of the quarrel the Fotheringhams decided to pull out of Dubai. Once the decision was communicated to the Al Habtoors they took advantage of an access visit to retain Tariq against the mother's will. In the ensuing contest there was an obvious imbalance of power. The Al Habtoors had boundless funds and in consequence great local influence. They immediately terminated Neil's employment. However they retained his passport which had been lodged as a condition of his employment. On 28 December the father applied for an order for custody of Tariq on a without notice application. The order was obtained upon a number of serious mis-statements of fact. The subsequent explanation that these mis-statements were unintentional was highly implausible. The mother did what she could in response. She sought the help of the British Consul. She complained to the Human Rights Department of the Dubai Police. She sought to instruct a local lawyer. It seems that when all these efforts proved fruitless she accepted the inevitability of negotiating with the father. She withdrew her complaint to the Human Rights Department. She accepted an arrangement made by the father for her to be represented by a firm of English lawyers in association with the father's London solicitors. However on 2 January she revoked the power of attorney which she had given on 10 October. The solicitor, Mr Parks, received the father's request that he should act for the mother on 6 January. It seems that the mother and Mr Parks met soon afterwards. Thereafter he acted on her behalf in the negotiation of what was termed a parental responsibility agreement with the father's lawyer, Dr Habib Al Mulla. The agreement went through a number of drafts. As the negotiations proceeded the mother approached an English solicitor by a fax in which she expresses her confusion: whether on the one hand to seek a court order for Tariq's return or, on the other, to proceed with the negotiations. In this fax she expresses her feelings of vulnerability. She wrote:
"We have been so naive up to this point we feel we could lose him due to our own stupidity, having played directly into their hands."
[11]The solicitor approached responded saying that her partner had already been approached by the father and she accordingly referred the mother to Reunite. Also during the period of negotiation the father obtained an order that Tariq's British passport should be deposited with the court.[12]The travelling drafts of the parental responsibility agreement gradually diminished the benefits which the mother would obtain under the agreement, perhaps because the first draft had been prepared by Mr Parks. However terms were agreed by 25 January and it was intended that the document should be executed that day before a notary. That course was rejected by the notary because there were pending proceedings relating to Tariq. He said the agreement must be presented to the court. Since Mr Parks did not have rights of audience arrangements were made for the mother and Neil to be represented in the proceedings by Mr Ali Al Shamsi. On 26 January the mother and Neil signed a power of attorney appointing Mr Ali Al Shamsi to act in the proceedings limited to entering into a consent order in the terms agreed. Later on the same day the mother, Neil and their two children flew to London, the Al Habtoors delivering Neil's passport to the aerodrome. Immediately after their departure Mr Parks faxed them copies of the powers of attorney and also the news that Mr Al Shamsi would represent them at a hearing on 2 February. The day before that hearing there is an attendance note of telephone conversations held by Mr Parks and his assistant. First the father telephoned to say that he had heard from his London solicitor that the mother was planning to resile from the agreement and to issue abduction proceedings against him. He pointed out that one of the terms of the agreement was that the mother would not initiate proceedings in other courts. Mr Parks sought instructions and was informed by Neil that 'the advice that they were seeking was in relation to their position if Rashid failed to comply with the agreement, and they are not filing any case for abduction'. This reassurance was communicated to the father.[13]At the hearing on 2 February the court adjourned the application to the 23rd. On 10 February the mother initiated wardship proceedings and obtained an ex parte order from Bennett J. However at the adjourned hearing on 23 February the mother and Neil were again represented by Mr Al Shamsi and, as the order makes plain, the court, having scrutinised the agreement, entered it as a conciliated contract 'which cancels the dispute and determines the litigation'. The preceding recital states:
"Whereas upon trial, the plaintiff's attorney submitted a settlement agreement, signed by the attorneys of both parties, and requested to attach the same with the session minutes and consider it having the power of an executive deed. In his capacity as the defendant's attorney, advocate Ali Al Shamsi said: we request to attach the settlement agreement with the session minutes and consider it having the power of an executive deed."
[14]Subsequently in the London proceedings the father entered his challenge to jurisdiction, the directions to which I have already referred were given and the issue proceeded to trial before Bracewell J on 12/13 September. As a consequence of her reserved judgment an order was drawn on the same day as follows:
"IT IS ORDERED THAT: 1. It be DECLARED that the minor, TARIQ TRISTAN FOTHERINGHAM, is being unlawfully retained in Dubai; 2. The said minor TARIQ TRISTAN FOTHERINGHAM be returned to the jurisdiction of England and Wales forthwith."
[15]The father's applications for permission to appeal and for a stay were refused. The application for permission was renewed to this court. My preliminary decision on the papers was a refusal but at the subsequent oral hearing on 21 November we granted leave. Thereafter both appellant and respondent have made more than one application for the admission of fresh evidence. At the hearing it was not disputed that the appeal should be decided on all the evidence submitted by the parties and we have been guided through the available evidence by comprehensive skeletons submitted by Mr Everall QC for the father and Mr Swift QC for the mother. Their respective positions can be briefly summarised.[16]Mr Everall says that the principal issue raised by the appeal is, was Tariq habitually resident in this jurisdiction on 10 February 2000? An allied issue, but not one necessary for decision, is, had the Fotheringham's acquired habitual residence in Dubai prior to the outbreak of hostilities over Christmas?[17]Mr Swift's rival submission is that the trip to Dubai was no more than a reconnaissance. Habitual residence in this jurisdiction was never forfeited and certainly habitual residence in Dubai never acquired. Alternatively Mr Swift submits that if the family lost their habitual residence in this jurisdiction during the course of the autumn it was regained on their return on 26 January. Tariq's habitual residence is necessarily dependant on that of his parents holding parental responsibility. Accordingly he too resumed a habitual residence within this jurisdiction on 26 January. His physical absence does not alter that consequence in the light of the circumstances, namely that he had been kidnapped and unlawfully detained in the foreign jurisdiction by one who lacked parental responsibility. In the further alternative Mr Swift submits that even if the court lacked statutory jurisdiction on 10 February 2000 it retained an inherent jurisdiction to issue the declaration expressed in paragraph one of the judge's order.[18]These rival submissions are drawn not so much from any dispute as to the relevant law but more as to the evaluation of the relevant facts and circumstances. Inevitably Mr Swift says that the conclusions reached by a most experienced trial judge were plainly justified on the view that she formed of the evidence.[19]Before expressing any conclusions I will briefly set out the statutory provisions and the case law broadly agreed between counsel. I will set out first the statutory material. Section 2 of the Family Law Act 1986 provides:
"(3) A court in England and Wales shall not have jurisdiction to make a section 1(1)(d) order unless - (a) the condition in section 3 of this Act is satisfied ...."
[20]Section 3 provides:
"(1) The condition referred to in section 2 of this Act is that on the relevant date the child concerned - (a) is habitually resident in England and Wales ...."
[21]'The relevant date' is defined by section 7(c)(i) as the date of the application.[22]A Part I order means an order made under section 8 of the Children Act 1989 and an order in wardship granting care and control or providing for contact: see respectively Family Law Act section 1(1)(a) and section 1(1)(d).[23]Turning to the case law defining habitual residence there is little room for disputing a number of relatively straightforward propositions. First the determination of a persons habitual residence is a question of fact to be decided by reference to all the circumstances of the case. As Lord Scarman classically stated in R v Barnet London Borough Council Ex Parte Shah [1983] 2 AC 309 at 343:
"Habitual residence refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration."
[24]In his speech Lord Scarman added:
"All that the law requires is that there is a settled purpose. This is not to say that the propositus intends to stay where he is indefinitely; indeed his purpose, whilst settled, may be for a limited period."
[25]Secondly there is an important distinction between the loss of an habitual residence and the acquisition of a substitute. A person may cease to be habitually resident in a single day if he quits the country with a settled intention not to return but to take up habitual residence elsewhere. By contrast habitual residence in the second country is not acquired on arrival but only after a period that demonstrates that the residence has become habitual and is likely to continue to be habitual depending upon the relevant facts and circumstances. The period of residence after arrival may be brief but it still must be appreciable. These propositions are clearly established by the decisions in Re J (Abduction: Custody Rights) [1990] 2 AC 562 and Nessa v Chief Adjudication Officer [1999] 1 WLR 1937 .[26]Those propositions bring me to Mr Everall's fundamental criticism of the judge's approach. His submission is that the judge misdirected herself in law and wrongly defined the issue for her decision. At page 7 of her judgment she said:
"The first question to be addressed in this case is whether Tariq was habitually resident in England and Wales on 10 February 2000, that is the date of application by the plaintiff for the orders, or whether he was on that date habitually resident in the state of Dubai."
[27]Mr Everall powerfully submits that this definition impliedly omits the highly relevant third alternative, namely that on 10 February Tariq might have been habitually resident in neither jurisdiction. The judge's definition obviously risks to deflect her from the determinative question and to tempt the false reasoning that if not habitually resident in Dubai Tariq must therefore have been habitually resident in this jurisdiction. That the judge did fall into this trap is for me demonstrated by the fashion in which she expressed her conclusions:
"On all the evidence, and after careful consideration of the variety of documentation, I find that the mother and Mr Fotheringham, and in consequence Tariq, did not acquire habitual residence in Dubai .... I find that they had landed themselves and their family in a situation which they immediately regretted and there was neither the settled intention nor the appreciable period to constitute a change of habitual residence. I find the family did not relinquish their English residence ...."
[28]In fairness to the judge it seems that she may well have adopted this approach in response to the way the father's case was presented in the court below. The judge recorded:
"The natural father in the current case contends that the mother and Mr Fotheringham did establish habitual residence in Dubai, so that Tariq's status was dependent upon them, and therefore at the material time Tariq was subject to the Sharia law of Dubai."
[29]On the next page in commenting on that submission

the judge said:

"At first sight Mr Setright's arguments are powerful pointers to the establishment of a habitual residence in Dubai. However, in my judgment, it is necessary to consider with care the whole of the evidence filed."
[30]Although Mr Swift has valiantly struggled to support the judge's approach, I am satisfied that the passages cited reveal a plain error. Had the judge asked herself the simpler question namely whether the family's habitual residence in this jurisdiction was lost on their departure on 5 September in implementation of the relocation package offered by the Al Habtoor's I very much doubt whether she would have arrived at the same conclusion. After all there can be little doubt that the inducements to depart were generous and that the family's intention was the common intention of a family embracing the opportunities available to expatriates in the Emirates, underpinned and extended in their case by the sponsorship and financial security derived from the blood tie with the Al Habtoors. The subsequent developments after their arrival were of course directly relevant to the different question of whether or not they subsequently acquired habitual residence in Dubai. But those circumstances were only indirectly relevant to the question upon which the outcome crucially depended, namely whether habitual residence within this jurisdiction was surrendered on departure. On the issue as properly defined the evidence is very strong. Without attempting an exhaustive catalogue I would point to the change of name deed, the considerable sum given by the Al Habtoors to fit the home that was vacated for letting or sale, the shipping of the bulk of the contents and the provision of further capital to equip the new home in Dubai. The contract of employment entered into in July provided for a six month probationary period followed by a reciprocal right to terminate on one month's notice. Although the initial entry was upon visitors visas steps were then swiftly taken to obtain the necessary entry and residence permits for the family. Thus it is my strong opinion that on an appraisal of the directly relevant facts and circumstances the proper conclusion was that the family surrendered their habitual residence in this jurisdiction on the day of departure.[31]Although that for me is a decisive conclusion, nevertheless I wish to express my opinion briefly on Mr Everall's subsidiary submission that the judge was wrong to conclude that the family had not acquired an habitual residence in Dubai. He submits that the judge's appraisal of the relevant facts was flawed and that she misdirected herself as to the legal test. I will consider those submissions in turn. First the facts: two aspects of the evidence were selected by the judge for emphasis. First she said:
"It is significant, I find, that this family, which had a substantial mortgage on the matrimonial home in England, did not sell the house but decided to rent it out on a temporary basis, and further, they did not ship to Dubai all their household furniture and belongings and neither did Mr Fotheringham give up his employment."
[32]As to that passage Mr Everall rightly emphasises that what they in fact did, namely to ship the majority of their possessions and to prepare the house for lease or sale were the conventional acts of the expatriate family.

The judge continued:

"I further find, on the evidence, that almost immediately, if not immediately, on arrival in Dubai in September 1999, there was disappointment and some disquiet experienced by the mother and Mr Fotheringham. Their expectations were not fulfilled from the moment of arrival .... I am satisfied that this family never settled and was discontented from the outset with their lifestyle .... Whatever expectations the family had when they went to Dubai, disillusionment set in very fast, and within a matter of only weeks they were contemplating how to return to England."
[34]Again Mr Everall points out that these findings are quite inconsistent with the surviving contemporaneous documents, in particular those relating to entry and residence permits as well as the correspondence with Khalaf and the family in England culminating in an e-mail of 18 December from Neil's father in which he said:
"Surely at the moment, you have space, your own home, transportation, reasonable disposable income, few financial worries, children happy in school etc. Try and have as little to do with the Al Habtoors as possible and take advantage of the positives for a year, if not just for a change of scene."
[35]Mr Everall also stresses the schooling arrangements made for Tariq and Cameron, the older child of the marriage, as well as the power of attorney given as the foundation for the acquisition of a home.[36]In my judgment these criticisms are well made. I do not consider that the factors selected by the judge bear the significance which she sought to give them. Equally I consider that she left out of account a number of highly relevant factors that pointed to the opposite conclusion.[37]In relation to the law Mr Everall submits that the judge set the test too high when she concluded in the passage which I have cited 'this family never settled'. Mr Everall submits that the test is not whether the family was settled in Dubai but whether their residence was for a settled purpose, which might be either a purpose of short duration or conditional upon future events. The foundation for his submission is the passage from the speech of Lord Scarman in Shah at page 343 which I have already cited. Mr Everall then instances three subsequent examples: Re F (A Minor) (Child Abduction) [1992] 1 FLR 548; Re B (No 2) [1993] 1 FLR 993; and Moran v Moran [1997] SLT 541. Those three examples do, in my opinion, make good his submission that habitual residence may be acquired despite the fact that the purpose of the move was intended to be fulfilled within a comparatively short duration or, as in the case of B , the move was only on a trial basis.[38]Again Mr Swift responded to these submissions submitting that the judge's conclusion was well justified on her findings. However on this subsidiary point I again prefer the submissions of Mr Everall. I conclude that the judge's factual appraisal was insufficiently balanced and further that she misdirected herself in asking whether the family had settled in Dubai in the sense of putting down substantial roots. In my opinion the evidence as a whole demonstrated the acquisition of habitual residence in Dubai between the date of arrival in September and the breakdown of relationships between the families on or about 22 December.[39]I turn then to Mr Swift's alternative submission that the court had jurisdiction on 10 February 2000 since the mother and Neil were clearly habitually resident within the jurisdiction on that date and Tariq's habitual residence must necessarily be dependent upon theirs. Since Tariq was incapable of independent volition his habitual residence is determined by the united volition of his two legal parents. Were that submission good in law it would produce a highly artificial result. However in my opinion it is clearly wrong in law. A similar submission was rejected in the case of Re M (Minors) (Residence[40]Three years later in another Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 Balcombe LJ very clearly rejected a submission similar to that advanced by Mr Swift in the present appeal when he said at 895:
"Bracewell J in the course of her judgment set out a series of propositions which she said were based on Re M and Re A . I do not propose to repeat them here because I believe that the fundamental fallacy in both of them and in that part of Hale J's reasoning in Re A , to which I have already referred, is that they treat habitual residence as a legal concept - somewhat akin to domicil - whereas we have the authority of the House of Lords in Re J , by which we and they are bound, that is a question of fact. Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is clear that he must be resident in that country. Of course, residence does not necessarily require physical presence at all times. Temporary absence on holiday. or for educational purposes (as in Re A ), will not bring to an end habitual residence. But here the judge found as a fact, and on ample evidence, that K became habitually resident in India. He has never to this day come back to England. As a mater of fact, he has not been resident in England since he went to India in February 1994. Bracewell J held that the mother's change of mind both brought to an end K's habitual residence in India and gave him an habitual residence in England. I have the gravest doubts whether the first proposition is correct. Clearly, the mother's change of mind could not alter the fact that he was, and is, physically resident in India. Whether her change of mind could alone alter the 'habitual' nature of that residence I very much doubt, but in any event it is not necessary finally to decide that point on this appeal, since the one thing about which I am quite clear is that the child's residence in India could not become a residence in England and Wales without his ever having returned to this country. As I said before, the idea that a child's residence can be changed without his ever leaving the country where he is resident is to abandon the factual basis of 'habitual residence' and to clothe it with some metaphysical or abstract basis more appropriate to a legal concept such as domicil."
[41]In a very clear second judgment Millett LJ reasoned the same conclusion having first stated two principles of particular application to Mr Swift's submission. They are:
"(1) The question whether a person is or is not habitually resident in a particular country is a question of fact: Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 578, sub nom Cameron v Sara (A Minor) (Abduction) [1990] 2 FLR 442, 454 per Lord Brandon. The concept of habitual residence is not an artificial legal construct. (2) While it is not necessary for a person to remain continuously present in a particular country in order for him to retain residence there, it is not possible for a person to acquire residence in one country while remaining throughout physically present in another."
[42]I therefore reject Mr Swift's attempt to establish jurisdiction by dependency and turn to his final submission to the effect that, whatever may be the restrictions introduced by the Family Law 1986, the court retained an inherent jurisdiction, derived from the fact that Tariq is a British national, at least to grant the declaration that Tariq was and is unlawfully detained within the United Arab Emirates. There are a number of things to be said of this submission. The first is that in my opinion the courts of this jurisdiction should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality. Parens patriae jurisdiction has a fine resounding history. However its practical significance has been much diminished domestically since the codification of much child law within the Children Act 1989. In order to achieve essential collaboration internationally it has been necessary to relax reliance upon concepts understood only in common law circles. Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange. The parens patriae concept must seem even more esoteric to other jurisdictions than the concept of domicile. If we are to look for reciprocal understanding and co-operation, so vital with the steady increase in mobility and mixed marriage together with an equal decrease in the significance of international frontiers, we must refrain from exorbitant jurisdictional claims founded on nationality. To make a declaration of unlawful detention in relation to a child of dual nationality cared for by a biological parent in a jurisdiction whose courts have sanctioned the arrangement by order is only to invite incomprehension, and perhaps even stronger reactions, in that other jurisdiction. Finally, and most relevant, Mr Swift's submission is unsupported by authority. The case of Re P (GE) (An Infant) [1965] 1 Ch 568 does not assist the argument any more than does the more recent decision in Re S (A Minor) (Custody: Habitual Residence) [1997] 3 WLR 597 . I accept Mr Everall's submission that the decision nearest in point is the judgment of Ward J in FvS (Wardship: Jurisdiction) [1991] 2 FLR 349. In that case Ward J held that where the court in wardship did not have jurisdiction under the Family Law Act 1986 to make an order in relation to a child's care and control it should not assume inherent jurisdiction to make an order for the recovery of the child. In his judgement he categorised such an order as 'a devious entry to the court by the back door where parliament has so firmly shut the front door'. Although his judgment was subsequently reversed on the facts, his conclusions on jurisdiction were not criticised. In my opinion by analogy there is equally no jurisdiction to make a declaration of wrongful detention in similar circumstances. In appealing to the court to find some inherent jurisdiction in relation to Tariq Mr Swift naturally emphasises the mother's sense of entrapment and injustice. He disputes the apparent agreement apparently concluded on 25 January. He asserts that the mother and Neil were subjected to threats, even of death, and to great duress through the termination of Neil's employment and the withholding of his passport and the impounding of Tariq's. These submissions were founded not only on the evidence of his clients but also of his instructing solicitor, Mrs Robinson, who visited Dubai in February 2000 and swore an affidavit in April. The judge clearly attached importance to this affidavit. However I read it as a questionable extension of the liberty to introduce hearsay in family proceedings. Essentially she describes her impressions, records her investigations and attempts to introduce the evidence of a number of potential witnesses who declined to be involved. It is not surprising that the affidavit attracted a strong protest from the father who had little practical opportunity to challenge the contents where disputed. Whilst fully recognising the extent to which the mother was disadvantaged, she nevertheless was provided with independent legal advice and she instructed her lawyer to conclude an agreement which contained a number of provisions that were of value to her. Paragraphs two and three of the agreement obliged the father to provide private education and tuition for Tariq. Paragraph four required the father to pay the mother 12,000 UAE Dirhams (about £2,250 at the current rate of exchange) per calendar month from 1 January 2000 until Tariq attains the age of 18. Paragraph five provided visitation in one of the father's houses in Dubai for up to two weeks duration and up to four times per annum. Additionally that clause provided for two days a week visiting access during Tariq's future visits to the United Kingdom. Paragraph six obliged the father to pay business class air fares for the mother and two of her other children for the four visits per annum to Dubai. By clause seven the father accepted responsibility for the suitable accommodation costs of these visits. Finally the mother directly authorised the application to the court to approve the order in compromise of the proceedings initiated by the father. She took no steps to countermand her instructions or the power of attorney between her return on 26 January and the making of the consent order on 23 February, although of course she had initiated her competing proceedings in this jurisdiction on 10th.[43]All in all my conclusion is that after hostilities broke out between the families, the mother and Neil first tested their ability to recover Tariq then, when they perceived their powerlessness, endeavoured to salvage what they could by establishing clear visitation rights reasonably financed. The strain of sustaining such an outcome emotionally was obviously enormous and it is not surprising that sometime between the 2 February (Mr Parks' attendance note) and the issue of proceedings on 10th it became unbearable.[44]Mr Swift makes an equal attack upon the orders of the Dubai court. There seems little doubt that the initial order of 28 December was obtained on evidence that was inaccurate and probably false. By extension Mr Swift submits that the orders of 18 January, 2 February and 23 February were all based on false evidence. He therefore seeks to rely on the well established proposition that this court will not recognise a foreign order obtained by fraud or duress. I cannot accept that submission . In this jurisdiction we are tolerably familiar with applications for without notice orders supported by evidence which is incomplete, inaccurate or even false. The party adversely affected applies for variation or discharge immediately upon service. But in this instance the mother forfeited or avoided the need for such an application by entering into a general compromise of the proceedings. Whatever may have been the father's litigation misconduct the purpose and effect of the hearing on 23 February was to terminate the proceedings by embodying the contract in a consent order of the court. Having elected to terminate the proceedings in that way it is not open to the mother now to impugn the consent order on the grounds that the genesis of the proceedings was tainted by false or misleading evidence. If she wished to challenge the propriety of the father's litigation conduct it was in those proceedings rather than in her competing proceedings in this jurisdiction that she should have moved. The United Arab Emirates constitute a foreign jurisdiction with which this country has particularly close historical connection. Orders issued by courts of the Emirates are entitled to the regard which we would expect the courts of the Emirates to have for our orders. In my opinion the courts of this jurisdiction should be very slow to make orders that directly conflict with pre-existing orders in any friendly foreign state. The principle of comity requires no less. Particularly is this so where the order, as in this case, is unenforceable and thus empty. The temptation to make conflicting orders arises from a contemplation of the gulf between legal systems based on a Judaeo-Christian model and legal systems applying the Sharia law. But if there is to be progress in the development of understanding and collaboration in international family law it is vital that we should attempt to build bridges over the divide rather than to issue empty challenges. Of course no court in this jurisdiction would have ordered a transfer of residence from the mother to the father on the application of the paramount welfare test. The fact that that was the outcome in Dubai, even the fact that that would have probably been the outcome in Dubai without compromise, does not mean that the welfare of the child is not the first consideration for the judge of the Sharia court. Both systems are child centred. It is the interpretation of child welfare, governed as it is by different religions, cultures and traditions, that produces such starkly different outcomes. In the years ahead it is to be hoped that there will be more frequent and profounder exchanges between diplomats, policy makers and judges to ensure that these differences of interpretation are not magnified by ignorance and misunderstanding.[45]For the mother this is a tragic story. She unwittingly facilitated her son's move from her family to his father's family without preparation, agreement or due regard for his welfare. Having salvaged what she could by negotiation, she understandably found herself unable to live with the compromise. By launching competing proceedings she has forfeited the performance of the compromise over the course of the last twelve months. She has not received her monthly payments, she has had only one visit to Dubai, which was fraught with inevitable mistrust on both sides, and Tariq has had no visits to this country. But the hard question, did this court have jurisdiction on 10 February 2000, must be answered in the negative. For the future I would hope that the dismissal of the proceedings in this jurisdiction will restore the father's sense of security and encourage a generous performance of the consent order of 23 February. I would hope that the father would ensure that Tariq's visits to this country are frequent and not brief. Finally I would hope that the father would agree to provide independent security for the performance of the consent order and a fund to enable the mother to initiate proceedings in Dubai, either to remedy breach or, should reasonable grounds emerge, to apply for variation of the consent order. LAWS LJ:[46]I agree. PENRY-DAVEY J:[47]I also agree.

Order

Jurisdiction) [1993] 1 FLR 495 in the judgment of Balcombe LJ at 500 when he said: "The judge appeared to accept a submission on behalf of the mother, based on the passage from Lord Brandon's speech in Re F which I have cited above, that in the present case the children's habitual residence remained throughout in England and Wales, because the mother remained habitually resident in Oxford, and that their habitual residence necessarily followed that of the mother, who alone had parental responsibility for them. This appears to me to be a misinterpretation of Lord Brandon's fourth point. Where he refers to the child being in the 'sole lawful custody' of the mother he was clearly using custody in the sense of physical possession or care, as was the fact in that case. I do not read his words as intending to suggest that the habitual residence of a child is necessarily the same as that of the parent who alone has parental responsibility, notwithstanding that the child may have been living apart from that parent for a period which may have lasted for several years. That would be inconsistent with his second point that habitual residence is a question of fact. All he was saying was that where a young child is in the physical care of a mother who alone has parental responsibility for the child, then normally the child's habitual residence will be the same as hers, since it is her will that determines the element of volition involved in the concept of habitual residence." ORDER: Appeals allowed; applications allowed; order for costs in the court below to be set aside; order nisi against the commission in relation to the costs of the appeal; legal aid taxation; application for permission to appeal to the House of Lords refused. Stay of 14 days. (Order does not form part of Approved Judgment)

Cited in 43 later judgments

and 34 more of the most senior