“58. … She and her husband were essentially at one in their evidence that it was desirable and convenient for the children to have a school year in England without unduly interfering with their Spanish schooling and at a time when the house, in which it was agreed they would live in Spain on their return, required extensive refurbishment, involving an architect and contractors, upon which the father would himself work, as well as supervising the operation while staying on in their army accommodation. As I have already indicated, it was not a consensual separation in any sense other than an arrangement between the parents, in the light of their then circumstances, that the mother and children would move to England and stay with the grandparents for the next school year, with the father visiting when he could. 59. It was the mother’s evidence that, in the light of the state of the marriage, she had earlier in 2007 made known her desire for divorce; she had wanted to go in February but had been persuaded by the father’s sister to stay. However, it was clear to me, both from her and the father’s evidence that, in so far as he may have known of her desire or intentions at that time, he certainly never accepted them and they stayed together. The mother stated in her oral evidence that, although he knew her position, he simply ignored her views and mechanically went on planning for the future together. She also stated that, so far as she herself was concerned, the separation involved in her taking the children to England was temporary and represented a good opportunity to have “space” from her husband. Having heard and considered the parties’ evidence, I am satisfied that, when the mother and children left Spain to go to Wales, their absence from Spain was by common agreement for the period of the children’s school year only and it was their common hope and intention (whatever may have been the mother’s private concerns about the future) that they would all return to Spain to resume family life together there in the home by then refurbished for that purpose.”
“64. …I accept that there a was conversation with the father at one point in which he appeared to accept that the marriage was over and spoke of going on a pilgrimage to reconcile himself to it. Despite this however, I am satisfied that, once again, the mother agreed to a further period of effort to keep the marriage together and, with the mother’s co-operation and consent, the children resumed their schooling, she having decided to give the father and the marriage one more chance. I do not doubt that, at that point, the father, insensitive to, and essentially brushing aside, the wife’s unhappiness, was optimistic that the storm had passed and was himself determined that the family should resume life in Spain where the children were once again back at school and happy (he knowing nothing of the wife’s having held open their school places in Wales).”
“As you and I have discussed lately, and according to which we agreed verbally, I am leaving with the children for a while to try to resolve our family problems with calmness and to think what decisions to take. You know where we are so you can organise yourself to visit the children.”
“44. … I am satisfied that, despite the multiplicity of defences raised by the mother in her amended defence (see paragraph 9 above), the only issue of difficulty or substance is the first, namely that relating to habitual residence. It is therefore convenient for me, by way of preliminary, to consider the remainder of the issues in the order set out in the amended defence.”
“45. The reports on Spanish law of Sr. Lopez, plainly establish that under Articles 9.4 and 9.1 of the Spanish Civil Code, at the time of the removal of the children the father enjoyed all rights and responsibilities inherent in his parental authority (according to Article 154 of the Spanish Civil Code), including the right to determine the children’s place of residence. In fact, both parents enjoyed such rights under Articles 154 and 159 of the Spanish Civil Code and, in the absence of agreement, the matter required to be brought before the local Spanish Court for determination. For reasons which I will elaborate under “consent” below, it is plain that there was no such agreement and the removal of the children by the mother was therefore in breach of the rights of custody of the father for the purposes of Article 3(a) of the Convention. Further, following receipt and consideration of the second report of Sr. Lopez, counsel for the mother conceded that, for the purposes of Spanish law, at the time of the removal the father was exercising such rights of custody.”
“[30] But common sense is everything in this sphere. If the consent was given when the facts were wholly and manifestly different from those prevailing at the time of the removal; or if the consent was given so long ago that it must clearly have lapsed; or if the consenting party had withdrawn that consent before it were acted on by a removal of the child, then in those various circumstances the defence would not be made out. It is all a question of degree.” [Emphasis added by the President]
“48. Having heard the evidence of the mother and her sister, it is not in dispute that the act of removal was surreptitious and that the immediate intentions of the mother and the arrangements for removal were concealed from the father and designed to present him with a fait accompli. Further, upon his arrival at the airport, he plainly made clear his objections to removal of the children at a time when the mother could still have turned back from the flight upon which they were booked, but she proceeded nonetheless. The mother has sought to rely upon discussions in England (amounting to a pact or agreement) with the father to the effect that, if following the mother’s return to Spain, the so-called reconciliation period of one month was not a success, the mother would be free to return to England with the children. She further asserts (supported by her sister’s evidence) that, a month before removal, the father was assenting to her return to Wales with the children and co-operated (unsuccessfully) in seeking to book tickets on the Internet for them to return to Wales on 9 September with the mother and sister, though he later indicated that he was not prepared to pay for the tickets himself. The father says that account is lies. On the basis of the evidence before me, I prefer the mother’s version as to what happened in Spain at that time. However, I do not think it is sufficient to establish the husband’s consent to the removal in mid-October, when I am satisfied that the mother knew or suspected that the husband would not consent, or at the very least was likely to object, at a time when the children were happy in the new home and had successfully re-started at Spanish schools. Not only was the husband volatile and therefore likely to change his mind, but a return at that time would have uprooted the children without warning or any preparation for the shock of such removal. I therefore reject the defence of consent.”
“… whatever be their wishes and feelings, it is clear that none has expressed objections(as opposed to shades of preference) to being returned to Spain.”
“52. Finally under this heading, I should mention that, in the closing stages of the case, the mother conveyed through counsel the information that J has very recently expressed happiness with her situation in Wales and a wish to remain. I am prepared to accept that this may well be so. However, such shifts of feeling are almost bound to occur in cases of this kind as time passes and delays are incurred before the Court can rule upon the matter. In any event, the information I was given did not appear to me to amount to the kind of clear and informed objection required for the purpose of the Convention. I therefore reject the defence of children’s objections.”
“On the basis of their return for a few weeks for the purposes of a parental reconciliation which failed, they nonetheless reacquired their habitual residence in Spain before their wrongful removal.”
“66. Whether or not a person is habitually resident in a specified country is a question of fact to be determined by reference to all circumstances of the case. It needs no quotation of authority for the proposition that, in our domestic law, as applied in Convention cases for the purpose of proving a change in the habitual residence of a person who moves from one country where he is habitually resident to another, it is necessary to prove (i) physical presence/ residence in the new country (ii) for a reasonable period of time (iii) for a settled purpose and with a settled intention. In relation to (ii) and (iii), it must be shown that the residence has become habitual and will, or is likely to, continue to be habitual.”
“69. … it does not seem to me that, so far as the children are concerned, there was any real, or at any rate manifest, diversity of purpose as between the parents until June 2008, when the mother told the father that she wanted a divorce and to stay in Wales rather than to return to Spain. Up until then, the children were by common agreement taken to England by the mother for the temporary purposes of their schooling and to stay with their grandparents during renovations, the mother accompanying them as their carer, but not in any sense for the purpose of a family move to England. The “family” did not move to England. The father, as the family provider, remained in Spain, habitually resident there, doing up the family home for occupation on their return and visiting England when he could. The mother for her part, similarly went to and fro from Spain for various reasons, including a visit by J to her dentist and, on her visits and in email correspondence from England, she showed an active interest and made input into the renovation of the house by the father on the basis that she would be returning to occupy it. The family roots thus remained firmly in Spain but, as it were, during a period of hiatus while the house was renovated. That was not only the position and understanding of the father; it was the perception of S and, as I have found, the declared position and understanding of the mother, the first indication of a contrary view on her part being the declaration of her desire/intention to obtain a divorce and stay in England in June 2008. 70. Upon making such declaration, she was then immediately dissuaded by the father and agreed that the children would return to Spain with the father at the end of the school year as originally agreed and intended by both of them. It thus appears to me that, if habitual residence had not been acquired by the children in England by the time of the conversation in June, pursuant to which the children returned to Spain with the father in August, their continued residence in Wales during the few remaining weeks of their school term before that return, did not advance the position. The planned return remained in place.”
“All he was saying was 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.”
“73. … while I do not differ in any way from the statement of the law classically expounded in Re M, I note two important points in relation to the circumstances of this case. In the course of their exposition of the law, Sir John Balcombe at 892C-h and Millett LJ at 896b respectively recognised the correctness of Wall LJ's decision in Re S and that, where both parents have equal rights of custody/parental responsibility, neither can unilaterally change the habitual residence of the child. Furthermore, the court recognised and emphasised that habitual residence, while primarily a question of fact, is to be decided by reference to all the circumstances of any particular case. The court plainly recognised that, where there has been an agreement between the parties as to the basis on which the children will be sent or taken to another country for a temporary purpose, in particular that of education, that will not alone be sufficient to change their habitual residence (per Sir John Balcombe at 893g). Such an agreement is one of the main facts or circumstances to be taken into account.”
“79. … I do not find it established that there was any change in the habitual residence of the children from Spain, the country where they had lived and been brought up prior to their sojourn in Wales. They simply stayed in the grandparents’ household for the limited purpose of their education and providing a temporary home while the renovation works on the family home were effected. 80. That being so, it becomes unnecessary for me to consider the effect of the parties’ discussions as to the future of the marriage if, on the return of the family to Spain from their stay in Wales, the differences between the mother and father persisted. Despite my concentration on the time spent in Wales, the time at which it is necessary to consider the issue of habitual residence is at the time of removal from Spain, when the children were installed in their new schools and the parties were living together in the renovated family home. I am satisfied that, at the time of removal, the habitual residence of the children was in Spain.”
“Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' 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 of long duration.” (4) The test is not where the “real home” is: this was rejected by Lord Scarman at p. 348G. There is a distinction to be drawn between being settled in a new place or country and being resident there for a settled purpose which may be fulfilled by meeting a purpose of short duration or one conditional upon future events. To ask whether the family are settled in the sense of putting down substantial roots is a misdirection: see Thorpe L.J. in Al Habtoor v Fotheringham [2001] 1 F.L.R. 952 where he held: “[37] … 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 … the move was only on a trial basis. [38] … [The judge] misdirected herself in asking whether the family had settled in Dubai in the sense of putting down substantial roots.”
“I think that [ordinary residence] connotes residence in a place with some degree of continuity and apart from accidental or temporary absence.”
“If [ordinarily resident] has any definite meaning I should say it means according to the way in which a man’s life is usually ordered.”
“The words ‘ordinarily resident’ mean that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration.”
“All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”
“For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.”
“My Lords, it is therefore, my view that local education authorities, when considering an application for a mandatory award, must ask themselves the question: has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences.”
“A settled purpose is not something to be searched for under a microscope. If it is there at all, it will stand out clearly as a matter of general impression.”
“I think the converse to ‘ordinarily’ is ‘extraordinarily’ and that part of the regular order of a man’s life, adopted voluntarily and for settled purposes is not ‘extraordinary’.”
“Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes it return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position. The judicial or administrative authority may also refuse to order the return of the chid if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”
“Article 3 The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; …” a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position. a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; …”
“… it should be stressed now that the intention is to protect allthe ways in which custody of children can be exercised. … Now, from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other is equally wrongful, and this wrongfulness derives in this particular case not, from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise,”
“115. The exceptions contained in a arise out of the fact that the conduct of the person claiming to be the guardian of the child raises doubts as to whether a wrongful removal or retention, in terms of the Convention has taken place. On the one hand, there are situations in which the person who had the care of the child did not actually exercise custody rights at the time of the removal or retention. … On the other hand, the guardian’s conduct can also alter the characterization of the abductor’s action, in cases where he has agreed to, or thereafter acquiesced in, the removal which he now seeks to challenge. This fact allowed the deletion of any reference to the exercise of custody rights ‘in good faith’, and at the same time prevented the Convention from being used as a vehicle for possible ‘bargaining’ between the parties.”
“The authority of the parents will be exerted by both, or by one of them with the express or tacit consent of the other”
“It follows, in my judgment, that where a parent seeks to argue the Article 13(a) “consent” defence under the Hague Convention, the evidence for establishing consent needs to be clear and compelling. In normal circumstances, such consent will need to be in writing or at the very least evidenced by documentary evidence. Moreover, unlike acquiescence, I find it difficult to conceive of circumstances in which consent could be passive: there must in my judgment be clear and compelling evidence of a positive consent to the removal of the child from the jurisdiction of his habitual residence.”
“… parents do not necessarily expect to reduce their agreements and understandings about their children into writing, even at a time of marital breakdown. What matters is that consent is “established”
“If it is clear, viewing a parent’s words and actions as whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Art 13. It is not necessary that there is an express statement that “I consent”
“It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct.”
“Having allowed the mother and C to come to this country on that basis, can it be said that the mother has failed to establish that the father had consented to C’s removal or retention? Not without some difficulty, I have reached the conclusion that that is sufficient to amount to consent and that that consent is not taken away by the father subsequently thinking better of it. Having had that consent, the mother was entitled to rely upon it in making up her mind and in keeping C in this country.”
“The use of the word “the” before the word “removal”, must mean the actual removal which took place but it does not follow that the consent must be given instantaneously at the time because consent could clearly be given to a removal which would take place at a future and even indefinite date. A person could agree that a child could be removed, for example, when the child came out of hospital and was fit enough to travel. There would be no definite date but consent was being given for a future removal. The use of the past tense in the words “had consented to … the removal” demonstrates that at the time of removal the consent had already been given and looks to the past prior to the removal. In other words a person could consent to the removal of a child in the future unless some other event occurred, such as the child not being well enough to travel.”
“While the words “the removal” in art 13 (a) refer to the actual removal which took place it does not in my view mean that the consent must be given at the time of removal. The words “had consented to … the removal” are not consistent with that view. In my view there is nothing in the article which bars consent to the removal sometime in the future.”
“In my opinion it is quite clear that art 13 (a) is providing only for consent to or acquiescence in a particular act of removal or retention.”
“Put shortly, the principle would appear to be [that] consent can be given by one parent for the future removal of their child by the other, even if the timing of the future removal is uncertain.”
“[29] I respectfully agree [with Bennett J.]. Obviously, these questions of consent will always be fact specific and will involve questions of degree; but I can see no reason in principle why a consent should not be valid if tied to some future event even of uncertain timing, provided that the happening of the event is of reasonable ascertainability. It cannot be something too vague, too uncertain or too subjective. The following should for example be capable of forming the basis of the consent defence: “… If my job application succeeds … ”, or (as per the example given in Zenel “… when the child comes out of hospital”. [30] But commonsense is everything in this sphere. If the consent was given when the facts were wholly and manifestly different from those prevailing at the time of the removal; or if the consent was given so long ago that it must clearly have lapsed; or if the consenting party had withdrawn that consent before it were acted upon by a removal of the child, then in those various circumstances the defence would not be made out. It is all a question of degree. … [32] … In a non-contractual sphere such as this, a party cannot purport to act on an original wide agreement which has been later superseded by a more restricted one. … [41] Where a removing party knows or assumes that the formerly consenting party would not continue that consent at the time of the actual removal and/or if he or she knew the full facts, it is my view that the consent defence fails even though the original consent may never have been expressly withdrawn.”
Showing the 50 most senior of 69.