L-S (A Child) [2017] EWCA Civ 2177

[2017] EWCA Civ 2177

Case No B6/2017/1544/FAFMF

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM 11 May 2017

Mrs Justice Parker

FD17P00163

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/12/2017

Before

Lord Justice McFarlane

Lord Justice McCombe

Lady Justice Sharp

Between

L-S (A CHILD)Appellant

L-S (A CHILD)

James Turner QC and Ms Katy Chokowry (instructed by Miles and Partners Solicitors) for Appellant

Timothy Scott QC and Miss Clare Renton (instructed by Thomas Dunton Solicitors) for Respondent

Hearing Hearing dates: Tuesday 21 November

Judgment Approved

Lord Justice McFarlane :

[1]The present appeal relates to proceedings brought under the Hague Convention on the Civil Aspects of International Child Abduction with respect to a boy, M, who is 21 months old. The three central issues in the appeal relate to the child’s habitual residence, whether or not his father had subsequently acquiesced if he had been wrongfully removed from the USA to England, and whether the circumstances are sufficient to engage Article 13(b) of the Convention by establishing that there is a grave risk that his return to the USA would “place the child in an intolerable situation”.

[2]M had been removed from the USA by his mother on 25 April 2016. In a judgment given at the conclusion of a 2 day hearing, which included an element of oral evidence from each of the two parents, Mrs Justice Parker determined that M had been habitually resident in the United States at the time of his removal, she rejected the mother’s case on acquiescence and Article 13(b), with the consequence that an order for M’s return to the United States was made. It is against that outcome that the mother now appeals to this court, permission to appeal having been granted by Lady Justice Black (as she then was) on 21 July 2017.

Background

[3]The background facts can be shortly stated. Although of South African origin, the mother lived for much of her childhood in England and was habitually resident here prior to moving to America when she was aged 21. Whilst there she met the father, who is an American citizen, in 2010 and they were married on 6 January 2011. The couple remained living together in America, albeit in a series of different locations in what has been described as a nomadic or peripatetic lifestyle, until 6 October 2015 when the mother, who was then some 28 weeks pregnant, came back to England where she accessed maternity care under the NHS.

[4]On 25 February 2016, when M was only 4 weeks old, the mother flew with him back to America. While she had been away the father had yet again moved home to a different US state. The mother and M lived with the father for the next two months, until, on 25 April, the mother removed M back to England on a one-way air ticket without telling the father of her intention.

[5]Since that time M has remained in his mother’s care in England.

[6]On the judge’s findings, during the summer of 2016 the father obtained some information about his ability to apply for M’s return to the United States under the Hague Convention. He did not mention this to the mother. He told the judge, however, that it was in his mind to start Hague proceedings from that time onwards, but, apparently, he was prevented from doing so until February 2017 because he did not, until that stage, have a copy of the child’s birth certificate.

[7]In the autumn of 2016 the father did commence divorce proceedings, with the agreement of the mother. The divorce petition asserts that “the parties separated on or about October 1st 2015”.

[8]The divorce petition records that the parties have entered into an agreement concerning marital separation and property settlement which “encompasses child custody, child welfare, child support, parenting obligations, health insurance and marital assets”. The petition sought the court’s approval of the agreement.

[9]The agreement, which appears to be in a standard form, includes the following:

“Child custody and visitation: Respondent [mother] shall have full legal and physical custody of the child. Both parties agree for the petitioner [father] to have visitation over summer break of the child, and until the child attains school education. Any visitation for the petitioner [father] will be mutually agreed upon between respondent [mother] and petitioner [father].”

[10]Later under a heading of “Representation” a number of representations made by each party to the other are recorded including: “(c) Each understands and agrees that this Agreement is intended to be the full and entire contract of the parties. (d) Each agrees that this Agreement and each provision of it is expressly made binding upon the heirs, assigns, executors, administrators, successors of interests and representatives of each party”.

[11]The Agreement was signed by the mother in England, before a notary, on 29 November 2016. Under the mother’s signature the printed text reads “STATE OF GEORGIA”, however “GEORGIA” has been crossed out and replaced in writing by “England and Wales United Kingdom of Great Britain and Northern Ireland.” The Agreement is recorded as having been signed by the mother in Kent, and the notary’s address is an address in Kent.

[12]During the hearing before the judge the father mentioned for the first time in cross-examination that he had left a number of voicemails for the mother to pick up via the ‘WhatsApp’ messaging service. At the time that he gave this evidence neither the voicemails nor the date upon which they had been transmitted was available to the court. For the purposes of the appeal, and without opposition from the mother, we have admitted fresh evidence that establishes that all 3 of the messages were sent within a short time of each other in the early hours of the morning on 11 December 2016. Although the messages were ostensibly from the father to his 11 month old child, they were plainly intended to be heard by the mother. The first message runs for only 33 seconds and is of no relevance. The second message, which lasts nearly 2 minutes, records the father’s opposition to M being known by a different surname. The third message which lasts for 46 seconds, is as follows:

“Little bunion? I also wanted to let you know that daddy’s gonna do all he can to bring you back to your family that, you know, you were taken away from because you have blood family, direct relatives even a sister here that you were abducted and snatched away from so daddy’s gonna take care of you and do everything he can so that you can be with your family. I love you little munchkin, don’t worry I got it all planned out. I love you little munchkin.”

[13]Although at that time the court was unaware of the content, the judge found that the mother was aware of the voicemails and, indeed, the tick marks on the screen shot of the ‘WhatsApp’ account that we have now viewed suggest that that is indeed so. The judge’s finding on this point is not challenged.

[14]The final decree of divorce was issued on 24 January 2017. The father’s voicemail messages sent on the 11 December 2016 therefore sit in the chronology between the signing of the divorce agreement and the final decree encompassing its terms.

[15]The father issued his application under the Hague Convention on 24 February 2017 and, as I have indicated, the case came up for final hearing before Parker J in early May.

[16]The only other factual matter to record at this stage relates to the current circumstances in America if the appeal fails and the mother is required to return M to the USA in accordance with the judge’s order. The father has moved to another new location and is living in a mobile home, which he undertook to vacate to provide accommodation for the mother and child.

(b) is summarised by the judge (at paragraph 99) as follows:

“The child is attending baby and toddler groups, which apparently he is enjoying. The mother thinks that she might be isolated in the United States and unable to access any such facility. She does not know whether they exist. She says that she had no friends there who can support her, whereas she does in England. She has long-standing friends from her childhood who are already willing and able to step up to the plate to assist her. She says that she requires some form of alternative accommodation for the baby during the day. She is concerned that the father may not be able to provide accommodation.”

[17]The mother was also concerned about the father’s ability to provide financial support and/or pay for medical care. The Green Card that she had previously held has now expired. Although the judgment does not record this information, this court was told, apparently without challenge, that the mother’s immigration status in America would be limited to entry on an ordinary 90-day tourist visa.

Issues before the judge

[18]The issues of habitual residence, acquiescence and the engagement of Article 13(b) were each raised before the judge.

[19]On habitual residence, the judge was invited to determine the question of the mother’s habitual residence because of its impact on the ultimate question of whether or not M was habitually resident in America at the time of his removal on 25 April 2017. The mother’s primary case was that she had retained her habitual residence in England throughout the period of over 5 years during which she became married and lived with the father in the USA. The judge rightly rejected that submission and her decision on that point is not now challenged.

[20]The mother’s secondary position was that almost immediately upon her return to England in October 2015, she regained her habitual residence in England and lost any habitual residence in America. The mother’s case was that, thereafter, her habitual residence remained in England, notwithstanding her return to America for 8 weeks between February and April.

[21]It was common ground before the judge that, so far as M is concerned, it was not possible for him to have gained an habitual residence in America at any stage prior to 25 February 2016 because he had never been to that country before that date. Thereafter, the father’s case was that M and the mother joined with him as part of a settled family unit, following the mother’s short absence in the UK for the specific purpose of accessing maternity care. The father asserted, therefore, that, very soon after he arrived in America, M acquired habitual residence there.

[22]The mother’s case was that the accommodation in America was new to her, did not seem permanent and, indeed, she never unpacked her suitcase during the 8 weeks of her time there. It was therefore submitted that neither she nor M had achieved a sufficiently settled state of integration with their circumstances in America to establish habitual residence.

[23]So far as acquiescence is concerned, the mother’s case was that the whole context of the American divorce and custody agreement, although it does not say so in terms, was based on the assumption that M would be living with the mother in England for the foreseeable future.

The judge records the father’s evidence on this point as follows:

“It is right that the father conceded that, during the conversations that they had leading up to the custody agreement, “as far as the mother was concerned, she thought she would be allowed to stay in England”

. When asked what he had said to her to make her think she could stay, he said:

“I guessed we were going to get divorced and we did not want any contention in our divorce and I think this probably led her to think this. I did say something. There was a period in October when we were talking again and she was being friendly. I left a couple of voicemails to M saying “daddy loves him and I am going to do everything to bring him back”

. She got mad. If I said anything, I was faced with her blocking me.” Later, the judge recorded that the most that the father had said in this respect was “it was possible that she could have got this impression”. Finally the judge, at paragraph 77, summarised the evidence as follows:

“It is agreed by the parents that he did not tell the mother that he intended that M would live in England. He agreed that there was discussion that M would probably travel to the USA in the summer to see him from England. When the question was asked “by doing that, you were leading the mother to believe that M would live in England with her” he did not properly answer the question, but said that she had led him to believe also that M would be in the USA for the rest of his life too. He did not accept that, in every discussion with the mother and every step he had taken, she would have been led to believe that M could stay with her in England.” “I guessed we were going to get divorced and we did not want any contention in our divorce and I think this probably led her to think this. I did say something. There was a period in October when we were talking again and she was being friendly. I left a couple of voicemails to M saying “daddy loves him and I am going to do everything to bring him back”

. She got mad. If I said anything, I was faced with her blocking me.”

[24]The mother’s case on Article 13(b) was, in part, that a significant period of time had by then elapsed with M becoming more and more settled in England. The father did not issue his Hague Convention application until some 10 months after the child’s departure. Although 10 months is short of the period of one year required to engage the modification of the requirement for summary return which is set out in Article 12, the mother, relying upon a decision of Mrs Justice Macur (as she then was) in Re KS (Abduction: Wrongful Retention)

[2009] EWHC 1494 (Fam)

, argued that the period of delay was relevant to establishing the intolerable situation that she relied upon under Article 13(b). In addition the mother relied upon the factual circumstances relating to life as it would be lived in America were M required to return there (as summarised at paragraph 16 above). The judge’s decision

[25]On the issue of habitual residence the judge, firstly, held that the mother’s stay in England between October 2015 and February 2016 did not establish sufficient connection with this jurisdiction to “point to anything more than a temporary stay” and that the evidence was insufficient to demonstrate that the mother had become habitually resident in England during that period. In any event, and in the alternative,

the judge held:

“That even if she did become habitually resident in England during that just about four month period, then she must have become habitually resident in the United States, again fairly swiftly, and I find that must have been even before her departure. In Re B Lord Wilson provided the list of, not precepts, but things/considerations which a judge may wish to think about in the context of deciding upon habitual residence. He made the commonsense suggestion that, when returning to one’s old life in a country which provided the whole backdrop of one’s existence, becoming habitually resident there again is likely to occur within a very short period of time and so I find it to be with this mother. Indeed it is likely to have been immediate. As I say, there was no suggestion of it being in any way temporary or other than a return to the married life in which they were both going to bring up their child. In any event by the time she left again two months had elapsed. I reject the mother as habitually resident in England as at the date of M’s removal.”

[26]Thereafter the judge, rightly, focused upon the key issue which was whether the child was habitually resident in America on the date of removal in April 2016. The judge, having rehearsed the background circumstances, held that M was indeed habitually resident in the United States on the date of removal and had probably achieved the status of habitual residence “very soon after arrival [in the USA] in the light of the background”.

[27]The consequence of the finding of habitual residence was, of course, to make the child’s removal a “wrongful removal” within the context of the Hague Convention thereby triggering a requirement for the child’s summary return to the USA unless one or other or both of the mother’s “defences” was established.

[28]In formulating her conclusion on the issue of acquiescence the judge inevitably referred in detail to the leading decision of the House of Lords in Re H (Minors) (Abduction: Acquiescence )

[1998] AC 72

, to which I will in due course refer. The issue before the judge was not whether the father had actually acquiesced in the child remaining in England, a conclusion which was not supported by the evidence or argued for by the mother. The mother’s case was that the circumstances here fell within the only exception identified by Lord Browne-Wilkinson in Re H being one where “the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return” on the basis that “justice requires that the wronged parent be held to have acquiesced”.

The judge’s conclusion on this point (at paragraph 82-85) was as follows:

“82 The mother, through Ms Chokowry, says that she does not rely on the father’s words as it is conceded that he never said anything direct to her. But it is argued that his conduct in talking about the future arrangements on a tacit or expressed assumption, so it is asserted, that M would be living in England is conduct of the type described [by Lord Browne-Wilkinson]. I am not entirely satisfied that the lack of words can be construed as action. I would be inclined to reject Ms Chokowry’s argument on that basis alone, but there are other perhaps more compelling reasons for me to do so. 83 Let us assume she is right and the way in which the conversations took place does constitute a form of action. They did not, in my view, “clearly and unequivocally” show and lead the other parent to believe that he was not going to assert his right to the summary return of the child. 84 I note that Lord Browne-Wilkinson specifically included the future tense ‘going to assert his right’ as well as the present tense. There were many uncertainties for this couple and many eventualities in which the father could, against the backdrop of the agreement, have asserted his right to summary return without being in any way in conflict with the discussions with the mother. 85 I am not satisfied that anything that the father said, or arguably did, clearly and unequivocally showed and led the mother to believe that he would not seek the return of the child. That is so, even leaving aside my findings as to the mother’s awareness of the voicemail message.”

[30]Under Article 13(b) the judge, whilst expressing great respect for Mrs Justice Macur, regarded Re KS as a “most exceptional case” which established “immense difficulties” in following that decision “particularly in a case of this nature”.

[31]The Judge roundly rejected the mother’s counsel’s submission that the circumstances necessary to establish an intolerable situation under Article 13(b) could, in a large part, arise simply from the effluxion of time consequent upon the ‘left behind’ parent’s delay in issuing proceedings. At paragraph 98 the judge said:

“To adopt the phrase of Lady Justice Butler-Sloss in Re C nearly 25 years ago now, for me to adopt Ms Chokowry’s submission that if an application is made late in the 12 month period, or at a point at which the child can be said to have put down important roots after the abduction, this should mitigate against a return this would drive a “coach and horses” through the Convention. The point would be argued in every case and it would make the operation of the Convention wholly [unworkable?].”

[32]The judge, having considered the various factual matters about life in America raised on behalf of the mother, together with the father’s case in response, concluded on the Article 13(b) point as follows (at paragraph 110):

“My primary decision is that the mother has not established on the basis which she puts forward that there is any grave risk of harm to M if returned to the States or that he is likely to face an intolerable situation. That is taking her allegations at its absolute highest. If I am wrong and they do constitute any form of sufficiently high degree of risk or risk of gravity or intolerability, then I am quite satisfied that the raft of undertakings which the father puts forward are entirely sufficient.”

[33]The judgment was extempore, given in the course of a busy day, and, it is apparent, the judge realised after the event that she had not included a passage dealing with the exercise of discretion if she were wrong in holding that neither of the two “defences” applied. The judge therefore inserted a further paragraph (paragraph 112) in the final version of the judgment as follows:

“If I am wrong and she has established those defences, I would find that the policy of the Convention in this case is a highly material factor; that the time elapsed is irrelevant; that the child is not so settled into his environment, aged not 2, as to be unsettled by a removal to fulfil the stringent requirements to justify non-return. The mother has the capacity to move back. It is in this child’s best interests for speedy decisions to be made by the court of habitual residence, particularly because this is where the parties’ marriage took place and many of the mother’s complaints about the environment which may be offered for M in the States – as opposed to what she can offer him in England with the assistance of her parents – could only be tried properly on evidence which would be most easily available in he United States of America. So I shall order a return.”

The case on appeal

[34]Mr James Turner QC, who did not appear below, leading Ms Katy Chokowry, who did, submits that the judge fell into error with respect to each of the three core elements in the case, namely, habitual residence, acquiescence and Article 13(b).

[35]So far as habitual residence is concerned, the starting point (which is conceded) must be that M could not have been habitually resident in the USA prior to his arrival in that country on 25 February 2016. Mr Turner submits that the judge was wrong in holding that the mother had not reacquired habitual residence in England during her four month stay here. On the basis that the mother was habitually resident here and, in any event on the basis of the child’s physical presence in England, the mother’s case is that M was habitually resident in England and Wales by the time of his departure to the States on 25 February. It is submitted that the key question, therefore, is whether that habitual residence changed at any point during the following eight weeks prior to his removal back to England in April.

[36]Mr Turner, relying on the principles to be ascertained from decisions of the Court of Justice of the European Union (principally Mercredi v Chaffe (Case-497/10PPU):

[2012] Fam 22

) and subsequent decisions of the English courts (principally A v A (Children: Habitual Residence)

[2013] UKSC 60

) submits that in the present case, when considering whether there was a transfer of this young child’s habitual residence to the USA, what is of particular importance is that: i) All of the particular circumstances specific to the individual case must be taken into account. ii) To become habitually resident in a place there must be some degree of integration by the child in a social and family environment in that place. However, even where such integration can be demonstrated that is not necessarily enough. iii) The physical presence in the place must not in anyway be temporary or intermittent and in that regard the presence must have a certain duration so as to reflect an adequate degree of permanence. iv) Before habitual residence can be transferred it is of paramount importance that “the person concerned” has it in mind to establish in the relevant State “the permanent or habitual centre of his interests, with the intention that it should be of a lasting character”. Where the person concerned is an infant the relevant factors in this regard may have to be determined by reference to the position of the relevant carer or carers. v) Further, the conditions and reasons for the relevant stay in the particular place, social connections, geographic and family origins, in relation to the person concerned, may be relevant.

[37]Mr Turner submits that the judge in the present case failed to address each of the necessary questions and, in particular, failed to consider the question of stability in the context of a mother who had clearly felt it necessary to leave America previously and, on her evidence, had only returned there for a trial period. The mother’s case is that the complicated factual matrix in this case required a more subtle analysis of the evidence of life in America than the one undertaken by the judge. Mr Turner submits that the important question for the judge was to determine whether M actually achieved settlement and stability during his two months in America.

[38]Mr Turner took the court to the detailed account given in the mother’s evidence which, it is said, demonstrates the very opposite of a settled existence which, he submitted, is in stark contrast to the finding by the judge (at paragraph 65) that “there was no suggestion of [life in America] being in any way temporary or other than a return to a married life in which they were both going to bring up their child.”

[39]If the evidence is that the mother was unsettled, Mr Turner asks, rhetorically, on the basis of Mercredi and Chaffe and A v A, how can it possibly be said that M became sufficiently settled during this short period so as to acquire habitual residence in America.

[40]In relation to acquiescence, both parties, in common with the judge, acknowledge that the leading authority remains that of Re H and, in particular, the leading judgment of Lord Browne-Wilkinson who (at page 88d) described the position that applies in all cases, save for the one “exception” that he went on to identify, on the following basis:

“In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world’s perception of his intentions.”

[41]Lord Browne-Wilkinson then went on to describe “the exception” (at page 89):

“It is a feature of all developed systems of law that there are circumstances in which one party, A, has so conducted himself as to mislead the other party, B, as to the true state of the facts. In such a case A is not allowed subsequently to assert the true facts as against B. In English law, this is typically represented by the law of estoppel but I am not suggesting that the rules of English law as to estoppel should be imported into the Convention. What is important is the general principle to be found in all developed systems of law. It follows that there may be cases in which the wronged parent has so conducted himself as to lead the abducting parent to believe that the wronged parent is not going to insist on the summary return of the child. Thus the wronged parent may sign a formal agreement that the child is to remain in the country to which he has been abducted. Again, he may take an active part in proceedings in the country to which the child has been abducted to determine the long-term future of the child. No developed system of justice would permit the wronged parent in such circumstances to go back on the stance which he has, to the knowledge of the other parent, unequivocally adopted: to do so would be unjust. Therefore in my judgment there are cases (of which In re A.Z. (a Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 is one) in which the wronged parent, knowing of his rights, has so conducted himself vis-à-vis the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the children. However, in my judgment these will be strictly exceptional cases. In the ordinary case behaviour of that kind will be likely to lead the judge to a finding that the actual intention of the wronged parent was indeed to acquiesce in the wrongful removal. It is only in cases where the judge is satisfied that the wronged parent did not, in fact, acquiesce but his outward behaviour demonstrated the contrary that this exceptional case arises. My Lords, in my judgment these exceptional circumstances can only arise where the words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting on the summary return of the child: they must be wholly inconsistent with a request for the summary return of the child. Such clear and unequivocal conduct is not normally to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children. Still less is it to be found in a request for access showing the wronged parent’s desire to preserve contact with the child, in negotiations for the voluntary return of the child, or in the parent pursuing the dictates of his religious beliefs.”

Later, when setting out his conclusions in summary form, Lord Browne-Wilkinson said:

“(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

[42]Mr Turner’s submission, relying upon the words of Lord Browne-Wilkinson, is that, by entering into the formal agreement as to custody the father led the mother to believe that he was not going to insist upon the summary return of his child to America. The signing of the formal agreement and his reliance upon it to progress his own divorce petition to final decree, which embodied that agreement, is submitted to be precisely the type of formal stance described by Lord Browne-Wilkinson to which the father should now be held and from which he cannot now be heard to go back on the basis that, as here, all the time he had “secretly intended” to claim the summary return of his child.

[43]Mr Turner submits that the recent clarity as to the content and date of the voice messages does not alter the situation. The messages came after the couple had entered into the formal agreement and the mother had signed it. In any event, the formal court order to which the father continued to consent was made thereafter.

[44]In relation to Article 13(b) and the assertion that there is a grave risk that the child would return to an intolerable situation in America, Mr Turner, firstly, continued to rely upon the judgment of Macur J in Re KS. Although as Macur J held, the claimant father in that case had issued his Hague application within the 12 month period so as to negate the respondent mother’s assertion that Article 12 applied, the case was, nevertheless characterised by gross delay both before and after the application was issued. By the time the case was heard, the child, who was by then aged 4 years, had been in England for over two years, and, on the judge’s findings, had become well settled here. Macur J, therefore, took account of the delay and the fact of settlement in considering the mother’s Article 13(b) case. At paragraph 45, she said:

“That undue delay and settlement may, in appropriate cases, constitute the basis of an argument that a child would be exposed to an intolerable situation if summarily returned to their country of habitual residence prior to removal is recognised by Baroness Hale of Richmond in Re D (a child) (Abduction: Custody Rights) [2006] UKHL 51 at paras 51-53. In particular I note that the word “intolerable” in this context should be taken to mean “a situation that this particular child in these particular circumstances should not be expected to tolerate”.”

[45]Macur J went on to hold that to disrupt the child’s present living arrangements after so long a period of settlement would have “more far reaching consequences and adverse impact than in the case of an older and less sensitive child able to comprehend a sudden departure from one routine and community and a prospect of the next and would transgress the “inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence.””

[46]Macur J therefore held that the circumstances in Re KS were, indeed, sufficiently strong to establish a grave risk of “an intolerable situation” required by Article 13(b).

[47]Whilst not bound by the decision of a fellow puisne judge, Mr Turner submits that Parker J was in error in not following that approach in the absence of there being a powerful reason not to do so. Mr Turner took the court to the Supreme Court decision of Willers v Joyce and another(No2)

[2016] UKSC 44

where, at paragraph 9, Lord Neuberger PSC said:

“So far as the High Court is concerned puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Secretary of State for the Home Department [2013] 1 WLR 63, at para 59…”

[48]More generally Mr Turner submits that the Article 13(b) analysis has to be conducted with full regard to the fact that all bar eight weeks of M’s life have been spent in England, he now being one year and ten months of age and that the return order would cause M and his mother to go to Tennessee in the USA, a State to which they have never been before. The mother’s precarious immigration status in America is a relevant factor. Mr Turner argues that under Article 13(b) the court has to look at the actuality of the child’s position “on the ground” as it is the effect of the particular facts on the particular child that matters.

[49]Finally, it is accepted that if the mother’s case on Article 13(b) succeeded there was no supplementary issue as to the exercise of the court’s discretion to return, the issue of discretion will only arise if the mother’s case on acquiescence succeeds. With respect to the exercise of discretion, Mr Turner points to an unusual feature of this case which is that, if the court in America is held to be the court of habitual residence, that court has in fact already determined the issue of custody in favour of the mother. There is, submits Mr Turner, therefore no merit in sending the child back to America for the US court to determine the issue when it has already done so. On the basis of the terms of the agreement, M would be being sent back to America solely for the father to exercise his visiting rights during the course of each summer break.

[50]In the context of the exercise of her discretion, Mr Turner therefore submits that the judge was wrong in relation to the two principal reasons that she gave for her decision at paragraph 112, by firstly ignoring the time that had elapsed during which the child may have become settled and, secondly, by holding to the need for the American court to make speedy decisions when, in fact, that court has already made a consent order encompassing all matters relating to the child’s future welfare.

[51]In response to the appeal, Mr Timothy Scott QC, who did not appear below, leading Miss Clare Renton, who did, rightly urges this court to examine the judge’s judgment on the basis that it was an extempore judgement and therefore, probably not as polished as might be the case had it been reserved.

[52]In relation to habitual residence, Mr Scott submits that, in reality, the mother’s appeal is simply a fact-finding appeal which is dressed up as an appeal on a matter of law. The judge, who had heard oral evidence, found against the mother in her assertion that the return to America was only for a “trial period” and that she did not wish to go. That finding was entirely compatible with evidence that the mother and father had joined in a hunt for suitable accommodation in America (as evidenced by e-mails) before her return. The judge was therefore fully entitled to make the findings of habitual residence that she did with respect to the mother and, more particularly with respect to M. Once in America M was in a family home with both his parents and enjoyed the ordinary stability of a very young baby being cared for in that setting.

[53]Moving on, Mr Scott submits that in circumstances where the court order, looked at as a whole, is ambiguous and where the evidence demonstrated that the father had throughout maintained his intention of issuing Hague proceedings for the return of the child once he had obtained a birth certificate, the judge’s finding against acquiescence was entirely justified. Although Mr Scott accepted that the terms in the agreement relating to custody were more consistent with M living in England rather than America, the agreement nevertheless does not expressly say so. Other aspects of the court order, relating to the mother’s responsibility for accounting to the US Revenue and ensuring health insurance for M, pointed towards the mother and child being resident in America. Against that background Mr Scott submits that the voicemail message, which is, he said, almost the very definition of equivocation, is important additional evidence in support of the judge’s conclusion.

[54]With respect to Article 13(b) Mr Scott did not suggest that the time that M had spent in England and the degree of settlement that had been achieved should be wholly ignored. There was, however, he argued, a significant difference between the simple computation of the passage of time required to establish “one year” under Article 12 and the wholly different evaluation of there being, as a result of the passage of time a “grave risk” that an “intolerable situation” has thereby been established. When the passage of time in this case is viewed through the very different lens of Article 13(b), Mr Scott submits that, even if the judge had given more account to it, it could never be sufficient to establish a situation of the necessary character to establish an Article 13(b) defence.

[55]Finally, so far as discretion is concerned, Mr Scott submits that it is for the US court to determine the future welfare arrangements for this child. The father has undertaken to return the case to court as soon as possible after M’s return. The current order is ambiguous and, in any event, it is now the father’s intention to apply for increased access rights to his child. Discussion and Conclusion (1) Habitual Residence

[56]The present appeal does not raise any issue of law regarding habitual residence. Mr Turner’s list (paragraph 36 above) of the principal elements to which a court must have regard when conducting an evaluation of habitual residence in any case is not controversial. Baroness Hale DPSC at paragraph 54 of A v A concluded her review of the current law on habitual residence as follows:

“Drawing all the threads together, therefore:”

All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents. It was the purpose of the [Family Law Act 1986] to adopt a concept which was the same as that in the Hague and European Conventions. The [‘Brussels II Revised’ Regulation (EC) No 1347/2000)] must also be interpreted consistently with those Conventions. The test adopted by the European court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends on numerous factors, including the reasons for the family’s stay in the country in question. It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention. In my view, the test adopted by the European court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. … The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce. … it is possible that a child may have no country of habitual residence at a particular point in time.”

[57]The judge’s evaluation of the habitual residence of this young child inevitably included consideration of the habitual residence of each of his parents. So far as the mother was concerned, the judge followed two alternate routes which, for her, led to the same conclusion. The starting point for each route was, rightly, that the mother had become habitually resident in the USA prior to her departure in October 2015 as a result of the years that she had spent living there following her marriage to the father. The judge held that there was no evidence that, on departure from America, the mother was not going to return or that she regarded the marriage as being at an end. From that starting point, and on the basis that the judge found as a fact that there was nothing in the evidence to “point to anything more than a temporary stay”, she held that there was insufficient to demonstrate that the mother had become habitually resident in England during that short period.

[58]Mr Turner submits that the judge failed to afford due weight to the fact, as he asserts it to be, that the mother felt it necessary to leave America. That the mother came to England when she was about twenty-eight weeks pregnant is, of course, an agreed fact, but her motivation for doing so, and whether there was a settled plan that she would stay in England were certainly not agreed facts. The father’s case was that the move to England was in order for the mother to access medical care around the birth of her child. The judge held that ‘there was certainly no question that she said that she was not prepared to return unless certain conditions were fulfilled’ and the judge accepted ‘that the arrangement or at least the expectation … was broadly that when the mother was recovered from the birth … and as soon as the baby was able to travel, she would come back with him … to the United States of America to join the father’ (paragraph 16).

[59]Against those findings, which were available to the judge on the evidence, Mr Turner’s challenge to the judge’s first conclusion as to the mother’s habitual residence must fall away.

[60]The judge’s alternative evaluation was to accept, for the purposes of argument, that the mother had regained her English habitual residence during her 4.5 month stay here, but to hold that, on her return to the USA in February 2016, she quickly reverted to being habitually resident in America. Mr Turner submits that, although the evidence was against such a finding, the judge failed to undertake a sufficiently subtle evaluation with the result that she arrived at an unsustainable conclusion. It is true that the mother’s statement provides detail, such as never unpacking her suitcase during her time back in the States and experiencing a cloistered existence with only her husband and child for company in what was a wholly new location to her. That detail is not referred to by the judge. Although that evidence does not sit easily with the judge’s conclusion that “there was no suggestion of [life in America] being in any way temporary”, in my view the evidence would need to be a good deal more cogent to overturn the judge’s overall conclusion which was that the mother came back to the USA as soon as it was safe to do so in order to take up married life once again with her husband and their new child and that that is what she did.

[61]It follows that the judge’s conclusion that, either because she never lost it, or because she quickly regained it, the mother’s habitual residence was in the USA at or soon after the time of her return there in February 2016 must stand.

[62]As well as evaluating the mother’s habitual residence, and its potential impact on the key issue of the habitual residence of her son, Parker J also, rightly, considered the father’s habitual residence in like manner. There is no doubt that the father has always been habitually resident in America. At paragraph 56

the judge observed:

“I need to consider the extent to which, if a child is living in an environment where one of his parents has always lived in that environment or that State and where all that parent’s social and other connections are in that country, it may be invidious as well as impossible to ignore the position of both parents, even if one of them, as the mother here, claims to not be habitually resident in the United States and she is the one who is doing the bulk of the physical day to day care of the child.”

Parker J then expressly referred to item (vi) on Baroness Hale’s list at paragraph 54 of A v A (paragraph 56 above), before drawing attention to the use of the plural ‘parents’ in that passage and holding that during the two months that M was in the United States ‘I should pay attention to the position of his father’.

[63]At paragraphs 67 and 68, having considered the mother’s position, the judge returned to the need to take a wider view of the child’s habitual residence than one of simply looking at the position of his mother, stating (at paragraph 68):

“It is relevant that he was a child conceived of American parents with the intention that he should be brought up in the United States. Intention does not determine habitual residence any more than any other fact does … but parental intention is part of the factual matrix. He was born in England for practical reasons, as I find, with the intention that he should be brought up as an American child. In that context, I consider that the fact that immediately on his birth he was habitually resident in England of little materiality after he had returned on what was intended to be a full time basis.”

[64]The mother’s case on appeal turns very largely on her stated case as it was before the judge, namely that she became habitually resident in England before returning to the USA only on a ‘trial basis’ and where the ‘trial’ never progressed because the mother failed to settle in her new environment. The flaw in that argument is that the judge rejected the mother’s case on the evidence rendering the appeal on habitual residence, as characterised by Mr Scott, as no more than an attempt to appeal on the facts. Despite the engaging force of Mr Turner’s oral submissions, once they are measured up against the judge’s findings in the cold light of day, they are, in my view, unsustainable. For the reasons that I have already rehearsed, the judge’s conclusion on the mother’s habitual residence and, crucially, her finding that the mother’s intention was that the trip to the UK would only be for the short period around the birth, must stand. In addition, the judge was right to take account of the father’s position as well as that of the mother. The position as to the father’s residence was an important factor and the judge was entitled to afford appropriate significance to the establishment of the child into family life with his mother and with his American father in the country which was the place of habitual residence of both of his parents.

[65]It follows that, if My Lord and my Lady agree, the mother’s appeal with respect to habitual residence must fail. (2) Acquiescence

[66]In relation to the issue of acquiescence, the appellant mother is, in my view, on stronger ground.

[67]The appellant’s case is firmly based on the formal agreement concerning custody rights which was entered into by both parents and which the father submitted to the court in support of his successful petition for divorce. The agreement, in plain terms, provided for the mother to ‘have full legal and physical custody of the child’, with agreement to the father having ‘visitation over summer break with the child’.

[68]In her analysis (paragraphs 82 to 85 set out at paragraph 29 above) the judge rejected the mother’s case firstly on the basis that she was ‘not entirely satisfied that the lack of words [of acquiescence from the father] can be construed as action’. The second, and for the judge ‘more compelling’, reason was that ‘the way in which the conversations took place … did not, in my view, “clearly and unequivocally” show and lead the other parent to believe that he was not going to assert his right to the summary return of the child’.

[69]Although the judge correctly set out Lord Browne-Wilkinson’s summary of the exception (at “(4)” in paragraph 41 above), and correctly quoted from it in explaining each of the two reasons for her decision on acquiescence, there is no reference to the fuller description of the exception that Lord Browne-Wilkinson had previously given in which he makes it plain that the exception may be established where, for example, ‘the wronged parent may sign a formal agreement that the child is to remain in the country to which he has been abducted’.

[70]Whilst it is the case that no words amounting to acquiescence were recorded as coming from the father during any conversation, the judge’s analysis does not refer to the formal agreement that became embodied in an order of the American court. On the facts of this case, and by reference to the exception established by Lord Browne-Wilkinson on Re H, the central question was whether the formal agreement was sufficiently clear to establish that the father had unequivocally taken a formal stance of accepting that the child would remain with the mother in the UK from which it would be unjust to permit him to resile.

[71]Although the section of the judgment dealing with ‘Acquiescence’ (paragraphs 72 to 85) commences with the following introduction:

“The mother says that the whole context of the American divorce and custody agreement, although it does not say so, is the assumption that M would be living with the mother in England for the foreseeable future and visiting the father from that venue”

. The judge does not thereafter refer to the terms of the agreement at all. The implication is that because the agreement ‘does not say so’ in terms, the judge concluded it cannot amount to a formal agreement that the child is to remain based in England. If that was the judge’s conclusion she was, in my view, in error and, in any event, the terms of the agreement required significantly more consideration than that afforded to them in the judgment.

[72]The formal agreement was entered into at precisely the time when the question of the child’s future residence in England or America was a live issue between the parents. The father knew of his right to seek the return of his son to the USA but he deliberately said nothing to the mother and took no other step to assert that right prior to the signing of the agreement. The agreement, in giving ‘full legal and physical custody’ to the mother, with mere summer vacation visitation rights to the father, determines that the mother will be sole custodial parent at a time when both parents knew that she intended to stay in England. Further, the limitation of visitation rights solely to the ‘summer break’, strongly suggests that the child will not be in the US at other times; it is difficult to see of any other reason for otherwise limiting the ability of this father to see his child at other times of the year or on a regular basis.

[73]By failing to take proper account of the terms of the agreement the judge has, unfortunately, fallen into error. This court is in as good a position as the judge to re-determine the issue of acquiescence and, for my part, I would determine that issue in favour of the mother on the basis that the formal agreement, which the father himself arranged to have made into a court order in his divorce proceedings, is a sufficiently clear and unequivocal statement of acceptance that the child will remain with the mother in England to establish the exception identified by Lord Browne-Wilkinson.

[74]The voicemail message sent on the 11th December, after the formal agreement had been signed but before it had been embodied into a court order, was, as the judge found, listened to by the mother. I agree with Mr Turner’s submission that if the formal agreement is sufficient to establish acquiescence, the subsequent delivery of the voicemail message does not withdraw or in some other way neutralise the effect of the agreement. In Re A (Minors) (Abduction: Custody Rights)

[1992] Fam 106

, the Court of Appeal [Lord Donaldson MR and Stuart-Smith LJ, with Balcombe LJ dissenting] held that ‘acquiescence is not a continuing state of affairs’ and that a later ‘change of mind cannot alter the fact that [the wronged parent] had acquiesced’ (per Stuart-Smith LJ at page 121). Lord Donaldson (at page 123) said:

“The question has been raised of whether an acquiescence can be withdrawn. I think that it cannot, in the sense that once there is acquiescence the condition set out in article 13 is satisfied.”

[75]On the basis that acquiescence is established for the purposes of Article 13 on or before the date that the mother signed the agreement in England on 29th November 2016, it must follow that the subsequent voice message two weeks later does not alter the situation.

[76]On the basis that I have described I would, subject to My Lord and My Lady’s agreement, allow the mother’s appeal on the acquiescence issue and substitute a determination holding that, on the basis of the formal agreement, the father is to be taken to have acquiesced in the wrongful removal of M to England. The question of whether there should, nevertheless, be an order for M to return to the USA may therefore be considered as a matter of the court’s discretion depending on the outcome of the third basis of appeal relating to Article 13(b) (where the issue of discretionary return does not arise). (3) Article 13(b)

[77]The mother’s case under Article 13(b) in part relies upon the approach adopted by Macur J in Re KS and the submission that Parker J was in error in either not following or distinguishing the present case from that earlier authority.

[78]Re KS was a strong case on its own facts. Although the Hague Convention application had been lodged within the 12-month period, the child had been in England for two years by the time the application came on for hearing, and, as Macur J held, he had become so completely integrated in his life in England that he could only be described as ‘settled’ in circumstances where, in terms of his conscious memory at age 4 years, he had known no other life. Macur J relied upon Baroness Hale’s acceptance that delay may establish, or contribute to, a finding that Article 13(b) applies in her speech in Re D (A Child) (Abduction: Rights of Custody)

[2006] UKHL 51

at paragraph 53 where Lady Hale said:

“In this context, a delay of this magnitude in securing the return of the child must be one of the factors in deciding whether his summary return, without any investigation of the facts, will place him in a situation which he should not be expected to have to tolerate.”

In Re D the child, who was then aged 8 years, had been in England for 4 years by the time of the House of Lords hearing.

[79]At paragraph 90 of her judgment in the present case, Parker J said:

“It is not suggested that the House of Lords has ever held that it is possible to rely on a quasi settlement as constituting an Art 13(b) intolerability or grave risk of harm defence.”

The judge’s meaning is not entirely clear, but in so far as Baroness Hale has plainly held that settlement of a substantial length of time must, on the facts of any given case, be one of the factors to be considered when assessing intolerability under Article 13(b), if the judge held the contrary view she was inadvertently in error and the decision of Macur J in Re KS was, on its facts, a correct application of the law.

[80]Parker J was, however, entirely correct in sounding a strong note of caution with respect to the extent to which the mere passage of time may be deployed in establishing an intolerable situation sufficient to satisfy Article 13(b). The determination of whether a period of ‘one year has elapsed from the date of the wrongful removal or retention’ at the date of the commencement of Hague Convention proceedings under Article 12 is simply a matter of calculation. Where a period of settlement is to be relied upon in support of an ‘intolerable situation’ claim under Article 13(b) the judicial evaluation is of a wholly different character. The passage of time in that context, rather than being a simple matter of calculation, must, as Mr Scott submitted, be viewed through the lens of the requirements of Article 13(b). As the joint judgment of Baroness Hale and Lord Wilson in Re E (Children) (Abduction: Custody Appeal)

[2011] UKSC 27

;

[2012] 1 AC 144

explains (at paragraphs 29 to 37), the very terms of Article 13(b) make it a provision of restricted application requiring a risk that is ‘grave’ and a situation that is ‘intolerable’.

[81]Turning to the facts of the present case, the judgment demonstrates that the judge expressly took account of each of the factors that Mr Turner submits are relevant to the evaluation of the mother’s Article 13(b) plea. Although it is clear that the judge did not afford the degree of weight to the passage of time that Mr Turner asserts was appropriate, the judge’s evaluation was that the other circumstances, taken at their ‘absolute highest’, fell short of establishing a grave risk that the child would be returned to an intolerable situation and, once the father’s undertakings were taken into account, this was plainly so.

[82]Despite accepting, as I do, that the judge may have underestimated the amount of weight to attach to the fact that M had been in his mother’s care in England for all but two months of his 16 months of life, this appeal may only succeed if this court is satisfied that the judge’s overall evaluation was wrong. The judge’s evaluation must necessarily be afforded a margin of discretion and the appeal will only succeed if it is clear that the judge’s decision exceeded the extent of that margin. On that basis, and giving due weight to the fact that M can really know of no other life other than that in his mother’s care in England, it is not possible to hold that the judge’s conclusion on Article 13(b) was wrong. Although returning to the USA, to a State that she does not know, living in straitened circumstances and with a precarious immigration status will not be at all easy for the mother and this will undoubtedly have an adverse impact on her ability to care for her son, these circumstances fall short of establishing a situation that M should not be expected to tolerate. Unlike the 4-year-old child in Re KS, who had been in England for over two years, or 8-year-old child in Re D, who had been in England for four years, M, at the age of 16 months, had only been in England for 13 months in total since his wrongful removal. At his age, the passage of that amount of time spent in a settled environment in England is insufficient, even when taken in conjunction with the other adverse factors listed by Mr Turner, to establish a ‘grave risk’ that M would be returned to an ‘intolerable situation’ if required to return to the USA. The mother’s appeal with respect to Article 13(b) therefore must fail. (4) Discretion

[83]The consequence of the decision that judge should have held that the father had acquiesced is that the court is no longer obliged, under Article 12, to return the child forthwith to the USA, the decision to order a return or not becomes a matter for the court’s discretion. The leading authority on the exercise of the discretion to order a return is the House of Lords decision in Re M (Abduction: Rights of Custody)

[2007] UKHL 55

;

[2008] 1 AC 1288

, where it was held that, whilst the judge may well find it convenient to start from the proposition that it is likely to be better for a child to return to his home country, and a case against his doing so must be made, it is wrong to import the need to establish exceptionality into the judicial analysis. In the course if the leading judgment, Baroness Hale (at paragraph 42) described the additional factors, over and above the particular facts of the case, that are relevant to the exercise of discretion in a Hague Convention case:

‘In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.’

[84]At paragraph 45, Baroness Hale considered the exercise of discretion in the specific circumstances of a finding of consent or acquiescence:

‘In consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that her future can be decided in her home country.’

[85]The judge in the present case described her approach to the exercise of discretion, in the event that she were wrong as to the establishment of acquiescence, at paragraph 112 (as set out at paragraph 33 above) and held that it was in M’s best interests ‘for speedy decisions to be made by the court of habitual residence’.

[86]Mr Turner understandably relies upon the same factors that were pleaded in support of the Article 13(b) case in submitting that the discretion should be exercised by not ordering a return. In addition, however, he also submits that, in this case, the object of a speedy return so that the American court may determine any welfare issues does not apply because the American court has already done so by awarding sole custody to the mother. On this latter point Mr Scott refers to his clients stated intention of issuing fresh proceedings in the US to achieve a more favourable outcome than that embodied in the current order.

[87]I consider that the conclusion on acquiescence in this case must have a necessary and determinative impact on the exercise of discretion. In the course of holding that the father acquiesced, I have held that the custody agreement involved agreement for M to continue to live in England with his mother. It follows that the US court order which embodies the terms of that agreement is also on the basis that M will continue to reside in England. Unusually, therefore, there is already a substantive order made by the competent court in the state of M’s habitual residence providing for him to live with his mother in England and the priority that is normally afforded to achieving a speedy return so that the home court can determine that issue does not apply here. In my view, this unusual factor, which led to holding that the Re H exception applies so that it would be unjust to let the father call for the return following his clear and unequivocal action in making the agreement, also dictates the outcome of the discretionary exercise because the father has already obtained an order in the same terms from the US court.

[88]More generally and in addition, the factors relied upon by the mother that fell short of establishing an intolerable situation do, nevertheless, add strong support to her claim for the discretion to be exercised in favour of allowing M to remain in this jurisdiction. This is no longer a case where the concept of a ‘speedy return’ can apply as M has been back in England now for 19 months and is settled here. His mother’s immigration status, were she to return to America, will be of limited duration and thereafter precarious, and the extent to which M might benefit from contact with his father in America would be, on the terms of the current order, extremely limited. Finally, contemplation of the mother and child living in very straightened circumstances in a trailer park, in a part of the States which is wholly unfamiliar, can only add to the case against ordering a return.

[89]On the unusual facts of this case, I consider that the court’s discretion should be exercised against making an order for M’s immediate return to the United States of America.

[90]If My Lord and my Lady agree, I would therefore allow the mother’s appeal on the basis that the judge was in error in her finding on acquiescence and that the correct conclusion is that the father did acquiesce in M remaining in England by entering into the November 2016 custody agreement. Finally, I would exercise the court’s discretion against making an order for immediate return. It follows that the return order made by the judge on 21st June 2017 must be set aside. Lord Justice McCombe:

[91]I agree

Lady Justice Sharp:

[92]I also agree