D v S [2008] EWHC 363 (Fam)

[2008] EWHC 363 (Fam)Case No FD06D06035
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/03/2008
B e f o r e :
THE HONOURABLE THE HONOURABLE MR JUSTICE CHARLES
Between
SRespondentDDefendantJames Turner QC (instructed by Charles Russell) for Plaintiff father SCharles Howard QC and Charles Hale (instructed by Manches) for Defendant mother DHearing Hearing dates: 14 to 18 and 21 & 22 January and 11 to 14 and 22 February 2008
Judgment
[1]This case covers issues that are distressing to both parents. I announced my conclusions in court before circulating this judgment in draft.[2]As so announced, I have concluded that the child’s welfare will be best promoted by me giving permission to his father to take him back Mexico to live there.

Introduction

[3]I shall refer to the parties as the father and the mother and the child as E.[4]I have before me applications by the father based on the Hague Convention and the inherent jurisdiction of the court for an order that E be returned to Mexico. I also have before me proceedings issued by the mother and the father under the Children Act 1989 for orders relating to residence, contact and the return of E to Mexico. The mother’s proceedings under the Children Act were the first in time but they, and the father’s Children Act proceedings, are stayed by reason of the Hague Convention proceedings.[5]In the Hague Convention proceedings there are issues as to whether the Convention applies, and if it does whether the court must order a return of E to Mexico, or whether if the court has a discretion it should make such an order. These issues relate to what was agreed between the parties and acquiescence. A defence was raised under Article 13(b) but correctly this has not been pursued. I will of course return to these issues and others relating to the Hague Convention proceedings in more detail later.[6]As will be apparent from what I have said the father seeks an order that E be returned to Mexico, where he wishes to live and the mother wants me to refuse such an order and make orders that have the effect that E lives in England, during the school terms and parts of the holidays, which is where she wishes to live.[7]It is common ground that before E came to England in 2006 he and his parents were all habitually resident in Mexico.[8]This hearing was set by the Court of Appeal who clearly envisaged that I would hear evidence on all matters relating to the Hague Convention, the inherent jurisdiction and the Children Act proceedings, and thus hold a full hearing on welfare. The Court of Appeal did not address the issue as to what I should do if I concluded(a) that I was bound to order the summary return of E to Mexico, or(b) that as a matter of discretion I should do so. Such decisions would have the result that apart from interim issues, decisions as to E’s welfare should be taken by the Mexican courts.[9]I raised this with the parties at an early stage and it was common ground that, as envisaged by the Court of Appeal, I should hear all the evidence. This took considerably longer than the time estimate given by the Court of Appeal and it is fair to say that I heard a great deal of evidence during which “many stones were turned more than once”. This sadly put both parents through a very emotional and unenviable experience, but one flowing from their inability to agree on the way ahead. Brief history and chronology Introduction

Brief history and chronology

[10]The father was born on 22nd of August 1959 in Belgium. He now has rights of residence in Mexico. The mother was born in England on 25 August 1969. Her family moved to Canada in 1971 and in 1974, after the death of her mother, she and her family moved in Canada to Quebec. As a teenager she went to a convent school in England to do her A levels and still has some friends in England from those schooldays. She did her first degree in Canada and in 1994 she started a masters in curatorial studies at B College, New York State.[11]The father was brought up and educated in Belgium. In 1986 he started "community service" in Mexico, which as I understand it is a substitute for Belgium national service in the forces. He had by this time qualified as an architect. After his arrival in Mexico the father began to concentrate on work as an artist. It is now common ground that he is an artist who enjoys a high reputation worldwide. His reputation has been developed over a number of years.[12]The mother and the father met in 1996 at a time when they both had separate interests in a project. At this time the mother was based in the USA. Their relationship developed and over the period 1996 to 1998 they spent time together in both Mexico and the USA.[13]The mother and father married in the Bahamas on 1 July 1999 and shortly after the marriage the father bought a flat in a residential district in Mexico City. This needed work doing to it. The father had been living in his studio which was in a non residential or a less residential area of Mexico City.[14]In 1999 the mother received a gift of $1 million from her father. Some of this was invested in a property in the Bahamas from which the mother received a rental income.[15]E was born in Mexico on 19 May 2000.

A chronology

[16]During the evidence the history was gone through in some detail. It is sensible to take a chronological approach to the factual issues. For this purpose I have prepared a schedule based on a chronology prepared by those representing the mother with some additions, omissions and alterations. It starts in 1999 and in my view provides a helpful framework for the consideration of the evidence. It is Schedule A to this judgment.

Overall approach and comment

[17]The order in which issues have to be considered is as follows: i) Does the Hague Convention apply? ii) Is the court’s discretion under the Convention triggered or must it order a return? iii) If the discretion is triggered how should it be exercised? iv) If for some reason the Hague Convention does not apply (or an order for a return should not be made under it) should a summary return be ordered under the inherent jurisdiction? v) If a return is ordered should I express my views on welfare? vi) If a return is not ordered what orders should I make under the Children Act?[18]As mentioned earlier the Court of Appeal in giving its directions did not deal with point (v). Before reaching my conclusions on summary return I had concluded that given the directions of the Court of Appeal, and the common ground as to the course of the hearing, I should make findings and give my views on welfare even if I concluded that I was compelled to, or should, order a summary return because: i) I am confident that the courts in Mexico would not regard this as any usurpation of their role and would pay such attention to my conclusions as they thought appropriate, ii) the parties may in any event wish to proceed in Mexico on the basis of findings made as a result of this long hearing, iii) my conclusion on the Hague Convention might be successfully challenged on appeal, iv) there is some overlap between issues that arise under the Hague Convention and on welfare, for example in respect of consent and acquiescence and the length of time E has now been in England, and v) in my view correctly it was common ground that I was not precluded by Article 16 from expressing views as to what I would have done if I had been the decision maker on welfare.[19]In considering the case I have been careful to avoid a thought process that might have founded a bias to my thinking on a mandatory (or a discretionary) return under the Hague Convention because it would, or would not, accord with my conclusion on a full welfare consideration. So I approached the issues in the order set out above. As I have indicated my overall conclusion is that there should be a return and following a full consideration of the issues in that order I am not presented with the difficulty or result that my conclusion on welfare conflicts with a return to Mexico. In my view such return is what is likely to best promote E’s short, medium and long term welfare.[20]My answers to the list of issues are: i) The Hague Convention does apply, ii) The court’s discretion is triggered because of acquiescence (but not consent), iii) Absent the full welfare enquiry and argument, following the direction of the Court of Appeal, I would probably have ordered a return under the Convention. But because of that full enquiry and argument I should refuse to order a return for the purpose of enabling the Mexican courts to determine the short, medium and long term welfare issues, iv) It is not necessary or appropriate for me to consider a summary return under the inherent jurisdiction, v) I could and would have expressed my views on welfare if I had ordered a return under the Hague Convention, and vi) I consider that the short medium and long term welfare of E is best promoted by an order that permits his father to take him back to Mexico on the basis of the alternative plans put forward by him during the hearing if this was to be the result. The alternatives depend on decisions made by the mother as to whether she will return to Mexico to live or only to visit E. The detail of those proposals and the timing of a return, which in any event is to be in the near future, will need to be agreed or decided when the terms of this judgment are known to the parties.[21]It is apparent from what I have said that the mother succeeded in reaching the position she argued for in the Hague Convention proceedings that the decision as to E’s future should be made by this court exercising the paramountcy principle, but at that stage I am against her.[22]My conclusions on the Hague Convention are stepping stones to my ability to exercise that welfare jurisdiction.

General comment on the relationship and the background to the present situation

[23]The first point I would like to make is that both the mother and the father are loving parents and both have taken an active day to day part in E’s upbringing throughout his life. They are both intelligent and E has a close attachment to each of them.[24]There is also effective common ground that(a) from its inception their relationship has had many ups and downs, good times and bad times, and(b) from 2003 they lived in separate homes and had a shared care arrangement in respect of E. There was a dispute between them as to the amount of time they respectively cared for E during this and earlier periods but from 2003 to 2006, when they came to England, it is common ground that there was a shared care arrangement. It is also now common ground that after the arrival in England of the father the parents lived in separate homes and continued to have a shared care arrangement.[25]Sensibly in my view by the time he came to make his final submissions leading counsel for the mother did not pursue arguments based on the counting of days of the time spent by each parent in the day to day care of E to seek to establish that E had in fact spent significantly more time with the mother under the shared care arrangement from 2003 onwards. Before 2003 the evidence shows that the father took a very active part in E’s day to day care but the mother spent a greater amount of time with him.[26]Understandably each of the parents see the relationship and the issues relating to it from his or her own perspective. In my view it is plain that this, and the common ground between them that their communication has often been poor, has had the result that their recollection of a number of events is different and from the viewpoint of an outsider both of them give accounts that are not fully accurate.[27]Most cases of this type evoke sympathy for and criticism of parents from those who are not emotionally involved. This case is no exception. Some of my findings are critical but I would like to make it clear that I accept that both parents are at present under great emotional strain and that throughout their relationship they have both suffered emotionally from the nature of that relationship and the mother has had periods when she has been unhappy and has felt unfulfilled.[28]To my mind it is plain from both the written and oral evidence that the following themes run through and fuel the relationships between the parents and them and E, their difficulties and their good points: i) the father likes living in Mexico. He genuinely and for good reasons feels a very deep attachment to Mexico. He has developed his talents, work and reputation from observations of life and incidents in Mexico. In his own mind, and in the minds of others, he has developed a very close relationship with Mexico both professionally and as the place where he would like to live and work given a free choice, ii) the mother has never been keen to live in Mexico and has always wanted to develop her own professional career and to protect and further her independence. At times she has been content in Mexico but often and for long periods she has been unhappy living there for a number of reasons relating to the general environment in Mexico City and the village in which the father bought a house, the development of her career and independence and her social life. Given a free choice she would always have preferred to live and work in another country, most probably the USA or England, and she has never committed to a long term family life for the parents and E in Mexico. The prospect of living and working in England has always been attractive to her, but it has never been put to the test for a long period either before or after her marriage, iii) as and when they stood back and considered the position relating to their competing wishes fairly, which they both did from time to time, they appreciated the above preferences and desires of the other, iv) because of her wish not to live in Mexico the mother has in her evidence placed unrealistic reliance on assertions made, or indications given, by the father from time to time that he might live elsewhere on a long term basis and that he would be happy doing so. The mother has generally been aware of the very close professional and personal links that the father has with Mexico and that the reality has always been that given a free choice, or if and when it came to his turn to choose where they should live with E or this came up for review or discussion, the father would choose Mexico, and it was unlikely that he would be happy elsewhere, v) the father has not fully appreciated the extent and causes of the mother's unhappiness in Mexico, or of her wish to live somewhere else, or of her need to develop her own career. For example, because of his own professional and personal attachment to Mexico, and his wish to further his career, he has not fully appreciated that the mother might well not wish to return to and would not return to Mexico after a period living away from that country, vi) the father avoids confronting difficult issues and demonstrated in evidence that he can be difficult to tie down and is determined, vii) the mother too is determined and has a tendency to avoid confronting difficult issues, viii) at times they both found the attitude of the other very frustrating and annoying, and this would result in things being said in anger to each other, and to others, that did not reflect their true feelings, ix) a strong attraction and attachment existed between the parents which kept them together notwithstanding the difficulties and tensions that existed relating to a number of matters including the development of their respective careers and the countries in which they wished to live, x) they both love E and wish to take a very active part in his care, and xi) this and the attachment between them had the result that their lifestyle from 2003 in which they lived in separate homes and to a large extent on an independent financial basis, but saw each other fairly regularly and shared the care of E, had many attractions to both of them. In particular it was attractive to the father because he was living where he wanted to further his career and personal life and was taking a regular and active part in the day-to-day care and upbringing of his son.[29]I am therefore faced with problems flowing from a relationship in which both parents had strong desires to further their own careers and wishes as to where the family should live, and neither of them was prepared to take a long term stance that his or her career and wishes on such matters should take second place.[30]This underlay the three year agreement or understanding they made as to where they would live. I return to this. It is a major factor in the problems that exist. It was made in 2001 and it is common ground that for the following 6 years it involved each of them having one choice as to where the family would live. The underlying purpose was to permit that parent to make a choice based on his or her personal ambitions and preferences. The father chose first and the mother’s case has been that after three years it was then her turn to choose, and in exercising that choice, she would and was quite entitled to give preference to her own personal wishes and ambitions. Some findings and comments relating to the history The return to Mexico in early 2000

Some findings and comments relating to the history

[31]I do not accept the mother's account of the reasons why the parents returned to Mexico shortly before E’s birth. In general I prefer the father's account of this. In my judgment they did not go to London in November 1999 with a view to making it their home, rather(a) the purchase of the flat in the residential area of Mexico City,(b) the fact that the father had lived and worked in Mexico for a number of years and(c) the fact that the mother had no professional or other reasons for being in London at that time are all clear and compelling pointers in favour of the conclusion, which I reach, that the common understanding was that that they would be starting their married life in Mexico City. In my judgment for separate reasons they were both unhappy in London. The mother’s unhappiness was not with London as a place but flowed in large measure from her views as to the medical treatment she was receiving during her pregnancy. As the mother accepts the father’s unhappiness was because he did not like London and found that living here had an adverse effect on his work. I accept his evidence that they came to London so that the mother could benefit from medical care here. In my view, but for the mother’s unhappiness relating to her pregnancy and care, the father would have stuck out the stay in London on the basis that after E’s birth they would all be returning to the new flat in Mexico City, where they would, live. They in fact returned before all the work on that flat was completed.[32]The mother asserts that she felt forced to return to Mexico to save her marriage. I do not accept that this gives a fair picture. Rather in my view the return of the family to Mexico was in accordance with what certainly to an outsider was an obviously sensible plan for their married life at that stage. Indeed in my view it would have been self centred of the mother if she had held a different view because the father was established in Mexico (although not then with a wide international reputation or large earnings) and she had no need, other than a preference as to where she would prefer to live, to be elsewhere.[33]However her evidence and the events that follow the return to Mexico demonstrate that the mother was never committed to a family life in Mexico.[34]At this stage the mother had the financial support of the recent gift from her father. This gave her financial independence and indeed meant that she was much better off than the father. Also at this stage she has not identified a career path she was actively pursuing, or wanting to pursue, in England or elsewhere.

Immediately after E’s birth

[35]The mother took E to Canada shortly after his birth to be with members of her family and to take advantage of medical care in Canada at that time. Taken in isolation this is understandable but it is unclear what the extent of the family support was in Canada and taking the history as a whole this is another indication of the mother’s wish not to live in Mexico.[36]She and E then returned to Mexico where a nanny had been employed and stayed there until the end of 2000 living with the father and E as a family.

The first visit to New York

[37]In early 2001 the mother took E to New York where she rented her own accommodation. This was not for any work or professional reason but because the mother wanted to go there.[38]This move is a clear indication that the relationship was in considerable difficulties as is the fact that it was followed by couples therapy.[39]The father followed the mother to New York but commuted regularly back and forth to Mexico and as I understand it used separate accommodation in New York. His wish to live and maintain his base in Mexico is shown by his purchase in 2001 of the country home in a village there.[40]In the summer of 2001 they holidayed as a family in Mexico, Belgium and elsewhere.

September to December 2001

[41]The mother, the father and E returned to New York in September 2001 and after the Twin Towers incident moved out to New York State. They used different accommodation in New York and lived under the same roof but did not share a bedroom in New York State. This again shows continuing and deep problems in the relationship.[42]The Mexican nanny also came to the USA over this period. The mother was teaching at B but this did not require her attendance there more than a day a week. Both parents were taking a very active role (with the help of the nanny) in the day to day care of E.[43]The mother’s teaching assignment was ending in December 2001. The three year agreement / understanding – return to Mexico in December 2001.[44]The mother is the first to mention this in her evidence, but the father agrees that such an agreement or understanding was reached. It is now common ground that it was reached before the return to Mexico although initially the father, incorrectly, put it later.[45]I shall refer to it as the “three year agreement or understanding”. There is some dispute as to its terms but common ground that one of them would choose where they would be based as a family for three years and the other the next three years. After those 6 years E would be 7 and a half.[46]The mother says that it was agreed that at the end of 6 years they would discuss where to live and not that the other would choose. The father says that the other would choose. I do not accept either account because the history informs the outsider that they do not descend to such detail, or such clarity, in their discussions or “agreements and understandings”. As to this in my view they are both giving me an account with the benefit of the history since then. This includes the fact that after, or at the time that, the three year agreement or understanding was reached the family returned to Mexico as the father wanted and therefore under it they both accepted that he had had the first choice. In my view that has coloured both their recollections of what should happen after the second choice.[47]I prefer the father’s evidence as to the circumstances in which he came to make the first choice. I accept that at that stage he made it clear that he could stay in New York, but in my view this evidence was not to the effect that that stay would be for three years and thus be the mother’s “first choice”. In my view this was part of the discussion leading to the three year agreement or understanding and its implementation. In my view that agreement or understanding was made or finalised on the first choice being made. That choice also made sense from the perspective of the mother’s work because her teaching post was at an end and she had no immediate substitute post, or plan to further her career. In contrast, the father was working and developing his base in Mexico.[48]The move therefore made good sense as part of an attempt to save their relationship and create a family life. As did the agreement, understanding or plan, which I accept they made, that they should be based in the country home. But to my mind the mother seeks to make far too much of this. This understanding or agreement fell a very long way short of a condition being placed upon the father’s choice or his ability to choose first.[49]After this return the father’s reputation began to increase and to flourish. This created its pressures in a number of ways including the time he spent in Mexico City and it seems to me that, although the mother did not begrudge him his success, it was happening at a time when she was not developing her own career and this did not help. She also I accept at times felt lonely and unfulfilled in the country house and village. She was not in the work and social arenas she would have liked, or in a country she liked. However in my view the arrangements that came into existence namely that she and E would be at the country home with the nanny during the first three or four days of the week, and the father would come out there at the end of the week and the family would spend the week ends together often in Mexico City could not fairly be regarded as a breach of the agreement or understanding reached on their return to Mexico. It was a natural result of the father’s success and work load. However I accept that from time to time the mother was upset by it.[50]E started school near the country home rather than taking up the place at a Montessori school in Mexico City which had been obtained for him, which is an indication that the plan became one for the family to be based in the country. He settled in the school which both parents thought was a good one. He developed a close friendship with the son (O) of one of the father’s collaborators and an ex girlfriend of the father (MS).[51]There was more couples therapy in 2002 and in that context, and more generally, the mother suggested a move away from Mexico before the end of 2004. To my mind although I accept that this suggestion flowed from her wish not to be living in Mexico, it is nonetheless a clear indication that the focus of the mother’s approach was her own needs and not those of the father or E. The father was successful and E was settling in Mexico. The mother’s suggestion jeopardised the father’s career and risked upsetting upheaval for E although he was still very young.[52]Unsurprisingly, and in my view reasonably, the father did not go along with that suggestion. Also to her credit the mother did not pursue it vigorously and towards the end of 2002 started planning a course which she would organise and run to teach curating in Mexico City. This course was filling a gap in the market.

The mother’s move to Mexico City in 2003

[53]This was to enable her to run the course. The first course started in May 2003. The mother moved back to Mexico City in March 2003 initially to the father’s flat and then to a flat of her own.[54]This move to run the course created a problem concerning E’s schooling because of the fact that both parents were, or had work related reasons for being, in Mexico City. This problem was solved cooperatively by the father spending more time at the country house and the mother returning there regularly so that one of them was there during the school week. This was a shared response.

The shared care arrangement in Mexico City from the summer of 2003

[55]As I have mentioned up to this stage there would have been force in the argument that the mother was the primary carer of E because although the father had taken a very active day to day role in the care of E in the USA and Mexico the mother had had the greater role in terms of time.[56]This agreement followed the end of the school year in 2003 and in my view was founded on, and reflected, a proper recognition by the parents of their roles, ambitions and aspirations and the commitment of the father to taking an active day to day role in E’s care. I accept that in part the father was motivated by a fear of being excluded from E’s life by the mother. But in my view both parents were primarily motivated by: i) their love for, and commitment to, their son and their wish to take a full and, as they agreed, effectively equal role in his day to day upbringing, and ii) an approach that was not gender specific and was based on their wishes to pursue their respective careers and personal life choices.[57]So in my view this was a true shared day to day care arrangement that was operated with flexibility. In my view it is clear that it had the result that E had two homes, one with his mother and one with his father.[58]One of the facts that the mother invites me to find is that she is, and always has been, E’s primary carer and that the father has had significant periods of the care of E. I return to this. However at this stage I pause to record that in my view the mother’s counsel were right not to pursue arguments in their final submissions that from the summer of 2003 the mother could fairly be described as E’s primary carer because she in fact spent significantly more time with him either because of the father’s travelling (as was suggested in evidence) or for other reasons. The father disputed this suggestion and thankfully I was spared the exercise of studying his travel schedules that he was asked to produce.[59]I record that I accept and find that from 2003 the father kept his trips outside Mexico short primarily so that he could spend time with E on a flexible 50/50 basis with the mother, but also in part because of his residency application in Mexico. This conclusion was convincingly supported by other witnesses who worked with the father. In my judgment before 2003 he had also kept his trips abroad as short as possible to enable him to spend time with and caring for E.[60]In 2003, I accept and find that moving from Mexico, and thus the three year agreement or understanding, was raised in the couples therapy and discussions between them. At this stage the father was acknowledging its existence and thus the commitment he had made that the mother could choose where he, she and E should live. For example he was not saying that now we are again living apart the agreement does not survive. However from their discussions, and their general way of life, the mother was aware of the commitment of the father to Mexico, and the part that that country and collaborators with his work in it, were playing in his considerable success. 2004[61]In 2004 the mother raised from time to time the need to make plans to move from Mexico and that her choice would be, or probably would be, London. At that time E was having real problems settling at his new school, which was not the Montessori school where a place had been obtained earlier but at another school. The father was understandably concerned about this, as was the mother. However the mother was expressing a wish for a move by the end of the year in this knowledge. So far as I am aware no suggestion was made that she was suggesting, or thought, that the move should take place as soon as possible as a way of addressing the problems relating to E settling, and it is not easy to see why it would.[62]At this stage for a combination of reasons the father was resistant to a move. I accept that amongst them were his concerns for E at the time, but that reason for staying coincided precisely with his own wishes.[63]I accept the evidence of MS that in the spring of 2004 the mother told her that she was consulting lawyers in Mexico to see where she would stand on a divorce. In my judgment MS was a credible witness and no good reason was advanced as to why she would make this up or be mistaken about it. To my mind it would have made good sense for the mother to seek such advice given the difficulties in her relationship with the father. In my judgment she took that advice. I do not know what it was, but it is common ground in respect of the arguments relating to a stay of the English and Mexican divorce proceedings that it is thought that the mother is likely to do better financially in England. There is no evidence as to what the likely advice relating to the care of E would have been.[64]In September 2004 E moved to the Montessori school where after a time he settled. 2005[65]The father, mother and E made a number of longish trips to London so that the father could work on a project. The mother accepts that in the summer of 2005 she had a romantic relationship with a man based in London.[66]In May 2005 the mother employed YS, who asserts that in July 2005 she overheard a conversation between the mother and her friend L after the mother had ended a telephone conversation in English. The mother and L deny that this conversation took place. I prefer the evidence of YS. So in my judgment in July YS was present when the mother had a telephone conversation in English and, after it was over, YS heard what the mother told her friend L in Spanish about it and is doing her best to give me an accurate account of what was said. In her written and oral evidence she recounted that the mother told L that the conversation in English had been with a lawyer dealing with her divorce paper work, that she wanted E to be with her and that she should have complete custody so that the father could not see him or have anything to do with him. In my view that recollection of YS is probably not completely accurate. As to that, I agree with the mother and L that YS is not well educated, or particularly bright, and probably does not have a very good memory. I also suspect that she would tend to exaggerate or dramatise such a conversation when remembering and recounting it. But I reject the evidence of the mother and L that such a conversation could not have been, and was not, overheard by YS because no such conversation took place after the mother had been talking on the telephone in English, or at all. In my judgment such a conversation did take place following a telephone conversation in English and its subject matter was that in that telephone conversation the mother had been talking about divorce and custody and the mother was making it clear that she wanted full custody so that she was in control of E’s upbringing.[67]I do not suggest that the mother has ever wanted to stop the father seeing E but in my view the events in England demonstrate that she did want to reduce and control his care of E. From her perspective that is understandable and in my view it was, and is, important to her. It also makes good sense for the mother who was pressing to make her choice as to where she, the father and E would live to make enquiries about divorce and child related matters with a lawyer in England, where she hoped to live.[68]It was suggested(a) that YS had invented this evidence because she and the mother fell out when the mother found out she had stolen presents intended for her and her children when the mother was leaving Mexico, and(b) that her evidence was inaccurate as to the work she did and the days she worked and therefore generally unreliable. It was also said correctly that there was some inconsistency between her evidence and that of the Mexican nanny (I) as to how YS came to give her evidence. To my mind that inconsistency points away from a conclusion that her evidence is made up as does the point that YS introduces a third party into the exchanges, namely L As I have said I accept that YS’s account may not be wholly accurate and may be exaggerated.[69]L was generally an open and engaging witness but I found this aspect of her evidence unconvincing. This was because, as I pointed out during the hearing (and I was not corrected by reference to the notes of others), the effect of L’s evidence was that although she and the mother were good friends and she (as she said women do) complained about men the mother did not complain to her about the father. In the context of the friendship between L and the mother as described between them, and the nature of the relationship between the mother and the father with its ups and downs, I do not accept that and thus the truth of this part of her evidence.

Taking stock and the views of others

[70]My findings show that by mid 2005 the mother had made enquiries about her position on a divorce and had been seeking a move from Mexico for some time. She had however had success in the course she had set up and was involved in discussions relating to that course being linked to, or incorporated in, a University programme.[71]If I am wrong and the mother had not taken advice in Mexico about divorce and did not speak to someone in English about divorce and the custody of E in 2005, I am nonetheless of the view(a) that the mother had considered the possibility of divorce, or permanent separation from the father, by mid 2005, and(b) that in that context would have been aware from her general knowledge that she might be in a better position in respect of divorce in England. Also in my view it is likely that based on her general knowledge and preferences, including her wish not to live in Mexico, she would have thought that it would be easier for her to live here independently as the primary carer of E.[72]A friend, Dr M, was involved in discussions with the University about including in the University’s courses the course the mother had started and ran. He was also one of the people who recommended the mother for a job that became available at the RCA. His evidence, which I accept, was that he understood that the mother would, or would be likely to, return to Mexico to continue the course she had started, in tandem with her completing her PhD. This evidence was supported by an exchange of emails between him and the mother after she had come to England in October 2006.[73]Friends in Mexico were well aware of the volatile “on / off” relationship between the parents, their shared care arrangement, and of the three year agreement or understanding and that under that it was the mother’s turn to choose. This was confirmed by a number of the witnesses. In particular a Mr L who was very closely involved in the project the father was working on in London in 2005 confirmed that he was aware of the shared care arrangement, and witnessed it being actively pursued on visits to London, and of the three year agreement or understanding. He also confirmed the father’s evidence that the father was not prepared to go on long trips abroad unless E and the mother came too because the father was committed to ensuring that he took a full part in the shared care arrangements. Mr L and his wife helped in discussing schools and housing in respect of the move to London which he understood to be temporary and in accordance with the three year agreement or understanding, which he thought was fair. The tenor of his evidence was however that he understood that the father had a close connection with Mexico and would be returning there. It is fair to say that he would in the main have got his understanding from the father rather than the mother, but he also observed the shared care arrangements because, as he described, he had to plan his work meetings with the father around them.[74]The general understanding of the third party witnesses was that the arrangement or agreement as to where the father, mother and E would live remained a three year one and no-one, including the parties, gave evidence that it had been extended to a 4 or 5 year agreement because of the time spent in Mexico.[75]The mother also made the point, and I accept and find, that in discussions between them in 2004 and 2005 when the mother raised her wish to leave Mexico, sometimes the father would discuss this constructively and at others, when their relationship was not going well, he would react angrily and to the effect that she could go, but E could not. This is a point that favours the view I have reached that in late 2005 and 2006 the mother was aware that if she raised intentions or wishes outside, or which conflicted with, the three year agreement or understanding the father would be likely to have this reaction, particularly as by June 2006 it is clear that their relationship was at a very low ebb.[76]In my view it was obvious to the mother and appreciated by her that the father was very committed to taking an active day to day part in E’s care, and thus to a continuation of the shared care arrangement and would not agree to any move that in his mind put this in jeopardy.

The application for a job at the RCA

[77]In the autumn of 2005 the mother was recommended and shortlisted for a job at the RCA. Her application was supported by the father but there was no evidence that they discussed the consequences of her being successful by reference to the length of her contract or other details. The previous holder of the post had been there a long time. The oral evidence was to the effect that the RCA offered rolling three year contracts, but there was no evidence that the parents knew this at the time. The mother was interviewed but not offered the job. She has been told that she was second choice from the short listed candidates.

The application for a place to study for a PhD at Goldsmiths

[78]The father supported this application. The course is designed to cater for people who are working and therefore, as the material relating to the course makes clear, full time attendance is not required. There is a need however to attend seminars on a regular basis particularly during the first three years.[79]The material I have seen indicates that, although no doubt it would be helpful and convenient for the mother to be in London throughout the course, it is certainly possible for her to complete it after its first three years from a base abroad. Indeed some of her contemporaries on the course are working and based abroad and they come to England for the seminars. However, most if not all of these are based in Europe and I accept that travel on a regular basis from Mexico would be burdensome.[80]The mother told me that at the time she applied for and accepted a place on the course with the consent and support of the father (around November 2005) she made it clear to him that it was a 5 to 6 year course (or at least one that would last for more than 3 years) and therefore she says the father was agreeing to her and E coming to London for the length of the course and that longer period. I do not accept that evidence.[81]It runs directly contrary to a funding application that the mother made to a Mexican organisation in which she states she will be travelling to London for the first year, then staying on in London for the next two years and then returning to Mexico after three years. She also links her thesis closely to Mexico. The mother says that this did not reflect her true intention at the time, particularly as to returning to Mexico but also, and in any event, as to the length of her time in London. She did not accept the funding offered which was not large and its terms required a return to Mexico. She seeks to explain the differences between what she says in this application, and what she says she told the father and he agreed to, by asserting that she told the funding organisation what they wanted to hear. I do not accept that. In my view what she told the funding organisation accorded generally with what she was telling, and the impression she was giving to, others including the father at the time. Namely that her thesis had a link with Mexico and that she would be away for two to three years. It also accords with what she did in early 2006, when she visited London and in mid 2006 when she came to London.[82]By then the mother had been asking for a move for some time, had had a brief affair in London and in my judgment had sought advice relating to divorce and E (and if that is wrong had considered her position in respect of both on the basis of her general knowledge if she remained in Mexico and if she left and came to England). I therefore accept (as I understood her to assert) and in any event find that when she applied for the PhD course in her mind there was both a possibility that she would be away for longer doing her PhD, and that she may never return to Mexico to live, and this is reflected in her refusal of the offered funding. But I do not think that at this stage the mother had formed any final plans or reached firm intentions. So, for example, I do not accept that at this stage she had completely ruled out a return to Mexico after three years. In that context I do not accept that she had ruled out her further active participation in the course she had started up particularly if it was incorporated into, or made, a course run by the University.[83]The father says at this time he was told by the mother that she was expecting to be in London for three years. He did not identify when this was said, or by other means the specific conversation in which it was said. I return to his evidence that this was expressly promised on a number of occasions by the mother.[84]I accept that during their conversations at this time the mother did say she would be away for three years. Later I accept that in a conversation they had he raised the point that the three years should start in January 2006, when she started to visit London for her course rather than the summer when it was expected she, the father and E would move to London, the mother did not accept this and he did not pursue the suggestion. This was evidence he volunteered in the course of his oral evidence that had a real ring of truth to it. But he did not put a time on this exchange, save that his acceptance that he did not pursue the point indicated that it was early on. This conversation goes both ways on the issue of the length of the period in England because it does not link it to the start of the course (other than perhaps the start of the academic year in 2006) but to the start of the period in England, but it does limit it to three years.[85]I do not accept at this stage that they reached any express and clear agreement or understanding, or that the mother made any express and clear promise that they would be in England for only three years. If there had been such an express exchange the father would have made this clear in his early statements and he did not do so. Also if this had been the case it is likely that it would have been mentioned in later arguments and discussions and prompted a different reaction from the father to, for example, the 5 April 2006 email (see later).[86]The reaching of such a clear agreement, or the making of such an express promise, would also be out of character. In my view if the mother was then thinking (as she now asserts), or had decided, that her stay would be longer, because the PhD would take longer, or that she would never return to Mexico to live, she would not, in my view, have made an express promise that the period in London would be limited to three years. Indeed, if as I think was the case at this stage, the mother had formed no firm intentions on such matters, in my view she would have avoided make a clear commitment to the time she would stay in England. I am of this view because she was well aware of the father’s reluctance to go to England, that her main negotiating point or entitlement was the three year agreement or understanding and that if she went beyond that the father might well be very angry and awkward (as she says and I agree he had been in the past) and this would jeopardise her leaving Mexico with E.[87]In my judgment at the end of November 2005, when the father agreed to the mother enrolling on the PhD course, and up to the time she started travelling to England in 2006, the mother and father had not discussed the detail of the move to London, but they both regarded this agreement, or agreement in principle, as the mother exercising her choice under the three year agreement or understanding. In my view at this stage the mother was well aware that the father was giving his consent and support in the belief and on the bases that: i) this was the case, ii) that the shared care of E would continue in England and he would therefore come to England at the expense of his work in Mexico which would have to reduce, and iii) at the end of three years or thereabouts (and whether or not under the three year agreement or understanding it would be the father’s turn to choose, as to which I accept there may have been a genuine misunderstanding between them) the family would, in the absence of a further agreement, return to Mexico.[88]The mother said in her oral evidence that the father agreed to the move because he was honouring the three year agreement or understanding. I add that the father stood by his understanding of it.[89]The mother however faces the problem that she also said in her evidence that at that time (November / December 2005) her intention or thinking was to stay longer than three years and, as I understood her that it was at least unlikely that she would be willing to return to Mexico. If either or both of those is a true reflection of her intention at the time, then by not making this clear to the father, she was not honouring the spirit of that three year agreement or understanding. This would be so on her version of the agreement or understanding because, if the father was not to have the next choice, she was at least potentially limiting the options open for agreement in a way in which she knew the father would object to, and she was extending its period.[90]As appears later she has the additional problem that even if at this time her intentions accorded with the three year agreement or understanding she has made it plain that by the time she brought E to England they did not, because by then she is clear that her intention was never to return to Mexico. By that time she says that although she did not expressly tell the father this, he knew that it was the case. 2006 up to the time the mother and E left for England on 14 July[91]The express assertions made by the father in his oral evidence that the mother expressly promised him on several occasions that the stay in London would be for three years. The father repeated this several times in his oral evidence. He does not make such assertions of express promises in his written evidence, although he does refer to the stay he agreed to as being for a period of three years.[92]In my judgment the mother did not make such express assertions or promises and therefore the father’s repeated assertions in his oral evidence that she did are not true.[93]As I have already indicated in my view if she had made such express promises they would have been mentioned earlier in discussions between the parties and in evidence. Also it would be out of character for them to have such precision in their discussions. Further his evidence of the express promises covered a period when I accept that the mother had formed the firm intention to stay in England for more than 3 years and to never return to Mexico and, in my judgment, it would be out of character for the mother to deliberately and expressly lie to the father in this way. Rather she would be likely to, and in my view did, avoid the issue.[94]The 5 April 2006 email. This followed a health scare that the mother had in February 2006 which I accept had brought them closer together, but was written at time when the mother says their relationship was bad.[95]It gives clear messages that part of the mother’s thinking and proposal to the father was that a period of time in London would: i) enable her to get herself together professionally, emotionally intellectually and socially, ii) allow the two of them to get themselves sorted out, and that they might be able to live together as a family in London, iii) enable the father to make London his home for a while, on the basis that she did not think that Mexico was as necessary to his work as it once was, although she fairly acknowledged that it was his work and that was only her opinion, and iv) be temporary.[96]The email does make the point that during the stay they would think about where they all wanted to be for the long term plan and therefore supports the mother’s case that the three year agreement or understanding did not extend beyond the second (i.e. her) choice. However in my view this email does not clearly alert the father to the point that the stay might be a long one, or that the mother would not contemplate a return to Mexico. In contrast it indicates that the stay will be temporary and could be used in part to promote the relationship of the mother and the father. Also in my view this email does not, as the mother asserted, lay before the father both options for the family in that it gives no indication that one of them was that the mother and E would, or may, remain in England for many years and in any event would not return to Mexico, and therefore that the shared care arrangement would end unless the father stayed living in the same country as the mother, which it seems to me was by then one of those options, although not perhaps as clearly formulated as it was when she left Mexico.[97]Rather in my view the email also provides support for my conclusions that by this stage detailed proposals were not worked out and the mother had not completely ruled out a return to Mexico to continue and promote the curating course she had started and/or her PhD, and the underlying common ground between the parents was as they both knew that: i) it was the mother’s turn to choose where they would live and carry on the shared care arrangement, ii) the move was a temporary one, and iii) the shared care arrangement would continue.[98]So, to my mind the email does not support the mother’s assertion that by, and at this time, all their discussions were on the basis that they were leaving Mexico with no plan to return. As appears elsewhere this is not the impression she gave to Dr M.[99]Counselling/ family therapy in 2006. This took place from about April to the end of May or early June 2006. I heard evidence for the counsellor by video link.[100]The evidence from both of the parents and the counsellor is clearly to the effect that during these sessions there remained considerable conflict between them and the counsellor’s view was that apart from the common ground that they were all moving to London, where the mother would be doing her PhD, and their shared care of E would continue, nothing else was agreed and was very much in the air. Also by the end of the sessions it is clear that the relationship between the mother and the father was in deep crisis but the common ground remained, namely that they would go to London on the basis of a continued shared care arrangement.[101]The counsellor also saw E and told me and I accept that E thought that the stay in London was temporary, that he did not want to leave Mexico and that she told both parents of his understanding and wishes. I accept that she did tell both parents this and it is therefore the case that with this knowledge they both continued with the plan to move to London and did not at that stage stand back and consider the proposed move from E’s perspective and by reference solely to his welfare.[102]Unsurprisingly, both parents can place some reliance on the evidence of the counsellor as to what was discussed with her. However the father’s assertion that there was clarity about the trip being for three years because the mother had expressly promised this, is not supported, albeit that the counsellor confirmed that the period or two or three years was mentioned. On the other hand, the mother’s assertion that she refused to agree to return to Mexico to live with the father and E after three years is also not supported by the counsellor.[103]In my view the evidence of the counsellor shows, and I find, that: i) a three year period was in play relating to the trip, rather than a 6 year one as the mother has suggested, but ii) the mother had not expressly promised to the father that the trip would be limited to three years, and iii) the mother had not refused to give that promise thereby making it apparent that she intended to, or had it in mind that she was likely to, stay longer, and iv) the mother had not refused to give a promise to return to Mexico thereby making it apparent that she did not intend to return, or that it was in her mind that she would not, or that it was likely that she would not, be returning to live there.[104]There was therefore only very limited common ground and a considerable amount of dispute and uncertainty.[105]In my judgment the evidence of the counsellor, which I accept, taken overall supports the view, and I find, that the mother was fully aware that the period in the father’s mind for the trip was three years and she did not make it clear that this was not her understanding or intention. The impression of the counsellor, which I accept to be a correct one, was that the stay in London was to be a temporary one. This accords with what the mother knew the father told E, namely that the trip was to be for three years and the following passage in one of the mother’s statements:
“Given what [the father] had told E about 3 years, I guessed it was on his mind, but, as was our style, we shied away from the conflict such a frank conversation would have created. ”
[106]It also accords with the mother’s knowledge of the father’s views about living and working in Mexico, his residency application and him keeping residential property and his studio in Mexico.[107]It is also effective common ground that amongst the points raised and not agreed during the family therapy was the father’s suggestions about holidays in Mexico. This is a clear indication that a continued connection with, and a return to Mexico, was envisaged by the father. The counsellor does not support the mother’s argument that during the family therapy sessions it was made clear that the mother was ruling out a return to live in Mexico. For example this was not, so far as I was told, raised when the counsellor told both parents that E did not want to leave Mexico and thought that the trip was temporary.

Choice of school

[108]There was dispute about this during the family therapy. The mother ultimately agreed to enrol E at the school of the father’s choice (the EB school), because she says the father said he would not agree to her leaving Mexico unless E was enrolled there. It is common ground that effectively he did make this a condition of his support for E leaving Mexico. His choice of school when compared with that of the mother is an indication that he was of the view that the period in London was a temporary one because of the international character of that school.

The position when the mother and E left for London and the father followed

[109]It is clear that at this time the relationship was at a very low ebb, and perhaps as low as it had ever been, and that therefore they would be living separately. This they did and continued shared care. E had been enrolled at the EB school.[110]Although they had arranged to let and live in separate accommodation, it is effective common ground that an enormous amount of necessary detail had not been agreed. The missing detail included holiday arrangements, whether they would rent or buy properties in the longer term and financial arrangements generally. The mother said that in an earlier argument the father had said that he would not support her financially in England and the father’s position is that he had told her that he would not support her financially but would pay E’s school fees. I do not accept that clarity was reached as to the financial arrangements and the extent of any financial support the father would give the mother in England. In Mexico they had been largely self supporting and had financed their own homes in Mexico City although they both used the country property which had been bought by the father.[111]But against that lack of clarity, and indeed common ground between them that the father had told the mother that he would not support her in London, but would pay E’s school fees, the mother said that when she left she presumed that it would all work out O-K because it was obvious to them both that she could not afford London-living without the father’s assistance. This indicates that the mother had an intention to seek financial support from the father which supports the view that she regarded a divorce coupled with a claim for ancillary relief as a possible option, if the financial support was not volunteered.[112]In many respects therefore the move was a step into the unknown which looked at from their separate and divergent viewpoints both parents hoped would work out. But, in my judgment, a very significant and indeed crucial divergence in their respective viewpoints, relates to the mother’s intention never to return to Mexico, which she did not tell the father she had.[113]In her statement, and as she confirmed in her oral evidence, the mother said:
“ While I do not recall ever emphatically telling [the father] that I was intending never to return to Mexico, my actions had consistently pointed to the fact that I would not return to Mexico and I am absolutely sure that [the father], and everyone else around us, knew this. --------------- If it were actually a major issue for him, he chose not to face it in open discussion. Likewise, he never insisted that he would only allow E to leave Mexico on the basis that we would return. If this had been the case we would have had to resolve the issue, as we have had to resolve the issue of E’s schooling in London. Given what [the father] had told E about 3 years, I guessed it was on his mind, but, as was our style we shied away from the conflict that such a frank conversation would have created. E and I flew together to London on 14 July 2006. I believe that it is obvious from everything I have said above that I came to London intending never to return to Mexico and to make a home from myself and E here in London, with or without [the father], for the foreseeable future. I began setting up home at ------------ . I believe it was obvious to [the father] that I never wished to live again in Mexico. However, I acknowledge that at this time we never had a conversation when I had explicitly spelt out my intention never to return in very simple and unmistakeable terms.”
[114]That description of her intention makes it clear that part of her overall intention at the time she came to England with E was that not only would she never return to Mexico, but also that she would never agree to E returning to Mexico to live as a child. I add that this intention relating to E also flows inexorably from an intention of the mother never to return to Mexico herself because this is at the heart of her case and wishes.[115]I accept and acknowledge that a number of the friends of the parents would have appreciated that the mother did have, or may well have had, this intention, or that there was a real risk that she would never agree to E returning to live in Mexico as a child or come back herself to live there. That however is not the issue. The issues are whether: i) the father appreciated this, ii) the mother thought that he appreciated this, and iii) the mother thought that he was agreeing to E moving to London on the basis that this was her intention.[116]Having read their statements and seen them given evidence over quite long periods of time I am quite satisfied that: i) the father did not appreciate this, ii) the mother was aware that he did not appreciate this, and iii) the mother did not and could not sensibly have thought that the father agreed, or would have agreed, to E leaving Mexico on the basis that the mother would never return and would never agree to E returning.[117]Such an agreement would, as the mother knew, have run counter to a deep and central seam in the father’s thinking and attitude because she knew that Mexico would be his home and workplace of choice and that he was completely committed to sharing E’s day to day care.[118]To my mind it is disingenuous for the mother to suggest, as she does, that she appreciated that the issue of the school where E was to go was a “deal breaker” but that her intention never to return to Mexico was not, or would not have been, because it was not expressly raised by the father. In my view she appreciated that if she disclosed her true intentions to the father he would refuse to let E leave Mexico and therefore she did not to do so. Rather to borrow her phrase she knowingly shied away from the conflict this would have caused and thereby avoided having to face up to and resolve the conflict in the parents’ intentions before she and E left Mexico.[119]I accept that there was some uncertainty as to the length of the stay in London. I however reject the submission that her intention “for the foreseeable future” was limited to 5 or 6 years whilst she studied for her PhD and, in any event, I have rejected her evidence that there was an agreement or understanding between her and the father that she and they would stay in London that long to enable her to complete her PhD. Rather in my view she knew that he had in mind a three year stay. Also in my judgment, she was aware that if she had disclosed that her intention was to stay longer in London this would have caused the father to withdraw his consent to E leaving Mexico and therefore have been a trigger to detailed discussion that would have led to the divergence in their plans being identified and, as I put it during the proceedings, “the balloon going up” in Mexico. In all probability proceedings in Mexico would have been the result.[120]She was aware that the father had told E that he would be in London for a 3 year period, that he was retaining residential and working premises in Mexico and was putting much of his work on hold and that he had obtained or was seeking residency in Mexico. All these points, together with the three year agreement or understanding, support the conclusion that he had a stay of 3 years in mind, that she knew this and that he would not consent to a longer period in England and certainly not to E leaving on the basis that it was the mother’s intention never to return or for E to return to live in Mexico as a child.[121]It was in my view correctly not argued or asserted by the mother that if the father did not appreciate and understand that the mother never intended to return to Mexico, and thus also intended that E would not do so to live as a child: i) the father must have appreciated that if he, the mother and E went to England on the basis he thought namely that the trip would be for three years and then they would return to Mexico, and therefore that ii) he knowingly took the risk that sometime during those three years the mother might form an intention not to leave London at the end of the three years, or at all, and would therefore not agree to E leaving and therefore that iii) he took the risk of this and the possible consequence that he would have to stay in London and that E would not return to Mexico, and therefore that iv) he agreed to E leaving Mexico knowing of this risk.[122]This is because: i) I have concluded that this was not the father’s understanding or thinking, and ii) no doubt because this was appreciated, it was not put to him that this was his understanding or thinking. Rather it was put that he appreciated that the mother’s actual intention was never to return to Mexico, and thus inevitably never to agree to E returning to live in Mexico.[123]I pause to add that in my view correctly it was not argued that there was any effective impediment arising from the mother starting her PhD, and visiting London in early 2006, to the father refusing to permit E to leave Mexico in July 2006.[124]The mother’s unarticulated intention never to return to Mexico also supports the view that divorce and a claim for financial relief against the father was within the range of possibilities she had in mind when she left Mexico. This is because it would be a logical progression from her stated intention, having regard to the father’s preferences as to where he, E and the mother should live and his likely reaction to learning of this intention.[125]The cases on acquiescence provide an example of the point that when assessing intention it is sensible to look at what a person does. This applies to the assessment of the mother’s intention when leaving Mexico with E in July 2006. The history shows that she told the father that she wanted a divorce in early October 2006, and I have found that she had discussed this possibility before she left, and even if I am wrong about this, that this possibility was something she had thought about.[126]The relationship between the mother and the father had had very low points before but divorce proceedings were not commenced by either of them. In my judgment it is a fair and almost inevitable inference that the fact that they were now in England was a significant factor behind the decision of the mother to say she wanted a divorce, and then to issue proceedings for divorce here. The mother has asserted that the father’s reaction to her announcement that she wanted a divorce, and then the divorce proceedings, was focused on money. A mirror image of that would be that her proceedings were primarily motivated by financial considerations. In my judgment this assertion about the father was unfair and it would be equally unfair to say that the mother’s decision to seek a divorce was primarily focused on financial matters. However I accept and acknowledge that they both raised financial matters as a result of the mother’s announcement that she wanted a divorce; this is a natural reaction and a necessary and inevitable consequence if one of the parties is seeking ancillary relief. As such a claim was pursued by the mother in England through her solicitors, who set up a financial mediation very shortly after the service of the petition, financial matters must have formed part of her thinking and the father’s reaction.[127]However in my view the mother’s decision was based on a wide range of emotional and practical matters. In my view the fact that, as she had wanted for some time, she and E were no longer in Mexico and she had no intention of returning there, was a significant factor in the decision to divorce, as was her asserted need for financial support in England. So in my judgment although I accept that when she left Mexico the mother had not finally decided to seek a divorce, and the separation and financial provision from the father and the issues relating to E’s care that that would bring, it was something that she then appreciated was a real possibility. She was very keen to leave Mexico, as her email of 5 April 2006 shows, for a variety of reasons relating to her emotional and social needs and as she must have appreciated these could well lead her to deciding to divorce the father once they were out of Mexico and she was leading, or starting to lead, the independent life she wanted or might want.[128]Additionally in my judgment a central and enormously important part of the thinking of both the mother and the father in respect of their relationship has been, and is, E. So this was an enormously important factor in the father’s acceptance and support for the period in England on the basis he understood it to be taking place. Also it is enmeshed in, and an enormously important part of, the mother’s range of plans. It follows, as I have said, that her intention never to return to Mexico(a) must have included an intention never to agree to E returning there to live as a child, and(b) indicates that her more general and inchoate plans, options or possibilities for the future included ones that would have a result in which she would be the main carer of E if, for example, she and the father were not living in the same country and, on her case, even if they were, because she has asserted that she is and always has been E’s primary carer.[129]This approach to E’s care is born out by her arguments in the proceedings under the Children Act. Her primary contention being that there should be a residence order in her favour and E’s time with his father should be reduced to give E a more stable base through a clear perception that his home is with his mother. I fully accept and acknowledge that looked at generally (and in this case) there are arguments that support the proposition that a child’s welfare is promoted by him having it made clear that his home is with one parent even though he has long periods of contact with the other. Also generally and in this case there are arguments, supported by recent authority in the Court of Appeal, that shared residence orders which recognise that a child has two homes (although he may not spend equal periods of time in them) promote a child’s welfare.[130]There are therefore general arguments that support the approaches to welfare taken by both parents. The mother’s present stance and her arguments however in my view provide support for the conclusion, that I have reached, that part of her thinking as to possible consequences of the move to England with E would be divorce and a move away from the shared care arrangement that had existed in Mexico under which E had two homes, to one in which E had his home with his mother, and no doubt generous contact with his father.[131]In my judgment this is inherent in, and a natural consequence of, her evidence which I accept that when she left Mexico her intention was never to return there. I do not criticise her for having this line of thinking as a consequence of her intention because I acknowledge that there are reasonable arguments upon which it can be based.[132]However, I repeat that in my judgment she knowingly misled the father by not telling him that her intention was never to return to Mexico and thus to alert him to the consequences inherent in that. Whether the father would have immediately appreciated all those consequences is not clear, but irrelevant, because in my view it is clear that if he had appreciated that this was the mother’s intention he would not have agreed to E leaving Mexico and the mother was well aware that that would be his stance.[133]From the father’s view point it would simply have made no sense for him to have agreed to E leaving Mexico on that basis. The mother says that they both then considered the relationship to be over. Although this accords with what the father told his solicitors when he instructed them in early December 2006 I do not accept that this was the case in the sense that there was no prospect of an improvement at least to a continuation of the relationship as it had existed for the last few years. However it is clear that they both knew that the relationship was in a deep crisis and, in my view correctly, it was not suggested that the father would have agreed to E coming to England to save his relationship with the mother. Rather what is suggested is that he agreed to move from the country where he enjoyed living, where his work was based had flourished and with which it is associated, where he had sought residency and where he thought E was happy and would flourish appreciating that the mother never intended to return and therefore: i) in the hope that he might persuade the mother to change her mind, but ii) knowing that if he wished to continue a shared care arrangement, and thereby provide E with two homes, he might have to live permanently outside Mexico which he was unlikely to like, did not suit his career plans and could well jeopardise his career and reputation.[134]As I have said this makes no sense from his perspective when the alternative is to refuse to let E leave Mexico, even though that would have provoked argument and probably litigation.

Following arrival in London

[135]The mother and E came to London on 14 July 2006. The father followed on 3 August 2006. They rented separate flats and the shared care arrangement continued. In the family therapy in Mexico the father had suggested a change to E spending one week with one of them and then one with the other. The mother knew that he would prefer this arrangement, and must have appreciated that it would be much more convenient for his work and travelling. She however resisted any such change and the old flexible shared care arrangement continued which involved E spending shorter periods with each parent over a fortnightly cycle.[136]I do not think that mother resisted the change sought by the father to make things more awkward for him and as part of any plan to ease him out of E’s care. Rather I accept that she favoured the existing arrangement, did not want E to be as long as a week away from her and thought that this would not promote his welfare. However she was aware that this might result, on a flexible basis, in her having more time with E because of the father’s commitments following the move to England.[137]In line with his history E did not settle quickly at his new school EB and indeed from a very early stage was indicating that he did not like the school. The mother also did not approve of many aspects of the approach taken by the school. I shall return to this and how E has settled generally when considering his welfare.[138]In October 2006 the mother told the father she wanted a divorce. This was not something that either had sought before.[139]Initially emails show that the father’s reaction was to try and sort things out by agreement, which I agree with the mother was a reference to financial matters, and to continue to make arrangements in respect of the shared care of E, which is an indication that he thought that this would continue, as it did.[140]There is a dispute between them as to whether his reactions included anger before the service of the petition on 27 November 2007 which made it clear that the mother’s intention was to reside in England with E on the basis of some shared care. The father agrees that his reaction to being served with the petition was one of anger. In my judgment that was understandable and I have concluded that before then the father had been angry and did threaten to take the proceedings and E to Mexico. As I have mentioned in my judgment it was and is unfair of the mother to assert, as she has, that his reaction related to or was focused on financial matters. In my judgment the father’s reaction included both anger and confusion and was not so focused, rather it ranged over a wide range of emotional and financial issues and the mother knew this.[141]For example it seems to me understandable that the father would wish the divorce to be in Mexico where they had lived for some time and would be told, as he says he was, that the costs of divorce lawyers in England were high. Also I accept the father’s evidence that he was expecting to raise matters relating to, and tried to raise matters relating to, E at the mediation in November but was told, as was the case, that the mediation had been arranged by the mother’s then solicitors to deal only with financial matters. I also accept his evidence that in exchanges with the mother before service of the divorce petition she had also made the point to him that divorce had nothing to do with E. I therefore find that it was the mother, and her then solicitors, who were pressing for information about financial matters and pushing her financial claims forward. That is not a criticism because it flows naturally from the mother’s decision to seek a divorce in England and claim ancillary relief here against the background of a lack of agreement as to the financial arrangements between the mother and the father in England.[142]As known to the mother, the father had not wanted to come to England but: i) to enable him to continued his shared care of E, and ii) to enable the mother(a) to come to London as she wanted, and had wanted to do for some time, and(b) to study for a PhD (which it seems to me she could have done elsewhere in the world), the father made a considerable sacrifice relating to the way in which he would have wanted to continue to work (and thereby maintain his international reputation). As appears elsewhere, I reject the assertion made by, and on behalf of, the mother that the father was not making such a sacrifice in respect of his work. In my view it is plain that he was and the mother knew that this was what he reasonably believed. Even looked at from the basis of the mother’s narrative (as she described her account in evidence) the announcement that she wanted a divorce would have been a change and something that would be an unwelcome shock to the father in a number of ways, including the financial claims being made by the mother after such a short time in England following a long period in Mexico during which their relationship had had ups and downs and they had lived apart.[143]More cynical men than the father might never have been misled by the mother, or would have realised that they had been or might have been misled when she sought a divorce. However, in my judgment he did not realise this immediately but the announcement by the mother that she wanted a divorce was the starting point of the revelation that he had been misled by the mother as to her intentions on coming to England with E. It was also therefore the start of a period of considerable emotional turmoil for the father which continued for many months and which the mother must have appreciated was likely and was something she knew was happening. In my judgment this turmoil was not focused on money, or the money claims, made by the mother.[144]The evidence does not enable me to reach a conclusion as to when the father put enough of the pieces together to appreciate that he had been misled by the mother as to her intentions. In the months that followed the mother announcing that she wanted a divorce, the father was upset, made some threats, sought or investigated solutions and a possible reconciliation, and made suggestions.[145]Counsel for the mother provided a helpful schedule of contradictions between things said and done by the father during this period and in his statements and oral evidence. I accept that there are such contradictions, and that a point can be made that the father’s initial reaction to being told that the mother wanted a divorce favours a conclusion that he knew that she was never intending to continue their relationship and return to Mexico when she and E left Mexico. But, as already appears, in my view the contradictions, and that argument, do not found or lead to a conclusion that the father knew that the mother intended never to return to Mexico (and thus to agree to E living there as a child) when they all came to England in the summer of 2006. Rather they demonstrate and confirm that he was upset, confused and in the later stages coming to terms with the fact that he had been misled.[146]In his May 2007 statement the father says that it was around November 2006 that the most important revelation then made was that the mother “intended to retain E in England indefinitely”. I accept, and find that this was either shortly before, or through and thus at the time of, the service of the petition. It is also clear from the proceedings issued in Mexico in early December 2006 that this was appreciated by the father by then. Further at a meeting in Kensington Gardens on 7 December there is common ground that the mother made it absolutely clear that she would never come back to Mexico, by telling the father that it would take an act of nature to bring this about. That statement stuck in both their minds because it was followed by thunder and a downpour. It was made in response to a question from the father whether she would consider returning which, on both their accounts, indicated that the father knew when asking the question that the mother was not intending to return and he was trying to see if this was possible.[147]It follows that in my view the father’s counsel correctly abandoned a manuscript addition to his July 2007 statement in which, after accepting that by December 2006 it was crystal clear to him that the mother did not intend to return to Mexico, the father asserted that:
“Although even then, it was not until the Conciliation Appointment in February 2007 when I appreciated that her intention was also to retain E permanently in England ”
[148]In my judgment(a) this assertion was untrue, and(b) as correctly accepted by his counsel whatever the father might now think he was in fact (as his May 2007 statement confirms) well aware by the latest early December 2006, as the mother asserts, that the mother was seeking to keep E in this country for the foreseeable future, and did not intend to return to Mexico herself or agree that E would go back there to live as a child.[149]At that stage he did not know when the mother had formed those intentions. But the shortness of the time that had passed since they had come to England, and the point that he knew that this was now the intention of the mother and thus that she was saying that her stay here, and that of E, would not be temporary, provided a sufficient factual base to establish a case and realisation that: i) the mother had, or might well have, misled him as to her intentions when she and E left Mexico, and ii) if he had known of her true intentions he would not have agreed to E coming to England. He certainly knew that he would not have agreed this on the basis of the mother’s stance at the beginning if December 2006 when he instructed his solicitors.[150]He knew then that, from his perspective, he had been placed in a dilemma because his sacrifice in respect of his work and where he would prefer to live which he thought was to be temporary, and around three years, was potentially being turned into a long term one by the stance of the mother, if as he desperately wanted he was to continue to share the day to day care of his son. He also knew that he did not agree to E remaining in England as the mother wanted.[151]In my view much of the father’s upset, confusion and anger on being told of the divorce related to a realisation that the sacrifice and efforts he had made to come to England to honour the three year agreement or understanding and to continue to have the shared care of his son were not working out as he expected and a growing but perhaps initially unformulated appreciation that he had been misled. I do not accept, as the mother has suggested, that his stance in this litigation flows from a realisation that he does not like living in England. He knew that was likely before he came. His stance flows from the points that what he understood the agreement to be is not being honoured by the mother, her failure to inform him of her intentions on leaving Mexico and his view as to what will best promote the welfare of E.

The father’s legal advice and steps then taken

[152]The father instructed his present solicitors in England on 5 December 2006 and as I understand it Mexican lawyers on the same day. The meeting with the mother in Kensington Gardens was on 7 December 2006. I add that I accept his evidence that although he had told his solicitors on 5 December 2006 that there was no hope of a reconciliation one of his purposes in having the meeting on 7 December 2006 was to see if he and the mother could agree a way ahead, which had been prompted by him subconsciously drawing her. Such a hope seems to me to be natural in the light of the mother’s change of the ground rules as he had understood them to be. Also it is in line with the long period during which their relationship had had its ups and downs. It was in this conversation when he was trying to find a solution that he asked whether the mother would agree to return to Mexico with E after six years, where he would stay for the next six years. This was a proposal made in an attempt to reach an agreed solution, it was not an agreement or acceptance that E could remain here for 6 years. In this exchange the mother made it very clear that she would not agree to this, or any arrangement that contained a commitment to return to Mexico, and that from her perspective the relationship was over, she wanted a divorce, she was staying in England and she would not agree to E going back to Mexico to live.[153]The father’s understanding of the basis on which the family came to England, and what he thought he had agreed to, and was telling his lawyers he had agreed to, namely a three year stay in England with shared care was therefore effectively in tatters.[154]I was provided with a helpful chronology relating to the steps taken by the father and relied on by the mother to establish acquiescence. No oral evidence was given from any of the father’s advisers and the evidence as to what passed between them, and between them and the father, is contained in attendance notes which were disclosed (some during the course of the hearing, and some before) and the evidence of the father. I set out conclusions both on fact and law in respect to these communications when I deal with the issue of acquiescence. The sequence of events can be seen from Schedule A.[155]The father accepts that he was told of the existence of the Hague Convention and an extract from an attendance note of a telephone conversation between the father and his solicitors on 6 December 2006 that was highlighted during the hearing, reads:
“You have just received a paper from Mexico asking you to confirm that [the mother] is legally here with E, I said to you that we ought to discuss that further before you respond, but that my advice in relation to this aspect was as I said yesterday that you did not have a case for a return. You would have to apply for leave to remove and I did not think that you would get that now. You could apply in three years time but it would depend on the circumstances then and if E had settled and if she had remarried or had settled with someone it would be difficult for you ”
I was not told what if any response was given to the paper from Mexico.[156]This advice accorded with the telephone advice from two junior barristers asked about the Hague Convention on 5 and 6 December 2006. Another junior barrister was consulted on 5 December 2006 about the divorce and he continued to advise on the divorce thereafter.[157]There was discussion in early December with Mexican lawyers instructed by the father. My understanding is that this was wholly, or mainly, between the father and those lawyers and that his English advisers did not get involved. It was understood that the Mexican court might make an order about E and the effect of it doing so was considered. In the Mexican proceedings the father sought shared custody but not an order for the return of E to Mexico, and at that stage no steps were taken to approach the Mexican or English authorities about a return under the Hague Convention. The petition in the Mexican proceedings however makes it plain that the father did not agree to E (and the mother) remaining in England and asserts a lack of good faith by the mother because she had waited until she and E had left Mexico to tell the father she intended to stay and live in London.[158]Until March 2007 the father’s advisers were of the view summarised in the above cited attendance note, and they had considered the Hague Convention and jurisdictional issues relating to the divorce. As appears elsewhere in this judgment (see for example paragraph 146), in my view, as the mother asserts, they reached and held this view and therefore so advised the father, who with them acted on it, with sufficient knowledge of the facts to establish the case brought later on the advice of leading counsel under the Hague Convention.

Mother’s stance on shared care in English proceedings

[159]In January 2007 the mother issued proceedings for a residence order and a prohibited steps order to prevent the father taking E out of the jurisdiction. In her application she asserts that: “ -------- the Child’s father has given a strong indication that he wants to return to Mexico with his son. I am fearful that he will abduct the child -------- I have been informed that he is currently taking proceedings in Mexico although I have not been served with any paperwork and I am unaware precisely what the procedure may be. I was advised to apply for a Residence Order as I am the Child’s primary carer. In order for the child to be stable and secure, I think it is in his best interest for a Residence Order to be made to record the fact that he resides with me in this jurisdiction”.[160]As I understand it, very shortly before she and her solicitors became aware that the father was bringing proceedings under the Hague Convention the mother decided to change the arrangements for the father’s care of E and her solicitors dictated a letter to this effect. In her first statement, dated 8 May 2007, in the Hague Convention proceedings in support of her defence to those proceedings and, as I understand it, her proposed change in the care and contact arrangements, the mother makes a number of assertions to the effect that she was E’s primary carer in Mexico, and had been his primary carer since he came to England, and greatly downplayed the part that the father had taken in the day to day care of E both in Mexico and in England.[161]Her case was that what she described as the unusual and uncertain contact arrangements were causing E to suffer distress and that to provide him with more stability the father should spend less time with him. She asserted that there had never been anything like an equal division of E’s care and that she was totally opposed to the father’s shared care suggestion. She also made a number of criticisms of the father’s care of E.[162]I acknowledge that in a number of cases there is force in the mother’s arguments that a child should have one rather than two homes to promote his stability and, indeed, that this might have promoted E’s stability at that time, or might do so in the future. But it is clear that in Mexico there was a shared care arrangement which gave E two homes and that this continued in England both before and after the mother issued her divorce proceedings.[163]In my judgment the picture painted by the mother in this statement as to the history of the care of E, the care of E in England and the quality of the father’s care was an untruthful one which clearly caused and continues to cause the father distress.[164]On 19 May 2007, Wood J made an order rejecting the changes sought by the mother and restoring the shared care arrangement which the mother had earlier, in effect, been insisting on by refusing to change to the father’s suggestion that they each care for E for one week at a time. Wood J continued the status quo as it appeared to him on the papers. The oral evidence confirms that his view of the status quo (namely a shared care arrangement) was correct. The issues Hague Convention

The issues

[165]The most relevant articles of the Hague Convention are Articles 3, 5, 12, 13 and 16. I shall not set them out, they are readily available in a number of places.

Wrongful removal / retention

[166]The mother argued that there was no wrongful removal or retention. The father’s argument was that there had been a wrongful removal. In opening he indicated that he might argue in the alternative that there had been a wrongful retention but, in my view correctly, did not do so in closing submissions because it was clear that the mother’s intention when E left Mexico did not accord with what he accepted he would have agreed to, and thought he was agreeing to. The factual issue in this respect was therefore triggered by, and at the time of, the removal and not by a relevant change in intention after that removal.[167]To my mind the fact that a lawful removal (move) can become a wrongful retention after the move shows that changes of intention by the removing parent before the child is moved are relevant to whether there was a sufficient consent for the removal at the time of the move from one country to another.[168]The mother argued that notwithstanding the decision of the Court of Appeal in Re P(Abduction: Consent)[2004] 2 FLR 1057 (see in particular paragraphs 22 and 33) the issue of what was discussed and agreed between the parents was relevant for the purposes of Articles 3 and 5. This was described by the father as a sophisticated argument. I do not accept it for a number of reasons.[169]The argument relied on cases relating to change of habitual residence, and the correct proposition that if parents move to another country with a settled intention and purpose and live there for a time, which can be a short one, they and their children will acquire habitual residence in the new country. As to that I was referred to a number of cases including Re F (A Minor: Child Abduction) [1992] 1 FLR 548 (in particular at 551/52), Re R (Abduction: Habitual Residence) [2004] 1 FLR 216 (in particular paragraphs 32-39, 42-43, and 48). I pause to note that in both those cases a finding was made as to what the settled and common intention and purpose was, and no issue arose as to one of the parents having been misled. I was also referred to Al Habtoor v Fotheringham [2001] 951 (in particular at paragraphs 23 and 37) which I accept shows that habitual residence can be acquired after a short time, and on the basis of residence for a settled purpose that might be for a short time or subject to a condition.[170]I also accept that this court can, under its inherent jurisdiction, order a summary return without a full investigation of the merits relating to welfare (see, for example, Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80). It follows that this jurisdiction might be used to fill any gap in, or to implement the underlying purpose of, the Hague Convention if it was thought that the mother’s argument created such gaps, or undermines that purpose, or might do so in other cases.[171]It was argued that Articles 3 and 5 as to the establishment of a wrongful removal or retention must have some life when consent was in issue, and that in this case they did, because the father had through the three year agreement or understanding, and further or alternatively at the end of 2005, agreed that the mother could bring E to England as his home for three years. It was said that that overlap of intention and understanding between the parents, or the father’s agreement to that, notwithstanding that the mother had a different intention and purpose as to the length of her stay and a return to Mexico, established a core or common settled intention or purpose that after a period of time in England would found a change in E’s habitual residence, and established that his removal and/or later retention was not wrongful.[172]I reject that argument both on the law and on the facts.[173]As to the law, it flies in the face of Re P which is binding on me. More generally issues relating to habitual residence in this context are usually focused on jurisdiction and thus on whether a court has jurisdiction to make welfare decisions. The Hague Convention and the Child Abduction and Custody Act 1985 are specifically directed at, and provide a summary remedy in respect of, the issue as to which courts should determine welfare issues. It follows in my view that they have primacy over a more general approach to a finding of habitual residence to establish jurisdiction. Additionally the mother accepted, as she was bound to, that it was not all cases where there was some common ground, or overlap of intention, that could establish the relevant settled purpose or consent and that if, for example, there was an express misrepresentation that went to the heart of what one parent was happy to consent to (and did or would have consented to) then there would be a wrongful removal. In my view this introduces into a summary process unnecessary complications and stages.[174]Further, the cases under the Hague Convention on consent require a true, and unequivocal consent and not one extracted from an overlap of intentions. In my view, having regard to the purpose of the Hague Convention that approach would apply in the consideration of whether a removal or retention was wrongful even if that is isolated to, or first considered under, Articles 3 and 5. I do not see how, in the context of the Hague Convention and more generally there is not a breach of rights of custody when a consent is obtained to course A when the parent seeking that consent in fact has course B in mind, when the two are materially different.[175]I was referred to authority to support the view that the factual nature of habitual residence, and thus the relevance of pragmatic factors and the existing state of affairs, can or may mean that in some circumstances, and for some jurisdictional or other purposes, a change in the habitual residence of a child could be based on an overlap of views and intentions of his parents, an agreement based on a misrepresentation or on a state of affairs arising without consent but which, in practice cannot be altered (see Re A (A Child) [2006] EWHC 3338 (Fam) in particular at paragraphs 46 and 49). But in my view the approach taken by the President in this case, and thus this possibility, does not affect the approach to be taken in determining whether or not at the time of the removal of E from Mexico the father consented to it, and/or whether the removal was wrongful, for the purposes of the Hague Convention. Additionally, as appears below, in my view on the facts this possibility does not assist the mother in this case.[176]I however add that I accept that a change in the habitual residence of a child can be based on acquiescence in a wrongful removal and/or on a refusal to order a return under the Hague Convention.[177]So, in my view as a matter of law the issue of consent in this case should be dealt with at one point, namely under Article 13.[178]The mother’s argument also fails on the facts. First and in any event there is a lack of clarity. Further, although I acknowledge that this is not a “holiday case” and a true agreement for a three year stay would found a change in habitual residence whereas a holiday would not, I reject the argument that a difference between three years and the foreseeable future (with or without an intention never to return to Mexico) does not undermine the settled intention or purpose relied on. Further, and in any event, in my view the father was misled and in my view, looked at generally and by reference to its broad and non-technical meaning, there was no true agreement or common ground based on the three year agreement or understanding and its implementation, or on an agreement or understanding reached at the end of 2005.[179]As already mentioned the arguments relating to retention became academic. Here the need for a child being retained from a country in which he was habitually resident immediately before the retention would have caused problems. This was acknowledged by the father. For example it is acknowledged that it is arguable that the conclusion on habitual residence in Re S (Minors) (Child Abduction : Wrongful Retention) [1994] 1 FLR 82 is wrong.[180]The problems flow from the points that(a) a change of mind, some time after arrival in the country can amount to a wrongful retention, and(b) applying cases on habitual residence, such a change of mind could take place after a change in habitual residence based on the original consent to the move and a period of time in England. So, for example, if there had been a genuine meeting of the minds of the parents in this case that they should move here and share E’s care for three years, the issues arises whether there could be such a wrongful retention say after two years, having regard to either (a) the point that the possibility of a change of mind is inherent in the initial agreement, or (b) the point that by then the child would, by reference to the cases on habitual residence, be habitually resident here. It seems to me that in such a situation there may be arguments that for the purposes of the Hague Convention a child should be treated as not having lost habitual residence in the requesting state, or as not having acquired it in the requested state, or as having two places of habitual residence (and that there may be a difference between a change of mind within and outside a year). However I recognise the difficulty in respect of a genuine change of mind after a period of time here, particularly when the child has settled. It may be that it is in this context, rather than in the argument advanced by the mother on consent to removal, that the inherent jurisdiction could resolve the problems.

Consent

[181]I was referred by both parties to a decision of my own T v T (Abduction ; Consent)[1999] 2 FLR 912, which has very recently been relied on by Pauffley J in a judgment delivered on 8 February 2008, as setting out the approach to be taken to this issue. I based my conclusions on earlier authority. The most relevant passages are at 916g where I recorded that the consent has to be unequivocal and then at 917 a/c where I stated that:
“Additionally, and again in my judgement correctly, it was accepted that if the mother is to succeed, I must find that the consent was real in the sense that it was not based on a misunderstanding, or non-disclosure, which would vitiate the consent of the purposes of the Hague Convention. It is not sensible for me to try and give a general definition of what would constitute such a misunderstanding or nondisclosure. For the purposes of this case, in my judgement such a misunderstanding or nondisclosure (and thus the deception asserted by the father) would exist if the mother knew that the father was proceeding on the basis of a misunderstanding, or she had not told him something, and in either case she knew or ought to have known that such misunderstanding, or non-disclosure, would, or would be likely to, affect the father's decision to consent to her taking H to England (whether that consent was given on the basis she alleges, or on the basis the Father alleges). In such circumstances the mother could not believe (as she asserts) that the father had unequivocally consented to her taking H to England on 2 May 1997 on the basis that he would make his home here. ”
[182]I was also referred to Re M (Abduction) (Consent: Acquiescence) [1999] 1 FLR 171 (in particular at 175 and 188), and as shown by that case I accept that the fact that a parent later changes his or her mind does not mean that an initial consent is vitiated, and that there can be a consent notwithstanding serious misgivings of the consenting parent. But in my view neither proposition assists the mother in this case. This is because the father did not agree to what the mother intended at the time E left Mexico, and he cannot be said to have changed his mind when he discovered the divergence between the basis upon which he had agreed E could come to England and the mother’s intention when E left Mexico. This is a different point to acquiescence.[183]In my judgment this is not a case in which the father changed his mind because, for example, he did not like England. Rather in my judgment he was misled by the mother as to her intentions and if he had appreciated what her intentions were when E left Mexico he would not have consented to E coming to England.[184]In my judgment before she and E left Mexico the mother knew (and even if contrary to my judgment she did not know, she ought to have known) that if the father had appreciated her admitted and asserted intentions at that time about returning to Mexico he would not have agreed to E going to England. I add that this is so whether or not one adds in the possibilities that in my view she also had in mind about divorce and changing the shared care arrangement relating to E.[185]So, in my judgment applying the approach in T v T, the father did not, for the purposes of the Hague Convention, consent to E’s removal from Mexico.[186]It was argued that the approach I took in T v T was too contractual. I disagree. In my judgment it is based on a broad and non-technical approach as to what can fairly be said to have been agreed between parents, or as to whether one of them can fairly be said to have consented to their child being removed from a country.

Acquiescence

[187]The leading authority is the decision of the House of Lords in Re H (Abduction: Acquiescence) [1998] 1 AC 72 in which Lord Browne-Wilkinson gave the only speech. The cases since then to which I was referred are naturally all applying the guidance and reasoning in Re H. As is clear and common ground from that decision acquiescence can be established in two ways, namely: i) by reference to the subjective intention of the wronged parent, which is a question of fact. I shall call this subjective acquiescence, and ii) when, exceptionally 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 (see the summary at 90G). I shall refer to this exceptional case as non-subjective acquiescence.[188]The arguments before me covered: i) what must the subjective intention of the wronged parent relate to, and ii) the nature of the knowledge that the wronged parent must have of his or her rights under both heads of acquiescence.[189]At their first stage the arguments were that: i) the mother argued that subjective acquiescence can be established by proving that the adequately informed subjective intention of the wronged parent is not to seek a summary return, and ii) the father argued that what the mother had to show was a mirror image to what had to be shown to establish a valid consent to E’s removal from Mexico and thus he argued a fully informed subjective consent to the child remaining here. A time frame was not put on the length of that stay in England by reference to proceedings seeking a return or other relief under the Children Act, or otherwise. I was pointed to compelling evidence contained in the father’s Mexican proceedings issued in December 2006 that he did not agree to E being in England or being kept in England.[190]I am not sure whether the father would have accepted that(a) if he had appreciated in December 2006 that he could bring proceedings for a summary return of E under the Hague Convention, but(b) he had decided not to do so even though, as was and remains the case he was not happy that E should remain in England, because for example he did not think that that would promote his best interests and therefore(c) he had decided to seek permission to take E to Mexico from the English courts, that would have amounted to subjective acquiescence. If he would have done so there would be little, if any, difference between the two arguments. This is because distinctions between (a) a subjective mindset not to seek a summary return under the Hague Convention, and (b) agreeing to a child remaining in this country for a limited or indefinite period knowing (amongst other things) of a right or a possibility to seek a return under the Hague Convention are fine, and no doubt often artificial. In both the subjective intention of the wronged parent is that the child can stay here, even if that stay is not for an indefinite period and is on the basis that the child might be returned by agreement, or order by an English court based on the test that the child’s welfare is the paramount consideration.[191]In my view the father would have been driven to accept that such a decision constituted a subjective acquiescence. It follows that in my view the real divide between the parties relates to what knowledge a wronged parent needs to have of his or her rights before he or she can be said to have acquiesced in a wrongful removal or retention.[192]However I record that I prefer the mother’s argument and thus a conclusion that subjective acquiescence can be established by showing an adequately informed subjective decision not to seek a summary return under the Hague Convention. This does not mean that subjective acquiescence can only be shown in this way. I accept that it could also be established on the basis advanced by the father and thus on an adequately informed decision and intention that a child can remain in this country for an appropriate period. My reasons for this are contained in Part 1 of Schedule B to this judgment.[193]The next issue was what knowledge is necessary to found(a) subjective, and(b) non subjective acquiescence.[194]To my mind when looked at generally this raises difficult points as to what knowledge of rights of(a) custody or an ability to refuse to allow a child to be taken abroad, and(b) under the Hague Convention has to be proved to establish both limbs of acquiescence. It seems to me that under both limbs there are arguments that knowledge of such rights is not necessary in all cases. This is because in my view the nature and extent of (a) what is subjectively intended and agreed, and (b) the unequivocal act in the exceptional case, is important and could found a conclusion that knowledge of relevant legal rights is not a necessary ingredient to acquiescence.[195]I deal with these arguments in Part 2 of Schedule B because in my view they do not arise in this case. The reasons for this are that(a) a step in the argument on subjective acquiescence relied on by the mother was that the father took, and was given, legal advice on the Hague Convention and therefore knew of, or must be taken as knowing of, the existence of the Hague Convention and that a summary return can be ordered under it, and therefore that the father had sufficient knowledge of his rights to found an adequately informed subjective acquiescence, and(b) the acts of the father relied on by the mother at the second and exceptional stage are much closer to those considered in Re S in which the Court of Appeal was of the view that the advice received was relevant, and in any event, in my view those acts are not sufficiently unequivocal to render the extent of the father’s knowledge of the Hague Convention, and what can be claimed under it, an irrelevant factor in considering what is just.[196]So, in my view the mother was correct to accept and argue that the nature and effect of the advice sought and received by the father was relevant here.[197]As I have indicated earlier (under the heading “Following arrival in London”) by the time that the father instructed his solicitors on 5 December 2006 he knew enough facts to mount the claim that he made later that he had not given an effective consent to E coming to England, and could therefore seek his return under the Hague Convention. It is accepted that the father was told of the Hague Convention by those solicitors and that they considered its application with the benefit of telephone advice from junior counsel.[198]It was argued, primarily in reliance on the attendance notes that far from knowing of his rights under the Hague Convention the father was told, and believed, that he had no right to seek a summary return, and that his prospect of obtaining an order for a return before the end of the three year period he had agreed to were small. It was argued that therefore he was not a wronged parent who was properly informed, or to borrow Lord Browne-Wilkinson’s phrase, he was not a wronged parent who took decisions “knowing of his rights” because he was told he did not have any.[199]It was correctly said that this advice is different to that in Re S because there, the father had been told that he had a right to claim a summary return but that to do so would be a waste of time, because the Australian courts would give the mother permission to come to England.[200]I am unpersuaded by this argument. In my view it seeks to put too much weight on the wording of the attendance notes to found the assertion that the father was told that he had no right to seek a summary return (as opposed, for example, to being told that in the view of his lawyers such a claim would not succeed) and this distinction was not pursued in any effective way in the oral evidence. As I have said no oral evidence was given by any of the advisers. The focus of the father’s evidence was on his turmoil and confusion. In any event, in my view that interpretation of the advice nonetheless results in the father having sufficient knowledge to found acquiescence.[201]In my judgment the father consulted solicitors, and provided them with enough information to found the conclusion that the mother had, or may have, misled him when he agreed that E could move to England; this is shown, for example by what is asserted in the Mexican proceedings and what is recorded in the attendance notes. In my view a lawyer who remembered the test set out in T v T (and the cases referred to in it) would have concluded that in those factual circumstances there was a real prospect of the father being able to show that for the purposes of the Hague Convention he had not consented to E’s removal from Mexico, and therefore that he could seek and get an order for a summary return of E to Mexico. As turned out to be the case, if proceedings had then been launched the arguments on consent that I have heard would have been put in play, but those on acquiescence would not.[202]I accept that if the father had been told that he had an arguable case for summary return under the Hague Convention in early December 2006 he would have issued such proceedings. I also accept that at that time he was in an emotional turmoil and had some difficulty in taking everything in. But in my view the overall reality is that: i) the solicitors he instructed with the benefit of telephone advice from two counsel formed the view that he did not have a claim under the Hague Convention that could be successfully pursued and therefore advised their client that no such claim could or should be brought. To my mind it makes no effective difference how that advice was phrased and thus how strongly, or in what terms, the father was advised and therefore understood that seeking a summary term was not an option. What is of prime importance is that he and his lawyers rejected it as an option, ii) later, and again with advice from other counsel which although not focused on the Hague Convention covered taking proceedings in Mexico and the effect of orders made relating to E in Mexico, jurisdictional issues were considered and therefore the father and those advising could in that context have reviewed the position under the Hague Convention, iii) the situation is therefore not the same as one in which a parent knows nothing about the Hague Convention. Rather it is one in which it is accepted that the father was told of the existence of the Hague Convention, but has also been told, or effectively told, that he cannot take advantage of it, and iv) until leading counsel was instructed and advised in March 2007, the advice sought from counsel and the jurisdictional points discussed in the context of the divorce proceedings show quite clearly (and the contrary was not asserted) that the lawyers formed the view that the welfare issues in respect of E had to be fought in England.[203]In my judgment that view was wrong, and an application under the Hague Convention could have been made with a reasonable prospect of obtaining an order for a summary return. I add that the facts known to the father and his lawyers on the issue whether he had consented to E coming to England for the purposes of the Hague Convention, although confirmed at the meeting between the parents on 7 December 2006, were not materially different when leading counsel advised, in my view correctly, that proceedings under the Hague Convention could be brought.[204]In those circumstances the father’s argument is that he can avoid the consequences of the decision he made through his lawyers not to issue proceedings under the Hague Convention earlier on the basis that their advice was wrong, and therefore he subjectively did not appreciate that he could seek, or had a right to seek, a summary return of E to Mexico to enable the Mexican courts to determine the short, medium and long term issue relating to E’s welfare and, in particular, whether he should live in Mexico or England during school term times if his parents were living in those different countries.[205]In my judgment in those circumstances the father cannot be said to be a wronged parent “who did not know of his rights”. Rather he was a wronged parent: i) Who, as he accepts, knew of the existence of the Hague Convention, and who in any event must be taken as knowing of its existence and that it gives the courts power to order a summary return, and ii) who with the benefit of advice that specifically addressed the application of the Hague Convention decided not to bring proceedings under it. That was his informed and subjective decision although at that time he was upset and confused emotionally, did not agree to E remaining in England and thought (because he was so advised) that he could not, or had no right to, seek E’s immediate return to Mexico.[206]In my view, and although I acknowledge differences between that advice and the advice given in Re S,the result, as in that case, is that the father cannot go behind his subjective decision based on that advice not to bring proceedings under the Hague Convention. If he was permitted to do so this would open the door to the examination of the degree to which a wronged parent, who will often not speak any English (rather than it not being his first language) and be distressed, has understood advice he has received from English lawyers. This would not accord with a summary approach under the Hague Convention.[207]In short, in my view in this context, as in others, a person who acts on advice as to his rights or prospects of successfully making a claim, or who receives and acts on advice that has considered those matters, has to take the consequences of him doing so by reference to the knowledge of all the advisers who took part in the decision making process. Put another way, an ingredient of his decision is the knowledge of his advisers as to possible courses of action and the advice based thereon, and therefore the decision is based on the combination of the knowledge of the father and his advisers.[208]Further in my view it cannot be said that correct legal advice is an essential ingredient of acquiescence because the father was in no different position to a wronged parent who knows of the Hague Convention but who, without the benefit of legal advice, thinks that it will not assist him in the short or long term and therefore decides not to rely on it. In many cases whether that view (with or without legal advice) would have been shown to be right or wrong, if proceedings had been issued, would be a very open question. Again it seems to me that an assessment of how good any advice was, or whether the view of an unadvised parent was right or wrong, should generally not form part of the consideration. Rather generally that consideration should be confined to whether there is sufficient knowledge of the Hague Convention and a decision not to rely on it founded on knowledge of enough of the relevant facts. In that context in this case a problem does not arise on the basis that the advisers did not know enough of the facts.[209]In my view the reference in Re S to the advice being adequate and realistic advice (and in particular the reference to it being realistic) is not an essential element of the reasoning lying behind that decision. But in any event, in my view, the advice received by the father here can be described as adequate (albeit in my view incorrect), and its nature does not trigger a consideration of whether it was realistic.[210]I agree that a lesson to be learnt from this case is that advice on the Hague Convention should be given after careful enquiry as to the position of the parent who might rely on it, and that in many cases an express reservation of the right to bring proceedings for a summary return when a wrongful removal is under consideration may be advisable.[211]So, in my view the mother has established acquiescence based on the subjective intention of the father.[212]In any event, in my view the second and exceptional limb of acquiescence is satisfied in this case.[213]As to that the mother relies on an active participation by the father through experienced solicitors (and barristers) in correspondence and proceedings in a course of action that clearly indicated (as was the case) that they were proceeding on the basis that the issues as to where E should live, and go to school, would be decided in England. This is not confined to correspondence about E and the proceedings under the Children Act but is reinforced by the Mexican divorce proceedings issued in December 2006 by the father which, although not served were sent to the mother’s solicitors, and gave rise to the application for the Hemain injunction.[214]The father relies on the same arguments as to his knowledge of his rights but in my view in this context, because it has regard to the impact of his actions on the mother and her advisers, they are weaker. He also argues that: i) as a matter of policy actions up to and including the conciliation appointment should not lead to acquiescence on this basis, and ii) as the mother sought an order preventing the father removing E from the jurisdiction she was well aware that he was not happy with E being in England and, in any event, she knew this from her general knowledge of the father.[215]I agree that there is force in both arguments. The first because of the guidance that attempts at negotiation and settlement should not generally found acquiescence, and the second because I agree that the mother knew that the father would like E to live in Mexico and was not happy that he should live in, and did not therefore agree to him living in, England as the mother wanted.[216]But in my view it is putting the first point too high to describe it as a matter of policy, not least because it is one of the possibilities referred to in Re H. Also in my view the impact on the mother’s solicitors is relevant.[217]Until the father received advice from leading counsel in March 2007 the outward (and internal) position and stance of the father, acting through his advisers, was clearly that proceedings under the Hague Convention could not be brought successfully, and would not be brought. It therefore would be unsurprising if the steps taken by the father and his solicitors led the mother’s solicitors to think that he did not intend to seek a summary return of E. The mother said that she did not think the father would bring any such proceedings, but did not go into why she thought this and thus assert, for example, that it had been positively and actively considered at the time by her, or her solicitors. However her evidence is the natural informed reaction of anyone practising in this area to the steps being taken by, and on behalf of, the father.[218]Absent the Mexican divorce proceedings I am of the view that the steps taken in, and against, the background of the English proceedings up to, and at the conciliation appointment by agreeing directions, would probably be insufficient in all the circumstances to found acquiescence because of the points that: i) the father had to take part, had to negotiate on contact and other matters and wanted to preserve the status quo of shared care, and ii) the time limit for seeking a summary return as of right under Article 12 had not expired, and the mother was aware that the father was not happy that E should remain in England for the foreseeable future. But, in my view, the addition of the Mexican divorce proceedings, and the clear jurisdictional issues they gave rise to, albeit in the context of the forum for the divorce, gave the clear and unequivocal message that the father was not taking the point, or reserving the right to argue, that the welfare issues should be dealt with only by the Mexican courts and therefore his conduct in all the circumstances founds the second limb of acquiescence.

Inherent jurisdiction

[219]In view of my conclusions on the application of the Hague Convention no issues arose as to whether a summary return should be ordered in the exercise of the inherent jurisdiction.

Discretion under the Hague Convention

[220]When the court is exercising discretion under the Hague Convention it is considering whether or not to order a summary return to enable the courts of the requesting state to make the relevant decisions on medium to long term welfare. In doing so it has to have proper regard to the underlying purposes of the Convention in all the circumstances of the case.[221]Those purposes are founded on a view as to what will generally promote the welfare of the relevant child and children generally. In the particular circumstances of this case which include the delay in obtaining a final hearing in part caused by the direction that it should cover all the welfare issues, and as was effectively common ground, and whatever attention the Mexican courts might give to my views on what would best promote E’s welfare, it is in my view clear that I should refuse a return for the purposes of enabling the Mexican courts to take the welfare decisions. That would inevitably result in further delay, uncertainty and upset for E and his parents. This would be damaging to E and in my view in the circumstances of this case the general approach that a return will best promote the welfare of a child wrongfully removed from a Hague Convention country clearly gives way to the point that such a return would add to, and continue, detrimental delay and uncertainty and could not therefore be said to promote E’s welfare.[222]What I would have done if I had not heard the evidence on welfare is therefore academic. I however record that it is likely that I would have ordered a return because(a) the evidence that would normally have been before the court on a Hague Convention application shows that E has not settled in England,(b) I have concluded that the mother misled the father,(c) of the nature of the acquiescence based on advice received by the father, and(d) a return would accord with the general point underlying the Convention that a return promotes the welfare of the relevant child and children generally.

Welfare / the Applications under the Children Act

[223]This stage has been reached because I have refused to order a return under the Hague Convention. The welfare of E is my paramount consideration and I have to have regard to the welfare checklist. I shall not refer to each of the items in that list or go though it, I have however had it very much in mind. Helpfully the CAFCASS officer has specifically addressed that list.[224]Both parents have strong convictions and wishes that E should live in the country in which they respectively want to live.[225]In my judgment at this stage the history I have set out, and my findings relating to it, is relevant for the purposes of assessing and predicting the effects of alternatives on the child. The knock on effects on E of the reactions of the parents is one of the matters to be taken into account as is E’s ability to cope with the alternatives. As to both the history and my findings are relevant. Factors that do not lead to a solution in this case[226]No part of my decision making process is, or should be, directed to punishing one or other of the parents. This general approach can, when relevant, be qualified by an approach of not allowing a parent to rely on self inflicted problems. But in my view the point about self inflicted problems is of no weight here. I am of this view because of the common ground that the background leading up to the move to this country includes the three year agreement or understanding, and if the parents had both stuck to that E would have been likely to have come here on that basis, and thus on an understanding that he would be here for about 3 years and the present problems, and disagreements would have been faced in that light. Additionally I accept that the long standing difficulties in, and their respective perceptions of, their relationship are major contributors to the distressing position that both parents now find themselves in.[227]Inherent in, or a product of, the three year agreement and understanding is the point that each of the parents took the risk that during the period of them living in the country of their choice changes might occur that led to proceedings relating to E. This could therefore mean that, and if the mother had made her intentions known to the father before she and E left Mexico probably may well have meant that, the Mexican courts would have had to decide an application by the mother to remove E from Mexico against the background of the three year agreement and understanding, which as between the parents gave her the ability to choose where the family would live.[228]I also accept, and find, that the mother’s decision to leave Mexico with E without telling the father of her intentions at that time was based on the background of the three year agreement and understanding, the ups and downs of the relationship between the parents, their mutual approach of avoiding difficult issues, their failures to communicate, the mother’s unhappiness in Mexico and her long held wish to live elsewhere, which was known to the father.[229]So I approach this stage of the case on the basis that E might well have come here pursuant to the three year agreement or understanding and thus consensually and therefore effectively on the basis that the changes in intention that underlie these proceedings occurred after the mother and E arrived her.[230]That approach is qualified by the point that the issues as to the consent given by the father, my findings that he was misled and the upset of the trial are factors to be taken into account in assessing the reactions of the parents and the effect of those reactions on E.[231]Albeit that I still hold the view expressed in Re Z (Abduction: Non-Convention Country) [1999] 1 FLR 1270 at 1285b that generally it is better for a child to have his medium to long term future determined without the effective intervention of an act of one parent that contravenes the rights of the other, and thus a unilateral or wrongful removal from a country, I have concluded that this is not a factor that has weight in this case. In fact the point favours the view I have reached, but I record that if in all the other circumstances it had not, this general view would not have altered the balance in this case in favour of an order that E’s welfare would be best promoted by him returning to live in Mexico.[232]Is there a primary carer? I pose this question because it was a main part of the mother’s case at the beginning of these proceedings, and although in my view correctly, it was not pressed in final oral submissions, one of the findings I was invited to make on behalf of the mother remained that she was, and is, E’s primary carer. The relevance of such a finding would be that by analogy with, or applying the reasoning underlying, the leave to remove cases weight should be given to the effects on a child of his primary carer being disappointed and therefore distressed and unhappy. This “knock on” effect is in many cases a strong factor in favour of an order being made that enables the primary carer to carry out his or her reasonable wishes relating to the country in which the child should live.[233]In my judgment the mother cannot be classified as the primary carer of E for the purpose of founding this reasoning and argument. As I have mentioned, in my judgment her evidence in her May 2007 statement to support this assertion was misleading. I accept that in terms of time the mother has spent longer with, and thus caring for, E than the father and that this is clearly so if all of his life is taken into account. If only the period following the shared care arrangement starting in 2003 is taken into account, I suspect that the flexibility of that arrangement resulted in the mother spending more time with E than the father, although (as I have already indicated) a detailed exercise on the days so spent with E was correctly not pursued. But the mother did not dispute that the father has always taken a very active role in E’s day to day care in the USA and Mexico, and that from 2003 the arrangements in Mexico were shared care arrangements. The mother gave no convincing evidence to rebut the evidence of the father and third parties that this was a true shared care arrangement that continued in England and had the result that E had two homes, and in my view two parents who for some years have been taking an effectively equal part in his upbringing and care.[234]So in my judgment: i) in terms of the leave to remove cases, and more generally, both parents can be described as primary carers of E, and ii) a choice as to whether E should live and go to school in England or Mexico cannot be based on an approach that treats one of his parents as his primary carer and the other as not his primary carer, or as a parent with a different and/or lesser role.[235]This conclusion is in line with the observations of the CAFCASS officer who reports, as is common ground between the parents, that they both love E dearly and have a very close relationship with him. They both bring different and important parenting skills to the relationships. Both parents have made some criticisms of the other parent’s approach to, and performance of, their task as a parent, but in my view, apart from the conflict between them and its effects, they are both good and loving parents who have been providing E with two good homes.[236]It is clear that if he does not see as much of one of his parents that E will miss that parent and that he will be likely to suffer an adverse reaction to a change in the role played by either of his parents in his life. The parents have taken and applied a non gender specific approach to E’s parenting especially after he started school. To my mind although, as the CAFCASS officer says and I accept, E will greatly miss his mother if she pays a lesser part in his day to day upbringing he will also so miss his father, and a resolution of the case cannot properly be based on either: i) a view as to which of them he will miss more, or ii) which of them will parent him better. This is because the competing factors balance each other out. The sad reality is that because of the dispute and divergence of wishes of his parents E will be likely to suffer from the effects of that and the changes my order will introduce, whether it accords with the wishes of the mother or the father.[237]As is not uncommon to identify the best way forward the court is considering the least bad way forward in the light of the position now reached between two loving and capable parents.[238]The reaction of the parents and its knock on effects. In my view both parents have reasonable reasons, when viewed solely from their own perspectives, for the result they seek. I consider that generally, and here, an assessment of which of the parent’s views is objectively more reasonable is not a relevant exercise. Also in my view, generally and here, of themselves assertions as to what a parent will do if the court does not make an order that conforms to his or her wishes should not dictate the result. But the ability the parents to adapt to the court’s solution is relevant to the assessment of the “knock on” effect on E of their reactions to that solution.[239]The ease by which a parent could accommodate the plans of the other reflected in an order of the court is relevant to the likely reactions of loving parents who want to do the best for their child, and the impact of those reactions on the child. Generally the easier it would be for a loving parent to change plans, or to accommodate the plans of the other, the more likely the result that that parent could cope with the disappointment of a child living in the country of choice of the other parent.[240]The mother argued that the father has managed in England, has indicated that at least in the short term he would continue to seek shared care in England and that his links to Mexico are not as important as he says. In short she asserted that he could relatively easily relocate his base to England and that, if he did so, this would not jeopardise his work and his reputation.[241]In respect of his work and reputation she called what I have to record as being very unconvincing evidence from an academic that the father could without much difficulty or risk change his work base. I reject that evidence and much prefer the father’s evidence (supported by written evidence from others) that an extended period away form Mexico would be likely to have a damaging effect on his creativity, his productivity and industry, his ability to find good collaborators in his work, and his reputation. The well reasoned and emotional views expressed by the father of the connection between his work and Mexico were in my view convincing and found the real risk that if he abandons a base in Mexico, to enable him to continue to share the care of his son in England, his career and reputation will suffer greatly. I therefore agree and find that the “three year standstill” in his work and career away from Mexico that he was prepared to agree to is at the limit of such a period away from Mexico as his base if he is to avoid or minimise that risk materialising in the long term. It would also now be very difficult, if not from the perspective of his work foolish, for him to plan his work and career on the basis of being away for three years, if, as would be the case, he would know that E would not, or might well not, return to Mexico at the end of it. The emotional and general impact of that on the father would be considerable in relation to his work and generally, and it would remove the main incentive for him taking the risks that flow from a temporary “standstill” in respect of his work.[242]If the risk of harm to the father’s career materialises, a knock on effect is that it is possible that E might feel some responsibility for that result and the consequential emotional and financial problems it would bring.[243]In my view, by reference to her career, the mother’s arguments to the effect that it would be easier and more practical for the father to adapt to E living in England than it would be for her to return to Mexico are unconvincing. As I have said the PhD course is designed for people who are working. Although I accept that it would be inconvenient and tiring for her to travel to England for the purposes of seminars, and other aspects of her course, in my view it would (subject to the provision of finance) be easier and more practical for her to do the travelling for the purposes of her course. She could not do this to continue her part time teaching job, but the disadvantages flowing from that do not compare in the short or long term to the potential disadvantages relating to the father’s work and career. Also, although I of course accept that there is easy access to reference books in English in England, I do not accept that the mother could not do effective research when based in Mexico. Finally there is the point that the mother’s work in teaching, or in curating, does not have an existing or on the evidence a convincing connection to England in the short or long term save for the point that the PhD course she chose is here.[244]Turning to the respective dislike of the mother to living in Mexico and the father to living in England, the balance goes the other way. I accept that the father does not like living here for a range of reasonable reasons looked at from his perspective but, absent the problems related to his work, in my view he would be able to adapt. The mother has never liked living in Mexico she now, with some justification, feels that she would be more isolated than before if she returned to Mexico, and would be ostracised by a number of people in Mexico both socially and in respect of her work. In my view, she is probably exaggerating the problems, and the antipathy towards to her of people in Mexico both socially and professionally, and it seems to me that if she was able to commit fully to it she could build an independent social and professional life in Mexico. However I accept that this would not be at all easy for her in a number of respects and that she will find it very hard to commit to living in Mexico and building a life there in which she feels happy and fulfilled socially and professionally. As to that the CAFCASS officer makes the point, and I accept, that if the mother returns to Mexico her emotional health and situation would be uncertain, and that in this respect she is fuelled by frustrations of life in Mexico and her perception that she has been, and continues to be, controlled by the father whilst also pursuing her independence. As appears earlier, I agree.[245]In my judgment, in their different ways and for different reasons, both of the parents would find it extremely hard to adapt to an order that does not comply with their wishes and it is close to inevitable that the one of them who has to face these problems will not be able to protect E from his or her distress. In my view the descriptions given on behalf of the mother in the document I asked for setting out what her position would be in relation to the consequences of different findings of “almost unbearable to contemplate a return to Mexico” and “unable to contemplate a separation from E if he was to return there” set the degree of distress for both parents. They are both emotional people and both have had real difficulty in setting out through their counsel what they would seek if I do not make the order they seek.[246]This degree of distress has the potential for possibly quite severe “knock on” problems for E particularly if he feels responsible for the distress and problems of the disappointed parent. In this context the CAFCASS officer points out, and I agree, that E is aware of the existing distress of his parents and some of the reasons for it.[247]Another potential problem, as the CAFCASS officer points out, is that E might come to blame the parent whose choice of country has prevailed for the unhappy aspects of his life.[248]In my view it is not possible to say which of the likely “knock on” effects of the reaction of the disappointed parent is likely to cause least harm to E. In my view he will be aware of and distressed by both.[249]In reaching this conclusion I have also considered the respective abilities of the parent who is not disappointed to manage the problems. But this did not lead me to think that one result would be better than the other. They are both loving parents. In their position statements as to what they would seek if they were not successful they have both, if they were the disappointed parent, suggested a continuation of shared care if they live in the same country as E. As I have said it is difficult for them both to fully think this through and to make decisions at this stage. Looked at non-emotionally the issues are complicated by the point that “shared care” of the type I have found to have existed in the past may bring with it problems for a number of reasons, both now and in the future as E gets older and has different school and other commitments. For example, if the disappointed parent remains committed to living out of his or her country of choice, arguments may arise that it is that parent who should be the main carer of, or have more time with, E because of his or her commitment to E and the ability of the other to more easily adapt to the changes that would cause. That would however introduce issues as to whether that might lead to a change of country in the future and whether that would promote E’s welfare. If however the disappointed parent cannot remain away from his or her country of choice it is clear that the present “shared care” cannot practically continue.[250]Again by reference to the various possibilities concerning the reactions of the parents and their “knock on” effects I cannot identify a course that would be more likely to promote E’s welfare.[251]Finances. If the father stays in England in my view this gives rise to a real risk that his income and reputation will decrease and thus his wealth will suffer. If the mother continues her PhD she will not be in a position to earn a high income whilst she does so and, in any event, employment in the fields she favours, and is qualified for, would not command a high income, when compared with the father’s present earning power.[252]The father’s proposals contain ones that provide housing for the mother in Mexico and for travel to and from Mexico if he is given permission to take E to Mexico. He does not commit himself to financial provision if he is not given that permission. The financing of two homes would be cheaper, and therefore would be more easily attained in Mexico, against a background in which the husband’s earning power was promoted. In England there is therefore more uncertainty as to the provision of two homes by reference to their cost and the finances available now, and in the future.[253]However I have concluded that I should disregard this as a factor because it seems to me that either by agreement, or through orders within the existing divorce proceedings or under Schedule 1 of the Children Act, E will be adequately provided for in England.[254]Conditions in Mexico and in England. The mother sought to argue that the conditions in Mexico relating to for example crime, kidnap and the quality of education were worse than in England. This was not supported by any convincing evidence and I reject it. This is therefore another argument that does not lead to a solution in this case.[255]Child as decision maker. E is a bright child for his age who has been able to articulate relevant issues, but in my view he does not have sufficient understanding of the issues to make a properly informed decision. Also in my view it should be made very clear to him that I am the decision maker, not him. So he is not responsible for the outcome. My understanding was that the CAFCASS officer who has seen E agrees with that approach, and the approach I have taken as to E’s wishes as expressed to her. That approach appears later. I repeat that it is not one that puts E in the position of a decision maker, or one in which his views have determined the result. Rather his views have been considered by me in making a prediction of his likely reactions and abilities to best deal with the problems that the disagreement between his parents and the imposition of a solution have caused, and will cause. Factors that do lead to a solution in this case[256]The CAFCASS Officer. I am grateful for her help. She is an experienced officer who saw E in June and December 2007 and has written two reports. She has also, of course, had discussions with both parents. She gave oral evidence.[257]In June 2007 (and therefore approaching a year after he came here and was just 7), E was strongly expressing a wish to return to Mexico and how much he liked living in Mexico. It is also to be noted that his description of his life confirmed that the arrangement in Mexico was that he spent equal time with each parent and that he had got to used to changing house. He also made it clear that he was having difficulties at school and was very negative about the school. His three wishes were, to go back to Mexico, to go to the beach at Bella Cuesta and to stay and live in Mexico.[258]He also said that he would really like his mother to say it was alright for them to return to Mexico and that there was nothing he could think of that he wanted his father to do. He did not want the CAFCASS officer to talk to his mother about what he had told her.[259]The view of the CAFCASS officer was that he was a child who was able to articulate feelings and consider dilemmas way beyond his years, who was expressing frustration that neither parent was listening to his views with respect to where he wished to live and go to school but who, understandably, thinks about a return to Mexico with both of his parents and who would like to spend time equally with them, as he had done before.[260]This paints a clear picture of a child who has not settled in England and who gave sensible reasons from the perspective of a child of his age for wanting to be in Mexico. What he told the CAFCASS officer is also line with the view of the therapist in Mexico who thought that he did not want to leave Mexico and this is what she told the parents.[261]In December 2007 he told the CAFCASS officer that things had improved at school and were getting better generally, but that he still wanted to go back to Mexico. He said that if the judge said he should stay here he would feel “o-k”, but if the judge said that he had to go to Mexico it would be good. His three wishes were to have a farm, for the judge to make a quicker decision and he also wanted his parents to stop arguing. He said that his father worries about work, about being a good painter and doing paintings that people want to buy and his mum worries about poverty and helping people. This is quite insightful and confirms the view that he will react to, and in many ways appreciate, the distress of the “losing parent” whether it is his mother or his father.[262]The view of the school was that E had begun to settle.[263]The CAFCASS officer was of the view that both parents are denying the extent to which E’s life is entwined with both of them. I agree that this is so when they are advancing their respective cases, but given their intelligence in my view both parents do, from time to time, appreciate much of this and it is one of the causes of their distress. I agree with the CAFCASS officer that E will struggle in either scenario without the other parent.[264]She said that E has been with his mother most consistently and she has been his primary carer. As appears earlier in my judgment that is not wholly accurate. She also says that the father has been managing being in London for the past 18 months. Again in my view that assertion is not wholly accurate. I do not of course criticise the CAFCASS officer for making these assertions and on the information before her they were reasonable ones. But they have not been supported by the evidence. It is unclear how much weight the CAFCASS officer put on this understanding of these aspects of the history. In any event, in my view correctly and properly she did not make a recommendation but highlighted problems and factors to be weighed by the court.[265]She rejected the mother’s view that less contact with the father would help to reduce E’s distress and in my view her opinion that the key issue behind E’s confusion and distress is the conflict between his parents, is correct. I also agree with her that what she has reported, and what I have heard and read, show that this conflict has been played out over a long period, and if E does not start to feel more positive and settle it will have a long term impact on his emotional health. This is because he is the child of two emotional parents, who is sensitive to their emotions and needs, who feels under pressure and responsible for both of his parent’s well being. I agree that this is potentially extremely harmful for him and puts him at serious risk of experiencing depressive illness in the future.[266]So, in agreement with the CAFCASS officer, I consider that my focus in determining the order to be made should be on finding the solution that will best promote the removal or reduction of that significant risk to his emotional health and well being and, more generally, of harm to his emotional development.[267]In that context the CAFCASS officer obviously, and correctly, pointed(a) to the risks of a further change, and(b) to her view, which I accept, that E does not appreciate that a return to Mexico might be without his mother, or with a very unhappy mother.[268]The CAFCASS officer helpfully in her report, and oral evidence, discussed the possibilities and invited both parents to carefully consider whether he or she could adapt his or her wishes. She pointed out advantages and disadvantages of the possibilities in leading up to her invitation to the parents to carefully consider their respective positions. That invitation has not led to a change in position of the parents.[269]It was argued on behalf of the mother that the recommendation, or preference, of the CAFCASS officer was that E should stay in England. This was advanced by reference to: i) her views that E would be likely to pine if separated from his mother, her view that he is still too young to be separated from his mother (although she pointed out that this will not be so for much longer and he has a strong relationship with his father) and the point that the CAFCASS officer said that she is struggling to visualise E with an extremely unhappy mother in Mexico or without a mother close by, and ii) the point that near the end of her report her statement she says that her first preference would be to explore her view that E could manage to stay in London “if his father supported this and came to terms with it as was the original plan”, before going on in the next paragraph to say that if the mother could consider ways in which a return to Mexico could be made more comfortable for her, allowing her to continue her studies and teaching with a base in Mexico of her own, this could have a longer term beneficial impact on her relationship with E.[270]In my view read as a whole these passages are part of the helpful discussion of relevant matters carried out by the CAFCASS officer and do not constitute a recommendation, or a preference, if the father and the mother have not been able to react as she suggests. In her report under the heading “Recommendation” she made no recommendation, save as to contact on the two alternatives and that there should be a therapeutic package of support. At that stage of her report, she deals first with the position if the court decides on a return of E Mexico. But that ordering does not indicted any preference. She did not express a preference, or make a recommendation in her oral evidence.[271]I therefore reject the argument that she did. Also in respect of that argument it should be remembered that, through no fault of hers, the CAFCASS officer was not able to factor into her thinking my conclusions on: i) the mother’s assertion that she was the primary carer, ii) the issue as to whether the mother misled the father as to her intentions when she and E came to England, iii) the manner and extent to which the father had been managing, and iv) the impact on his career if he was to remain in London for the temporary period he had planned for, but not on the basis that there would then be a return to Mexico, or for a longer term. Those conclusions are factors that support the father’s case.[272]What is needed. As the CAFCASS officer points out E needs both his parents and the best solution and base for him would be if his parents could agree a solution they both support and in which they both continue to take an active part in his life. As the parents cannot agree such a solution, the court has to seek to identify the result that will best provide E with support, security, certainty and stability to enable him best to cope with his present distress and the problems and distress that will flow from an imposed solution. The underlying aim being to seek to minimise the risk of him suffering serious emotional harm.[273]The stakes for E are high.[274]Settling / change. At the heart of the mother’s case she argues that E is now settling and that further change would be likely to be damaging. In this context she says that her plans are settled, she and E are settled or settling into a community she enjoys and he is beginning to enjoy, he is making friends and there are good plans for the future relating to his schooling and general upbringing. In short she says that in England she can provide him with a happy and secure home and change resulting from a return to Mexico would start another period of uncertainty and insecurity. She also points out, and I accept, that if E returns to Mexico this will cause her great distress which will be extremely difficult for her to deal with.[275]I agree that unsurprisingly E is settling, but in my judgment it is plain that he is still far from being settled here. He is still, and from his perspective for understandable reasons, stating that he wants to return to Mexico in the context of improvement at school and a stay in England of around 19 months during which he has continued to have shared care.[276]The mother sought to attribute much of E’s failure to settle and unhappiness on what he is being told by the father and the amount of time he is with his father. In my view the mother is wrong about this.[277]In my judgment the essential cause of E’s failure to settle is the conflict and dispute between his parents. This has been going on for some time in Mexico but there, and particularly to the credit of the mother because of her wish to leave Mexico, E had to a large extent been sheltered from it and had got used to the shared care arrangement.[278]The present conflict has come to a head after the move to England by reason of the divergent wishes and plans of the parents. In my judgment the intensity of the conflict and the distress it has caused has been exacerbated by the dispute as to whether the mother misled the father as to her intentions when she came to England. I have found that she did and to my mind it is only human nature for the father to react angrily to this, for it to cause him distress and for it to make it more difficult for him to accept that E should remain in England and for E’s sake to support this. He is an emotional man and is suffering this range of emotions. The mother does not agree that she misled the father and, unless she was to do so, these reactions of the father to him having been misled would be likely to continue and add to the difficulties for the father in accepting and adapting to E remaining, and going to school, in England.[279]On the other side, the mother may well continue to assert and believe that the father knew her intentions and thus that she did not mislead him. In any event, her stance and beliefs are fuelled by her frustrations and unhappiness concerning her life in Mexico and her perception that she has been, and continues to be, controlled by the father whilst also pursuing her independence.[280]Given E’s wish not to leave Mexico in 2006 and his history of finding change difficult I suspect that he would have found it difficult to settle in England if both parents had been committed to a temporary move. But harmony between his parents as to the length of the stay, and as to their longer term intentions would have made it much easier for E settle and in my view he would have done so against the background of a common purpose of, and the harmony that would have brought to, the two most important people in his life.[281]Further in my view the mother overestimates the degree to which E has settled and underestimates the degree of his unhappiness and distress arising from the conflict between his parents following him being brought to England. In my view she has in part done this because of her own strong desire that E should remain here and the extent to which she has settled into her life here and is enjoying it.[282]I accept that the father has said things to E and acted in a way that has shown E that he is unhappy and wants E to return to Mexico, but in my judgment the mother has also made her feelings that she wants E to say in England just as well known to E, who is trapped in this conflict.[283]I also accept that the mother has not supported E’s placement in his school and has made it clear to E that she would like him to go to another school and that she does not agree with many aspects of the approach to teaching and discipline taken by the school. Clearly her relationship with the teachers is a difficult one. I accept that the mother genuinely does not consider that aspects of the approach taken by the school are good and sensible but her oppositional stance to the school has not helped E to settle there, or more generally.[284]Also in my view the mother exaggerates the certainty and stability of the position in England. Leaving aside financial considerations (as I have concluded is appropriate) in my judgment there remains uncertainty as to where she and E will be living in the short, medium and long term both as to area and type of accommodation in England and in the longer term as to the country she will live in.[285]Although I accept and acknowledge that the mother(a) has for some time wanted to come to England,(b) is at present fully committed to her PhD and obtaining work that is complementary to it whilst it continues, and(c) has been successful on her course and in obtaining such work, it is the case that as she not been here long she is inevitably at the beginning (or near the beginning) of establishing a home here. Her past has not been very settled, and she has not spent a long enough period of time in England as an adult to confirm a long term personal or professional commitment to England. Also she has not before made a similar commitment to a country, or a course and career, albeit that she spent a long time in, and I understand did her degree in, Canada. Part of that past has included a failure by the mother, for a range of reasons focused on her own needs, preferences and ambitions, to commit on a long term basis to a married and family life in Mexico where her new husband was well established and became more successful, and which to the outsider would seem to have been the obvious place for that life if the overall welfare of the family was given priority. In this context in my view the evidence indicated that the mother could have pursued a career of her own, or further study, in Mexico.[286]In my view the combination of these factors means that there is uncertainty as to whether the mother’s present and genuine commitment to living, studying and working in England will work out to be a long term one, as she presently believes and asserts.[287]Also, if and when she finishes her PhD, there is uncertainty as to what work she will obtain, whether it will be in England or abroad, what her hours and travel commitments would be and thus how this would be fitted in with the care of E, who in the early years after the end of the PhD would still be quite young.[288]There is also the point that although the mother agrees that E should remain at his present school until the end of this school year he may then move and at present there is no place for him at the mother’s school of choice.[289]The mother makes the point that in England E is getting to know her father and it would be easier for him to see the father’s family here, or in Belgium. The father’s family visited Mexico and in my view these points add little.[290]Person / place. Generally I hold the view that being with the relevant person or persons is much more important to the stability of a child than being or remaining in a particular place.[291]Here however in my judgment place takes on a greater importance than normal because of the difficulty in choosing by reference to the two most important people in E’s life (his parents), their preferences by reference to place and E’s wish to return to Mexico which it seems to me is largely driven by place.[292]The position in the summer of 2006 and thus before the mother and E left Mexico. E had told the therapist that he did not want to leave Mexico. It seems to me that that view, as his present one, was largely driven by place and his happiness with his life in Mexico moving between the homes of his mother and father.[293]The CAFCASS officer says that E’s formative years were spent in Mexico and he clearly identifies it as his base. In my view that is obviously the case and flows from the decision to live in Mexico in 2001 in pursuance of the three year agreement or understanding.[294]In my view if the present issues had arisen before E left Mexico then, in the context of whether the mother should be given permission to take E to England to live, her arguments relating to settlement and change would have strongly favoured E remaining in Mexico and indeed, it seems to me, that applying the paramountcy test (and the guidance in the English leave to remove cases) they would have been likely to be the determinative factors in refusing that permission even though E would then have been only 5 or 6.[295]By that stage he was a child with close links to Mexico. It is clear that he has not forgotten those links.[296]A return to Mexico. High among the father’s points is E’s connection with Mexico.[297]He also points out, and I accept, that if E stays remains in England this will cause the father great distress which will be extremely difficult for him to deal with. In my view this mirrors and matches the equivalent point made by the mother as to her distress if I give the father permission to take E back to Mexico. As to that distress of the mother, and although the father has made reference to the mother having been depressed (in the non-clinical sense) and has made the point that she would benefit from therapy, the father maintains that she will or could return to Mexico and share E’s care there. In my view, as with the mother concerning the father’s ability to adapt, he underestimates the difficulties the mother will have in overcoming her intense disappointment if he is given permission to take E to Mexico, and in adapting to and supporting the move for E’s sake, whether or not she returns to Mexico.[298]Of course, E has now been here about 19 months, which is a long time for a child of his age, and is settling. The points that he was effectively a Mexican child when he left, and that it is unlikely that absent the true consent and common purpose of his parents it would not have been in his best interests to leave, is thus only background.[299]In addition to his underestimate of the difficulties the mother will face if I give him permission to take E back to Mexico and their “knock on” effect on E, in my view the father also underestimates day to day problems that E will face on a return to Mexico. In this respect life in Mexico will not be the same for him and E may be disappointed with it in a number of respects by reference to his memories of it, and by comparison with things he has enjoyed in England, even though he can return to his old school and his old friend O, who he has kept in touch with, is in Mexico. It would be very understandable if, and in my view it is likely that, part of E’s present thinking is based on an approach that the “grass is greener on the other side” given his present problems. He has historically found change difficult and it is likely that this will be the position again. And importantly, in my view he cannot properly have appreciated and factored in the reaction and position of his mother if he was to return to Mexico, just as he could not have done that in respect of his father if his expressed preference had been to stay here.[300]All those points indicate that there is more uncertainty than the father has fully appreciated concerning a return to Mexico.[301]There is therefore uncertainty in both of the rival contentions and many factors, and in particular the “knock on” effects on the parents, that effectively equal each other out.[302]In my view what effectively tips the balance in favour of a return to Mexico are the prospects:(a) (A) that there will be medium to long term support, security, certainty and stability as to place, and his general environment, in Mexico, and(b) (B) to a lesser extent, that the changes inherent on a return to Mexico, including the reactions of the parents and their effect on E, are likely to be easier to manage because of E’s liking of, and history in, Mexico as a place, than they would be if he stayed in England.[303]As to point (A), the father has a long established personal and working life in Mexico. He has a long standing and proven commitment and desire to live there for a number of reasons. When compared to the rival position offered by the mother in England in my judgment the comparison is therefore between: i) a proven commitment to a long term future in Mexico and an established life in Mexico which so far as place is concerned will provide E with a secure, stable, certain and supportive home, and general environment, and ii) the strong present desire of the mother to make such a long term home, and general environment, for herself and E in England, and the uncertainties relating to that that I have mentioned. On this comparison a return to Mexico is a clear winner by reference to place for the purpose of providing the best solution to enable E to cope best with the difficulties and problems arising from the conflict between his parents, and thus to promote the removal or reduction of the present risk to his emotional health, well being and development.[304]As to Point (B), the comparison is more difficult and more intangible but in my view the points that he clearly was, and still sees himself as, a Mexican child, in the adult sense of a child of mixed heritage who lives in Mexico, gives Mexico an advantage over England in all the circumstances of this case. In my view his present wishes will be likely to ease the immediate distress and problems of the move back to Mexico (whatever course his mother decides to take) and there is a good prospect(a) that he will fit back into his life in Mexico and build a circle of friends in surroundings that will be familiar to him, and(b) that, in the longer term, he will enjoy and relish being based in Mexico, as his father does, and in part because of the widely based and deep attraction and long term commitment of his father personally, emotionally and professionally to Mexico.[305]As to both points (A) and (B) my conclusion that E is far from being settled in England is, of course, an important factor and in my view, even if the father remains here in the short or long term, the conflict between his parents, and his present wishes, are likely to make it difficult for E to settle here.[306]In short I have concluded that E’s chances of settling and having a base that in the medium to long term provides him with support, security, certainty and stability are better if he returns to Mexico now, notwithstanding that this entails a further change and carries its own risks.[307]Conditions/ contact / undertakings / mirror orders. This has been a difficult case involving many comparisons that do not lead to a result. Another such comparison is between the issues relating to contact if the disappointed parent decides not to live in the same country as that in which E goes to school. In my view at present both parents can arrange their lives to accommodate lengthy holiday contact, and visiting contact during term times. The father’s proposals contain provision for this if E goes to school in Mexico. I acknowledge that this might become more difficult for the mother when she takes up full time employment, but this potential future difficulty has not caused me to conclude that E’s short, medium and long term welfare would be best served by him staying in England if the mother was to decide not to return to Mexico.[308]In my view the understandable difficulties and uncertainties relating to that decision make it premature for me to consider making orders relating to contact, or shared care, or provisions for mirror orders, or to consider undertakings or imposing conditions to my permission to the father to take E to Mexico. I will do this when handing down this judgment, or later, in the light of the positions of the parents then.[309]I should add however that in my view none of the differences between what has been sought by the mother and offered by the father in respect of such matters if, as I have, I gave the father permission to take E back to Mexico would lead me to refuse that permission.

Cited in 1 later judgment