A v P [2011] EWHC 1530 (Fam)

[2011] EWHC 1530 (Fam)Case No FD11P00585
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/06/2011
Before
SIR NICHOLAS WALL THE PRESIDENT OF THE FAMILY DIVISION
Between
PDefendant
Geraldine More O'Ferrall (instructed by Hopkin Murray Beskine) for PlalintiffRuth Kirby (instructed by Fairbrother & Darlow) for DefendantHearing Hearing dates: 9 June 2011
Judgment

SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION

[1]This is an application, initiated by way of Originating Summon dated 9 March 2011, under the Convention on the Civil Aspects of International Child Abduction which was agreed at The Hague on 25 October 1980 (the Convention) as incorporated into English law by section 1(2) of and Schedule 1 to the Child Abduction and Custody Act 1985. It concerns a small female child, whom I propose to identify only by her initials and her date of birth. She is MAT, and she was born on 10 August 2007.[2]The application under the Convention is by her father for her return forthwith to the Republic of Poland, which he asserts in the country of her habitual residence. That application is resisted by her mother, who asserts (inter alia) that MAT is habitually resident in England and Wales.[3]MAT’s habitual residence is thus the principal issue which I have to decide.

The relevant terms of the Convention

[4]Although they are well known, they bear repetition. Thus by Article 3 of the Convention - “The removal or the retention of a child is to be considered wrongful where—(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State”.[5]By Article 12 of the Convention: - “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”[6]Defences to Article 12 of the Convention are contained in Article 13 which, as material to the present application, reads as follows:
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that— (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; ……….”

The purpose of the Convention

[7]It is, I think, worthwhile stating at the outset and bearing in mind throughout the purpose of the Convention. It is designed to ensure that where children have been wrongfully moved across international frontiers, or wrongfully retained within a Convention State, they are swiftly returned to the State of their habitual residence for decisions about their welfare to the taken in the State of their habitual residence.

Rights of Custody

[8]I am satisfied that the father has rights of custody by virtue of his marriage with the mother. The existence of such rights arte asserted by the father in the evidence and I also have the advantage of a translated extract of Article 93(1) of the relevant Polish law which vests parental authority in both parents. Whether one regards this as a removal from Egypt in October 2010 or a retention in England on her return, I am satisfied that Article 3 of the Convention applies.

The facts

[9]They are slightly unusual. The father, who is 30, was born in Saudi Arabia, but is Egyptian The mother, who is 23 was born in Poland, and is a Polish national. MAT was also born in Poland, and, according to her mother holds only a Polish passport. The mother and the father had a religious marriage in Egypt, but were advised that it would not be recognised in Poland. They thus re-married in Egypt on 3 April 2007.[10]I am prepared to take the bulk of the facts from the skeleton argument filed on the mother’s behalf and drafted by Ms. Ruth Kirby of counsel. Thus: - “It is the mother’s case that the movements of the family after the parents met to date have been as follows:(a) Having lived together in Egypt before MAT was conceived, the mother and the father moved together to live in Poland in June 2007 (MAT was born in Poland in August 2007);(b) In October 2007, the mother and MAT spent two weeks in Egypt with the father. MAT and her mother returned to Poland. The father returned to Poland from Egypt in January 2008;(c) In September 2008, the mother and the father moved to England to work. The father had a limited visa for 6 months. MAT was left in Poland in the care of her maternal grandmother but came to England to visit her parents. They also visited her in Poland; they both worked as care assistants in England between September 2008 and February 2009;(d) In February 2009, the parents returned to live in Poland with MAT; they remained living there with MAT but the mother would travel to England when required to work as a care assistant. She was based in Poland and she did this occasional work in England until September 2009.(e) Between September 2009 and February 2010 the mother, the father and MAT all lived in Poland and the mother did not work;(f) In February 2010, the mother moved to England without MAT and the father (who remained with the maternal family in Poland) and worked as a bank care assistant until April 2010 when she secured permanent employment as a care assistant.(g) MAT and the father moved to England to join the mother in June 2010;(h) On 2nd September 2010, the father removed MAT from England to Egypt without the mother’s consent;(i) The mother went to Egypt on 5th October and returned with MAT to England on 14th October 2010 from Egypt.(j) The mother does not know for how long the father remained in Egypt or, indeed, whether he is still living there;(k) The mother and MAT have been living in (England) since their return there in October 2010 (they have visited Ireland once and Poland twice since their return from Egypt).”[11]In relation to (j) I had the advantage of the father’s oral evidence by video link from Warsaw in addition to his court statements. It is thus clear, and I find, that the father is living in Poland. He has finished his medical studies in Egypt and is seeking Polish citizenship. His Egyptian medical qualifications now appear to have been recognised in Poland, and subject to passing certain additional examinations, he will be able to practice as a doctor in Poland.[12]The father’s visa permitting him to remain in this country was valid initially from 24 May to 24 November 2010. It has in any event expired / been revoked, and has not been renewed.[13]The father’s case is that in August 2010 the mother told him she wished to separate from him and that he would be deported from England. It was in these circumstances that he says he took MAT to Egypt. He says that when she left Egypt with MAT in October 2010 he did not know where she had gone, and was in any event unable to travel to the UK due to the expiry of his visa / alternatively its cancellation consequent upon the mother’s complaint of his abduction of MAT to the English police. He accepts that he has been back to Egypt since October 2010 “to arrange his finances and other matters” but is now living in Poland and actively seeking Polish citizenship.[14]The father’s case is that there was no agreement between the parties in 2010 for them permanently to reside in England with MAT. He says that they planned to return to Poland in January 2011. In effect, he saw 2010 as a copy of what had occurred in 2008, and that although this time he initially took MAT to England, she had at all material times MAT has at all material times been habitually resident in Poland.

The mother’s defence

[15]On 2 May 2011 Ms Kirby filed the following defence on the mother’s behalf: -(1) The (Convention) has no application to the facts of this case.(2) There has been no breach of article 3 of the (Convention).(3) MAT has been habitually resident in the jurisdiction of England and Wales since April (sic) 2010. It was the parents’ joint intention for the family to continue to live in England.(4) The father abducted MAT from England to Egypt. When she was recovered by the mother with the assistance of the Egyptian and Polish authorities in Egypt, the father did nothing to stop the mother from returning with MAT to England.(5) Further, or in the alternative, the father acquiesced in MAT being in England in that, following the mother recovering MAT from Egypt in October 2010, the mother returned with MAT to the family’s home address in England. The father made no attempt to communicate with the mother either at the family’s English address or at the maternal family’s home address in Poland.

The argument

[16]The case has been argued exclusively in relation to the Convention. Arguments in relation to what has become known as “Brussels 2 Revised” were said to be “for another day”.[17]It is common ground that prior to June 2010, MAT was habitually resident in Poland. The mother’s case, however, is that between June 2010 and the issue of the Originating Summons in March 2011 both she and MAT had become habitually resident in England and Wales[18]The mother asserts that the family had come to England in pursuance of an agreement that she, the father and MAT would reside permanently in England. By leaving Poland in 2010 she, the mother, had lost her habitual residence in Poland. Her case was that by residing permanently in England between June 2010 and the date of the issue of the Originating Summons and with the intention of remaining here permanently, both she and MAT have acquired habitual residence in England and Wales. It followed that the Convention had no application.[19]In support of her case the mother pointed to the fact that the parties had sold what possessions they had in Poland. They had sold their car, terminated the tenancy of their accommodation, left their respective jobs, abandoned their Email addresses and generally done all they could to sever their links with Poland. The difference between 2008 and 2010, the mother asserted, was that this time MAT came with the father: previously, she had been left behind. She had also be placed in an English speaking nursery prior to her departure, and the mother said she spoke to MAT in English.[20]If she was wrong about habitual residence, and MAT was not habitually resident in England, then the mother submitted that the father had acquiesced in MAT’s retention in England after October 2010. He had done nothing to prevent the mother leaving Egypt with MAT, and had made no contact with MAT since her recovery from Egypt The irresistible inference, Ms Kirby submitted, was that he had thereby acquiesced in MAT’s return to and retention in England.[21]The father denied that there was any mutual intention permanently to reside in England with MAT. As I have already indicated, he says it was all a re-run of 2008 and that the intention was to return to Poland in January 2011. He had a temporary visa, and was unemployed. His immigration status was uncertain. MAT did not attend nursery. A crisis had been precipitated by the mother’s wish to terminate the marriage. There was, however, no mutual intention to change MAT’s habitual residence, which had remained throughout that of Poland.

The law

[22]Over the short period during which this judgment has been reserved, I have taken the opportunity to re-read the papers, reflect on the oral evidence which I heard and look at the various authorities. In these circumstances, I propose to take the law quite shortly. In P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588, [209] 2 FLR 1031, Ward LJ discussed the concept of “habitual residence” in Convention terms between paragraphs [24] and [34]. I respectfully adopt that analysis, and read it into this judgment.[23]I add three riders. The first is that - as Ward LJ makes clear - habitual residence is an issue of fact and is crucially dependent upon the particular facts of the case before the court. The second is that where one is dealing with married parents and with a child of MAT’s age it is not open to one parent unilaterally to charge the child’s habitual residence The third is that I was, of course, a member of the constitution of the court which decided the appeal in the case of Re S (Habitual Residence) [2009] EWCA Civ 1021. [2010] 1 FLR 1146, in which Parker J had decided that a period of some 7 to 8 weeks’ residence was sufficient to establish that a child had become habitually resident in England. The father’s appeal against her decision was, it will be recalled, dismissed.[24]In my judgment, the third rider in paragraph 23 above goes principally to the proposition that habitual residence is indeed a question of fact, and since Parker J’s finely balanced decision turned on its facts, it is readily capable of being distinguished.

Discussion

[25]Like Parker J, I head oral evidence on the question of habitual residence and the parties’ intentions. The first question, I think, is whether or not, as the mother alleges, there was an agreement in 2010 that the family would relocate to England, and that England would become the country of the family’s habitual residence.[26]I do not think there was any such agreement. I had the advantage of hearing both parties give evidence. I was, I have to say, generally impressed by the father, and I accept what he told me on this point. I am also satisfied, from what the father told me, that he is doing his best to obtain Polish citizenship with a view to practising medicine in Poland, and that, despite his own origins, he regards MAT as Polish, and habitually resident in Poland.[27]I remind myself that the father came across as an angry man, and I have had to decide whether or not his anger has affected the objectivity of his evidence. This is something I have carefully considered, but having done so and having observed him keenly in close up on the video screen, I am satisfied that in 2010 there was, for the reasons he gave, by no means an unequivocal commitment on either side to live permanently in England.[28]It is true, I think, that the mother was keener on the idea than the father and that she both saw and sees her own future in England more clearly than did the father. As I have already indicated, she points to a number of factors in her attempt to demonstrate that 2010 was different – including to the fact that MAT came with the father – something which had not occurred in 2008. She also points to MAT going to an English speaking nursery.[29]In my judgment, none of the factors which the mother identifies is conclusive,. There are also factors which point the other way – for example the fact that the mother has remained in employment as a care assistant, and has never registered in England her Polish qualification as a trained physiotherapist. Equally, the father did not, it appears, enquire in advance of the GMC about the value of his Egyptian qualifications in England.[30]In addition, it seems to me that the matters which the mother prays in aid apply equally to what occurred in 2008, If the parents were coming for any length of time it made sense no longer to pay the rent on their accommodation and to sell their car. As the father points out, it appears they had few belongings in any event. Furthermore the dates for the application to MAT’s schooling post date the alleged retention in October 2010.[31]Although the mother left me with the clear impression that she wished now to remain in England, I was left with the equally clear impression that this was to rid herself, if possible, of the father’s attentions In my judgment, the position in 2010 was unclear. The family might have stayed in England: it might not. There was certainly in my judgment, no mutuality of view that England would be the place of permanent residence thenceforth.[32]There are, furthermore, two documents in particular generated by the mother which in my judgment, are wholly inconsistent with a settled intention to reside habitually in England. They are the Polish divorce petition issued by the mother in Poland and the decision of the Polish authorities not to prosecute the father, at the mother’s instigation, in Poland for child adduction[33]The Polish petition is dated 17 November 2010 and bears both the court stamp and the mother’s name, although she seeks to distance herself from the document by asserting that her name was written by her mother - despite it being in manuscript and being described in the document itself as “a hand-written signature of (the mother)”. The petition also states in terms that the mother resides at a Polish address, the detail of which is given.[34]In the petition the mother seeks the dissolution of the marriage between the mother and the father; the conferring on the mother of the right to exercise parental authority upon MAT and maintenance for MAT in the sum of 1000 Zlotys a month. The mother also seek costs.[35]In the body of the document the mother asserts that the behaviour of the father convinced her that he had married her only in order to obtain Polish citizenship. She relates the history of the abduction of MAT to Egypt and recounts that “after a lot of efforts and with the help of the Embassy of the Republic of Poland” she managed to leave Egypt and “return home”, although “home” is not identified. There is no single mention of England in the document, and nothing in it to suggest that the mother is even living, let alone habitually resident, in England.[36]On 5 April 2011 the district court which had issued the petition issued a summons, returnable on 20 May 2011 the purpose of which was to oblige the father;(1) to produce his “ID”; and(2) to provide details of his income for the past twelve months. The summons was addressed to the father as “a party to the proceedings filed by (the mother)”. Amongst the “instructions” set out in the document is the obligation for the parties “to notify the court every time their place of residence is changed”.[37]The father duly attended on the mother’s summons, although she did not.[38]The status of what are apparently on-going proceedings in Poland may well be a matter for argument under the Directive which has become known as “Brussels II Revised”. As I have said, I have deal with the case, as argued by counsel, exclusively under the Convention. For present purposes the relevance of the Polish proceedings relates to the question of MAT’s habitual residence in England, and in my judgment, the Polish petition and summons are wholly inconsistent with it.[39]The second document is dated 17 January 2010, although it is plain that it the date should be 12 January 2011. The document is described as a “decision” and is a ruling by the Polish authorities to discontinue proceedings to withdraw permission for the father to reside in Poland. In the body of that document. The following appears: - “On 29 October 2010…..the (mother) also requested that her husband’s residence card be annulled since she feared her husband threatened her and her daughter’s safety….”[40]In my judgment the mother cannot assert a habitual residence for MAT whilst herself purporting to issue divorce proceedings in Poland (with a Polish address) and invoking the assistance of the Polish authorities to cancel the right of the father to reside in Poland. Even, therefore if I am wrong about the mutuality point, I am entirely satisfied that neither the mother nor MAT has acquired habitual residence in England.[41]As to acquiescence, I do not think that the mother’s case gets off the ground. The father, partly as a result of his own actions, and partly as a result of the mother’s reaction could not come to England after October 2010. It is plain that he took proceedings timeously, and applying the decision of the House of Lords in Re H (Minors) (Abduction: Acquiescence) [1998] AC 72 it is equally plain that his subjective state of mind was never that of the acquiescent parent.

Generally

[42]The only order which I am also to make, therefore, is that MAT should be returned forthwith to Poland for her future to be decided by the courts of that country. Plainly, she must remain in her mother’s care until such time as the courts of Poland are fully seized of her welfare: it will then be for those courts to decide where and with whom she should live and what contact she should have to the parent with whom she is not living. I have not investigated the merits.[43]I also hope very much that despite the bruising lack of trust which exists between the parents consequent upon the events of the last two years they will, nonetheless be able to enter into a sensible dialogue about MAT who plainly deserves to benefit from the two backgrounds from which she has emerged. Where, however, she lives is a matter for the Polish courts.