J (Habitual Residence), Re [2012] EWHC 3364 (Fam)

Case No BC12P00570[2012] EWHC 3364 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date 3 December 2012
PRINCIPAL REGISTRY
RE J (A CHILD: HABITUAL RESIDENCE)
Before
THE HONOURABLE MR JUSTICE PETER JACKSON
Between
Mr BApplicantMr and Mrs ERespondentsMs JRespondent
Ms Frances Heaton QC and Ms Heather Hobson (instructed by Palmer, Hodgson and Heyes) for Applicant FatherMr David Williams (instructed by The International Family Law Group LLP) for Respondent GrandparentsThe Respondent Mother was not present or representedHearing Hearing date: 16 November 2012Judgment date 3 December 2012
JUDGMENT
[1]The issue in this case is whether the courts of England and Wales have jurisdiction to entertain proceedings concerning a 7½ year old girl, known in this judgment as A. The applicant, Mr B, is her father. The first respondents are Mrs E, her maternal grandmother, and her husband Mr E – I refer to them as ‘the grandparents’. The second respondent, Ms J, is A’s mother and Mrs E’s daughter. She has notice of these proceedings and has filed a statement, but she has not taken part in this hearing, her position and that of the grandparents being for practical purposes the same.[2]The applications in question are an application under Children Act 1989 for a parental responsibility order, issued on 22 June 2012, an application for orders under the inherent jurisdiction, issued on 23 July, and an application for a declaration of parentage, issued on 20 August.[3]The question of jurisdiction depends upon whether A was habitually resident in England and Wales at the time the proceedings were issued.

The facts

[4]Mrs E, A’s maternal grandmother, is American. Her daughter, Ms J, was born in the United States. In 1999, Mrs E married Mr E, who is British, in the United States and moved to England later that year. Ms J joined them the year after. Mr and Mrs E now have a 12 year old child of their own. Ms J gave birth to A in England in 2005, when she was aged just 16. In 2006, when A was aged one, Ms J went back to the United States, leaving A with the grandparents. Ms J did not return and she and A did not meet for the next six years. A was brought up by the grandparents, the mother’s only involvement being through video contact in more recent times.[5]In July 2007, the grandmother obtained a residence order in her favour, which remains in effect. No other party was heard in those proceedings. The application was silent as to A’s father and referred to the mother as being of no fixed address. The grandmother stated that the mother had threatened that, if proceedings were taken, she would return and take A away ‘even if she had to kill me to do it’.[6]A’s father was registered at birth as being a Mr C, a boyfriend of the mother. However, Mr B, the applicant in these proceedings, claimed paternity and DNA tests, carried out in February 2006, established that he is A’s biological father. From that point on, he undertook a significant role in her life. He has had regular contact, including staying contact, though interspersed with several periods of imprisonment. A has also had significant contact with her paternal grandmother. Since about early 2011, she would be picked up from school by the father or his mother on most Fridays and returned to the grandparents on Sunday afternoon. Although the grandparents comment unfavourably about some aspects of the father’s contact, it nonetheless took place as described.[7]On 9 June 2012, A was due to have contact with her father and paternal grandmother. The grandparents rearranged this on the pretext that they wanted to take A to Alton Towers, and the father agreed. Instead, the grandparents flew with her to Florida, having packed up their belongings and made arrangements to emigrate to the United States. The maternal grandmother sent a text message to the paternal grandmother from the aeroplane:
‘Hi … I really do not know how to start this txt we were afraid that [the father] would not let us take A so we didn’t tell you where we are taking A to see her mom this [sic] we are on the plane already I am so sorry we had to do this but we felt A needed to see her mom’
[8]The background to the grandparents’ action in leaving England is that the mother had a serious car accident in January 2012. This appears to have brought about a rapprochement between her and the maternal grandmother, who visited the United States for a fortnight in February. Following this visit, there was correspondence between the mother and grandmother, to which I will return.[9]On arrival in the United States in June, the grandparents spent some days in Florida before going on to Georgia, where they stayed temporarily with the mother until September. They then moved into their own accommodation nearby, leaving A with her mother, who lives with her husband and their two young children.[10]On 12 June the grandparents told A’s school that she would not be returning.[11]The father issued an application for a parental responsibility order on 22 June, and I granted it at a without notice hearing on 4 July. He subsequently obtained orders from another judge declaring him to be A’s father and ordering that the grandparents return A to England.[12]On 20 September, the grandparents and the mother challenged the jurisdictional basis of all these orders, and the arguments were presented at this hearing, which took place on 16 November.

The law: (1) habitual residence

[13]Jurisdiction is governed by Council Regulation (EC) No 2201/2003 (‘BIIR’) whose provisions apply generally and not (unless specified) only between Member States. Article 8 provides that: ’The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child habitually resident in that Member State at the time the court is seised.’[14]This accords with the terms of the Family Law Act 1986, which by ss.1(2) and 3(1)(a) provides jurisdiction on the basis of habitual residence.[15]In J (A Minor) (Abduction: Custody Rights) sub nom C v S (A Minor) (Abduction)[1990] 2 FLR 442 concerned a child aged 2 who was removed from Australia to England by his mother, who was the sole holder of parental responsibility. At 454, Lord Brandon said this: In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first point is that the expression ‘habitually resident’, as used in Art. 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers. (emphasis supplied)[16]The last of Lord Brandon’s statements was explained by Balcombe LJ in Re M (Minors)(Residence[17]In Re M, a mother with sole parental responsibility, had sent her children (aged 7 and 6) to live with her parents in Scotland against a background of child protection concerns in England. She had regular contact. There was then a dispute as to the length of time that the children should remain in Scotland. After 9 months, during a period of holiday contact in England, the mother decided that she would not return them. The grandparents began proceedings in Scotland and on the same day the mother issued proceedings in England. The English judge accepted jurisdiction. The Court of Appeal dismissed the grandparents’ appeal.[18]More recently, the European Court of Justice’s decision in Mercredi-v-Chaffe [2011] 1 FLR 1293 (CJEU) contains the following passage:46. Since the articles of the Regulation which refer to ‘habitual residence’ make no express reference to the law of the Member States for the purpose of determining the meaning and scope of that concept, its meaning and scope must be determined in the light of the context of the Regulation’s provisions and the objective pursued by it, in particular the objective stated in recital 12 in the preamble to the Regulation, that the grounds of jurisdiction established in the Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity.47. To ensure that the best interests of the child are given the utmost consideration, the Court has previously ruled that the concept of ‘habitual residence’ under Article 8(1) of the Regulation corresponds to the place which reflects some degree of integration by the child in a social and family environment. That place must be established by the national court, taking account of all the circumstances of fact specific to each individual case (see A, paragraph 44).[19]There are welfare-based reasons for jurisdiction being based on habitual residence, referred to by the ECJ as being particularly based on the criterion of proximity. I take this to mean closeness, and not just in the geographical sense.[20]There are some circumstances, not applicable to this case, in which a loss of habitual residence cannot be brought about by a wrongful removal. In cases involving a wrongful removal from one Member State to another, Art. 10 BIIR provides that habitual residence in the first state is not lost until it is acquired in the second, along with other conditions including residence in the second state for at least a year. This somewhat reflects the position of jurisdictional disputes concerning territories within the United Kingdom under s.41 FLA 1986.[21]In conclusion, the determination of issues of habitual residence is therefore a question of fact. The assessment must survey facts of all kinds. Some will consist of events, some will arise from less tangible things such as feelings, relationships and intentions, and others will concern legal rights and wrongs. As to the last, whether something is legal or not is a fact. But unless there is a specific mandate for doing so, the overall assessment does not give automatic precedence to one kind of fact over another. In particular, there may be circumstances in which habitual residence can be lost following an unlawful removal (for example, with the passage of time), and circumstances in which it will not be lost following a removal that is technically lawful (for example, removal by a parent with sole parental responsibility who has no actual relationship with the child).[22]With that preamble, I turn to the submissions about the lawfulness of this removal as one of the facts that must be taken into account.

The law: (2) Children Act 1989 section 13

[23]Section 13 reads: 13 Change of child’s name or removal from jurisdiction.(1) Where a residence order is in force with respect to a child, no person may— (a) cause the child to be known by a new surname; or (b) remove him from the United Kingdom; without either the written consent of every person who has parental responsibility for the child or the leave of the court.(2) Subsection (1)(b) does not prevent the removal of a child, for a period of less than one month, by the person in whose favour the residence order is made.(3) In making a residence order with respect to a child the court may grant the leave required by subsection (1)(b), either generally or for specified purposes.[24]For a permanent removal by a holder of parental responsibility to satisfy the section, the issues are these:(1) Whose consent is required?(2) Must the consent be given before the removal?(3) To what must it relate?(4) How must it be recorded?[25]Whose consent is required? Every person with parental responsibility. In this case, that means the mother and Mr C, regardless of the fact that the mother had for years played virtually no part in A’s life, and Mr C had played no part at all.[26]On a strictly literal reading, it would also mean Mrs E herself, but this cannot be so. To avoid the absurdity of a person with parental responsibility having to write her own consent the section must be read in cases where the person removing the child is a holder of parental responsibility as if it required the written consent of every [other] person who has parental responsibility.[27]Must the consent be given before the removal? On 25 September, a lawyer acting for the mother wrote to the court confirming that she desired A to remain in the United States. On 13 November, Mr C gave written permission for the move. Mr Williams argues that such consents after removal satisfy the section. I do not accept this. The section is designed to protect children from unauthorised removals across national borders. Removal occurs at a moment in time and the section plainly requires written consent that physically exists at that moment, and from which the lawfulness of the removal can be demonstrated at the time. An interpretation that allowed subsequent consent would create indefinite uncertainty as to whether the removal was or was not compliant with s.13.[28]This is also of significance in relation to the criminal offence of child abduction. The Child Abduction Act 1984 creates an offence of taking or sending a child out of the United Kingdom without the appropriate consent. Whether or not an offence is being committed must be capable of being definitively known at the point that the child leaves the United Kingdom.[29]To what must the consent relate? Mr Williams at one point suggested that the removal on 9 June could not be in breach of s.13(1)(b) since Mrs E has a residence order that entitled her to remove A without consent for up to a month under s.13(2). Again, I do not accept this. The purpose of s.13(2) is to allow for normal holidays. The word ‘for’ shows that the exemption depends on the intention of the person who removes the child at the time of the removal. Had the grandparents been asked ‘Are you going for a period of less than one month?’ they would have had to reply ‘No, we are going for good’. Any other interpretation would produce the unworkable result that the first month of every permanent removal by a person with a residence order could not be a breach of s.13, but would only become so thereafter. In this case the removal on 9 June was not ‘removal… for a period of less than one month’.[30]In any case, Mr Williams’ argument is a red herring that cannot assist the grandparents because, if the removal were regarded as temporary for the first month, A’s habitual residence could scarcely be said to have been lost during that period.[31]How must consent be recorded? The requirement of s.13 is for ‘written consent’. I consider that what has to be shown is clear and unequivocal written consent to the actual proposed removal. Sometimes it may be a formal document setting out all the information that is needed. At other times, it will be less formal, and may require what is written to be read in the light of other information. As an extreme example, one parent may telephone the other, explain at length what is proposed, and ask for consent. In that situation, a text message in reply (‘I agree’) would theoretically suffice, even if something more elaborate might be wiser.[32]I do not believe that the requirement is any higher, bearing in mind that consent in writing does not feature under the consent provisions of the Child Abduction Act 1984 or the Child Abduction and Custody Act 1985, giving effect to Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.[33]In this case, Mr Williams refers to the following as amounting to written consent on the part of Mr C: a Facebook message to the mother of 28 August 2011, out of the blue after many years, in which her asked her ‘How’s your little girl?’ Mr Williams says that this in effect shows that Mr C acquiesced and gave the mother carte blanche to do what she wanted. I do not accept that this message (to which the mother did not reply) has anything to do with a removal nearly a year later, nor indeed did Mr C believe that he had anything to contribute.[34]The position of the mother is a little more difficult. After the grandmother came out to see her, they had a Facebook conversation on 22 February. In it, the mother urged the grandmother to come over and to bring A with her. The conversation refers to the grandmother trying to transfer her job with an international fast food business to the United States. On 25 February, the mother wrote to the grandmother asking how long the transfer would take and asking her to bring A to ‘see’ her.[35]On behalf of the father, Ms Heaton QC says that this merely shows that the mother was consenting to a visit, not to emigration. The grandmother says that after her first trip, she and the grandfather decided to move to America as soon as possible, but were delayed by financial and work-related reasons. This is credible in the light of an email from A’s school to the grandmother in May referring to the fact that the grandparents had told the school that they intended to emigrate to America, and asking whether A would be returning after June half term. However, in response the grandmother told them that ‘right now that won’t be going through’.[36]It is clear that the move in June had the wholehearted support of the mother. It is in my view doubtful whether her written communications in February satisfy the terms of s.13, but the issue is so marginal that it is unnecessary in the circumstances of this case for me to reach any firm view about it.[37]Generally, Mr Williams argues that an overzealous interpretation of s.13 could have unfair and unintended consequences. In the context of defining habitual residence, I agree. The lawfulness or otherwise of a removal is a factor, but it is not the only factor.

Discussion and conclusion

[38]At the outset the parties’ submissions were polarised. For the father, Ms Heaton asserted that because there had been a breach of s.13 by the grandparents, it followed that they could not have changed A’s habitual residence. For the grandparents, Mr Williams argued that the father had no right to determine A’s habitual residence, and that this was a matter for the mother, the grandmother and Mr C.[39]When the matter was further explored, it was accepted that both submissions are too extreme. Both counsel agreed neither legal argument could be conclusive, but that both had to be weighed alongside the other facts of the case.[40]I accept Mr Williams’ submission that the question of whether A was habitually resident in England and Wales on 22 June can also be expressed in this way:
‘By 22 June, had A lost the habitual residence here that she possessed up to 9 June?’
[41]Mr Williams does not suggest that A had become habitually resident in the United States by 22 June, but argues that at that date she had no habitual residence and that jurisdiction over her in Florida or Georgia would have had to be based on her physical presence there.[42]Approaching the matter as at 22 June 2012, I find that the relevant facts are these: 1. A is a British citizen aged seven who has lived in England for seven years from her birth until 9 June 2012. She may also have, or be entitled to, American citizenship (the matter was not clarified during the hearing but does not affect the overall assessment.) She has lived in the same area and attended the same nursery and school since 2008. She has an established network of friends and activities. 2. Her family life revolves not only around the grandparents, her main carers, but also around her father and paternal grandmother, with whom she has a significant relationship through regular visits and stays. She knows the father as her father. 3. A’s mother was a relative stranger, despite holding parental responsibility. She knows the mother is her mother. 4. The father, although a biological parent, did not then have parental responsibility. Had he applied to court prior to the removal, he would most probably have obtained it, despite his poor criminal record, but he did not do so. In consequence, he did not have the right to determine A’s place of residence and would not have had rights of custody in Hague Convention terms. 5. On the other hand he and A have a right to respect for their family life under Article 8 of the European Convention on Human Rights and Fundamental Freedoms. So, of course, do the grandparents and the mother. 6. Mr C is neither a biological nor a psychological parent and has played no part in A’s life. 7. A’s removal by the grandparents was covert in order to make sure that the father and his mother would not be able to prevent it. The grandparents, while expressly accepting that their conduct might be regarded as morally wrong, say that it was necessary and not legally wrong. 8. The father took immediate steps to challenge the removal, doing so within two weeks. I regard the subsequent applications as part of the same legal process, but if I am wrong about that, the passage of time until the further applications of 23 July and 20 August is of no real significance. 9. The grandmother holds parental responsibility as a result of the residence order, but that status was circumscribed by the terms of s.13. The grandparents did not have the legal right to remove A permanently in the manner that they did. The removal did not comply strictly with s.13 in that Mr C (understandably) did not give written consent, and it is questionable whether the mother did so validly. 10. On arrival in the United States, there was a transitional period before A’s care was handed over to the mother in September, without any wider family discussion. 11. I accept that there will be rare cases where a person does not have a habitual residence but I do not accept that in the circumstances of this case it is how A is to be described. 12. Overall, the unusual aspects of A’s family situation call for particular respect to be paid to her individuality as opposed to treating her as an adjunct to any of the contending adults. From her perspective, it will have been a considerable surprise to have been removed from everything she knows without any preparation, such as goodbyes to school, friends and family, and shortly afterwards to be placed in the care of a mother who she hardly knew.[43]A’s parental figures at the time of removal were the grandparents but, while they have been the most important figures in her life, it cannot be said that the grandmother’s will “determines the element of volition involved in the concept of habitual residence”, to quote from Mercredi (above), even if the will of the mother is also taken into account. The grandparents were granted parental responsibility by the court subject to a clear restriction in relation to permanent removal, and the position of the father and the child must also be considered when assessing habitual residence.[44]Weighing these matters up, I attach considerable weight to the reality of A’s situation and lesser weight to the legal technicalities. The reality is that she is an English child who has spent all of her 2500-plus days of life as a habitual resident of this country and I do not find that the she has lost that status as a result of a contrived absence of 13 days. Her roots here are deep and her habitual residence did not change as a result of this legally insecure removal.[45]I accordingly find that A was habitually resident in England and Wales at the time these proceedings were issued and that as a result this court had jurisdiction to make the orders that it did. I invite the parties’ written submissions on what further orders should now follow.

Footnote

[46]By coincidence, during the week that this hearing took place, I also heard the matter of Re I [2012] EWHC 3363 (Fam), where the issue was also whether the court had jurisdiction in the face of an assertion that a child’s habitual residence had been lost as a result of a covert removal. The cases illustrate the similarities and the differences in the facts that determine the question of habitual residence. ___________________

Order

Jurisdiction)[1993] 1 FLR 495 at 500: Where he refers to the child being in the ‘sole lawful custody’ of the mother he was clearly using custody in the sense of physical possession or care, as was the fact in that case. I do not read his words as intending to suggest that the habitual residence of a child is necessarily the same as that of the parent who alone has parental responsibility, notwithstanding that the child may have been living apart from that parent for a period which may have lasted for several years. That would be inconsistent with his second point that habitual residence is a question of fact. All he was saying was that where a young child is in the physical care of a mother who alone has parental responsibility for the child, then normally the child’s habitual residence will be the same as hers, since it is her will that determines the element of volition involved in the concept of habitual residence.

Cited in 4 later judgments