VK v JV [2012] EWHC 4033 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Neutral Citation Number 2012 EWHC 4033 (fam)
Venue Royal Courts of JusticeDate Monday, 26 th November 2012
Before
MR. JUSTICE MOORB E T W E E N:
Between
VKApplicantJVRespondent__________Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com__________MR. H. KHAN (of counsel) appeared for Applicant.MR. C. HAMES (of counsel) appeared for Respondent.__________J U D G M E N T
[1]This is an application pursuant to the Hague Convention for the return of two children, SK and AK, to Latvia. The parents both originate from Latvia. The mother, JV, was born there on 1st September 1986. She is therefore aged twenty-six. The father was also born there on 13th April 1987, so he is aged twenty-five. They commenced a relationship in May 2006 and began to cohabit in Latvia, in August 2006. They have two children. SK was born on 18th March 2007, so she is aged five. AK was born on 9th April 2008, so she is aged four. Both were born in Latvia.[2]In November 2008, the mother and father came to England to work. They moved to the Wisbech area of Cambridge where they rented accommodation. The children remained in Latvia with the maternal grandparents.[3]On 31st January 2010, the mother brought both children to England. They lived here with the parents until September 2011, again, in a rented flat in Wisbech. In July 2010 the parents returned to Latvia and purchased a property in K in the name of the mother. They also returned to Latvia in December 2010 to refurbish and decorate the flat and, again, in March 2011.[4]On 10th March 2011, the mother registered the children on the waiting list for places at the P Pre-School Education Institution in K.[5]By September 2011, the parents’ relationship was in serious difficulties. On 4th September 2011 they travelled to Latvia with the children. They agreed that the children should reside with the father’s aunt, AS, in S, Latvia.[6]On 6th September 2011, the mother executed a Power of Attorney to AS to care for the children which was valid for one year, namely until 6th September 2012. The father applied to the S Orphans Court for an order authorising the placement of the children with his aunt.[7]On 9th September 2011, the parents returned to England separately. Once there the mother resumed residence in the rented flat in Wisbech, even though that flat was in the name of the father. The father moved elsewhere, but also in Wisbech. Both parents carried on working here.[8]On 14th September 2011, the children were registered with a GP in S. On 29th September 2011, the aunt enrolled them into a school there.[9]On 14th October 2011 the S Orphans’ Court gave judgment. The court found that the request for the aunt to care for the children complied with their best interests and authorised the parents to transfer the children to the care of the aunt for one year.[10]On 9th January 2012, the father temporarily returned to Latvia. Two days later, on 11th January 2012, the mother also returned to Latvia. I am satisfied that the mother went there with the intention of collecting both children and bringing them to live with her in England. She says that she had by then obtained her own accommodation in Wisbech, had obtained employment and had made childcare arrangements sufficient for her to bring the children back to England. The father did not agree.[11]As a result, there was a hearing before the S Orphans’ Court on 12th January 2012. A dialogue took place between the court and the parents. The end result was that the parents were told that, if they could not come to an agreement, they would have to apply to the court to decide on the children’s place of residence, custody and communication with the other parent. No agreement was reached that day, but further negotiations took place between the parents direct. On 16th January 2012, there is no doubt that these negotiations resulted in an agreement. It appears that they tried to get a notary to draft documents confirming the agreement, but were unable to find one able to do so. Each parent therefore wrote the agreement down in manuscript. The documents were identical and they signed each other’s copy. The document read:
“I, VK, am handing over AK into her mother’s care. I, JV, am letting SK stay with her father. If in six months’ time (16th June 2012), VK has not purchase a flat in S, then SK will stay in her mother’s care and can go to live in England. If the father fulfils these conditions then I, JV, will let SK stay in her father’s care.”
[12]The father first gave the mother AK’s birth certificate and later gave her AK’s passport. He also gave her AK’s clothes and toys. The mother then removed AK to England. The father’s case is that he was not consenting to this removal and had expected AK to remain in Latvia, possibly with a cousin of the mother’s in Riga. He says he was tricked into handing over the passport by the mother saying that he should trust her. In any event, it is a fact that he did not take any action following the removal of AK to England. The father also returned to England and continued working in Wisbech. He says he had bought a return flight to Latvia on 24th August 2012, intending to return there for good.[13]SK stayed with the aunt in S. On 13th February 2012, she started at school in S. The mother remained in England with AK for the six months. Once the six months had elapsed, she returned to Latvia with AK. I am satisfied that her intention was to collect SK and bring her to this country. She believed she was entitled to do so as the six months had elapsed and the father had not purchased a flat in S and/or moved back there.[14]On 23rd July 2012, the mother arrived in Latvia and revoked the Power of Attorney executed to the aunt to care for the children. Her case is that she had been told that she was entitled to do so at any stage and that, if she did so, she was entitled to take over the care of the children from the aunt, notwithstanding the October 2011 court order. It appears that she is right in this regard as she enlisted the help of the S Orphans’ Court and the police. They attended at the aunt’s address and the mother removed SK the same day. Before doing so, the aunt telephoned the father in England. He told her he did not agree to the mother taking the children. This was conveyed by the aunt to the manager of the Orphans’ Court, but the manager of the Orphans’ Court allowed the mother to take SK. The aunt said that she did not hand over SK’s passport. She said the mother did not ask for it, but she would not have handed it over in any event. She says the mother told her that she would return SK the following day after they had been to see the maternal grandmother. The mother did not do so.[15]I should make it clear that I have heard oral evidence by video link from the aunt. She was an impressive witness and I accept her evidence.[16]The father’s reaction was to get the first flight he could to Latvia. I am satisfied that he has not returned to England. He is living with the aunt and has obtained employment in Latvia. He submitted an application to the District Court on 26th July 2012 for custody and for the determination of the children’s place of residence. In fact, the application was dismissed on the ground that he had applied in the wrong court as the mother had by then changed the children’s official address to an address in Riga. He has since changed their residence back to S and he applied again on 7th August 2012. A hearing has been fixed for 22nd February 2013.[17]The aunt says that she was very worried that the mother intended to take SK out of the jurisdiction and she therefore went to the airport each day to ensure that she did not do so. The one day that she did not go was 27th July 2012 as the father says that he agreed to meet the mother and the children that day at the Clock Tower in Riga. They did not turn up. In fact the mother left Latvia that day and returned to England.[18]The father applied very rapidly to the Latvian Central Authority, pursuant to the Hague Convention, for the return of both children to Latvia. His application is dated 23rd August 2012. The mother’s defence is dated 20th September 2012. She says that the children were only placed with the aunt temporarily whilst the parents sorted out the practicalities of their separation. She says that the father consented to her bringing both children to this jurisdiction - AK in January 2012 and SK in July 2012 - as he had not complied with the agreement to buy a property in Latvia so that he could care for her there. She says the father only withdrew his consent because the mother formed a new relationship, although I am satisfied that he knew of this relationship at the very latest in September 2011.[19]There are therefore two issues that I have to decide: First, were the children habitually resident in Latvia at the time they were removed? Second, did the father consent to them moving from Latvia to this jurisdiction? The Law as to Habitual Residence[20]What is the law of habitual residence? There is no question other than that it is a question of fact. In Re J [1990] 2 AC 562 in the House of Lords, Lord Brandon said it was “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”. Ward LJ in Re P-J (Abduction) [2009] EWCA 588, [2009] 2 FLR 1051 in the Court of Appeal sets out the principles at paragraph 26. At (4) he says:
“The test is not where the ‘real home’ is: this was rejected by Lord Scarman in Akbarali v. Brent LBC. There is a distinction to be drawn between being settled in a new place or country and being resident there for a settled purpose which may be fulfilled by meeting a purpose of short duration or one conditional upon future events. To ask whether the family are settled in the sense of putting down substantial roots is a misdirection: see Thorpe L.J. in Al Habtoor v Fotheringham [2001] EWCA Civ 186; [2001] 1 F.L.R. 952 where he held: ‘(37)…habitual residence may be acquired despite the fact that the purpose of the move was intended to be fulfilled within a comparatively short duration or…the move was only on a trial basis. (38)…[The judge] misdirected herself in asking whether the family had settled in Dubai in the sense of putting down substantial roots.”
Although these remarks are strictly obiter (see [31] of his judgment) I agree with him: the distinction is necessary to mark the difference between acquiring habitual or ordinary residence which permits a stay of comparatively short time and domicile which requires an intention to remain there indefinitely.” Lord Brandon in Re J reminds us 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.” ‘(37)…habitual residence may be acquired despite the fact that the purpose of the move was intended to be fulfilled within a comparatively short duration or…the move was only on a trial basis. (38)…[The judge] misdirected herself in asking whether the family had settled in Dubai in the sense of putting down substantial roots.”
[21]It is of course right that the habitual residence of young children living together as a family with their parents is the same as the habitual residence of the parents themselves. It is also right to note from Re H-K [2011] EWCA Civ. 1100, [2012] 1 FLR 436 that habitual residence can be acquired, despite the fact that a move may have only been temporary or on a trial basis provided it was adopted for settled purposes as part of the regular order of life for the time being. The requirement of permanence should not be taken literally, but rather as an indication of a stay of sufficient duration or quality properly to be characterised as habitual. Finally, in general, the habitual residence of children cannot be changed unilaterally by one parent. The general position is that there has to be agreement or a court order, although the agreement can be inferred from the factual matrix. The Law as to Consent[22]I can deal with the law as to consent very briefly. It is dealt with in Re P-J (above) where Ward LJ set out the principles at paragraph 48. I will recite only those which are relevant to this application.(1) The consent to the removal of the child must be clear and unequivocal.(2) Consent can be given to the removal at some future but unspecified time or upon the happening of some future event.(3) Such advance consent must, however, still be operative and in force at the time of the actual removal.(4) Consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.(5) The burden of proving the consent rests on him or her who asserts it (in this case, the mother).(6) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.(7) The ultimate question is a simple one even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?[23]Mr. Hames for the mother raises one additional issue that was raised by counsel in Re P-J, namely whether or not a father is able unilaterally to withdraw his consent if, on the true construction of the agreement, the consent was to apply up to the date of removal. Ward LJ does not specifically deal with this in his judgment, although by implication he rejects the proposition. Wilson LJ (as he then was) does appear to reject it at paragraph 55, where he says:
“Once we allow arguments to the effect that, although the left-behind parent had, prior to removal, clearly purported to withdraw an earlier consent, he was not entitled to do so, legal concepts crowd in upon the straightforward enquiry; and the stance taken by parents on the ground becomes rewritten as the stance which the law deems them to have taken. Decisions about children are best taken without such artifice.”
Indeed, if a parent who reached an agreement to allow a child to move in the future was not entitled to withdraw that consent there would be no need for Ward LJ’s proposition (d) as anyone agreeing to removal would be bound for all time. This cannot be right. Moreover, there is a simple solution. If a parent withdraws consent capriciously the court in the country of habitual residence can give the other parent permission to leave. I do, however, accept that it can become too late to withdraw consent as was suggested by Wilson LJ in paragraph 56 of his judgment. My conclusion is that it is too late once the parent who was given permission has begun to depart - in other words, the consent must be withdrawn prior to the other parent leaving. The Parties’ Evidence[24]I have heard both parties give quite extensive oral evidence as to the issues of habitual residence and consent. I have to say that I have significant reservations as to the truthfulness of both of them at times. Both were prepared to attempt to mislead me to further their own particular cases. I will merely give a couple of examples at this stage. The mother says in her most recent statement handed to the father at court on the first day of the trial that:
“When we returned to Latvia to start decorating the flat, I did not enrol the children in kindergarten. I have never enrolled the children in kindergarten in Latvia.”
The father produced documents from the K Kindergarten dated 2nd October 2011, making it clear that she did enrol them. She did not have this document at the time she provided instructions for her last statement. She told me that she now accepted that she had enrolled them and that she was mistaken when she said she had not in her statement. I do not accept that explanation. She knew very well that she had enrolled them. She thought the father could not prove she had done so, so she lied to advance her case.[25]Equally, the father told me, in relation to the January 2012 agreement, that originally the mother proposed that he keep AK and she had SK. He had never mentioned that before and I do not accept that evidence. It makes no sense at all. He then told me that he did not agree that he was allowing the mother to live with AK in England and that he thought she was going to live with a cousin in Riga. I reject his evidence in this regard. He knew very well that the mother was going to England. Indeed, he gave her AK’s passport. He tried to suggest that he was tricked into doing so by the mother saying to trust her, meaning to trust her that she would not go abroad. I reject that completely. She asked for and was given the passport because she was taking AK to England. My Findings of Fact[26]I find the following to be the true position: The parents came to England for economic reasons. They did not intend, when they came, to be here forever, although they did expect to be here for several years. The intention was to earn sufficient to give them a better life in Latvia when they returned there. In particular, they wanted to earn sufficient to purchase accommodation there. It follows that, in accordance with the authorities, they became habitually resident in England as their stay here was “for settled purposes as part of the regular order of life for the time being.” I suspect they did not bring their children here initially because they wanted to get settled, obtain decent jobs and suitable accommodation before uprooting SK and AK.[27]In January 2010 they had attained that objective, so the children joined them in this country. From that point, I am satisfied that the children’s habitual residence moved from Latvia to England, even though I am equally satisfied that the intention was not for the children to remain here forever. I have formed the clear conclusion that the parents intended to educate the children in Latvia. They thus bought a flat in K for the family to live in and they registered the children in the local kindergarten. I cannot see any other reason why they would register the children there rather than in S or even Riga. I accept that the mother was not happy about the flat they purchased or the area in which it was situated, but, in March 2011, she was prepared to go along with the plan even though her dissatisfaction may have contributed to the breakdown of the relationship.[28]The relationship became increasingly unstable. The mother found a new partner. There were rows. By September the relationship was in its death throes. The parents realised that they could not remain as a family unit in this country. The father wanted a reconciliation. He was still committed to the plan to return to Latvia. The mother may, by then, have decided that she wanted to remain here, but I am satisfied that she did not communicate that to the father at that stage. The children were coming up to the time when they had to go to school. The parents recognised that they were going to have to separate, if only on a trial basis. They had to come to arrangements as to what would happen to their children. They decided to return them to Latvia initially to live with the aunt. I entirely recognise the distinction between residence and habitual residence. Nevertheless, there are numerous pointers to the children’s residence in Latvia becoming one of habitual residence:(a) Both parents declared that they, the parents, were resident in Latvia at the Aunt’s address in S. The father’s document is dated 30th July 2011. Although it may be that the parents did this to give jurisdiction to the authorities to allow them to make the arrangements they were making, it is equally an indication that their return to Latvia in due course remained the position. It had certainly not been abandoned openly.(b) Both children’s declared place of residence on 5th September 2011 was certified to be the address of the aunt.(c) The mother executed a Power of Attorney on 6th September 2011 which expired one year later. It gave custody, care and supervision of the children to the aunt for a year. The power also gave the aunt authority in relation to medical treatment and education of the children. The document states that the mother is resident in S.(d) The decision of the Orphans’ Court on 14th October 2011 stated that both parents declared place of residence was the Aunt’s address whilst saying that the parents were working abroad. It specifically says that the court allows the parents to transfer the children to the care of AS for one year. It is impossible to see what jurisdiction the Latvian Court would have had to make this order if the children had not been habitually resident there. Pro-rogation of jurisdiction under Article 12 of Council Regulation 2201/2003 is not possible as the mother had no involvement in the application and had not, therefore, accepted expressly or unequivocally the jurisdiction of the court. It could, of course, be argued that the court made the order without jurisdiction, but I do not accept that. The court was entitled to make the order as the children were habitually resident there.(e) The children were registered with a doctor on the basis that their declared place of residence was S.(f) The children were registered to attend school on the same basis and indeed SK eventually did so.[29]The father did say at one point in his evidence that “We both agreed to the children living with the aunt in Latvia for a temporary period”, but I cannot place too much reliance on that.(i) I have to take into account the fact that both parents gave evidence through an interpreter which itself can give rise to difficulties. The court should be wary of placing too much reliance on this sort of evidence in such circumstances.(ii) The Mother’s case is that this statement leads inextricably to the conclusion that the children were going to return to this country at the end of the temporary period with the aunt, whereas I am quite satisfied that the father wanted them to remain permanently in Latvia. This would be with the aunt until permanent arrangements could be made.[30]The mother equally says that I should not read too much into the fact that the Power of Attorney was for one year when the normal period of such a power is only three months. She tells me that this was done because she did not want to have to return to Latvia with extra expense every three months to execute a fresh power. This may well be right. But, equally, it follows that all parties thought that the period of stay might well be more than three months and, at the very least, there was a possibility that it would last for a year. I recognise that the mother was entitled to revoke the Power of Attorney at any point, but I come to the clear conclusion that the children returned to Latvia “for settled purposes as part of the regular order of life for the time being”. Their habitual residence returned to be in Latvia.[31]If I was wrong about that, it is quite clear to me that SK’s habitual residence must have become Latvia by 16th January 2012. At that point, the parents reached an agreement that provided for SK to live in Latvia permanently. Whilst it was right that she would move to England if the father did not comply with his commitment to purchase accommodation and move to Latvia to look after her, the default status was that she would remain in Latvia. This can only have been habitual residence there.[32]It therefore follows that I find that AK was habitually resident in Latvia on 16th January 2012 and SK was habitually resident there on 27th July 2012, the dates on which they respectively were removed from that country. Consent[33]I now turn to the issue of consent. In this regard it is possible for me to come to very clear conclusions. The manuscript agreement was a clear and unequivocal agreement, albeit that it was not written in legal language. The father suggested that it was obtained by improper pressure exerted by the mother upon him, but I reject that. It may be that the mother was emotional at the time, but the father knew what he was agreeing to. He perceived the arrangement to have some advantages for him. He agreed freely and stuck to his agreement for six months.[34]He next says that he thought the agreement had no legal force. Such an argument is never attractive. He has not produced any evidence to the effect that it had no legal force in Latvia. He took advantage of the part that suited him, namely SK remaining in Latvia. Indeed, he permitted AK to leave pursuant to the agreement, thereby recognising it had force. I accept that the agreement would not have been attractive to a family lawyer, at least in this jurisdiction. It split the girls. It does appear as though they were used as something of bargaining chips rather than by considering their best interests. Looking at it rationally, I cannot see that either party would think that it was in their best interests to split these girls up but that is what they agreed.[35]I reject as absurd the father’s suggestion that the agreement provided only for the mother to keep AK in Latvia, either with her cousin in Riga or with the mother there herself. The father knew the mother was coming back to England. Indeed, if she had not been returning, there would have been no reason why she could not have residence of both children in Latvia. Equally, if AK was not going with her, there was no reason to move AK from the aunt’s. The father gave the mother AK’s passport and her belongings. I find he gave her the passport as he knew it was needed for her to return here. Moreover, there would be absolutely no reason why the agreement would say that, if he failed to purchase the accommodation in Latvia within six months, he would let SK go to live in England, if the mother was living in Latvia with AK. Finally, the father took no action when the mother did indeed bring AK here. It follows that I am quite satisfied that the mother has made out her defence of consent so far as it relates to AK.[36]I am equally satisfied that she had not made out the defence of consent in relation to SK. It is right that the father had not complied with the terms of the agreement. I find, however, that the mother knew very well that the father had withdrawn his consent by the time of the actual removal. The mother’s behaviour was, I find, clandestine. For example, she did not tell the father she was travelling to Latvia. She heard the aunt telling the court official that the father did not consent to the removal. I also find that she spoke to the father on the telephone and he made it quite clear that she did not have his consent to leave. Unlike with AK, she did not get SK’s passport. Indeed, she did not even ask as she was well aware that it would not be given to her. She knew the father immediately travelled to Latvia. The only possible reason for this was because he objected to the removal. When he arrived he asked to see the children. She denies this, but I find that this would be only natural. I find that she agreed to meet him at the Clock Tower. Not only did she not go to the meeting, she used that opportunity to leave the country knowing that he would not be at the airport to stop her.[37]I do accept that the Orphans’ Court official and the police were present when she removed SK from the aunt’s property. It seems clear from this that this official took the view that the mother could withdraw the Power of Attorney at any time, but that does not mean that she had permission from the court to take SK out of the country. She had been told by the court in January that she needed the father’s agreement or a court order. It is accepted that the father has rights of custody and, therefore, either he had to provide his consent or she had to get a court order. She did not get a court order. Her only argument is to say that the father’s consent remained in place, but I have found that it did not and that she knew that. Moreover, the father applied for custody while she was still in Latvia and he applied to the Central Authority pursuant to the Convention immediately after she had gone. It follows the removal of SK was a wrongful removal. Remaining Issues[38]There are three remaining issues: First, at the very last minute, Mr. Hames (for the mother) raised an Article 13(b) defence of intolerability on the grounds of splitting the children. Second, the father asked me to exercise my discretion to return AK relying both on the spirit of the Convention and the undesirability of splitting the children. Finally, the mother asks me to stay my return of them for her to apply, in Latvia, for interim permission to remain in this jurisdiction.[39]I can deal with all three issues very briefly. First, I am satisfied that there is no merit in the mother’s very late Article 13(b) defence. Mr. Khan (for the father) says that it is entirely wrong for me even to consider it at such a late stage without pleadings, evidence or consideration of the issue during the trial. He may well be right, but I can deal with the matter simply by saying that a defence cannot be made out in a case where the mother herself agreed to the children being split. She did this when she signed the agreement which might have led to SK remaining apart from AK permanently, if the father had purchased a property and relocated in time.[40]Equally, I am satisfied that I should not accede to the father’s discretion argument either. I have carefully considered paragraph 45 of the judgment of Baroness Hale in Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251, but I take the view that it is not right to exercise my discretion in a case where the father clearly consented and did nothing for six months until after his other child was wrongfully removed. The fact that the parents agreed to separate the children is equally relevant here, on this occasion against the father rather than in his favour. I take into account the fact that the mother made it very clear that, if I order the return of SK, she would return to Latvia and take AK with her. If she was to renege on that open concession, it is no doubt something that the Latvian Court will take into account in the proceedings for custody that are properly constituted in that jurisdiction.[41]Finally, the mother asks me to stay my order relating to SK so that she can apply in Latvia. I was referred to the decision of Ryder J in R v. K [2009] EWHC 132, [2010] 1 FLR 1456. The Judge in that case gave a limited amount of time for the mother to settle her affairs in this jurisdiction prior to the return, but he said that the circumstances of the case did not make it appropriate for the court to consider an “exceptional” course of delaying the execution of the order and return to abide the decision of the foreign court. He said that to do so would be to “open the floodgates to applications for delayed return orders in almost every primary carer case”.[42]I agree. For the mother, Mr. Hames’ only real point in this regard is to suggest that the presence of the officials of the Orphans’ Court when the mother removed SK from the aunt’s home indicates that the court may be sympathetic to an application that she may make to remove SK from Latvia permanently. I do not know whether that is a justified assumption or not. I am not completely clear that the Orphans’ Court is the correct court to deal with such an application, in any event. I will, however, give the mother some time to organise her return. If, during that period, she is able to get interim permission to remain here from the court in Latvia then my order will not be executed. But this is matter for her and her legal advisors.[43]I will now hear further argument on timing as Mr. Khan requested that I deal with it in that way. In doing so, however, I make it very clear that I am not prepared to accede to Mr. Hames’ submission that the return should be delayed until the hearing in February 2013. ____________________