Lancashire County Council v T & Ors (Habitual Residence: Care Proceedings) [2014] EWHC 3321 (Fam)

[2014] EWHC 3321 (Fam)Case No LA14C00023
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Friday, 8 August 2014
Strand,
London WC2A 2LL
Before
MR JUSTICE MOYLAN
Between
Lancashire County CouncilApplicantT & OthersRespondent
Digital Transcript of Wordwave International, a Merrill Corporation Company165 Fleet Street, 8th Floor, London, EC4A 2DYTel No: 020 7421 4046 Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
MRS CAPLAN appeared for Applicant.MISS KHAN appeared for Mother.MISS KUSHNER appeared for Father.MISS BOWCOCK appeared for Guardian ad Litem.
Judgment(Lancashire County Council v T & Others: Habitual Residence: Care Proceedings)Friday, 8 August 2014IMPORTANT NOTICEThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any report the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]This hearing has been listed for the determination of the issue of habitual residence for the purposes of care proceedings. The substantive proceedings are being heard in a Family Court in England and Wales. It is not clear why this issue was listed for determination in the High Court before a High Court judge. Absent any particular feature or features which might warrant it, the issue of habitual residence need not be transferred for determination by a High Court judge.[2]The issue I have to determine is whether each of the children was habitually resident in England and Wales on 15 July 2014. This is for the purposes of determining jurisdiction, in respect of care proceedings, under Council Regulation (EC) No 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility (“Brussels IIa).[3]On 15 July 2014 a local authority commenced care proceedings in respect of 5 children. They are M, who is now aged 10; A, who is now aged 8; KA, who is now aged 7; J, who is now aged 5; and F who is now aged 6 months. The children’s parents are KT, who is aged 33, and JT, who is aged nearly 40.[4]At this hearing the local authority has been represented by Mrs Caplan; the mother has been represented by Miss Khan; the father has been represented by Miss Kushner (and today by Miss Stocks); and the children, through their guardian, have been represented by Miss Bowcock.

Background

[5]Dealing briefly with the background, the father was born (and appears always to have lived) in Lancashire. In addition to his children with the mother, he has two children by a previous relationship who also live in Lancashire with their mother. The husband’s father was born in the Republic of Ireland, but moved to live in Lancashire decades ago. The father’s mother is English. His parents and his siblings live in Lancashire.[6]The mother has lived in England for most of her life, although it appears she was born in Scotland. Her parents also live in Lancashire.[7]The family has always lived in Lancashire. The family home, owned in the father’s sole name, is in a town in Lancashire. The children, apart from F, have attended nursery school and primary school locally. They have attended the same school that the father attended. The eldest child is due to move to secondary school in September 2015. The application for that school has to be made in September/October 2014. According to the evidence from the key social worker, the child was keen to attend H School, and the father had told the social worker that this was going to be their first choice.[8]Until 10 July 2014 the children’s lives were, and had always been, centred in Lancashire. On 10 July 2014 the father and the children left England and since then have been staying in properties in the Republic of Ireland.[9]The local authority has had considerable engagement with the family since 2010, when child protection plans were first put in place. I do not need to set out the detail of this engagement or the reasons for it for the purposes of this judgment. Briefly, the children became subject to child protection plans in April 2010. This followed KA sustaining injuries caused by her mother when she was in the bath. KA sustained handprint and fingertip bruising to her face. The mother received a caution and was asked to leave the family home by the local authority. The father reported that the mother was often aggressive and angry with the children, and that he had to intervene to protect them. The children remained in the care of the father, with the mother having frequent contact. The local authority continued to have concerns, centred on the father’s ability to care for the children. They were sometimes grubby and unkempt. J appeared under-stimulated, and KA presented with behavioural problems. Extensive support was offered through, what is described as, a “multitude of services”. In 2011 the child protection plans concluded because of perceived improvements.[10]Moving on in the history, following F’s birth the mother lived with him at the father’s parents’ home until March 2014. With the agreement of the local authority, the mother then returned to live with the father and the children at the family home. She was thereafter extensively involved in the care of the children, as the father was employed.[11]On 15 June 2014 there was an incident between the parents at the family home, witnessed, it appears, by the children, including KA. Following this, the mother agreed, again it appears at the instigation of the local authority, to leave the family home. Up until this date, and since his birth, the mother had been the primary and, in some respects, the sole carer for F. After leaving the family home, the mother continued to see the children twice a week for several hours at the paternal grandparents’ home.[12]On 26 June 2014, the parents made a written agreement with the local authority. It was agreed that the mother would remain living away from the family home. It was also agreed that the parents must be open and honest with all professionals at all times.[13]On 8 July 2014 the local authority decided to commence care proceedings. The father and mother were informed of this by the allocated social worker, Miss S, by telephone late in the afternoon of 9 July. The social worker specifically arranged with the father to visit him at the family home in the morning of 10 July.[14]On 10 July, at about 9.30 am, the father telephoned the social worker and said that he gave permission for information to be shared with his mother. The social worker told him that she was on his way to see him, as arranged. He replied that he was busy “sorting things out”, and would call later to re-arrange the meeting. When the social worker arrived at the family home, at approximately 10.45 am, there was no one there.[15]The father was due to collect his oldest son by a previous relationship, D, for contact in the afternoon of 10 July. The father did not arrive for contact and did not telephone either D or D’s mother. Over the following weekend, the paternal grandmother told D that his father had gone away with the other children, and would be back soon.[16]On 11 July, the children’s school contacted the local authority. None of the children were at school, and the school’s attempts to contact the parents had been unsuccessful.[17]Also on 11 July, the social worker spoke to the paternal grandmother. She said that the father had taken the children for a day out in Manchester. One of the children had become ill. The father had decided to stay overnight in Manchester and would be returning home the next day.[18]Over the weekend of 12/13 July the police visited the family home. On one visit, the father’s parents were present. The paternal grandmother told the police that they were collecting the post, as the family no longer lived there.[19]It subsequently became clear what had, in fact, happened, namely that the father had left the home with the children at approximately 1.30 am in the morning of 10 July. They travelled by car to Liverpool and caught the ferry to Dublin. They then went to another area in the Republic of Ireland where they remain located.[20]The mother explains what she says happened in her statement. She had gone to the family home in the evening of 9 July to speak to the father. She deliberately arrived after 8 pm, when the children would usually be in bed. To her surprise, she found that they were all still up and dressed. She was told by KA that they were going to Ireland. The mother tried to persuade the father, she “begged him”, to use her words, not to go, but he was insistent. The mother decided to accompany them, at least for some of the way.[21]They left the home in the family car with a few of the children’s and the father’s clothes. The bulk of their possessions, including toys and other items, remained at the family home. The mother says that she travelled with the father and the children on the ferry to Dublin, but then stayed on the ferry and returned immediately to Fishguard. The father apparently told the mother that he wanted to move to Ireland to make a better life. In passing, I note that this does not begin to explain why he left with so few possessions, with so little planning, and in the middle of the night.[22]Throughout this period the local authority had been unable to make contact with the mother or the father.[23]On 14 July 2014, the paternal grandmother told the police that she had spoken to the father, but did not know where he was. He was safe and well. He had not fled from the local authority, but had fled from the mother.[24]The father remains in the Republic of Ireland with the children. The mother remains, and intends to remain, in England (unless she moves to Scotland). Social Services in the Republic have been informed of the presence of the children, and they have engaged, at least at some level, with the family.[25]On 15 July 2014, at a hearing without notice to the parents, an order was made which records that the court is satisfied it has jurisdiction. It is also declared that the children are habitually resident in England and Wales. Interim care orders were made. I have not explored the circumstances in which the declaration as to habitual residence came to be made but such a determination should not have been made without notice, certainly when no attempt to give notice had been made; Mercredi v Chaffe [2011] 2 FLR 515.[26]On 1 August 2014, the father’s legal representatives informed the court that he sought to challenge the declaration as to habitual residence. This led to the case being transferred for the determination of this issue.

Hearing

[27]The mother has been present at this hearing, and has given oral evidence. Her written statement is dated 4 August 2014.[28]The father has not been present. I have read an unsigned and undated statement from the father, which I have been told has been approved by him. He has been able to give instructions during the course of the hearing to his legal representatives. Miss Kushner also gave me additional information provided by the father during the course of the hearing.[29]No application was made for the hearing to be adjourned.[30]I have heard oral evidence from the key social worker, Miss S, and read statements made by her – two dated 14 July, one dated 28 July, and one dated 1 August 2014.

Evidence

[31]I have already referred to some of the evidence above. In her third statement, dated 28 July 2014, Miss S states that the father initially denied that the mother had travelled to Ireland with him, and said he had left to flee from the mother. He then admitted that the mother had travelled with him.[32]In her statement dated 5 August, Miss S gives the following evidence. She asked the father whether D’s mother could be given his address in Ireland. He refused, saying that he does not know how long he will be at this address.[33]CAFCASS has also been in contact with the father about proceedings between D’s mother and the father. He informed CAFCASS that he is unsure how long he will be in the area of Ireland where he is currently.[34]Miss S has spoken to the father’s niece, Miss W, on 29 July and 31 July. She had put herself forward as a potential carer for the children. On 29 July, Miss W said that, if she was permitted to care for the children, she would live with them in the family home in Lancashire. Miss S told Miss W, who had said, when they spoke, that she was in England where she lives, that the father had said she was in Ireland with him. Miss W seemed surprised at that comment. On 31 July Miss W said that she was in Ireland with the father and the children, and that she had been there previously. She had only been in England on 29 July to collect her dog. Miss W also said that she did not know how long the father intended to remain in Ireland, but she still wanted to care for the children at their home in Lancashire.[35]Information has also been provided, through anonymous telephone calls, about the father intending to move to Cyprus. I do not intend to rely upon this evidence in this judgment.[36]In her oral evidence, Miss S said that a duty social worker had spoken to the head teacher of the school in Ireland, identified by the father as the one to which the relevant children would be going. The head teacher said that while, potentially, they had two places for two children, the children did not appear to meet the entry criteria. Miss S also said that, throughout the time she has been involved with the family since 2010, no mention been made of the father or the family moving to Ireland.[37]Turning to the mother’s evidence, I have dealt with her evidence about what happened on 9 and 10 July. She also says she hoped that, during the journey to Ireland, she might be able to persuade the father to return to England. The father had not discussed going to Ireland with her, and she was shocked and upset when he told her of his plans. She has no plans to go to Ireland.[38]Additionally, in her oral evidence, the mother said that the father had been talking about moving to Ireland since 2002. They had discussed it regularly. About a week after leaving England, the father had told her that he had moved to distance himself from her.[39]In his statement, the father says that he realised he needed to get away from the mother in order to give the children a better life. He chose Ireland because of his father’s links to the country. He had been considering moving there with the children “for some time”.[40]The father says that the level of scrutiny he and the children were under demonstrated to him that life here in England was becoming unbearable for them. They were not going to have a normal life, and he decided to relocate to Ireland. He states that he and the children are now habitually resident in Ireland. He has obtained a 12 month tenancy of a three-bedroom house. He has registered the children with a GP and dentist. He has made arrangements for the children to attend a local school. He has also made arrangements for his employment to be transferred to Ireland. His niece, Miss W, is in Ireland helping him care for the children.[41]The father also points to the fact that he voluntarily contacted Irish Social Services after his arrival, and that they have visited him and the children. The father and children are registered with Irish Social Security, including what is known as PPS registration. The children have friends, and are becoming settled. The father also says that he has cousins in Cork.

Submissions

[42]The parties’ written and oral submissions can be summarised briefly.[43]The local authority contends that the children were habitually resident in England and Wales on the date of the commencement of proceedings, namely 15 July. Miss Caplan submits that the father has not become habitually resident with the children in the Republic of Ireland. She refers to the Supreme Court decisions of Re A (Jurisdiction: Return of Child) [2014] 1 FLR 111, and Re KL (Abduction: Habitual Residence [2014] 1 FLR 772.[44]Miss Caplan points to the following factors. The children were all born and lived in England until 10 July 2014. Those of school age were at school. The extended family all live in England, in Lancashire. There is no evidence of any plan to relocate to Ireland prior to 10 July. The mother was unaware of any specific plan to leave England until the evening of 9 July, and she was opposed to it. There is evidence to question whether the father intends to remain where he is currently staying, given that he told CAFCASS he was unsure how long he would be in the Waterford area. The mother remains in England.[45]The local authority submits that the father left England when he did, and in the manner in which he did, solely to seek to avoid the care proceedings which he knew the local authority were about to commence.[46]Miss Khan, on behalf of the mother, supports the father’s case that the children were not habitually resident in England on 15 July. She points to the mother’s evidence that a move to Ireland had been discussed by the parents and raised by the father since 2002. The mother accepts that the father and children would have a better life in Ireland.[47]Miss Kushner, on behalf of the father, submits that the children were no longer habitually resident in England on 15 July. The critical issue, she submits, is not whether they had become habitually resident in Ireland (although she submits that they had), but whether they had ceased to be habitually resident in England.[48]Only the father and the mother had parental responsibility on 15 July, and accordingly, Miss Kushner submits, they, and in particular the father, were able to decide whether the children should move to live in Ireland. The father had talked about moving to Ireland for a better life, and this is what he did on 10 July. He also did so in order to distance himself from the mother. He has a settled intention to stay in Ireland. He and the children are integrated there to a sufficient extent to make them habitually resident there.[49]Miss Kushner points to the steps taken by the father: a 12 month lease; registering the children with a doctor and a dentist; obtaining school places; moving his employment; registering for national insurance purposes; notifying social services that they were there. Miss Kushner also points to the fact that the older children’s, in particular the eldest child’s, states of mind are unknown.[50]Alternatively, it is submitted in the written submissions that the proceedings should be transferred to Ireland under Article 15 of Brussels II Revised.[51]Miss Kushner has also referred to Re A and Re KL. In addition, she has referred me to Re LC (Children) [2014] UKSC 1.[52]Miss Bowcock, on behalf of the Guardian, submits that the children were habitually resident in England and Wales on 15 July. She submits that the father left England with the children solely for the purposes of seeking to evade the proposed care proceedings, and not in order to make a new life for the family in Ireland. If he had genuinely intended to make such a move, he would have made some prior arrangements. He would have been open about it rather than misleading the local authority and others. The Guardian submits that the children are likely to be very confused about what has happened.

The Law

[53]The court’s jurisdiction in respect of each child depends on whether he or she was habitually resident in England and Wales on 15 July 2014 – Article 8 Brussels IIa. Habitual residence is a question of fact. The critical issue in this case, as submitted by Miss Kushner on behalf of the father, is whether the children had ceased to be habitually resident in England and Wales as at that date. Of course, if they had become habitually resident in Ireland by 15 July, they would necessarily have ceased to be habitually resident in England. The converse does not apply.[54]The issue of habitual residence has been considered by the Supreme Court in the cases referred to by the parties, namely Re A, Re KL and Re LC. In Re A, Lady Hale quoted the operative part of the judgment of the Court of

Justice of the European Union in Mercredi v Chaffe [2011] 1 FLR 1293:

“The concept of 'habitual residence' … must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a member state – other than that of her habitual residence – to which she has been removed, the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that member state and for the mother's move to that state and second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that member state.”
At paragraph 54 Lady Hale said:
“(iii). The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question … (v). In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. (vi). The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.”
In Re KL Lady Hale refers to parental intent at paragraph 23:
“It is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child's leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of residence.”
In Re LC Lady Hale said at paragraph 63:
“The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another.”

Determination

[55]I have no doubt in concluding that the father left England with the children in the middle of the night of 9/10 July and travelled to Ireland with the sole purpose of seeking to evade the care proceedings which he knew were about to be commenced by the local authority. I reject his evidence that his actions were the result of his wish to move to Ireland for a better life, or to put distance between himself and the mother. If he had been genuinely motivated by these factors, he would not have left when and how he did, and he would not have misled the local authority as he did. It was clearly a very rushed decision, as demonstrated by the manner in which he left, including by failing to collect his older son for contact on the afternoon of 10 July, and failing to communicate with him or his mother. He made no real plans and made no proper arrangements for a considered move.[56]It is clear from the evidence that the father abruptly left the family home with the children because he had been informed that the local authority were about to commence care proceedings. There is no other reasonable explanation for his leaving so suddenly, with so few of his and the children’s possessions and in the middle of the night, secretly and stealthily. If his motivation was genuinely to move to a new home, there would also have been no need to lie to the social worker on 10 July when he said he was busy sorting things out and would call later to rearrange their meeting.[57]Other family members were brought into the deceit. When the father’s mother told the local authority on 11 July that the father and children had been in Manchester and would be returning the next day, this was clearly a lie, meant to deceive the local authority. I am not in a position to determine whether the father’s mother was involved, in that she knew it was a lie, or whether she was simply relaying what the father had told her. I accept that the mother did not want the father to take the children to Ireland on 10 July and sought to dissuade him.[58]It is clear to me, looking at all the relevant circumstances of this case, that none of the children were habitually resident in Ireland on 15 July. They could not be said to have attained any degree of integration in Ireland by that date. Taking into account all the relevant circumstances of the case, where, to quote from Mercredi v Chaffe, is the place which reflects some degree of integration by each child in a social and family setting as at 15 July?[59]I have no doubt in concluding that this place is England. All the children’s real connections and substantial connections were, and remained, in England as at 15 July. Their home was here, most of their possessions were here, their friends were here, and apart from the father their family were here, including, importantly, their mother. As Lady Hale says, some habitual residences may be harder to lose than others.[60]The father’s flight in the middle of the night and the steps he has taken in Ireland since arriving there are manifestly insufficient to have caused the children to have lost their long established habitual residence in England, certainly by 15 July, and I would say even by today. This was not a genuine relocation to seek a better life in Ireland. I have no doubt that the father would seek to move again, if he were able to do so, in order further to endeavour to avoid care proceedings. He is not settled and the children are not settled in Ireland. The children’s firmly established habitual residence in England cannot be lost so easily and on such a slight factual basis as exists in this case.[61]The father’s case under Article 15 was not advanced beyond being raised in the written submissions prepared on his behalf. This was sensible, because it is without merit. It does not appear that any of the requisite grounds under Article 15(3) are established, but even if the children do have Irish nationality, it could not properly be suggested that the courts of Ireland are better placed to hear this case.[62]Accordingly, I declare that the children were habitually resident in England and Wales at the commencement of the care proceedings, namely 15 July 2014, and I reject the application made pursuant to Article 15 for the transfer of jurisdiction or the proceedings to the Republic of Ireland. __________

Cited in 1 later judgment