V v V (Abduction: No Consent) [2016] EWHC 3477 (Fam)

[2016] EWHC 3477 (Fam)

Case No FD16P00156

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Wednesday, 22 nd June 2016

Strand

London WC2A 2LL

Before

MR JUSTICE PETER JACKSON

B E T W E E N:

Between

VApplicant

VRespondent

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MR HOSFORD-TANNER appeared for APPLICANT

MRS SIMPSON-MARTIN appeared for RESPONDENT

APPROVED JUDGMENT

IMPORTANT NOTICE

This judgment was handed down after a hearing in private. It can be reported provided that the family members are not identified.

[1]This is an application made on 24th March by the mother of three children seeking their summary return to Australia under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The children, who I will identify by their initials, are W, aged nine, A aged five and T, four. The application is opposed by the children’s father, who argues that the children came to live here permanently in July of last year with the mother’s consent.

[2]I will start with an uncontroversial outline history. The father is in his forties. He was born in England. He comes from a military family and himself has had a 23-year career as an officer in the Armed Forces, the last eight of which were spent in the Australian Defence Force (“ADF”). The father’s parents (“the grandparents”) live in north west England. The father had previously been married and has a child living in England from that marriage.

[3]The mother is in her thirties. She was born in Scotland and, in her earlier career, worked for the Ministry of Defence.

[4]In 2004, the parents met and began to live together and, in 2005, they married. W was born in 2007 in England. In the same year, the father left the British Army after a career that included several tours of overseas duty. In July 2008, the family emigrated to Australia to allow the father to take up a commission in the ADF. The family home in England was let and has remained such. The parents settled in a rental property in Australia. By 2009, at all events, there were difficulties in the marriage and the father left home for some months. But in 2010, A was born. In December of that year, the family returned to the UK for a visit over Christmas, that being the last time such a visit was made before the summer of 2015. In 2012, T was born.

[5]The father, at around that time, engaged in a six-month tour of duty in Afghanistan which proved to be extremely traumatic and to be his last active military role. By April 2013, he had become unable to work and, in practice, he spent the last three years of his service on sick leave on full pay, before finally being discharged in August 2015. I will return to the father’s medical circumstances later.

[6]In January 2013, the mother joined the ADF with a commitment to serve for six years. In May to June 2013, the grandparents came out to Australia to offer support to the family in the light of the ages of the children, the mother’s career commitments and the father’s ill-health.

[7]In January 2014, the mother began a Masters degree in Psychology which was scheduled to take place over two years by way of study leave at university alongside her other training commitments. Between January 2014 and May 2014 there was a separation, with the father leaving the family home and seeing not much of the children over that period. By November 2014, the father’s health had become extremely poor, with at least one episode of self-harming behaviour. In that month and into December, the grandparents again came out to offer support over a period of a month or so. During 2014, the mother herself was suffering from reactive depressive difficulties as a result of all these circumstances. But the evidence is clear that, after a year or so, those had dispelled, and certainly the mother’s health difficulties are secondary to those of the father and are not to be compared with them.

[8]Taking stock at this point, namely the end of 2014 and the beginning of 2015, I would make these observations under numbered paragraphs:(1) Both of these parents are educated, intelligent, hardworking and devoted to their children. There is a strong sense of commitment to the armed services and to service values. This is a family that lives by the rules. There is an unspoken expectation of mutual support, plain dealing and honourable behaviour. The fact that a family that has been so close is now sitting on opposite sides of a courtroom is a source of great regret, no doubt first and foremost to the family itself.

(2) The father’s mental ill-health from around the time of T’s birth at least, became the dominant feature in the family situation. I have seen, but not read, his medical records which run to over 1,000 pages. In October 2014, his treating psychiatrist in Australia diagnosed him to have severe chronic post-traumatic stress disorder associated with major depression and alcohol dependence. There is some discussion that really does not very much matter as to the persistence of the alcohol dependence. But the diagnosis as a whole remains valid and is clearly a huge burden to the father and to all other family members.

(3) The mother, while the family was in Australia, was undoubtedly the children’s main carer by reason of their young age, the separations when the father left and the father’s health difficulties. That is not in any way to diminish the father’s devotion to the children or his importance to them and them to him. But the care pattern is as I have stated.

(4) By the beginning of 2015 the family was evidently facing another still more severe crisis. The father’s health was exceptionally fragile and the burdens on the mother immense.

(5) The grandparents have been exceptionally interested in the welfare of the family and of their grandchildren. They have had a good relationship with the mother. They are stable and at least comfortably off, and it was natural that the parents would see them as a port in a storm.

[9]I return now to the chronology from 2015. It was around February that the idea that the family might come to England arose. The grandparents, at the request of the parents and with the full knowledge and approval of the mother, took extensive steps to make this possible. I mention perhaps the most significant steps, although there were others, facilitating the process. They purchased at their own expense a suitable family home about a mile away from their own home, completing that purchase on 1st June 2015 after surrendering an income bond for that purpose. They investigated school and nursery placements to ensure that they were as good as possible. They offered advice on nationality issues because the children’s papers (or at least the younger two children’s papers) were not fully in order. It was between February and June a very substantial planning exercise.

[10]In May and June 2015, the father spent a month as an inpatient, receiving therapy for his PTSD. Shortly after he left that treatment he was unfortunately involved in a car crash on 17th June which returned him to hospital.

[11]On 6th July, the mother and three children travelled to England with their suitcases and took up residence with the grandparents. The mother had obtained short-term leave from the ADF and, on 14th July, the father followed. This was T’s first visit to England; W had been about two years old when he left and A had only been a baby.

[12]On 8th September 2015, the mother returned to Australia as planned to resume her training. On 17th November, she applied to her commanding officer for one year leave without pay (“LWP”), to be spent in England to deal with the family situation while concluding her Masters degree remotely. On 26th November, the father wrote to the Department of Veteran’s Affairs saying that he was supporting the mother with a view to the family getting back to Australia. On 3rd December 2015, the father sent an email to the mother following a disputed issue arising between them. Effectively the email indicated that he did not feel able to continue with the marriage. The mother’s immediate reply to both the father and the grandparents was that the children must immediately return to Australia. The mother thereupon withdrew her leave application and was given a new posting, effective in January.

[13]There is then correspondence (to which I will return) on 10th, 11th and 14th December in which the father agreed to the children returning and sent a sum of some £4,000 to £4,500, in Australia dollars 9,500, for the children’s air tickets and a deposit on nursery fees in Australia.

[14]On 13th December, the mother arrived in England. Her trip, which was extended, in fact lasted for six weeks until 27th January. She stayed with the grandparents where the father and children were, except that the father and children spent some three or four days away at the property that had been bought for the family to allow the father to spend some time alone with the children before their return to Australia. This was obviously an emotional visit for all concerned. After Christmas the mother suggested an immediate return but, following discussions, she relented, and an attempt was made at reconciliation. This got a certain distance, with the parents being able to attend a wedding in Spain of a family friend accompanied by the children between 11th and 15th January.

[15]The mother asked for and twice obtained extensions in her period of leave from her superiors, meaning that she stayed for some extra days until 27th January when she returned. She says that her intention on returning was to renew her application for LWP in order to enable her to come over and live as a family, as had previously been intended. However, that did not last for very long.

[16]On 1st February, the mother informed the father that she was having difficulties in getting leave. At the beginning of that month, the father and children actually moved into the new property, the grandparents remaining in their own home in support. By 18th February matters between the parents had deteriorated to the extent that the mother was asking the father again to book flights for the children to return. Over the next few days the father avoided giving the mother a straight reply. Instead his communications were intended to lead the mother to believe, without saying it in so many words, that he was not in disagreement. I will return to this later. The mother for her part pressed the father for the response that she was seeking. By this stage, the latter part of February, the mother herself had taken legal advice in the light of the lack of clarity from the father. The father himself took legal advice on 24th February.

[17]On 1st March, the father issued a divorce petition and proceedings under the Children Act 1989 seeking to establish the children’s habitual residence in this jurisdiction and secure orders tying them to it. He obtained an order from the Family Court preventing the mother from removing the children from his care on 1st March. As I indicated during the course of the hearing, that was an order that should never have been applied for without notice to the mother and should not have been granted by the court. The mother was in Australia and there was not the remotest possibility that she would be in a position to remove the children. If she was given notice of the father’s intentions, she could at the very least, bearing in mind that she was hammering at his door electronically-speaking, have been informed of what was intended and expressed her point of view. It is, I am afraid, unconscionable that no effort was made on the part of the father or his advisers to put the mother in a position to contribute at the outset of those proceedings. Instead the mother first learnt of what had happened when she received from the father’s solicitors by email a copy of the divorce petition and of the without notice order that had been made. This, it is germane to note, was the first time that the father or anybody on his behalf had ever said to the mother that the children were not returning.

[18]The mother’s reply, no doubt on advice, was that she did not accept the jurisdiction of the English court, that the children were not habitually resident here. On about 20th March, the mother issued her request to the Australian Central Authority to put a request to this court under the Hague Convention. On 24th March, an application was made by Mr Hosford-Tanner, who has appeared throughout on the mother’s behalf, to Holman J for an order without notice to the father. The order that was made was that the children should not be removed from the grandparents’ home. That was based on an incorrect appreciation by the mother’s advisers as to where the children were living. The mother knew that the father and children were living away from the grandparents’ home, and the effect of the second without notice order was that the children had to return with the father to the grandparents’ home.

[19]On 12th April, the matter came back on a return date before Hayden J. That was the first time that both parties were represented before the court, although the mother was not in England but giving instructions. Hayden J conducted a hearing throughout the day in which he heard from the father and the grandfather but not from the mother. He removed the bar on the children living with the father. He did not accept the mother’s case that the father was, as a result of his health, unable to look after the children based upon the information that the mother had been able to provide at that stage, being but a fraction of the information now available. Hayden J was critical of the mother for effectively having misled Holman J and stated firmly that there had been no need for a without notice application in the child abduction proceedings.

[20]If I may comment, I entirely understand why Hayden J was concerned. It is very important that, when applications have to be made without notice, correct information is provided, and it is even more important that applications are not unnecessarily made without notice. Having had a somewhat fuller opportunity to survey the whole picture, I am afraid that neither party comes out of the process with much credit in the matter of the making of without notice applications. But it seems to me that the root of the situation lay in the actions taken by the father at the end of February leading to the application on 1st March which the mother, understandably, describes as having been in the nature of an ambush, and her subsequent actions are to be seen in that context.

[21]This hearing has consisted of a two-day process of reading and collective work on the chronology in court together with submissions made on the part of the parents, and this judgment is being given on the third day. The time estimate allowed the opportunity for oral evidence to be given but that has not proved to be necessary. The areas on which oral evidence might have assisted me turned out to be minimal or non-existent. There is a wealth of information and contemporary documentation, in all running to over 500 pages, quite apart from the medical records. The mother has been in England for the week before the hearing, a time she has spent with the children. So we now arrive at the point where all the main family members are here in London, with homes in Australia and in England remaining in full effect.

[22]The hearing has focussed on a correct appreciation of where these children were habitually resident when these proceedings began. The father has put forward a defence of consent, a defence of acquiescence and a defence that a return would place the children effectively in an intolerable situation (Article 13(b)). That last assertion is not pursued to a decision and has been withdrawn, and rightly so. The evidence in this case comes nowhere near the kind that would lead to the court considering that the 13(b) defence might be established. So far as acquiescence is concerned, it is very much a second line of defence to the father’s main case which is that the children came over here because the parents had agreed that they would come and live here permanently - the real issue is consent.

[23]In slightly more detail, the father’s case is that the family left in July as part of an agreed plan to relocate permanently. The mother’s case is that she agreed to the family coming to the England for no more than 12 or 18 months (the 18 months being until the beginning of the 2017 Australian school year), in effect for a period of recuperation and stabilisation. So there is no doubt that the children physically came into England with the mother’s consent. Indeed she brought them here herself and fully participated, before and after their arrival, in the arrangements that were being made for them. The question is whether the father has established an agreement that this was to be a permanent relocation as opposed to a period of recuperation and stabilisation.

[24]I turn, as briefly as I may, to the law. The first thing to say is that these proceedings have the object of deciding which court should determine the children’s future if the parents cannot agree it. It is not the function of this court to make those welfare decisions. There is also a fundamental principle that decisions of this kind are best made by the courts of the state in which the children are habitually resident and not by the courts of the state where they happen to be. A further underpinning principle is that the law encourages parents to agree arrangements for children and will seek to uphold those arrangements wherever they are made. Thus, under the Convention, the applicant must establish that the children are habitually resident in the country to which their return is sought. In this case, the mother says that the children have remained habitually resident in Australia and have been wrongfully retained in England. In such a case, the court would be obliged to order the children’s return forthwith unless(a) the father establishes one of the limited range of available defences; and

(b) if he were to succeed in that, the court declined to exercise its discretion to order a return nonetheless. As I have said, the focus of the argument is on the question of consent. The father’s defence is that “the mother consented to the children moving to live in England permanently”.

[25]I have been referred to the leading authority of Re P-J

[2009] 2 FLR 1051

, in which Thorpe LJ distilled the applicable principles at paragraph 48. They run to nine paragraphs and I read the five that are, to my mind, relevant to this application:

“(1) Consent to the removal of the child must be clear and unequivocal. (5) Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract. (7) The burden of proving the consent rests on him or her who asserts it. (8) The enquiry is inevitably fact-specific and the facts and circumstances will vary infinitely from case to case. (9) 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?”

[26]I have also been referred by Mr Hosford-Tanner to the decision of the Court of Appeal in Re H-K (Habitual Residence)

[2012] 1 FLR 436

, a case with some similarities to this on the facts. That case serves as a reminder that a move does not have to be permanent for habitual residence to have changed; it depends on the circumstances.

[27]I turn briefly to acquiescence, the father’s alternative case. He says that when the mother returned to Australia in January of this year, she acquiesced to the children remaining permanently in England. In that regard, I have been referred to the leading authority in the House of Lords of Re H

[1997] 1 FLR 872

, in which the approach to acquiescence was set out under five propositions:(a) Acquiescence is a subjective state of mind of the wronged parent.

(b) Acquiescence is a pure question of fact and the subjective state of mind can be inferred from acts of the wronged parent.

(c) Judges should be slow to infer an intention to acquiesce from attempts of the wronged parent to effect a reconciliation or agree a voluntary return of the child.

(d) The burden of proving acquiescence is on the abducting parent.

(e) The one exception to this general principle is where the words or actions of the wronged parent clearly and unequivocally showed and led the other parent to believe he was not asserting or going to assert his right to a summary return of the children and is inconsistent with such a return.

[28]In this case, the defence would only arise in practice if the father’s case on consent in 2015 fails. To succeed, the father would have to show that the mother, having not agreed to a permanent arrangement in 2015, had come to do so in 2016.

[29]On the part of the mother, Mr Hosford-Tanner points to features of the evidence that he says demonstrate that there was no agreement to a permanent move, while Mrs Simpson-Martin, in her notably able submissions on behalf of the father, refers to elements that she says demonstrate that this was what she describes as “a plan for permanency”. I hope to capture the much greater detail of those submissions in the further consideration that now follows.

[30]Discussion. I wish to make these preliminary points, again under numbered paragraphs:(1) An assessment of what the parties were doing when the children came to England in 2015 is to be based on their words and deeds, viewed in a realistic way in the light of the overall family situation.

(2) As to their deeds, it is important to consider their significance in the context of this family. So, for example, the purchase of a property might point more strongly to plans for permanency in one family than in another.

(3) As to words, it is important to look at the whole picture and not to place more weight on individual exchanges than they convey. One has to look at the whole of the narrative.

(4) As will appear, the evidence of words and deeds in this case is mixed, and does not all go one way. In the circumstances, I have looked to see whether there are features that discriminate between the parties’ cases in a way that may point to what actually happened.

(5) When doing so, I hold in mind certain distinctions between different types of communication. I particularly attend to communications between the parents themselves: what they said to each and what they did not say. Communications from the grandparents are also of assistance but they are in a somewhat different category. This is because the grandparents, who have acted with such conspicuous commitment, understandably have their own views about what is best for their son and daughter-in-law and grandchildren and their view must be seen in that context. I also draw a distinction in respect of communications between the parents and the ADF. Those have to be seen in the context of each parent’s employment situation: the father as a respected retired officer and pensioner with a lifetime of service; the mother as a relatively junior officer seeking to establish herself and to maintain her credibility with her superior officers while at the same time dealing with the extraordinary difficulties faced by the family. In the circumstances that the family found itself in, when communicating with the ADF it is only natural that the parents presented their situation in a way that maximised their chances of short-term indulgences and kept their long-term options open.

(6) Lastly, it is clear to me that any separation between the mother and the children was only ever intended to be a temporary one. It is not suggested otherwise. In particular, there is no chance whatever that the family considered the children living with the father in England while their mother lived in Australia for anything other than the shortest term possible. I also discount, given the values in this family, any possibility that the mother would go absent without leave. If she was going to obtain LWP it would have to be with her superiors’ approval and for her to leave the Army could only have happened by agreement. That is a reflection of the family’s values, quite apart from the financial consequences that would result from the mother leaving in any unauthorised way.

[31]Having made those general observations, I now look in more detail at some episodes in the history that are said to be significant. I separate these under a number of chapters.

[32]The first chapter is the period from February 2015 until the departure from Australia in July 2015. The family was, as I have said, in crisis, the future was uncertain and there was an immediate need for respite. This was achieved with the help of the grandparents to the very highest level. They own a number of properties and bought this further property as being most convenient for the family to reside in, the arrangement strictly being that the family would rent it. They could, of course, have merely rented on the open market. However, the purchase of property was very much in harmony with the grandparents’ natural wishes for the family, and, of course, whichever parent’s account is correct, the purchase carried with it the possibility of a permanent solution in England.

[33]On 26th June 2015, when the father was still in hospital after the crash, the parents gave notice to W’s school and to the younger children’s nursery. More time has been spent on that particular issue than on any other. In summary, a letter sent to the nursery on 25th June read as follows:

“Due to a family emergency it is necessary for our family to return to the UK as quickly as possible. To this end, please accept this as written notice of our intent to remove A and T from their full-time positions at your centre following the mandatory two-week notice period.”

[34]At the same time, a letter was sent to the school which I must read in full. It was addressed to the head teacher. “Dear head teacher, As you may be aware, I suffer from post-traumatic stress disorder following a trauma on my last Afghan tour. Following my diagnosis in January 2013, much of my time has been spent in therapy and clinics trying to treat the effects of the illness. This has had a telling and negative impact on not just me but also my family. My wife and I have explained the situation to our children but it is clear that they are feeling the effects that this behaviour has on them. Further, my long-suffering wife has worked relentlessly to hold the family together as a unit. This has not been an easy task, especially whilst I have been away for long periods of residential care in mental facilities. She is now worn out and as we have no family network here there is no respite. Last week I was involved in a serious car accident and this has been the last straw. For this reason, we will be moving back to the UK within the school holidays. We will not be attending your school next term. While we get support from our family and take time to recover from the past three years of stress, W will be attending [named] school in England and has had his place accepted. He has greatly enjoyed his time at your school and we have enjoyed your professional and understanding approach as a principal. I realise this is all very last minute and that there may be further requirements that must be met within the school system. My wife will be back and forth between England and Australia tying up loose ends and so will have the opportunity to attend to any administration that is necessary. It is our intent to take a year out in England with our family support network and then hope to return to Australia again. If/when this happens, we hope to enrol our children back at your school as we rate the school highly and are lucky enough to own a house within the catchment area. Many thanks to the efforts of you and your staff in providing an excellent learning environment for our son. We can only hope that the same standards apply when we get back to the UK. Sincerely [and then it is signed in type by the parents].” Sincerely [and then it is signed in type by the parents].”

Sincerely

[35]The passage in italics came about in this way. A draft of that letter without those words was created by the father from hospital and sent to the mother on 25th June. What happened thereafter is in dispute. The mother says that she spoke to the father who then added the words in italics and sent the document a second time and she then sent it on. At this hearing, she has produced a further covering email for the second sending to support this. The father accepts that the full letter as I have read it went to the school, but he does not accept or recall adding the words in italics. Further, he says that he has no record in his “sent items” of the second covering message.

[36]Without a full forensic exercise examining the parties’ computers and devices, I am unable to resolve the question of how the italicised words came to be added, and in fact I do not think it necessary to do so. Whether or not the father was complicit in the amendment, the amendment itself reflects the mother’s state of mind at this time in its reference to “a year out”.

[37]Next there is a series of WhatsApp communications between the parents from which I read only short extracts. On 29th June, the mother wrote to the father:

“I don’t feel comfortable with you taking the kids permanently back to the UK without me with things the way they are between us.”

[38]To this, the father replied a little over an hour later:

“As far as I was concerned, I was taking the kids back to the UK to give you a break, to see what you really want first off. Everything has been on top of you and everything is in place for the care and welfare of the kids and I in the UK with [the grandparents] for the immediate part, then for you to join us as see how we both felt and then where we wanted to be for the future. To hear you now feel uncomfortable with me taking the children is painful. As to a plan, I am now lost as to what you want.”

[39]Further messages passed between the parents at this stage. They are to be found between pages 420 and 422. In particular, on 2nd July, the mother wrote a message to the father showing her acute anxiety about his intentions with regard to his drinking. It is not necessary to read that message in full but I extract the following:

“I am sorry, I can't destroy what little life I have stabilised for myself and the kids over here on an unstable man who I can't trust and has no intention of trying to gain my trust again.”

[40]Then, on 3rd July, she sent a message as follows:

“As for stat decs - you already agreed to sign one regarding the children and custody if I want to return to Aus and about our Aussie trip. Don’t make this into something you didn't know about and hadn't already agreed to.”

[41]These expressions on the mother’s part are characterised by Mrs Simpson-Martin as being “a wobble”. I will return to consider that interpretation.

[42]The second chapter was the period when the mother was in the UK between 6th July and 8th September. On 20th July, the father saw his GP in this country where he is recorded to say that he “fears that they will go back to Australia”, meaning the mother and the children.

[43]The third chapter begins with the mother’s return to Australia to finish as much of her MA as possible and to seek leave from the ADF. It is argued by the father that the mother was expected to go back and seek her complete release from the ADF, this being said in regard to both 2015 and 2016. If that is the case, it is somewhat surprising that he did not express the view in response to the mother’s repeated references to getting LWP for one year.

[44]On 17th November, the mother wrote a full request to her commanding officer which includes this paragraph:

“Further, due to the ongoing issues with my husband and the implications for my family, I believe it may be sensible for me to apply for a year of leave without pay. This would allow me to return to the UK to be with my husband and children and continue to assist my husband in his recovery, with the help of his extended family, during 2016. I would be able to complete my thesis from the UK and finalise my Masters during the former part of 2016. I have discussed this as an option with my husband’s GP, my husband and his family. I believe if I could have time off to wrap up my Masters and to assist my husband in his recovery with the support of his family then the five of us could return to Australia in a better place as a family. I would be planning to return ready for work in January 2017 with a completed Clinical Psychology Masters and with the support of my husband to allow me to work full time and start my service properly within the Army.”

[45]On 26th November, the father wrote to his connections in the ADF on very similar lines. I extract these references from a longer message:

“I am in a dilemma as although the direction from my medical team to come to UK to use family support is working very well, I now have the issue of my wife’s career. We are a military family and the job means more than just words, not just to my wife and I but to my father and brothers. My wife and I were discussing the future and how we would work after Christmas. This is difficult as although I am now in a steady state, I am not sure we are ready to move back to Australia where we have no support and therefore end up back at square one. Equally my wife is desperate to continue her studies and career and I am confident that, with some more time and stabilisation, the prospect of a return to Australia is definitely on the cards.”

[46]Later:

“I had a great career of 23 years in the military and my end result is what it is. In that time, my wife supported me and the family in every way. I want to return that support in the way I can as I believe she carries the very facets Army needs in her discipline. I know she is my wife and best friend but these words are from my professional self.”

[47]In early December, the mother was contacting shipping agents to get quotes for moving personal belongings from Australia to England. It is not clear from that documentation what the amount of home contents was to be.

[48]Then, on 3rd December, the father sent this communication, again I read only the most material parts of it:

“I think I have been living in a state of denial regarding our relationship and have felt that, if we kept going, everything would work out and we could reunite into an actual and real relationship. I now see this as being impossible and, painful as it is to say, I agree with you that we are beyond resolve.”

[49]Later:

“Our relationship has been stretched beyond the limit and we are broken, not bent.”

[50]Later:

“I miss you and feel sick to my stomach but I have been deaf to your words for so and it now feels I have heard for the first time. I sent you an email to find out where you stood and clarify intent and your reply made the situation no clearer. I don't know what we should do about Christmas and assume you will be adjusting your ticket, as your feelings were always to stay in Australia and a year here is just wasted time for you and your career. Thank you for all the efforts you have and for all the happiness you brought me. Those memories will last forever in my mind.”

[51]In reply, the mother asked the father to book for the children to return to Australia around 20th January. She spoke of the arrangements for withdrawing her application for unpaid leave and re-enrolling the children in Australia. Indeed, on 4th December, she wrote to her commanding officer withdrawing her application for LWP, saying:

“My husband and I have reconsidered the decision to take a year out in the UK. It does not make sense and seems unworkable for us financially. I will come back on 18th January…”

[52]In response, the mother was, as I have said, reassigned.

[53]On 10th December, the father made the financial transfer and at around this time the mother re-enrolled the children in Australian schools, with A moving up from nursery.

[54]On 11th December, ahead of the mother’s arrival, the father sent this message:

“Now I want to have a few days of being a dad with the children before Christmas arrives and then they go back with you. I haven't voiced many of my feelings about them returning to Australia but, as I am sure you can imagine, my preference is to have them stay in the UK which now feels like home and has so many positives for them, with everything from family to school. Regardless, I felt to push this line was not in their best interest as the fall-out from us fighting and very probably a complete breakdown in our communication, caring for each other, support to each other and focusing on being parents even if we are not together would carry massive impact. In short, could we leave your return date until after Thursday next week so I can have some daddy time with our children, please? I would appreciate it.”

[55]This arrangement for the father to have time with the children was eventually agreed by the mother.

[56]The father wrote again, on 14th December, a message including these words:

“The children don’t know anything and to be frank I am dreading breaking it to them. You know from my message that I think they are better off here and I want them here. Further, you know the reason I am not contesting this. They will be gutted. I hope the flight goes well, etc.”

[57]During this period, there were a number of messages between the mother and the grandparents on 4th, 5th and 6th December. In the first message, the mother told the grandparents in the clearest terms what she had told the father. It is a long and affectionate message that received a long and affectionate response. In that, the grandparents asked the mother not to make snap decisions and emphasised how well the children were doing. To this, the mother replied explaining all the arrangements that she had in hand for them in Australia. These are long messages, I quote only from the end of the mother’s last:

“We have had many conversations about what it would look like if we couldn’t make our marriage work and the chosen option was always for me to return to Australia with the children. I have a good career and a strong support system here. A and T were born here and W was only 14 months when he became a citizen here. This is our home. We discussed that [the father] visiting for extended months at a time will allow him not only to have good-quality chunks of time with the kids but also allow access to the PTSD treatment services he receives here free of charge. We also discussed the ability for the children to return to the UK during their holidays so that they can continue the fabulous relationship that they have with you both.”

[58]The next chapter covers the time when the mother was in England for six weeks last Christmas and New Year. I have already described the events during this period. It included communications between the mother and her commanding officer, these being drafted on her behalf by the father, suggesting that the children would be coming back to Australia soon. By that stage, the plan was in fact for them to remain for some further significant period, the parents’ relationship having improved.

[59]Chapter five starts with the mother’s return to Australia. Almost immediately her efforts to resurrect the LWP solution ran into difficulties. It was a time when she was clearly missing the family and children very much indeed. On 1st February, she sent this message:

“Heading home. Feel dreadful after today. Didn't meet with [senior officer] until 3 p.m. and she was all about the future, although skirted the issue that it was looking like I wasn’t a ‘good fit’. Glad to get today over but it's not looking like I’ll get LWP again. How has your day been?”

[60]On 4th February, she sent a message to the father saying:

“I just want to come back.”

[61]There was further correspondence at this time between the mother and the grandparents, the grandmother, for example, writing that she was “looking forward to the day you are all here for good”.

[62]On 14th February, the father took the children to Scotland to see the maternal grandparents for four nights.

[63]On 16th February, the grandfather wrote to the mother in a friendly message containing the following passage:

“[The grandmother] and I had a cup of tea with [the father] when we got back. It was clear that something was troubling him and after some careful probing he revealed that you are pressing him to send the children back to you in Australia. So frankly we are somewhat confused by what appears to be a complete turnaround in position. At the conclusion of the talk we had when you were over here, you confirmed that you were very happy with the way the children had settled down at home and at their schools, and it was agreed that the children should remain here. You would, once you had settled back into a routine over there, progress the process to be discharged from the ADF and join them back in the UK.”

[64]There is in this message a hint that the father and grandparents (perhaps for perfectly good and understandable reasons) were not always on the same page at the same time.

[65]On 17th February, the mother wrote this to the grandmother:

“It has been hard because I have had to look like I am going forward here while still trying to stall any more commitments and wait for [the father] to be able to communicate. Very stressful and I can't put it off much longer! I hate this deceit and pretence.”

[66]On 18th February, the parents had an argument on the telephone which led to a sequence of communications, with the mother more persistently asking the father to book flights for the children. On this occasion, in a situation that was very similar to that that had existed in December, the father did not explicitly agree but instead (to use his word) prevaricated. Between 18th February and the end of the month there was a series of communications. On 20th February, mother sent a message saying please book flights, to which the father replied immediately:

“If we are definitely over, please stop messaging me and send all contact through [the grandfather]. I will make arrangements for solution to this situation. Please have the movers collect my things and ship them over a.s.p. They can bill me directly. Good-bye.”

[67]On 25th February, the mother sent an email saying that she wanted confirmation that flights had been booked for the kids to return home to her care by the end of the month.

[68]On 25th February, she took up the question of what the children should be told:

“Would you like to talk to the kids about them moving back here before our Skype on Sunday? Or should we do that together on Skype. I am happy for you to call the ball on it, whatever is going to be easiest for you guys. I don’t think this is something you can ignore or avoid any longer. Things need to be planned for both in the UK and here. It’ll be easier for everyone involved if we give a decent amount of time for adjustment.”

[69]On 26th February:

“Hi, I have sent requests to you multiple times asking you to confirm when the kids will be flying over. Please can you get back to me. Also can you let me know if they know they’re moving back to Australia. If they don’t know, can you tell me how and when you/we will be telling them. Thanks.”

[70]To this the father replied, after some introduction:

“I think we should get through a good Skype on Sunday and then explain the future to them next weekend.”

[71]Then in a later message that day, the father writes:

“Need to think on what and when to say what's happening. Distracted at the moment by T. Will keep in touch. I know how hard it was being without them when I've been away. Keep smiling.”

[72]The mother replied:

“I am. I am just anxious to get their life sorted out over here. We could do with talking through all this stuff. When do you have space?”

[73]The mother, not having received any satisfactory answer from her point of view, then, having received legal advice, sent a substantial email on 29th February requiring the father to provide the confirmation of the arrangements and expressing the concern that he seemed to be avoiding the issue.

[74]In response to that, the father sent a four-paragraph email which includes:

“The children are of paramount importance, as is shielding them from breakdown of our marriage. I have made an appointment to speak to [a psychotherapist] on Wednesday specifically regarding the best way to break the news to the children regarding their future in an attempt to do no harm. Once I have that game plan in my mind, I would like to talk it through with you on Thursday morning my time, etc.”

[75]The mother replied that she was glad that they appeared to be “on the same page” but that she did require a confirmation.

[76]Sadly, the father’s message of 29th February can now be seen as merely buying time to allow his court application to be dealt with. This was something that he says sprung from the advice of his psychologist that he should not engage in discussion with the mother. I do not accept that at all. The father, however much stress he was under, was perfectly capable of communicating, and indeed it would probably have been less stressful for him to communicate truthfully than disingenuously.

[77]Continuing, the issue of consent or acquiescence is not to be decided by reference to individual aspects of the above evidence, nor can it be influenced by comment or complaint about one or other party’s behaviour having fallen below their usual standards. However, for reasons that I will explain in a little more detail below, I do regard the events of February 2016, like those in January 2015, as being of assistance when coming to analyse the issues between the parties.

[78]That concludes my survey of the material which could inevitably be longer (although indeed it might have been shorter), but I believe I have touched on the main points. I now come to state my conclusions:(1) These children have throughout remained habitually resident in Australia. They were not habitually resident in England when these proceedings were issued. They have grown up in Australia and it is their home. They have not become integrated into life in England in such a way as to change that. Although the very best arrangements have been made for their care and education since last July, their presence here was not, as I find, intended to be a definitive or permanent relocation. In the light of the basis upon which they came, the repeated uncertainty in the parents’ relationship and the extremely significant absence of their mother from their daily lives, their presence here has had a provisional quality.

(2) As to that, I find against the father’s case that he and the mother agreed on a permanent move to the UK. While there are features of the evidence to which the father can point that are consistent with such an agreement, they are not distinctive indicators and are certainly not clear and unequivocal. I find the mother’s communications in June and July 2015 to be an indication of an openly-expressed state of time, of which the father was well aware, and not to be in the nature of “a wobble”. A feature that, to my mind, strongly supports my overall conclusion are the reactions of the father and of the mother to the difficulties that arose in December 2015 and again in February 2016. When the mother said that the children should come back, the father in the first place agreed and in the latter case avoided the issue in a way that is accepted to have been out of character. This is a family with a very high regard for plain dealing. Had there been a “plan for permanency”, I have no doubt that, somewhere amidst the mass of material, there will be a reference by the father to the mother having reneged on that agreement. Certainly in February 2016, had the father believed that he had had such a commitment, he would inevitably have said so. I do not accept that his failure to do so arose from incapacity or from what Mrs Simpson-Martin has referred to as “irrationality”. He did not give the obvious response because it would not have been true. In contrast, the mother’s actions have throughout been spontaneous and consistent with a conviction that there was no agreement of the kind for which the father now contends. What we have here is a dog that barked and another that significantly remained silent.

(3) My assessment of the evidence is that the children came to England as part of an exercise to shore up this family. The period that was acceptable to the mother and at least tacitly accepted by the father was a school year, give or take, and so to the end of 2016 provided things went to plan, with the family remaining together and the mother being successful in obtaining a year of LWP. Failing that, it was clearly within the parents’ contemplation that the children would return sooner to Australia. I accept from all the surrounding circumstances that matters might have moved to the point where the family may have decided to remain in England permanently or indefinitely. The infrastructure allowing for that to happen was well in place. But that is not what happened. The mother’s return in January was not, I find, in order to get out of the Army come what may. It would have been necessary for her to have been discharged for that outcome to be possible. I entirely accept that the grandparents saw the arrangements as being capable of being permanent or indefinite in accordance with their own honest feelings about what would be for the best. However, I am not able to convert the wishes and actions of even such excellent grandparents into an agreement between the parents that did not exist, or into a conclusion that these children’s provisional presence in England amounted to habitual residence here in March 2016.

(4) I therefore find that the father has not made out the defence based upon the mother’s consent.

(5) That being the case, there is no basis on which the court can find that the mother acquiesced in January 2016 to something to which she had not previously agreed. In my view, the situation in 2016 was essentially the same as it had been in the previous year.

(6) I therefore conclude that any decisions about the children’s future, if they cannot be agreed between the parents, are properly to be taken by the court in Australia. I note that proceedings have been issued by the mother in the Federal Circuit Court on 3rd June and that they are due for hearing on 27th September next.

[79]In the outcome, I shall direct the summary return of the three children to Australia. I will hear from the parties, after they have had some opportunity to digest this decision, as to when and how that is to be achieved. I appreciate that whichever party was going to be unsuccessful in this matter was bound to be deeply unhappy. That is the nature of disputes of this kind, particularly across continents. But I express the court’s expectation that the adults will do everything they can to support the children in the future, as they have done in the past. Indeed, from what I know of their qualities, I am confident that this will be so. - - - - - -