YG v NM (Article 15 declaration; wrongful removal) [2017] EWHC 1276 (Fam)

[2017] EWHC 1276 (Fam)

Case No FD17P00107

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Thursday, 6 th April 2017

Before

MR JUSTICE HOLMAN

Between

YGClaimant

NM (Article 15 declaration; wrongful removal)Defendant

B E T W E E N:

YG Applicant

- and -

NM Respondent

(Article 15 declaration; wrongful removal)

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MR M. GRATION (instructed by Seddons) appeared on behalf of the Applicant/father.

THE RESPONDENT/MOTHER was not represented and did not appear.

J U D G M E N T (As approved by the judge)

[1]This is an application by a father for a determination and declaration pursuant to Article 15 of the Hague Convention on the civil aspects of international child abduction, that the removal of his son from England and Wales on 13th October 2016 was wrongful within the meaning of Article 3 of that Convention, being in breach of rights of custody which on that date were attributed both to him and to the Single Family Court of England and Wales, and were being actually exercised by both him and that court on that date. The respondent to the application is the child's mother who appears clearly to have removed the child from England and Wales to Hungary on that date.

[2]Mr Michael Gration, who appears today on behalf of the father, has taken me meticulously through a witness statement made by the father's solicitor, Mr Toby Hales, on 22nd March 2017, and the exhibits thereto, and also to a more recent email dated 24th March 2017, and a letter dated 24th March 2017, which were sent by Mr Hales to Dr Barandy, a lawyer who has stated that she acts on behalf of the mother in Hungary. Those documents are now at pages B54 and B55 of the present bundle. They, in turn, satisfy me that, although the mother is not present or represented here today, she has been served with the father's application, which was issued on 27th February 2017, for a declaration substantially in the terms of the order which I propose to make, and that she has been served with the father's evidence in support of the application, and that she has been served with notice of the hearing here today.

[3]The essential factual background is as follows. The father is of Egyptian descent and has dual Egyptian and Irish citizenship. He has lived for a considerable number of years here in England and Wales, where he is a surgeon. The mother is a citizen of Hungary. She suggests in some emails, which she has recently sent, that she was not habitually resident in England and Wales but merely came to England and Wales last autumn to give birth to the child. However, the statement of the father dated 27th February 2017 makes absolutely clear that, until she abruptly went to Hungary on 13th October 2016, the mother also had lived substantially in England for at least the previous ten years, albeit that she made some return visits to Hungary.

[4]On the basis of the evidence of the father I am satisfied, on the balance of probability, that in the whole period up to 13th October 2016 the mother, as well as the father, was habitually resident here in England and Wales.

[5]The parents had had a romantic relationship for a number of years, although the father says that he did not feel that their relationship was one which could fructify into marriage or even permanent cohabitation. They nevertheless appear to have spent considerable periods of time together. As a result of that relationship the mother conceived a child in late 2015, or very early in 2016. At one point she challenged the father as to whether in truth he is the father of that child. But I am satisfied that he is the father, as he himself asserts, since the mother commenced some proceedings in Hungary by a Writ of Summons dated 14th February 2017, which expressly seeks a determination that the father, who is named in those proceedings, is indeed the father of this child. So it is the express and positive contention and assertion by the mother herself, in her own proceedings in Hungary, that this man is the father of this child.

[6]The child was born in a hospital in London on 29th September 2016 by Caesarean section. The father was present throughout the birth (not because he is a surgeon but in his capacity as the father). After the birth the child lived with the mother in a property which she was renting at that time in London. The father saw the child a number of times, most recently on Tuesday, 11th October 2016.

[7]On Wednesday, 12th October 2016, the father applied to the Single Family Court of England and Wales sitting in the Central Family Court for a prohibited steps order. His application was supported by a statement dated 12th October 2016 in which he describes his fear that the mother might be planning on removing the child, in the then near future, from England to Hungary. He refers to various "clues" which led him to have that concern, and he says that he believes she was planning on doing so, "In order to punish me, and in order to put pressure on me to commit to a relationship with her." He says that she had never expressed the slightest desire to live in Hungary.

[8]On Wednesday, 12th October 2016, a recorder sitting in the Central Family Court did indeed make a prohibited steps order. The order recites that at the hearing the solicitor for the applicant father indicated to the court that it was not necessary to pursue an application for the delivering up of passports at that without notice hearing. From the wonderful vantage point of hindsight, it can perhaps now be seen that it was unfortunate that a location and passport order was not sought from the outset on 12th October 2016. But at all events,

the judge did make a clear prohibited steps order that:

"The respondent mother must not remove the child [with his full name and date of birth] from England and Wales without the prior consent of the applicant and the respondent, or the consent of the court."

[9]By paragraph 6 of the same order, the court fixed for further hearing and directions the application for a child arrangements order, and the continuation of the prohibited steps order, on 8th November 2016 at the Central Family Court. Having fixed that return date, the order made on 12th October 2016 itself expressed that the order itself was to last until 8th November 2016. That was clearly done because it was contemplated that there would be a further hearing on 8th November 2016 with both parties present, at which consideration would be given as to the necessity for, and scope of, any longer lasting prohibited steps order.

[10]There is a statement of attempted service dated 19th October 2016 by a process server, Dean Ioannou, which describes how, at 10.35 in the morning on Thursday, 13th October 2016, he attended at the address at which the mother was clearly residing with a view to serving the prohibited steps order, and the supporting evidence and documents, upon the mother. He says in that statement that:

"Upon arrival I met with an adult female whose English was not good, but she informed me that she is the respondent's mother and advised that her daughter was not then within but expected her back in half an hour."

[11]The process server then continues that he remained at the premises for about 40 minutes, after which another adult female arrived at the property. That person turned out not to be the mother of the child, but a nurse who had come to check on the baby. The process server says that after that nurse left the property, he approached her again and she:

"informed me that the baby's mother was not within but she did see the baby, which is what she was there for. She had no information as to the mother's whereabouts. I therefore left the location intending to return that evening."

The process server then describes how he did return at about 7.00 p.m. the same evening and discovered that the property appeared to have been vacated.

[12]The mother herself was later to send an email dated 21st October 2016 to the father, within which she says:

"I am being very honest with you. The last straw was when you have sent people around my accommodation while I was out, looking for me in a threatening way, banging the door, trying to make my mother intimidated, who has also watched the health visitor being harassed by this person sent by you."

[13]It seems to me clearly to follow from a combination of the evidence of the process server and that email from the mother, that until some time on 13th October 2016, after the process server had attended at, and then left, the premises, the mother and child were clearly still resident here in England and Wales. Further, in the proceedings which she has issued in Hungary, which I have mentioned, the mother states in a statement dated 2nd December 2016:

"After the delivery it took me one week to recover to the point where I was physically fit to travel. On 13th October 2016 I then returned home with the child, assisted by my mother and sister, onboard a private plane due to my state."

[14]In the light of that statement it seems to me clear, on the balance of probability, that it was on 13th October 2016, but after the process server had attended during the course of that morning, that the mother removed the child from England and Wales.

[15]This father does not have parental responsibility for this child pursuant to the law of England and Wales. He was never married to the mother. He is not named upon the child's birth certificate as the father. Indeed, one of the very reasons which caused him so much concern that the mother might be planning to remove the child was that she hastily registered the birth of the child but chose not to name him as the father, although, as she was later to assert in her proceedings in Hungary, it is her firm contention that he is the father. So he does not have parental responsibility under English law. However, he had applied for and obtained the prohibited steps order, which I have described, on 12th October 2016, namely before the day upon which the child was removed on 13th October 2016.

[16]Article 5 of the Hague Convention provides that:

"For the purposes of this Convention - (a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence ..."

Article 3 of the Hague Convention refers to the rights of custody:

"... attributed to a person, an institution or any other body, either jointly or alone ..."

[17]It seems to me quite clear that the effect of the prohibited steps order made on 12th October 2016 was to attribute rights of custody relating to this child within the meaning of

Article 5 of the Convention

to both the father and the Single Family Court of England and Wales. Rights of custody were attributed to the father because the order expressly provided that the mother must not remove the child from England and Wales without his prior consent. That order similarly attributed a right of custody to the court itself, which was clearly asserting its power to prevent the removal of the child from England and Wales.

[18]The next question is whether this child was himself habitually resident in England and Wales immediately before his removal on 13th October 2016. Of course, on that date, he was only just over two weeks old. But there is nothing to suggest that in his short life up to that moment he had ever left England and Wales, in which he had been born. At the time of his birth his father was habitually resident in England and Wales and, as I am satisfied, his mother was also habitually resident in England and Wales. It is impossible to conceive that he was habitually resident in any other State than England and Wales, so he must either have been habitually resident in England and Wales or not habitually resident anywhere.

[19]I appreciate, of course, that the younger a child is the harder it is, conceptually, to envisage a child being "habitually" resident anywhere. For instance, in the first hour after the birth of a child it might seem rather unreal to describe him as being habitually resident anywhere, as the characteristics of "habitual" can scarcely be acquired within an hour. But the law leans against an outcome which leaves a person, even a young baby, without any habitual residence, because of the importance of habitual residence as a connecting factor and basis of jurisdiction for proceedings in relation to children throughout Europe and, indeed, much of the rest of the world. It seems to me clear and appropriate that immediately prior to his removal this child was, in fact, habitually resident here in England and Wales.

[20]The next question is whether, within the meaning of Article 3(b) of the Convention, the rights of custody were being actually exercised, either jointly or alone, by the father and/or the Single Family Court at the time of the removal. In my view they clearly were. During the child's short life his father has seen him several times, including most recently on Tuesday, 11th October 2016. The father had very deliberately sought and obtained the prohibited steps order on 12th October 2016, and actively sought to serve it through the process server on 13th October 2016. In my view all those matters are clear indicators that he was actually exercising his rights of custody on the date of removal on 13th October 2016. So, also, was the court. It had made a prohibited steps order only the day before, on 12th October 2016, and that order had made provision for the preparation of evidence in the continuing proceedings, and had fixed a further hearing date, relatively soon thereafter, on 8th November 2016. It seems to me quite clear that both the father and the court were actually and actively exercising their respective rights of custody.

[21]It is right and fair to say in this case that there is no evidence that the mother herself had any knowledge that the prohibited steps order had been obtained. The process server describes that he went to the house seeking the mother, but he did not leave at the property the order or any of the supporting documents. He does not say that he even informed the mother's own mother of his purpose in being at the property, or of the existence of the prohibited steps order.

[22]I have already quoted what the mother said in an email to the father, dated 21st October 2016. It may be that she became suspicious that the father had initiated, or was about to initiate, legal proceedings. But it may also be that she merely thought that the father was, as she said, harassing her. I will assume that the mother positively knew and appreciated that the father did not have parental responsibility for the child. Accordingly, she may well have reasonably and genuinely believed on 13th October 2016 that she could lawfully remove her son from England and Wales.

[23]However, the language of Article 3 of the Hague Convention is passive. It begins with the words:

"The removal or the retention of a child is to be considered wrongful where ..."

The subjective conduct of the person removing the child is not made relevant. Article 3 merely provides that if the removal or retention is in breach of rights of custody then it "is to be considered wrongful”. It may seem hard and unfair to the mother that her action in removing the child some time during 13th October 2016 is now characterised as "wrongful," and, indeed, "an abduction”, being the word used in the title to the Convention.

[24]But the facts and chronology that I have described have the effect that, whether wittingly or not, her removal of the child that day does turn out to have been in breach of rights of custody and was, accordingly, wrongful. For those reasons I will make an order in terms which have already been discussed and drafted, which will conclude with the following declaration: "It is accordingly hereby determined and declared pursuant to, and for the purposes of, Article 15 of the said Convention, that the removal of [the child] from England and Wales on 13th October 2016 was wrongful within the meaning of Article 3 of the said Convention." __________