Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|- and -
|- and -
|X (a minor by Her Children's Guardian Ms Jacqueline Roddy)
Z 2nd Applicant appeared in person
The 1st Respondent did not attend
Ms Hannah Markham Q.C. (instructed by Cafcass Legal) for the 2nd Respondent
Hearing dates: 24th & 25th July 2017 and 4th August 2017
Crown Copyright ©
Mrs Justice Theis DBE :
i. "A person is in general, domiciled in the country in which he considered by English Law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it.
ii. No person can be without a domicile.
iii. No person can at the same time for the same purpose have more than one domicile.
iv. An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
v. Every person receives at birth a domicile of origin.
vi. Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise.
vii. Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country must be considered in determining whether he has acquired a domicile of choice.
viii. In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen and the fact that residence was precarious.
ix. A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely and not otherwise. A person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention
x. When a domicile of choice is abandoned, a new domicile of choice may be acquired, but if it is not acquired, the domicile of origin revives."
(1) Z had not lived in the UK since early 2013, when he went to work for the family business in Country B where he paid tax in 2014 and 2015. This followed spending time there in 2012 and was part of an ongoing plan within his family that he would take up a position in the family company to assist his aging father. He stayed there from April 2013 to August 2014. He was paid for this work as general counsel for the company. Since the age of 10 years he has received significant financial support from the family company in Country B, demonstrating the degree to which he continued to be linked to his home and family in Country B.
(2) The parties agreed in January 2014 to live in Country B with X until she was of school age.
(3) He went to the US in August 2014 without returning to the UK, and from early September 2014 the plan was to live in the US as he described to the court in Florida in March 2017. He emphasised the features that established the settled nature of their home in Florida (the church, researching schools etc). There was no intention then to return to live in the UK. Z applied for a 5 year visa in the US, started looking for jobs there in April 2015 and remained there until October 2015.
(4) At the time he applied for a parental order in February 2015 he had applied for a five year spousal visa in the US, which although not granted this was due to the lack of recognition of a civil partnership which prompted the visit to the UK in February 2015 to get married to fill that gap, which supported the reality that Z did not have at that time the intention to permanently or indefinitely reside in the UK.
(5) The London flat was rented out from 2013 until late 2015, so was not available to live in;
(6) Y and Z were registered as overseas landlords and the flat was marketed for sale in March 2015, in part due to concerns regarding changes in CGT;
(7) When he came back to London in October 2015 he went on to Country B until December 2015. When he left the US he intended to commute to the US (and if possible return there through his work).
(8) In his oral evidence Z accepted there was a very unsettled time between 2012 and 2015 as to where the parties would live. Initially both moved to their preferred locations, Z Country B and Y the US. In June 2013 Z asserted he would not move back to Europe as he had already made the move to Country B. London appeared as an option but was either ruled out as being too expensive or not pursued. In April 2014 the options were Country B or the US, London was not pursued, and if it was raised it was not agreed. London does not feature as a realistic option advocated by Z during this period. The most it gets is an isolated mention to third parties.
(9) Z's domicile of origin is Country B. It was clear from Z's oral evidence that he has retained a strong financial presence in Country B, he remains a director of the family company, he has a continuing role in it and the expectation and understanding within the family is that he will eventually take it over with siblings. The evidence demonstrates that the strength and ties in Country B are stronger and remain strong supporting the conclusion that his domicile of origin was continuing despite his more temporary residence in other jurisdictions.
Discussion and Decision
(1) As a matter of English law neither Y or Z will have parental responsibility for X, notwithstanding it was intended by them both they would be factual and legal parents for her, and they both intended they would hold parental responsibility;
(2) Z will not be X's legal parent as a matter of English law;
(3) W will continue to be X's legal parent as a matter of English law, despite W's views that she does not wish to be considered as X's parent.
(4) Despite his optimism Y does not have an automatic right to remain indefinitely in the US. If X came to live here, without a parental order her legal parental relationship would only be with W who takes no active part in X's life.