THE HON. MR JUSTICE SUMNER
This judgment is being handed down in private on 4 April 2007. It consists of 11 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Miss Judith Charlton (instructed by Reeves & Co. Solicitors) for the Respondent
Hearing dates: 27 March 2007
Crown Copyright ©
The Hon. Mr Justice Sumner :
The Hague Convention
"…..there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day, if he or she leaves it with a settled intention not to return to it, but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B."
Emails, letters, and telephone conversations
The mother, 17 September 2006, p.97.
"You know what, no it is not time to talk. I have hardly had time to touch the floor, yet alone think about anything else … I did say I wouldn't make a decision until Christmas and you starting just over a week later isn't helping."
The father, 17 September 2006, p.98.
"I am sorry F. I didn't mean to word that wrong, but I guess it just came out wrong. I know you're still really mad at me, at life, and everything right now. I know that it isn't the right time to talk about us, but I have to … You need time to think. And I'm going to try everything in my power to let to have their time ... I am not trying to fix our marriage … I made a promise that I wouldn't pressurise you and that I would give you as much time as you needed."
The father, 4 page letter 22 September 2006, p.102a-d.
He said that he was still reeling inside. She had to lead her life however she saw fit, and he must do the same. He wanted to be part of her life, but knew that it was not possible for the moment. He was trying his best to leave it as it was. She was to tell him when and if she was ready.
The mother to the paternal grandfather, 7 November 2006, p.131.
"We haven't heard from W, but then he doesn't want to be known his whereabouts, its all in his plan …he will surface when he wants to…"
"Christmas …well unless he gets back and signs a couple of papers and gets the air tickets, then no we won't be over this year, not what we were expecting, but then I didn't expect W to disappear off to Mexico either…"
The father, 8 November 2006, p.134.
"Hi. Just got back today … anyway, what papers do you want me to sign? Are they for the decree? If so, when did you file so I know where I stand … if not when are you going to file, so I know what to expect?
The father, 9 November 2006, p.138a.
" …..As for the decree, for business reasons I need to have notice at what to do and how to filed tax wise in United States. And personally, I would like to know where I am with you, and at what stage in our divorce we are at, so I can move on with my life, which I think is fair …
The mother, 9 November 2006, p.140.
"What is it with you and the urgent need of the decree???"
The father, 12 November 2006, p.151.
"You know, you never answered me about Christmas. I need to know, please, and the other stuff as well. I think it's time you tell me what's going on, and where we go from here."
The mother, 12 November 2006, p.157a.
"What did you want to know… I told you already, I need papers signed first and if you send the money for the flights as I've not got money for them, you hold all the dosh remember ... I am seeing the solicitor again on Tuesday."
The father, 12 November 2006, p.157b.
"And I thought you were going to handle the tickets, as that is what the promise to me was? But I understand, and if you want me to pay for S's ticket, that's fully understandable…..so what are the papers you want signed? You just keep saying papers? Is it the reply to the divorce decree? Have you filed yet? These are the things I want to know, since you asked."
The mother, 15 November 2006, p.162a.
"Well, I'm absolutely astounded that you are saying you will pay for S's ticket … are you insinuating that you won't pay mine? I'm afraid, if you won't send the money for both we won't be able to come out ... Providing you will have placed funds in the bank for the flight we can fly out on 19 Dec and return to the UK on 4 Jan … Well let me know if these dates are okay with you."
The father, 16 November 2006, p.162b.
" … I will start looking in the flight for you next week, with the dates that you sent me … I don't really want to get into the money side of things, right now, please. Besides, I've been advised not to speak about these things until after the formal declaration of divorce has been decreed by the courts. If you have the dates for that, it would be helpful if I could pass those on … I do want to speak to about custody of S, but I don't want to discuss it over an e-mail. I think it's something that we probably should talk about."
The father, 4 December 2006, p.174a.
"It was nice to talk to you again, even though we can't really talk. I just one to ask you one favour, which is just to put in writing that you are willing to give me six weeks a year. That's all."
The mother, 9 December 2006, p.178a.
"W, after much deliberation, and asking S what he wants, we've decided that we will be spending Christmas here are in the UK. I guess this is what you wanted me to say, but I was waiting to you to make the decision and tell me … next Christmas will be yours with S, of course, I will fly with him, without doubt, but the situation will be clarified nearer the time..."
"You have had since you came back from your holiday to Mexico to sort the tickets out, but you have had one excuse after another why you haven't done it and seem to try and rile me up so I call the shot and say we aren't coming. It's not that you succeeded, its that we want to look forward to this holiday time and not be left hanging, waiting for you to make the choice, as you so aptly put it."
"We've had our differences, and it hasn't worked as we'd planned in the beginning. I've given you what you wanted, your freedom you have made it quite clear and have even told me. My only concern is our son. No matter how you and I get along he is the most important thing we've done together ... I'm very sorry it had come to this, but it has and the only important thing now is our son, he does love you very much."
The father, 18 December 2006, p.187.
"There is some paperwork coming from Morgan Stanley, if you can do me a huge favour and send that to me, it would be greatly appreciated. It should come within the next few days, I believe. If you can let me know… Thanks."
Letter from the father, p.191a.
" I hope you had or are having a wonderful Christmas holiday … I am sorry that you feel that I have ruined your life, and that you believe that I am the sole cause of all yours sorrow. I wish I could take all of the pain away that you say I have caused you, and make everything the way you would like but I cannot ... I love you F I always will … I have never asked for my freedom, F … I is supposed this will be the last time that we communicate with one another for awhile. I won't say much more, as it may become meaningless. I don't know what you tell the others… I still love you, F ... I hope the next time we speak you will have learned how to forgive me…"
"I do not find it necessary to express a final opinion on this question. As stated in the passage from Lord Brandon's speech in Re J which is the third proposition above it is easy to lose an habitual residence: it is more difficult to acquire one. It is sufficient to say that I entertain grave doubts that the children had by 23 July 1992, regained an habitual residence in England."
"The judge was entitled to make the finding that the family did intend to emigrate from the UK and settle in Australia. With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time. Looking realistically at the position of A (the child), by the time he left Sydney on the 10 July 1991, he had been a resident in Australia for the substantial period of nearly 3 months."
"Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring a family, durable ties with a country of residence or intended residence, and many other factors have been taken into account. The requisite period is not a fixed period, it may be longer, where there are doubts."
"(1) For the purposes of Art 13 of the Convention, the question whether the wronged parent has acquiesced in the removal or retention of the child depends upon his actual state of mind.…
The subjective intention of the wrong parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.
The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertion in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.
There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."