COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY, FAMILY DIVISION
(MRS JUSTICE PARKER)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE MOORE-BICK
|IN THE MATTER OF S (a Child)|
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Mr H Setright QC and Mr R Harrison (instructed by Messrs Osmond Gaunt & Rose) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Thorpe:
"My decision in respect of habitual residence is extremely finely balanced and it may be that the father will wish to appeal it, particularly in relation to his argument in respect of the centre of interest test. It may be that I am found to be wrong on that point."
"Finally he dealt with a submission that because of Article 3 of Brussels II revised, the phrase "habitually resident" had to be construed for the purposes of the Hague Convention in the autonomous way in which it was construed for the purposes of Brussels II revised. Mrs Justice Parker in Re: S  EWHC 1873 (Fam) did not agree since she concluded that the concept of habitual residence had developed its own autonomous Hague Convention meaning broadly equating with the concept of ordinary residence and there was no reported authority, either European or domestic, in which the "centre of interest" test had been held to apply for present purposes. The President was of the view that Parker J was right to take the view which she did."
"The test is not where the 'real home' is: this was rejected by Lord Scarman at p. 348G. There is a distinction to be drawn between being settled in a new place or country and being resident there for a settled purpose which may be fulfilled by meeting a purpose of short duration or one conditional upon future events."
"By the time the family went to the Wandsworth flat in July 2007 the mother had communicated to the father her deep unhappiness in Belgium and he knew it. When she came to London to join him he knew that she wanted to stay. He arranged for her to join him with that knowledge. By the time they were asked to leave the Wandsworth house the father knew that she would not go back to Belgium. The father had a longstanding connection with England and he was by then two months into a two year contract with Digi-guys. From the father's point of view it made perfect sense that, rather than commuting back and forth via Eurostar or car each weekend and living in the digs and Hackney, he should have a family life with his wife and child. The Wandsworth house-sit was hoped by both of them to be of between 6-9 months duration. Had it not been prematurely brought to an end it would have continued for as long as possible. If the owners had decided to extend their stay it is highly likely, bearing in mind the mother's feelings, and that [Z] was not at school, that it would have continued. There was no pressing need to go back to Belgium. It was not a 'holiday'."
In her conclusions on the core question of habitual residence I likewise read into this judgment paragraphs 105 to 108 inclusive:
"105. I accept that the father does not regard himself as habitually resident here. Applying the EU test it may be right that he resides or stays here, but not habitually so. But I consider that he is to be regarded for the purposes of these proceedings as habitually resident in England up until November 2005. His own statements seem to suggest that he regarded himself as being settled here; for instance, the statement in the December 2004 email that he is 'original Belgian living in England for 5 years now'. But if so, he must have ceased to be habitually resident here, probably when he went to Australia in November 2005, certainly at some point after his return to Belgium. I note also that in the tax form filled in during May 2007 he described himself as 'resident' here. I accept that when he filled out the mother's part of the form ticking the box to show her as resident here, but then crossed it out, it is likely that this was because he made a mistake and then corrected it. After all, at that time the mother was not resident here and could not be described as such. At that time there were no obvious issues as to where they were resident or habitually resident which affected [Z]. When the mother filled in the subsequent form on 11 October 2007 describing herself as resident at the Holland Park address and the father tippexed it out, there was indeed such an issue: it shows that the mother presented herself as resident in England, but no more. this was filled out when the parties were in Belgium after the father had moved [Z] back to Belgium.
106. The father's connection with this country is very substantial. It is longstanding, and the connection (tax payments etc) have legal as well as practical affect. In my view it is an important part of the factual analysis of where [Z] is habitually resident that the father has such a connection with England, and that he has a job in London. The reality is that for practical purposes he has, and has had for substantial periods in the past, two centres of interest. Thus when the mother and [Z] came to England on 28 July 2007 they came to join him and to have a family life together there. Lord Slynn's test is not exhaustive, 'Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, 'durable ties' with the country of residence or intended residence, and many other factors have to be taken into account', but they fulfilled a number of important aspects of his suggested criteria: they all had a right to live here, they had a home to go to, albeit a temporary one, they brought as much as they needed, there was nowhere to bring their other possessions, the father's connection with this country has been demonstrably durable and became so again when he took up employment here. The most important countervailing factor is the fact that they did not pack up the home in Belgium, but in the context of this case this is not in my view determinative. It seems to me to be artificial in the extreme to say that the family was not habitually resident here fairly swiftly since the father had been employed here since early June 2007 under a two year contract. Once his family joined him he was very obviously residing here with them. He stopped making the weekend trips to Belgium because his family were in London. After July 2007 the trips back to Belgium were not for the purpose of residing there but for visiting their flat and taking [Z] to visit her grandmother. In my view they had clearly shifted their base.
107. Was the period of 7-8 weeks long enough to establish residence in the context of this case? In the context of the understanding that they would be in England to pursue family life, I consider that it was. 'The requisite period is not a fixed period. It may be longer where there are doubts.' They came here to be here for between 3 and 9 months. The father thought that it would be six. They were not expecting the owner of the Wandsworth house to require them to leave on 28 September. It was a shock to both and they were unprepared for it. It is also of some significance that England was one of the places, and an obvious place, for them to be living. The father's five year plan may have been his ambition at the outset but it was not realistic once it became apparent that he had to get work wherever he could. The only issue about being in England was affordability. The EEA entry permits, which had been renewed whilst the family were in Belgium, were an obvious necessity to give them flexibility for the family either to visit or live here.
108. When they came here in July 2008 it was on the basis that they would be here for as long as living accommodation could be found for either of them both that was affordable. The mother was determined not to go back to live in Belgium and I find that she told the father this and that he knew this. Whatever the father's hopes and plans for the future, the reality is that by 28 September [Z] had lost her habitual residence in Belgium and was habitually resident in England. In the context of this case it does not seem to me undermine that finding that the family had kept the Belgian flat, that their possessions remained there, that they spent two weekends there, that the father's car was registered in Belgium, or that the mother was registered there to live and to vote. I have come to the conclusion that the only answer to the question as to where they were living, where the family were based as part of their settled order of life, as at the end of September 2007, was England. Therefore, at the point where she was removed to Belgium, [Z] was habitually resident in England. It is accepted on behalf of the father, and in any even I would find, that his unilateral actions cannot change that, and that if this is the finding, she remains habitually resident here."
Lord Justice Wall:
"Was the period of 7-8 weeks long enough to establish residence in the context of this case? "
"When they came here in July 2008 it was on the basis that they would be here for as long as living accommodation could be found for either of them both that was affordable."
Lord Justice Moore-Bick:
Order: Appeal dismissed