Case No: B4/2008/2163

Neutral Citation Number: [2009] EWCA Civ 1021
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY, FAMILY DIVISION
(MRS JUSTICE PARKER)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 30th July 2009

Before:

LORD JUSTICE THORPE
LORD JUSTICE WALL
and
LORD JUSTICE MOORE-BICK
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IN THE MATTER OF S (a Child)

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Mr J Turner QC and Mr J Robertson (instructed by Freeman Solicitors) appeared on behalf of the Appellant.
Mr H Setright QC and Mr R Harrison (instructed by Messrs Osmond Gaunt & Rose) appeared on behalf of the Respondent.
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Judgment
Lord Justice Thorpe:

1.	Mr James Turner QC leading Mr Robertson appeals the decision of Parker J that the child of the family with whom she was concerned was habitually resident in this jurisdiction at the time, namely end of September 2007, when the father removed the child from London to his home in Belgium without the mother’s consent and at a time when he was able to gain possession of the child.  The judgment below was given on 30 July 2008 and the appeal was listed in this court in December 2008.  We adjourned to enable the parties to pursue the possibility of compromise with the aid of mediation.  Sadly, that desirable objective escaped them and we today resume the hearing of the contested appeal.  

2.	There are in fact two appeals: the father’s appeal against the finding that his daughter was habitually resident here on the date of her removal to Belgium, and a cross‑appeal by the mother to the judge’s findings in relation to consent and acquiescence.  The judge herself granted permission to appeal on both points, and in relation to the issue of habitual residence I stress that she said this:

“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.”

3.	With that introduction I turn to the history of the family.  The only child is Z and she is now three and a half years of age.  The parties to the appeal, Z’s parents, are in their late 30s or perhaps now just in their early 40s.  The father was born in Belgium and is Belgian through and through.  The mother was born in Australia and is Australian through and through.  They met in 2003 and began a relationship in 2004 which matured into co‑habitation in the autumn of that year and engagement in December of that year.  The marriage was celebrated a year later on 3 December 2005 in Australia.  Married life thereafter was unsettled.  Plainly there was a tension between Europe and Australia and, within Europe, a tension between Belgium and England.  It is not hard to see from the mother’s point of view that she would as an Australian find living in London easier than in the father’s home village some 40 minutes drive north of Brussels.

4.	Another factor that introduced uncertainty was the father’s career.  He sought job opportunities globally but not essentially in Belgium.  The majority of the family life following Z’s birth in Australia on the 14 December 2005 was spent in Belgium, either with the paternal grandmother or in an adjacent property.  Indeed, on 1 February 2007 the father signed a three year lease on a two bedroom flat in his home village, and most of their worldly possessions were installed there.  In the following month, March 2007, the father took a job, of two to three months’ duration with possible extension, in Belfast.  It was the first time that the father’s work had taken him away from the mother and the family.  He lived the first month in a hotel but at the end of that month he was able to move into a flat provided by the employer.  That enabled mother and Z to join him in Belfast.  Their arrival was on 8 April.  About a month later the father secured a two year work contract for a company in London.  It was on 20 May 2007 that the family’s sojourn in Belfast came to an end and naturally they returned to the home in the Belgium village.  The London contract commenced on 10 June 2007.  For the first six weeks the father developed something of a routine, returning to Belgium on the Eurostar for weekends and lodging during the working week in London in the home of a friend.

5.	This was obviously far from ideal, and to their considerable good fortune the father received the invitation of a friend to house sit a home in Wandsworth whilst his friend was employed on a filming project in Canada.  The arrangement was absolutely ideal given that the Wandsworth home was an attractive home and fully equipped for a family with a young child.  Another huge advantage of the Wandsworth home was that as house sitters they were required to pay nothing but the immediate expenses of occupation.  How long was this arrangement to last?  It was undoubtedly of indefinite duration given that the owner was uncertain as to the duration of the Canadian project, but the anticipated duration was within the bracket three to nine months and the father’s expectation was that he would enjoy the occupation of the home for the mid point in the bracket, some six months.  Accordingly mother and Z joined the father in the Wandsworth home and thereafter the only journeys to Belgium were either to inspect the home in the village, or to take Z to stay with her granny.  One such stay began on 1 September and Z was with her grandmother for two weeks before another visit from her parents returned her to London.  Sadly for all, the Canadian project collapsed and on 14 September an e‑mail was received from the owner saying that he would be returning on 29 September unless he obtained alternative work abroad.  

6.	The premature collapse of the house sit was confirmed by a second e‑mail of 22 September in which it was confirmed that he would be returning on 30 September and accordingly the exit had to be achieved on or before 29 September.  It seems that this unfortunate destruction of the family plan either coincided with or precipitated the breakdown of the marriage.  There was no concerted attempt to overcome the setback by a search for alternative affordable accommodation.  Each made unilateral plans for the future of Z that did not allow for rental cohabitation.  The father made arrangements for Z’s return to Belgium, well knowing that the mother was not prepared to give Belgium any further trial.  The mother made independent arrangements with the aid of her brother to return with Z to Australia.  These unilateral arrangements were only symbols of the discord between them.  Neither as spouses nor as parents were they able to meet the misfortune by any discussion or concerted effort.  The father pre‑empted the situation by removing Z from the Wandsworth home on the afternoon of 28 September at a time when the mother was having a bath.

7.	There followed a period of agitation and uncertainty during which there was some exploration of reconciliation that did not endure for long.  It is unnecessary to detail the movements of the parents and Z in that interval before the issue of divorce proceedings in this jurisdiction on 19 January.  The mother’s petition on allegations of conduct was swiftly followed by an application for permission to relocate permanently with Z to Australia.  The father’s counter was the originating summons of 11 February under the Hague 1980 Abduction Convention.  So Parker J records at the outset of her judgment that she was conducting the final hearing of the originating summons under the Hague Convention; alternatively an application by the father under the inherent jurisdiction of the High Court.  

8.	As Mr Setright QC who appears for the mother today leading Mr Harrison submits, an unusual feature of the case before the judge below was extensive oral evidence.  He said that each of the parents gave evidence for something over a day.  The judge’s judgment of some 33 pages is comprehensive and careful.  She reviewed the authorities on the issue of habitual residence, consent and acquiescence.  In the area of habitual residence it is common ground in this court that her review of the authorities is skilful and not open to criticism; that is, the authorities as they stood in July 2008.  Mr Turner had amongst his submissions pressed that the judge should decide the issue of habitual residence not on the application of the traditional tests formulated in a number of cases crossing a variety of fields of law, but should consider a centre of interest test.  The judge rejected that submission, as I have already recorded.  It was to enable Mr Turner to deploy that argument in this court that she granted permission.  Fortunately we do not have to grapple since in the intervening six months since this case arrived in our court there has been an important decision, namely the decision of the European Court of Justice in the case of C (reference C-523/07).  It is common ground that the essence of the decision of the European Court is to be found in paragraph 44 of the judgment.  It is also common ground that the European Court did not favour a centre of interest test but a fact-based enquiry broadly akin to the approach of the authorities in this jurisdiction.  So the scope of this appeal has been much reduced by the helpful decision of the European Court.  

9.	Mr Turner no longer can argue the centre of interest alternative, although he has pointed out that the decision in C is strictly taken on a reference that requires the construction of an application under Article 8 rather than Articles 10 and 11 of the Regulation Brussels II Revised.  We also have had our attention drawn to the reported decisions in the case of Re: P-J [2009] EWCA (Civ) 588.  That case was before the President at first instance and he specifically considered the judgment of Parker J in our case and approved her approach.  That I glean from paragraph 22 of the judgment of Ward LJ, who presided when the case of P-J came to this court on 23 June 2009.  In paragraph 22 he said of the President:

 “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 [2008] 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.”

10.	Thus Mr Turner has no ground for manoeuvre other than to argue that the judge’s impeccable direction as to the law did not prevent her from erroneously applying those principles of law to the facts of the present case.  Mr Setright of course has argued the contrary, and our only task is to decide which of these submissions is correct.  The choice is a fine one, since with the judge I would agree that the applications of the law to the facts results in an extremely finely balanced conclusion.  Mr Turner has sought to argue that in these cases it is permissible and indeed it is important to ask the question: where is the child’s real home?  He says that that approach draws its validity from the speech of Baroness Hale of Richmond in the House of Lords in the case of Re: J [1990] 2 AC 562.  To that I would say the case of Re: J was decided in an allied but distinct area of law.  The case involved a Saudi family, and the father’s application for the return of the child could only be brought under the court’s inherent jurisdiction, and it was within that sphere that the House of Lords considered how to approach the resolution of such a different case.  

11.	In his judgment in this court, Ward LJ in paragraph 26 set out the principles firmly established from previous authority.  The fourth such principle as he defines it is as follows:

“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.”

12.	He went on to site from my judgment in the case of in Al Habtoor v Fotheringham [2001] 1 FLR 952 and to conclude that the distinction between real home and acquiring habitual residence which permits a stay of comparatively short time was important to maintain the proper distinction between the concepts of habitual residence and domicile.  Mr Turner has laid greatest stress on the fact that the family maintained their home in the Belgium village, the home that was the nearest to permanency of any the family had ever occupied.  He of course makes the point that they had not relinquished possession, that their worldly goods remained there and that from time to time the father returned there to check that all was well.  So, says Mr Turner, that retention makes it impossible to assert that they ever lost or abandoned their habitual residence in Belgium, the existence of which was not in any doubt or question in May 2007.  Mr Turner continues that if they have not abandoned or terminated their habitual residence in the Belgium village, they cannot have acquired habitual residence in London since it is impossible within the canon of the Abduction Convention for a child to have two habitual residences simultaneously as opposed to alternating.

13.	That submission I do not accept as Mr Turner would have me accept it.  It seems to me that the reality of the life of this family is comparable to the life of any family where the breadwinner’s career and his necessity to make provision for his family carries him abroad for indefinite periods depending on the nature of the work contract that from time to time he is able to secure.  In such circumstances the family’s principal home where the bulk of their worldly goods is stored is a constant, but the constancy of that primary home does not prevent the acquisition of habitual residence in the work country if the other elements within the defined principles of acquisition are satisfied.  So in the end we have to consider the facts as the judge found them to be, and whether it was open to her to conclude that those facts were sufficient to satisfy the tests set out in the authorities that she had so ably reviewed.  It is necessary to read into this judgment what it was that she found and the important paragraph of her judgment is paragraph 103 sub‑paragraph (ix).

“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.”  

14.	We can draw from those paragraphs the reality that when father, mother and child arrived in Wandsworth, they came here with the right to live, they brought with them as much as they essentially needed and they were here as a united family within the location of the father’s work contract for an indefinite period which might have its termination at the completion of the contract or earlier if accommodation of the family within this location ceased to be affordable.  The judge found that they came here for between three and nine months, the father thinking it would be six.  They were unprepared for the notice to terminate the licence and they were shocked by it.  The only issue about continuing location in this jurisdiction was affordability.  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 them both that was affordable.  The mother was determined not to go back to live in Belgium, and the judge found that she told the father that and that he knew it.  There is in all these cases some tension between the intention of the parties, the point of arrival and the duration of the subsequent period that the court has to label as being either habitual or not.

15.	On the judge’s findings there can be no doubt at all that at the point of arrival there was a common intention that the family would be united here in London so long as that could be maintained.  The authorities make it plain that intention is not sufficiently dominant to enable the element of habitual to be established without some appreciable period.  A more recent authority recognises that the length of that appreciable period will be variable depending on all the circumstances of the case.  It may have to be long; it may be short.  Mr Turner is entitled to submit that the high water mark for the person asserting habitual residence is the period envisaged by Butler‑Sloss LJ in the case of Re: N [1995] 2 FLR 23O.  Perhaps some four weeks will be just enough.  Here he says there is no case on the authorities where as brief a period as six weeks has been held sufficient without some extremely forceful supporting considerations such as emigration.  That may well be, but here we are considering, in the context of a Europe that is rapidly creating its own family law through Regulation, a family that has moved only across one European border in pursuit of the right of citizens to work anywhere within the member states of Europe.  Given the judge’s findings of fact, I conclude that she was entitled, clearly recognising the balance to be extremely fine, to conclude that it came down in favour of habitual residence as at the material date.

16.	Mr Setright emphasises that she was uniquely well placed to make the findings of fact which she did, having heard extensive oral evidence, and I do not consider that the authorities, properly construed as she did, prevented her conclusion.  

17.	So for those reasons I would dismiss this appeal.

Lord Justice Wall:  

18.	I agree.  In my judgment Parker J’s decision comprises the application of well known authority to the particular facts of the case before her.  I say well known for the reasons given by my Lord; namely, they are not only succinctly and carefully analysed by the judge, but more recently in this court in the case of P-J, my Lord Thorpe LJ has repeated a summary of them.  The critical question, it seems to me, is the one which the judge poses in paragraph 107 of her judgment which my Lord has read into his:

“Was the period of 7-8 weeks long enough to establish residence in the context of this case? ”

19.	The judge held that it was, and although I agree with the fact that the case is finely balanced, the conclusion which the judge reached was in my view permissible on the facts as she found them to be, notably of course in the paragraphs to which my Lord has referred.  In paragraph 108 she summarised her view by saying:

“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.”

20.	That in my judgment is a finding or conclusion which the judge was plainly entitled to reach on the material before her, and for the reasons my Lord has given it follows in my view that the appeal must be dismissed.

Lord Justice Moore-Bick: 

21.	I agree that the appeal should be dismissed for the reasons given my Lord Thorpe LJ.

Order: Appeal dismissed