ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
MRS JUSTICE HOGG
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE SULLIVAN
| H-K (CHILDREN)
Mr Marcus Scott-Manderson QC and Mr Mark Jarman (instructed by Jones Myers Solicitors) for the respondent
Hearing date: 6th September 2011
Crown Copyright ©
LORD JUSTICE WARD:
The factual background
The judge's approach
"16. It has been agreed that the issue before me is that of habitual residence: where is this family habitually resident? Is it still in Australia is the prime question, or has it moved to England? I have been referred to the law, much of it has been agreed. It is accepted that habitual residence may be acquired despite the fact that a move may only have been a temporary [one] or on a trial basis. For that I refer to Al Habtoor v Fotherington  1 FLR 951."
"The Regulation [Article 8] of Council Regulation (EC) No. 2201/203 of 27th November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (Brussels II Revised) contains no definition of the concept of "habitual residence". It merely follows from the use of the adjective "habitual" that the residence must have a certain permanence or regularity."
She also quoted paragraph 51 of the judgment:
"… in order to distinguish habitual residence from mere temporary residence the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. But before habitual residence can be transferred to the host State it is of paramount importance that the person concerned has it in mind to establish that the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as a indicator of the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case."
The judge's decision
"20. It is accepted by all that the habitual residence was certainly in Australia. There was an agreed intention to return to Australia, as I have already indicated. This was some form of extended holiday. The Father thought it was, as the Mother had put it, "to rid herself finally of her homesickness". But it was for one year only. There were clear plans that the family would return. There would be a home for the family, a place in school for S. They had left behind their possessions, their car, their laptop and the children's toys. There was of course the Father's own family and family's friends in the area.
21. The question is of integration into this country and whether any has taken place and to what extent. This was a lengthy stay and intended to be a lengthy stay. As such school became a necessity because of the age of S. He went to school after the half term in spring and has remained in school. There was a vague plan that the parents would obtain work. It never actually happened. The Father did some work for the Mother's step-father's business but there was never any full-time permanent work by either parent. In fact the family existed on benefits and I am sure from some financial support from the Mother's family. They were both entitled to receive State benefits. They needed to survive and that is what happened."
"23. Was it a transient stay as in P-J? The plan was always for one year. It was not a settled intention to remain for an indefinite period. It was for a temporary time, the maximum of one year. Was there a regularity in their life? I do not think there was. The parents did the right thing. They put the boy into school. That is what a responsible parent would do. Of course he made friends, but he is a boy who does make friends. He had friends in Australia. He would want to play with other children. I do not think there was that regular order of life that is required to establish habitual residence in another country. The parents certainly did not agree to change their habitual residence. The Father certainly had not abandoned his intent to return and I cannot say that actually, habitual residence had changed in any manner at all. Even S says that he does not know when he will return. He is not saying he will not be returning. He just does not know. He knows he has another family there, he is not deeply embedded from his own words. The burden is on the Father to show habitual residence in Australia. Having reviewed the evidence and circumstances of this case I think he has established the burden that their habitual residence has remained in Australia."
"There are two, and no more than two, respects in which the mind of the propositus is important in determining ordinary residence. The residence must be voluntarily adopted. …
And there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. This is not to say that the propositus intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."
"Was there a regularity in their life?"
That question may resonate more with the European approach than with Lord Scarman's definition set out in Shah at p. 343G of a man's abode being adopted: "for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration". The European approach which she identified in paragraph 44 of Mercredi was that to be habitual, residence must "have a certain permanence or regularity". I would treat that with some caution. I certainly cannot accept that permanence is necessary to establish habitual residence. "A certain permanence", whatever that may be, can be understood as connoting the features of "settled purpose" as used in Shah, and so understood is acceptable. Strictly speaking the decisions in Mercredi and the earlier decision of the European Court of Justice. In re: A (Area of Freedom, Security and Justice) (C-523/07)  2 FLR 1051 do not apply here: those cases concern Brussels II Revised as it applied within the European Union. Here the contesting states are Australia and the United Kingdom. I have no doubt however, that, at least in the fullness of time, the European meaning of habitual residence will by osmosis shape the autonomous meaning to be given to that phrase in the International Hague Convention on Child Abduction with the stress on its international application. But I would sound another note of caution. In paragraph 51 of Mercredi, the Court of Justice of the European Union states:
"In order to distinguish habitual residence from mere temporary residence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence."
Again it all depends on what constitutes "a certain duration" and "an adequate degree of permanence". These words can, and in my judgment must be read in the light of and consistent with Lord Scarman's opinion in Shah at 343G. Residence can be of short or long duration provided it is adopted "for settled purposes as part of the regular order of his life for the time being". Note "for the time being".
"Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character."
There "permanent" cannot be taken literally but rather to indicate a stay of sufficient duration (and quality) properly to be characterised as "habitual". The argument becomes a bit circular. Then I note the need for an accompanying "intention that it should be of a lasting character". Of course intention is a relevant factor subject to Lord Scarman's caveat at p 344E that the answer to the question, which is ultimately one of fact, "depends more upon the evidence of matters susceptible of objective proof then upon evidence as to the state of mind" of the propositus.
"There is a little boy saying that he had a home in Australia, there was a family difficulty, they came over to see mum's family and he does not know how long they will remain in England. It is not him saying he is living here permanently. It is just him saying that is the situation."
Once again there is the reference to, and thus the implication of considerable weight being attached to, "living here permanently". That is not the test.
"The plan was always for one year. It was not a settled intention to remain for an indefinite period."
There the judge lapsed into the language of domicile and that was an error. Again I cite from Shah at p. 345:
"What is important is to note that the test [the "real home" test, or its variant,] is wholly inconsistent with the natural and ordinary meaning of the words as construed by this House in the two tax cases [on which he had relied to formulate his test]. Indeed it is, I believe, an unhappy echo of "domicile", the rules for ascertaining which impose great difficulties of proof. In Dicey & Morris on The Conflict of Laws (8th edn, 1967), ch 8, p. 78 one finds the comment that 'The notion which lies at the root of the concept of domicile is that of permanent home.' The long and notorious existence of this difficult concept in our law, dependent upon a refined, subtle, and frequently very expensive judicial investigation of the devious twists and turns of the mind of man, must have been known to Parliament when enacting the Act of 1962. The choice of ordinary residence for determining the test of eligibility for a mandatory award suggests to my mind a legislative intention not to impose upon local education authorities who are entrusted with the duty of making mandatory awards the infinitely difficult, if not impossible, task of determining whether a student has established a permanent home in the United Kingdom. Further, the language of the regulation lays emphasis not on intention or expectation for the future which is implicit in the idea of permanence, but on immediately past events, namely the usual order of the applicant's way of life and the place where in fact he has lived during the three years preceding his projected course of further education. There are, therefore, powerful reasons for holding that by selecting ordinary residence, Parliament intended local education authorities to address their minds to a test more objective and less subjective than domicile or the concept of 'real home' which is a reflection of it. If the words of the regulation are allowed to have their natural and ordinary meaning, such intention will be fulfilled. By giving the words their natural and ordinary meaning one helps to prevent the growth and multiplication of refined and subtle distinctions in the law's use of common English words. Nothing is more confusing and more likely to bring statute law into disrepute than a proliferation by judicial interpretation of special meanings, when Parliament has not expressly enacted any."
Note the words I have emphasised.
(1) The family came here voluntarily.
(2) They came to live in England for one year. In substance they packed up their home in Australia (albeit temporarily) and established a new abode in England.
(3) There were all the indicia of integration into a social and family environment in England. They lived in a house the Mother owned. Her family was nearby and supportive. The parties worked when they could find work. They then sought and obtained social security benefit. S was established in school. It was, for the time being, a settled way of life.
(4) Their intended stay and their actual stay was of a sufficient duration not to be transient, or to adopt the Court of Justice's phrase in Re: A, "peripatetic" in the sense of their passing through England as a stopping spot on the journey back to Australia.
(5) The purpose of their sojourn was settled: it was to see if the Mother could overcome her homesickness and so save the relationship. This involved their adopting a new way of life in a new country for a long enough period to achieve that objective.
(6) If stopped in the high street and asked once they had settled in their new home in the north of England, "Where do you ordinarily live" they would be bound to have answered, "We ordinarily live in that property over there although our real home is in Australia." Their real home does not, however, provide the answer to the question whether they were still habitually resident in Australia.
(7) The Mother's continuing deceit of the Father from December onwards cannot alter the essential character, as a matter of fact, of the way of life they had already adopted in England.
Lord Justice Longmore:
Lord Justice Sullivan: