ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE PRESIDENT, SIR NICHOLAS WALL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUNBY
MR JUSTICE COLERIDGE
| In the Matter of A and D (Children)
|- and -
Mr Richard Clough (instructed by Truemans) for the Respondent (father)
Hearing date : 18 November 2010
Crown Copyright ©
Lord Justice Munby :
"Under the Family Law Act 1986 I only have jurisdiction to make the orders sought by the mother if either (a) the twins are physically present in England and Wales (which plainly they are not); or (b) if they are habitually resident in England and Wales."
That no doubt reflected the way in which the arguments had been put, though it is not, as we shall see, an entirely accurate statement of the effect of the 1986 Act.
"it is well established that one parent cannot unilaterally change the habitual residence: it requires agreement between the parents or, at the very least, the acquiescence by [one] in the altered arrangements brought about by the other."
There is, and can be, no suggestion that the President misdirected himself in law. What are under challenge are his findings of fact.
"The mother's case is that the dispatch of the twins to the Cameroons was done without her consent and contrary to her wishes. She accepts that she accompanied the children to the airport and that she saw them off. She explains this by saying that she had been presented with a fait accompli and was unable to prevent the father and his mother removing the children. The mother also says that she could not travel because she did not have a British passport and that the mother was holding her Cameroons passport."
The father's case (para ) was:
"that the decision to send the children to the Cameroons was consensual; that his mother's house was on the point of being re-possessed; that the parties, who were both working but had lost their jobs, were not in a financial position to care for the twins, and that it was therefore expedient to send the twins abroad for a time, until their parents' financial position improved."
"Since habitual residence itself constitutes a finding of fact, it is necessary for me to examine the decision in November 2008 to send the twins to the Cameroons. Furthermore, as this seemed to me critical to an understanding of the current situation, I heard oral evidence from each of the parties about it.
Having done so, I am quite satisfied that there was an agreement between the mother and the father to send the twins to the Cameroons in November 2008. Whilst the father may have been the originator of the scheme, I reject the mother's evidence that the children were sent to the Cameroons in the teeth of her opposition. I find as a fact that she agreed to the children going."
"I also find as a fact that the agreement between the twins' parents was far less hard edged than either now asserts. Whilst it may well have been their mutual intention that the children should return to their care after a few months – for example in the spring of 2009, their return, in my judgement, was dependent upon their parents' situation. Thus if all had been going well, and had the parents finally decided to make their future in England, then the twins would have returned.
I find, however, that there was no fixed date for the twins' return and that the arrangement was an open ended one which enabled the wider family (including the mother's family) to care for the twins until their parents were in a position to do so. Such family arrangements are by no means uncommon or inappropriate.
I am equally satisfied, and so find, that the parents themselves were uncertain about where the family would ultimately reside."
"Both the father and his mother assert that the mother is fully aware of the children's whereabouts, and the father asserts that the mother has been in regular contact with the children. I accept that evidence. He also asserts that whilst in May 2009 he was contemplating sending for the children, his current plan is to work in the Cameroons as a sound engineer and for the children to "attend private day school in Cameroon starting in September". Once again I find that evidence credible.
In any event, these statements all confirm my view that the parents' plans for their children were inchoate following the agreed removal to the Cameroons in November 2008. I am thus satisfied that there was an agreement to send the children to the Cameroons in November 2008, and that it was open-ended."
"I am, however, entirely satisfied that on the unusual facts of this case, and due largely to the open-ended and uncertain nature of the parents' plan, the twins are currently resident in the Cameroons, and that this court has no jurisdiction over them. That is where they are living and, in my judgment, "the ordinary and natural meaning of the two words" habitual residence aptly covers the twins' situation in the Cameroons. This, of course, does not leave the mother without a remedy, but if she wishes to pursue it in relation to the twins, she must do so in the Cameroons. I reject her evidence both that it is impracticable for her to do so, and that she would not obtain a fair hearing in that jurisdiction.
For the mother it is argued that there was a fixed agreement for the twins' return in the spring of 2009, and that it is not open to the father unilaterally to change the twins' English habitual residence. For the reasons I have already given, I do not think that there was such an agreement, and I do not think that the father has unilaterally changed the children's habitual residence: I find as a fact that over the period of 18 months during which the twins have been living with their paternal grandmother they have acquired habitual residence in the Cameroons."
"In this respect I am influenced not merely by the length of time which the twins have spent in the Cameroons, (some 18 months) but by the mother's failure promptly to pursue the remedies open to her. Whilst no judge would wish to be critical of a parent who is given bad advice, the fact remains that the mother is an educated woman, who sought advice as long ago as 17 November 2008, when she was "going through some matrimonial problems". The fact that proceedings relating to the twins were not issued until April 2010 cannot be entirely explained by poor advice and delays in obtaining public funding."
i) The President failed to consider that the agreement was in any event conditional upon the return of the children in February 2009. Linked to this are the submissions, first, that there was no evidence upon which the President could find that there was no fixed date for the twins' return and that the arrangement was an open ended one, the parents being uncertain about where the family would ultimately reside, and, second, that there was no permissible basis for a finding – plainly wrong, Mr Cobb submits – that the twins' return was dependent upon their parents' situation.
ii) The President was wrong to find that the mother had acquiesced in the twins remaining in Cameroon.
i) The recital in the order of 27 April 2010 that at the hearing on 20 April 2010 "the [father] who appeared in person informed [counsel for the mother] that the removal of the children on the 26.11.2008 was agreed to be for a 3 month period and that he had always proposed to return them".
ii) The father's evidence in cross-examination (Transcript pages 43-44; see also the unhappily imperfect recording of what the father's counsel had earlier said to the President: Transcript, page 12):
"Q. Mr [A], you say initially your plan was that the children would go to the Cameroon for three months
Q. You assured [E] that they would be back by February 2009, did you not?
A. I didn't assure her. I said they would be back.
Q. She says she asked you specifically when, and you said February.
A. I said within three months they should be back.
Q. Which I think would be about February.
iii) The father's further evidence in cross-examination (Transcript page44):
"Q. [E] left you on the 29th April. After that, you decided, without any discussion with [E], you decided that the children should remain in Cameroon.
A. It was a decision that was made because there was no form of co-operation on [E]'s part for the children's return, and the way I looked at the situation she had basically abandoned – she walked out and left us.
Q. She left you. She did not leave the children who were not there.
A. She could have contacted me about the children, or could have contacted the children if she really wanted to.
Q. She says she was never allowed to speak directly to her children. Your mother would not allow it.
A. That's not true."
iv) Mr Clough's concession on behalf of the father (Transcript page 49):
"My Lord, although there is a large factual dispute, I have to concede that, even on the father's case, the original moving of the children to the Cameroon was done for a limited period only on the agreement of both parents and accordingly, at that stage, their habitual residence remained in England and Wales. I also have to concede that it was not open to the father unilaterally to decide that the children should remain indefinitely in Cameroon and thereby change the habitual residence."
v) The email dated 15 June 2010 sent by the father to the mother in which he said:
"I am protecting [the twins] from the people you have surrounded yourself with. If they were not about, the twins would have been with you a long time ago. YOU are there mother without a doubt, but you are surrounded by "beings" I do not want our children associated with."
i) A letter from the local authority dated 20 January 2010 which records that during a core assessment in 2009 the mother reported that in November 2008 the father and his mother promised to return the twins to their mother in the United Kingdom in February 2009.
ii) The mother's evidence (Transcript page 21) that the father told her at the airport that "the children back [sic] very soon, in February, because I was crying. He told me, "Don't worry. They will come back in February"."
"I think all I can argue is that, on the father's case, the mother detached herself from the situation, for whatever reason. She was not communicating her wishes one way or the other. The fact was that the children remained for longer and longer in Cameroon with their grandmother. Until now we have the extraordinary situation that two-and-a-half year old children have spent the greater part of their lives – certainly in terms of their conscious lives, almost its entirety – not living with either parent in the country of their birth, but living with their grandmother in Cameroon.
In these circumstances I would submit that what has happened as a matter of fact is that their habitual residence has now changed to that of Cameroon.
It is a combination of children initially going there by consent, without their habitual residence going with them, until such time as by, firstly, the father's active decision and by the mother's inactive decision, that the children acquire the habitual residence of where they are actually living and being brought up."
"The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised."
So far as material for present purposes Article 12 provides that:
"3 The courts of a Member State shall also have jurisdiction in relation to parental responsibility … where:
(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.
4 Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child's interest, in particular if it is found impossible to hold proceedings in the third State in question."
"Even if the court determines the children are now habitually resident in Cameroon it would still have jurisdiction to determine issues relating to the welfare of the children if it considered it convenient to do so as Cameroon is not a signatory to the Hague Convention."
"I got it the wrong way round. If your Lordship determines that the children are habitually resident still in this country and, therefore, the Court has jurisdiction, it is my reading of the House of Lords case of Re J, a 2005 decision … that where the Court is dealing with a non-Convention country, if habitual residence is determined to be England and Wales, the Court nonetheless can decide on welfare ground (i) that the children should remain in the country where they currently are, and (ii) can decide which is the most convenient forum to determine their welfare."
In the circumstances it cannot fairly be held against the father.
Mr Justice Coleridge :
Lord Justice Wilson :