England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR NICHOLAS FRANCIS QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 July 2012

Lord Justice Thorpe:

1. This is an application for permission to appeal and, following a direction that I gave on the papers, any appeal would immediately follow the grant of permission. The order which we review is that of Mr Nicholas Francis QC who, on 10 January 2011, was sitting as a deputy High Court judge. He had to decide but one issue, namely whether, on 11 August 2011, the applicant mother, making the application under Schedule 1 of the Children Act 1989 for maintenance of her two children, was habitually resident within this jurisdiction. Obviously if she was not habitually within this jurisdiction then the application that she had issued on 11 August would fall. If habitually resident here on that date at least the application would go forward to meet further challenges beyond the fundamental challenge to jurisdiction.
2. The parties are approximately forty years of age and the father is a German citizen and has lived his life in Germany. He is a lawyer with a leading firm of lawyers in Germany. The mother is of dual nationality; she was born in this country to a British father and a German mother. However, she has lived her life, and certainly her adult life, in Germany. She too has qualified as a lawyer in that jurisdiction. The parties married in 2001. The two boys were born there and they lived as a family until April 2009 when the mother and children moved out of the final matrimonial home. The mother issued proceedings in Germany on 31 August 2009 seeking an order for sole custody of the two children. The grant of sole custody within the German family justice system has profound consequences. It is a relatively unusual order for it empowers the parent who receives that responsibility to take more or less all decisions as to the care and upbringing of the children. Most significantly, it gives the recipient the freedom to decide where the children shall live, within which jurisdiction they shall live. So the mother's case is that she sought this unusual order effectively as in this jurisdiction she would have sought permission to relocate.
3. The proceedings were contested and it was not until 6 June 2011 that the German Court of Appeal awarded the mother sole custody. The mother's conviction was that that opened the door to relocation. Accordingly she immediately gave three months' notice to terminate the lease of her rented home in Germany. She visited London on a number of occasions in that month on, as it were, reconnaissance and at the beginning of July she moved here, living in the Hammersmith area either with her sister, or with a friend, or at a hotel until 17 July when she commenced a short-term tenancy in Hammersmith which matured into a twelve-month shorthold tenancy some time later.
4. Her case before the deputy judge was one that rested on what she presented as the long held plan for the future of herself and the children following the breakdown of the marriage. She emphasised that until 6 June 2011 she could make no move or take no steps to realise that objective. Her case was that once she got the green light from the German court she had acted consistently and expeditiously to bring about the relocation and the change of habitual residence.
5. The father, in opposing her case and challenging her claim to jurisdiction, had plenty of ammunition within the complex story of tactical manoeuvring as the parents litigated broadly and expensively in both jurisdictions. Accordingly, Mr Tim Amos QC, who appeared for the father below, sought the judge's permission to cross-examine her. The judge permitted that and Mr Amos cross-examined the mother at length. The important issues explored in cross-examination were: (1) the mother's relationship with a man described as her new partner; (2) her withdrawal of various German proceedings; (3) two emails that she had written in April 2009; (4) change of address notification; and (5) German proceedings. In respect of all those issues the deputy judge said:

"I am sorry to have to say that, in almost every respect in which the Mother was challenged on her evidence in cross-examination, I found her answers unconvincing, often untruthful, and I find that she was prepared to give whatever answers she thought would best suit her case."

6. The judge then continued to consider the effect of those findings. In paragraph 28 the judge said:

"Even if she was keeping her options open in at least some of the German proceedings, only withdrawing them when it was pointed out to her by the Father that her position was apparently inconsistent, this is not of itself determinative of the habitual residence point."

7. The judge in paragraph 30 then set out the considerations that favoured the mother and which he accepted. First, she had evinced her intention to relocate to England back in 2009 and had maintained the position consistently through the German court process up to and including the decision of 6 June. The judge accepted that she could not move to England prior thereto. He accepted that she moved possessions to England as and when she could thereafter and that she enrolled the children in English schools. He then posed the essential question:

"I have to ask myself whether, as at 8th August, the Mother had established, on a fixed basis, her permanent or habitual centre of interest in England. I remind myself that a person can, for these purposes, have just one centre of interests. This means that, if I do not accept that the Mother had established her centre of interest in England, they must have remained in Germany."

8. Then he concluded in the following paragraph:

"In the light of the information referred to in the foregoing paragraph, I am driven to the conclusion that the Mother had, as she asserts, moved her centre of interest to England by 11th August. I accept that she moved to London at the first opportunity after the 6th June decision and that moving is not just an overnight process. The established facts do not in my judgment support a finding that the Mother's centre of interests remained in Germany."

Then he made a point about the continuing medical treatment and dental treatment in Germany.

9. It would be hard to say that the judge misdirected himself in law in that there was no dispute between Mr Amos and Mr Timothy Scott QC in the court below. They both agreed that the judge should direct himself by reference to the decision of Peter Jackson J in the case of V v V [2011] 2 FLR 778. By way of footnote I would question whether that agreement was well-founded, although I can see its practical attraction. It is in my view important to bear in mind that the judge ultimately was considering a question under a European Regulation. The foundation of habitual residence for jurisdiction in European and indeed global international family justice has become increasingly important and increasingly universal. So it is really the foundation of jurisdiction in all European child-focussed regulations. It is particularly important in establishing the basis of jurisdiction in matters of parental responsibility in Article 8 and continuing Articles of Brussels II Revised and it forms the basis of jurisdiction in the Maintenance Regulation, which provides for jurisdiction in Article 3. It is self-evident that the wife's invocation of the jurisdiction of this court depended upon Article 3(b) of the Regulation which requires her habitual residence in the jurisdiction at the date of issue.
10. Mr Amos suggested that there might be a difference of approach where the court considers habitual residence as the foundation for jurisdiction under Article 3, namely an application for divorce. He suggests that at the Bar there is a tendency to cite the decision of Munby J in Marinos [2007] EWHC 2047 (Fam) as the foundation for a line of authority which terminates with the decision of Peter Jackson J in V v V.
11. It does seem to me that it is important to give uniform interpretation and weight whether the court is considering the jurisdiction foundation of habitual residence under Article 3 or Article 8 of the Brussels II Regulation, alternatively under Article 3 of the Maintenance Regulation and in my judgment a judge approaching a question of fact in a contested case should have regard to the judgments of the Court of Justice of the European Union first and foremost. For we are not dealing with the interpretation of the concept under domestic law, we are considering the autonomous law of the European Union. The decision in Re A (Area of Freedom, Security and Justice) [2009] 2 FLR 1 and the later case of Mercredi v Chaffe [2011] 1 FLR 1293 should, in my view, have been the source of the judge's direction as to the law and as to the interpretation and application of Article 3(b). It is unnecessary for the purposes of this judgment to cite in any detail the helpful review of the Court of Justice from paragraph 46 through to paragraph 57. However, it is noteworthy that the approach of the Court of Justice to what is often the crucial point, namely the duration of the stay relied upon post removal, is by no means on all fours with the approach of the courts of this jurisdiction as exemplified in the decision of the House of Lords in J v J and the case of Nessa v Chief Adjudication Officer [1999] 4 All ER 677. Therefore the Court of Justice in European can say:

"Accordingly, the duration of a stay can serve only as an indicator in 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."

12. In my judgment that is precisely what Mr Francis did. It seems to me that he might have drawn from the unreliable nature of the mother's evidence the conclusion that this was a strategic manoeuvre in a longstanding litigation battle and that it was contrived and that there was no real foundation for jurisdiction. However, despite the unsatisfactory nature of her evidence he founded himself on the hard core of what she had done in pursuing an exit from Germany and how she had implemented that decision once the door was open via the decision of 6 June. Despite all Mr Amos's efforts to persuade the court that the judge was plainly wrong, I an unconvinced. I am in no doubt that he reached a permissible reason which he sufficiently explained and he did not, in arriving at that conclusion, misdirect himself in law and accordingly I would refuse permission in this case.

Lord Justice Rimer:

13. I agree.

Lord Justice Patten:

14. I also agree.

Order: Application refused