England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		30 July 2014

Mr Justice Peter Jackson:

1. These care proceedings concern Amanda, who will soon be seven years old. For the first three years of her life, she lived with her parents and older siblings in Zimbabwe. In September 2010, she was taken by her father to the United States and, after many intervening events, to this country in November 2012. Shortly after her arrival, she was removed from her father's care by the local authority and interim care orders have been in force since January 2013. Amanda is now in foster care. She has not seen her mother or siblings since she left Zimbabwe. The parents, who are separated, each seek her return to their care.
2. By the middle of 2013, plans for Amanda's future were, as might be expected, far advanced. Her father had for most of that year disengaged from the proceedings but by December he had reinstructed solicitors and in February 2014 lodged an appeal, submitting that the English courts had been exercising jurisdiction improperly and that at the time the proceedings began in December 2012, Amanda had been habitually resident in the United States. On 19 May 2014, the Court of Appeal allowed his appeal. It held that the issue had not yet been properly considered and, making no finding about the matter, remitted the issue of jurisdiction to this court see Re F (a child) [2014] EWCA Civ 789.
3. The questions that I therefore have to answer are:

(1) Was Amanda habitually resident in England and Wales when the proceedings began?

(2) If not, whether she habitually resident in any other country?

4. If the answer to the first question is 'yes', this court will have general jurisdiction on the basis of habitual residence (Article 8 of Brussels II Revised). If the answer to both questions is 'no' this court will have residual jurisdiction on the basis of Amanda's presence (Article 13). If the answer to the first question is 'no' and the second question 'yes', this court will have no continuing jurisdiction and its powers will be limited to provisional, protective measures (Article 20) until matters are resolved in another jurisdiction.
5. The Court of Appeal was very concerned at the length of these proceedings. It noted that the father's late appeal might not normally have been entertained, but that as it was an issue of jurisdiction "the delay, however damaging to [Amanda] cannot be allowed to stand in the way" of the appeal being allowed.
6. There has been an air of unreality about this hearing, consequent upon that appeal. In the first place, the court is considering whether it has jurisdiction 19 months after the event. Amanda was then five and she is now nearly seven. On top of that, none of the four parties before the court wants her future to be decided by the courts of any other country. The local authority, the mother and the Children's Guardian submit that this court has jurisdiction. The father does not accept this, but he opposes any court anywhere exercising jurisdiction. His case is that "I don't want to have proceedings in the US. Let me be with my daughter and I can figure out what to do next."
7. Nor have the authorities in any other country shown any significant interest in the matter since Amanda came here, still less asserted that they wish to exercise jurisdiction. Mr Henry Setright QC, on behalf of Derbyshire County Council, can be forgiven for remarking (as an observation, not as an argument for jurisdiction) that the consequences for Amanda of this court being powerless would be catastrophic.
8. Of course, it is open to the parties to confer jurisdiction on this court by agreement or prorogation (Article 12), but the father has not been willing to do this.
9. In these sorry circumstances, my task is to consider the jurisdictional questions dispassionately and without regard to the consequences for the child. I must conduct, to use the words of Black LJ in a decision handed down during the course of this hearing (Re H (Jurisdiction) [2014] EWCA Civ 1101 at paragraph 34) "a factual enquiry tailored to the circumstances of the individual case". As will shortly be seen, the circumstances of this individual case are most unusual. The life led by Amanda's family, and by her father in particular, tests the concept of habitual residence to the limit. No reported decision deals with a comparable situation.
10. I will describe the history (determining disputed facts on the balance of probabilities), and set out the applicable law, my analysis and my conclusions.

The history

11. The father is aged 49. He is a United States citizen and has lived for much of his life in New York State. His father, now deceased, emigrated from Derbyshire to the US at a young age. His mother died on 21 September 2012. He has three older sisters from whom he is estranged. He has a medical condition that is controlled but requires constant monitoring.
12. At around the age of 30, the father began to travel. He entered into a customary marriage with a Zimbabwean woman living in the United States by whom he had a child. He met the mother in 1996 in Zimbabwe and entered into a customary marriage with her.
13. The mother is aged 35. She is a Zimbabwean citizen. She and the father have four children: R, a girl aged 14; H, a boy aged 12; Amanda, soon aged 7; and I, a boy aged two. The father has never met I and has not formally accepted his paternity, but the evidence shows both parents acting as if he is I's father.
14. R, H and Amanda, although born in Zimbabwe, are US passport holders. The mother is not, and nor is I, who was born in South Africa.
15. In 2010, the parents agreed that they would leave Zimbabwe. On Amanda's third birthday on 14 August 2010, the father took her to South Africa and on 7 September they left South Africa, arriving in the United States on 11 September via Frankfurt and Heathrow. They went to live in New York State with the father's mother, who was unwell. This had been the father's home in his younger years.
16. Also in September 2010, the mother moved to South Africa with the two older children, living first in Cape Town and then in Johannesburg, where she remains. At the time that she moved to South Africa, she was pregnant and I was born in March 2011 in the father's absence.
17. There is an issue between the parents about the nature of Amanda's move to America. I have heard evidence from both of them about this.
18. The mother says that the plan was for the father and Amanda to go on ahead to the United States and make the arrangements for the rest of the family to follow as soon as possible. She says that, once he got to America, the father did not carry this out and that she was left in South Africa with the two children, pregnant, penniless, and separated from Amanda.
19. The father says that, before leaving Zimbabwe, he and the mother had reached an agreement to divide responsibility for the children between them. He was to have absolute, sole responsibility for Amanda, with the mother being in that position towards the other children. He says that such an arrangement would not be uncommon in African culture and that the mother did not have a strong relationship with Amanda anyhow. He says that any plan for the mother and the other children to come to the United States was a long-term project and would not necessarily involve them living together as a family.
20. In considering the parents' credibility, I have had some opportunity to assess the mother, who gave evidence for over two hours by video link, and a considerable opportunity to assess the father over the course of two days, during which he represented himself and gave evidence for more than four hours.
21. There was no indication in the mother's evidence that she was being untruthful about her understanding of the family's plans for the future after leaving Zimbabwe. Her complaint that the father had misled her about his intentions to bring her over the United States is mirrored in their scant e-mail correspondence at the time. She robustly dismissed his account of an agreement to split up responsibility for the children, saying that it was "not normal". I find no reason to doubt her evidence that Amanda's separation from her and from the other children has been painful. After Amanda left Zimbabwe, she had no contact of any kind with her mother until she came into foster care in England over two years later, since when she has had some contact by Skype. So far, the mother's application for a visa to visit Amanda here has not been granted.
22. The father is highly articulate and presented his case in writing and orally with ability. He showed himself to be intelligent, manipulative, intensely egotistical and not lacking in charm. Every aspect of the evidence reveals a man with grandiose and often irrational views, who navigates his way through life in a state of perpetual motion and continuous attrition with others. He has no home, no occupation and no real friends. He describes himself as a meticulous planner, but his plans are in reality no more than a series of short-term schemes prompted by whatever ideas are uppermost in his mind at the given moment, or whatever threats he perceives from people in authority.
23. It would not be beyond the father to devise the idea of a partition of the children, and he may even have persuaded himself by now that the mother agreed to it. In one context he described himself as "the leader" and her as "the subordinate", but when it suited him better he said that she was "very equal" to him. His account is that the project was "to break up the family in a sustainable manner and keep the authorities out of our affairs". His only explanation for the mother's contradiction of his account was that she wanted to "stick it" to him.
24. I am in no doubt that the mother's account of the plan to go to the United States is to be preferred to the father's. Even making allowance for cultural differences, it is inconceivable that she would have agreed to the children being split up indefinitely, and for her to be left in such an extremely vulnerable position in South Africa. I find that once the father arrived in America, he reneged on what was expected of him and set about taking total control of Amanda's life. The mother did not even receive a photograph of her daughter from America, nor did she know that the father and Amanda were in South Africa for two months in the autumn of 2012, nor did she hear of the grandmother's death until three months later from one of the father's sisters.
25. The father pursued his constant foreign travel without telling the mother what he was doing, let alone seeking her agreement. This travelling was inhibited while the father and Amanda remained at the grandmother's house between September 2010 and April 2012. The father was close to his mother and looked after her during this period. He and Amanda nonetheless went to Columbia for eight weeks in December 2010, and for a trip along the River Rhine of 10 days in April 2011, and for a six-day trip to the Netherlands in January 2012.
26. In April 2012, the grandmother's health had deteriorated so that she needed to go into residential care. At that point, instead of remaining in the home, the father embarked with Amanda upon a series of five world trips. Between 29 April and 8 November 2012, they spent only six weeks in the United States. They travelled to Belize between 29 April and about 8 May; to Columbia via Costa Rica and Panama between 12 May and 24 June; to Belize between 4 and 8 July; to five South American countries between 17 July and 10 August before going on to South Africa, where they remained for over two months, returning to the United States on 18 October.
27. Whenever the father and Amanda were in the United States during this period, they stayed in a series of hotels or camped.
28. The grandmother died on 21 September while the father and Amanda were in South Africa. They returned on 18 October and attended her funeral on about 21 October. On 6 November (coincidentally the date of the Presidential election, in which the father took an intense interest) the father saw a social worker at his medical centre. The social worker, who had known the father for many years, was sufficiently concerned about Amanda's situation and her father's mental health to make a referral to the Child Protective Services, who wrote to the father on 7 November, notifying him of an investigation.
29. On 8 November, the father and Amanda made their final trip, leaving Newark for the Netherlands and flying onwards to England on 14 November. The father says that the single tickets from the United States to the Netherlands had been bought well before 6 November. In the absence of proof of booking, I cannot be sure. Nor can I be sure that the father received the letter of 7 November from the CPS. However, I am quite clear that a major (if not the sole) motivation for the father's departure from the United States with Amanda was to "keep the authorities out of our affairs". I reject the father's account that he knew nothing of the child protection investigation, if for no other reason than that I accept the evidence of Mrs Hunter, Amanda's social worker, about a conversation that she had with him on 3 January 2013. In it, he said that people had been wanting to take Amanda off him for some time. She asked him if he meant in this country and he replied "Yes, and in the States". Mrs Hunter had no previous knowledge of any American child protection investigation: the father untruthfully denied making this statement.
30. In his evidence, the father variously says that the trip to England was "to finalise everything", "to get confirmation of British nationality", "to explore all options for the future of my family" and "not to burn any bridges". He gave a convoluted account of it being part of a plan to make his way to Zimbabwe. At that point he wanted to deal with what he described as "the risk" from the mother by "getting her to the US embassy in Harare to pin her down". I take this to mean that he wanted to make failsafe arrangements for the other children to come under his control in the United States without risk of interference from their mother.
31. When the father and Amanda arrived in Derbyshire, they lived in a tent. On 10 December, the father applied for British citizenship. On 19 December, he brought Amanda to a hospital for a medical test. The doctor made a referral to social services out of concern for the child's living conditions and the history given by the father. Amanda and the father were placed in bed-and-breakfast accommodation and, following further consideration, an Emergency Protection Order was applied for and made on 21 December, at which point Amanda was placed in foster care. The care proceedings were issued on 28 December and on 7 January 2013, an interim care order was made after a contested hearing and the matter was transferred to the High Court.
32. Shortly after that, the father dispensed with the services of his solicitor and by March 2013 he had disengaged from the proceedings. He was out of the country between then and July. In December, he instructed solicitors again. The subsequent course of the proceedings has already been described.
33. Completing the chronology, in December 2013 the mother unilaterally sent R (14) to the United States to stay with a cousin of the mother's.

The law: Brussels II Revised

34. The Brussels II Revised Regulation determines the jurisdiction of the English court irrespective of whether the other relevant country is a Member State of the European Union: see A v A (Children: Habitual Residence) [2013] UKSC 60 and Re L (A Child) [2013] UKSC 75. The following articles are material to this case.

Article 8

General jurisdiction

1 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.

2 …

Article 13

Jurisdiction based on the child's presence

1 Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.

2 Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.

Article 16

Seising of a Court

1 A court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or

(b) ….

Article 20

Provisional, including protective, measures

1 In urgent cases, the provisions of this regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.

2 The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.

35. First, some general points. In paragraphs 11 and 12 of its judgment in this case, the Court of Appeal stated that the starting point in every care case where there is a foreign dimension is an inquiry as to where the child is habitually resident. The court must be satisfied by evidence. I approach matters on the basis that the evaluation of the evidence is a matter for the court with the assistance of the parties' submissions. No party bears a burden of proof. Moreover, the evaluation is a neutral one. Although the overwhelming majority of adults and children have a habitual residence, and probably an obvious one, a small minority will not, as the existence of Article 13 recognises.
36. Next, Article 16. This fixes the time that the court is seised under Article 8 as being the moment when the document instituting the proceedings is lodged with the court. In this case, Amanda was placed in foster care following the Emergency Protection Order on 21 December, while the care proceedings began on 28 December. Which application "instituted the proceedings"? Here, the passage of a week makes no difference whatever to the assessment of habitual residence, but in other cases (for example, where a child has been compulsorily removed under an EPO, followed by a long period of voluntary accommodation in foster care before the issuing of care proceedings) it might.
37. It was suggested on behalf of the Children's Guardian that the matter might turn on whether the application for an EPO and for a care order share the same case number. That would be a random way of reaching a conclusion. In my view, the better proper approach is that taken in somewhat analogous circumstances when determining the relevant date for adjudication upon the threshold conditions under s.31 Children Act 1989, namely the date of the application or the date when any earlier continuous protective measures began: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577. So in this case, "the proceedings" under Article 16 are to be regarded as a seamless process beginning on 21 December 2012.
38. Lastly, in relation to preliminary matters, Article 20 explicitly states that provisional measures shall cease to apply when the court of the Member State having jurisdiction has taken appropriate measures. In this case, the Court of Appeal noted that the United States is not a party to BIIR, nor to the 1996 Hague Convention. They described issues about Article 20 in these circumstances as "difficult" and "interesting" and abstained from expressing a view about them in case they arose in this or some future case. In the light of my conclusions on other matters, these issues do not arise in this case and, having heard no argument about it, I say no more than that I can see considerable difficulties from the point of view of child welfare in an interpretation of BIIR that requires jurisdiction to be ceded to a non-convention state that is not seeking to exercise it.

The law: habitual residence

39. In A v A (Children: Habitual Residence) [2013] UKSC 60 Baroness Hale referred to Mercredi v Chaffe (case C-497/IOPPU) [2012] Fam 22.
40. At paragraph 50 she said:

"… The operative part of the judgment [in Mercredi] put it this way at pp 34-35:

"1 The concept of 'habitual residence'… must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. … the factors which must be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State."

41. Continuing at paragraph 54, Baroness Hale said:

"Drawing the threads together, therefore:

(i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

(ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

(iii) The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

(iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

(v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.

(vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

(vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

(viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time."

Analysis

42. It is clear that Amanda was habitually resident in Zimbabwe until the age of three. It is also clear that the only realistic possibilities in December 2012 are (1) the United States; (2) England and Wales; and (3) no habitual residence.
43. The father contends that Amanda was habitually resident in the United States. He points to his lifelong national and cultural connection with the country and to his family ties there, particularly with his late mother. He was receiving healthcare there. In the age of globalisation, his choice to travel widely is not abnormal. Amanda had been in and out of the United States over a period of more than two years. She has a US passport and identity card, she attended church and once a week he took her to a one hour meeting at the library. He says that she hardly spoke hardly any English on arrival and he says that he could not have integrated her further.
44. The father's philosophy is that stability is all about love and not about place. The United States has always been his home base amidst his travels, and so it was for Amanda. He said that this was the only way of assimilating a child into the interesting life of travelling and understanding the world – "we'd call it habitual residence".
45. The other parties contend that, even if Amanda became habitually resident in the United States at some point, she had lost this habitual residence by December 2012.
46. The assessment of a child's habitual residence is child-centred. The first matter of importance is the child's age. As the authorities make clear, the relevance of the actions and intentions of parents or carers depends on the age of the child. In a silhouette of a mother and newborn baby, the baby may not appear at all, but as a child grows, its silhouette will become increasingly distinct and distant from the parent.
47. In this case, Amanda was a child on the threshold of primary age schooling. A child of that age has a degree of independence in the day-to-day, but is otherwise dependent on her carer. The actions and intentions of the parent are therefore of real relevance, but they will not predominate as they would with a newborn. This is particularly the case where there are two parents with different intentions and philosophies of life. It is true that the father had created a preeminent position for himself, but this was not a secure or stable state of affairs: he himself saw the mother as a risk.
48. The duration of Amanda's time in America was significant for a child of that age. In the earlier period (September 2010 - April 2012) there was a degree of regularity to her presence. However, that was not the case subsequently. There was no regularity for Amanda after she left her grandmother's home.
49. The conditions and reasons for the move to the United States are entirely clouded by the father's deception of the mother. Once there, he moved the goalposts. Evidently, as a matter of fact, it was his actions that most impacted upon Amanda's actual life, but it is also relevant that Amanda's mother was deeply unhappy about something that she was powerless to prevent. If there was stability for Amanda, it was the stability of a cocoon controlled by her father's idiosyncratic personality.
50. The father's family origins are in the United States, but on his own account Amanda arrived as an essentially African child. As he put it: "She was being groomed to live with white people". She was separated from her mother and from her two siblings. Her father quite deliberately kept her away from them at the end of 2012 in South Africa, and did not allow her to meet her new brother.
51. Amanda's social connections are an important factor. The evidence establishes that she had two important family connections in the United States: her father and her grandmother. She never met her three aunts because of the state of their relationship with her father. Her connections with the outside world were extremely thin. She did not attend preschool and had only the smallest contacts with others outside the home. She had no friends. Furthermore, it would be a mistake to regard this as a one parent family. Amanda had a mother and three siblings that she was being kept apart from: this is not a zero, it is a minus when considering her social integration.
52. The requirement that there should be "some degree of integration in a social and family environment" allows for a broad qualitative assessment and enables the court to focus on the nature and feel of the child's existence at the relevant time. In normal circumstances, it would be a surprising proposition that a child living at a single address between the ages of three and five does not become habitually resident there. It is certainly arguable that Amanda was habitually resident in the United States up to April 2012 but, having considered the extremely specific and anomalous situation that she was in, I find on a narrow balance that she did not acquire a habitual residence during that period. Her overall position was a precarious one, reflected in the degree of exclusive control that had to be asserted by one parent. Amanda's time in the United States did not amount to a genuine integration in any sufficient degree to satisfy the requirements of habitual residence.
53. As I have said, this conclusion is reached on a narrow balance. However, if I am wrong about that, nothing hangs on it in the light of my further clear conclusion. This is that Amanda was not habitually resident in the United States from the time that she left her grandmother's home in April 2012. At that point, the father effectively went walkabout. The only return to the United States of any length of time was necessitated by the death of his mother – it is significant that despite her state of health the father was out of the country for the entire summer. When he and Amanda were in the United States, they had no home and following the grandmother's death, no family ties. From Amanda's point of view, what might be described as the badges of habitual residence were entirely lacking.
54. The father's reasons for departure are also significant. As I have found, he left the country in order to evade the threat of interference with his autonomy.
55. I turn to consider whether Amanda acquired habitual residence in England during the period of less than six weeks that she was here. It is true that the father made various statements, for example to the doctor on 19 December, that he had come here to settle. Also, there is his application for citizenship.
56. On the other hand, reliable conclusions are unlikely to find their foundations in any statements by the father about his intentions, statements that may have been tailored to the needs of the moment. A more telling indication is that Amanda was living in a tent in a strange country in winter. So far as I am aware, she knew not a single soul in this country apart from her father. I think it highly unlikely that he would have remained here for any length of time, even if he and Amanda had somehow achieved the right to do so. It is far more likely that his incessant peripatetic existence would have continued, with Amanda in his wake. There is no indication of any degree of integration in a social or family environment in England and Wales at the relevant time.

Summary of conclusions

57. I find that on the relevant date (21 December 2012) the English court had jurisdiction in these care proceedings by virtue of Article 13 BIIR on the basis that at that date (to use the words of the Regulation) her habitual residence cannot be determined – in other words, she was not habitually resident anywhere.
58. As to Amanda's habitual residence since birth, insofar as it is relevant I find that:

(1) She was habitually resident in Zimbabwe from her birth on 14 August 2007 until her third birthday on 14 August 2010.

(2) On her departure from Zimbabwe on 14 August 2010, she ceased to be habitually resident in Zimbabwe.

(3) She obviously did not become habitually resident in any of the many countries she has travelled through since 14 August 2010, namely South Africa (twice), Germany, the Netherlands (twice), Colombia (twice), Mexico, Belize (twice), Panama, Ecuador, Peru, Chile or Argentina.

(4) She did not become habitually resident in the United States following her arrival there on 12 September 2010.

(5) Even if she did become habitually resident in the United States in or after September 2010, she lost that habitual residence when she moved out of her grandmother's home in April 2012.

(6) Between 29 April 2012, when she left the United States on the first of five trips abroad, and her departure for England on 8 November 2012, Amanda spent only six weeks in the United States. During this period she had no habitual residence.

(7) If, contrary to my prior finding, Amanda was habitually resident in the United States after April 2012, she lost her habitual residence there upon her departure on 8 November 2012.

(8) Amanda's 37 days in England between 14 November and 21 December 2012 did not amount to the establishment of habitual residence.

59. There will be a further hearing in early September to determine the future arrangements for Amanda. I will now hear from the parties in relation to the preparations for that hearing and any interim issues that need to be considered.
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