England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/02/2007

Sir Mark Potter, P :

Introduction and background

1. These Hague Convention proceedings concern two children, H, born 6 June 1994, now 12½ and G (born 17 September 1997), now 9 years and 4 months old. They are the son and daughter respectively of the plaintiff father, JDE, an Australian citizen now resident in New South Wales and the defendant mother NE, his wife. She is a British citizen currently living in England with H and G.
2. The mother and father have two older children who are not (given their ages and circumstances) the subject of these proceedings. They are CNE (born 21 January 1987) now aged 20, and LJE (born 19 February 1989) now aged 18. References hereafter to "the children" are to H and G.
3. The father, who is Australian by birth, came with his family to England at the age of 19. He subsequently met and formed a relationship with the mother and they were married in England on 14 June 1986. They lived in England until shortly after C's birth in 1987, but then moved to Australia where the remaining children were born and where the family remained until 1998.
4. In that year the family moved back to England when H was 3 and G was only a few months old. There is an evidential dispute as to whether this was pursuant to an earlier joint decision (which is the mother's case) or whether the mother took the three female children from Australia to England, ostensibly for a holiday, and then announced that they would not return (which is the father's case). However it is not necessary to resolve that question, as the father decided to follow the mother back and the parties set up a family home again in England. They remained in England from 1998 until the summer of 2005.
5. In September 2005 the family flew to Australia in circumstances which have given rise to the principal dispute before me namely, whether (as is the father's case) it was for the common purpose of settling in Australia as a family (albeit by that time the mother and father were living separately), or whether (as the mother states) so far as she and the children were concerned, it was for the purposes of holiday contact with the father and his family, and to see C into the University of Wollongong where she was due to start as a student.
6. The background to that dispute is as follows.
7. Since 2003, the parties had been contemplating relocating with the children to Australia in September 2005, a time which was convenient in terms of the children's schooling and the start of C's university education. In 2003 the mother and father entered into a 2-year fixed mortgage contract, with the intention of marketing and selling the family home at the conclusion of that period.
8. In July 2004 the father gave his employer in England a year's notice on the basis that he would be emigrating to Australia in summer 2005 and, at some point in 2005 (the precise date of which is not clear), the mother arranged to renew her status as a permanent Australian resident. On 4 May 2005 she completed and dispatched application forms for the children to attend a Catholic school in New South Wales from September 2005.
9. At this point i.e. May 2005, the marriage broke down and the father moved out of the family home to live separately.
10. Despite that, the joint intention of moving to Australia appears to have continued at that time. Both parties signed a "Confirmation of Marketing" Form relating to the proposed sale of the family home, giving the reason for moving as "going to Australia", and the mother booked one way tickets for the children herself and the father to travel to Sydney. At the end of the summer term, the children had a send-off at school with their teachers and classmates.
11. However, in August 2005, the mother had a change of heart. Early in August 2005 H informed his father that the mother had told him that she would not be going to Australia to live, and on 6 August 2005, the father received a letter from solicitors for the mother accompanied by a draft completed form M4 ("Statement Arrangements for Children") which made clear to the husband that the mother contemplated remaining in England with the children, H being due to attend Wollaston School in England in September.
12. The husband states in his affidavit that, following receipt of that letter the wife told him that she was having doubts about going to Australia and did not know whether it was right for her. He states that he said he had no particular issue with agreeing on the terms of a divorce and property settlement but did not agree with what the mother said should be the arrangements for the children. He suggested that they should travel to Australia as initially planned and, once there, the children should have an opportunity to see how they liked living there. He states at paragraph 29 that the mother appeared to accept the suggestion and sums it up in this way:

"…. this was a matter of impression rather than as a result of anything N specifically said to me – she refused, even when asked directly to say what her intentions were and when I asked her would respond that it was none of my business. I also had in mind the extent of our preparations to emigrate; [including] those personally undertaken by N, and nothing she did or said indicated that she sought now just to abandon the various arrangements we had made relating to our planned move. As far as I was aware, whether or not we would permanently emigrate to Australia was a matter she and I would have to discuss, but it was accepted in the short-term that we would live there for long enough to see how the children took to the environment".

13. At paragraph 31 of his affidavit the father acknowledges that, on a visit to England in August by his sister K, the mother informed the sister that if she went to Australia she wanted the security of having "return" tickets and that the sister agreed, to give the mother piece of mind, by buying one-way tickets back from Australia to England to be charged to the sister's credit card on the understanding that she would be repaid from the proceeds of sale of the family home in England then up for sale.
14. The mother's case as stated in her affidavit is that, she having decided in August she did not wish to go to Australia, the father's sister came over to England and persuaded her that she should go to Australia with the children on holiday so that they could have contact with the defendant's family and that is what she did. While the house remained on the market, it also remained furnished and available to the mother on her return.
15. I am satisfied that it is the mother's version which is correct and that she made her position clear to the father before going to Australia because that is effectively what the father stated elsewhere in an affidavit sworn in Australian proceedings on 21 September 2005.
16. When the parties arrived in Australia, the father and mother lived separately. It is plain that the father hoped (and, it may be, expected) that the mother would be persuaded to remain in Australia with the children once out there. However, when it became clear that was not so, he commenced proceedings in New South Wales for a residence order, shortly before the mother's booked departure date.
17. The Brief History, which he set out in his affidavit in those proceedings, stated as follows:

"13. Not long before we were due to leave [England] N changed her mind and only wanted to come to Australia for a holiday. I told her that I still wanted to come back to Australia to live. We spoke about the children and I said:

"I want the children to have a say in whether they still want to go to Australia".

Up to that point the children were very excited about the prospect of moving to Australia and were looking forward to it. When he learnt that his mother had changed her mind H said to me:

"I hope mum will change her mind so that we can all stay in Australia."

"14. Up to the time N changed her mind our plan had still been for the whole family to move to Australia even though she and I would be separated.

15. We came to Australia on 2 September 2005 and I have been living with my parents in Thirroul. N has been living with my sister in Woonona…

Present Situation

18. I intend to remain living in Australia. Our eldest child C also intends to remain living here. She intends to enrol at the University of Wollongong.
19. N wishes to return to the UK. I understand that she is booked to depart on 29 September 2005. I understand that L wishes to return to the UK with her mother."

A position of conflict as to H's preference was set out at some length.

20. The parties then signed an agreement in the following terms:

"1. H and G will return to the United Kingdom with their mother N on 29 September 2005

2. On their return, N will arrange to live with H, G and L (if she so wishes) and no other third party.

3. H and G will have the option of returning to Australia for holidays as below: -

- Four weeks over the Christmas holiday period (dates subject to school holiday period in the United Kingdom)

- six weeks in August/September to coincide with school holidays in the United Kingdom.

- 2 weeks in April 2006 to attend the wedding of their aunt

4. At the end of 2006, H will be given the option of returning to Australia to reside with his father on a permanent basis. If H chooses this option, he will return to Australia prior to the beginning of the Australian school term in January 2007.

5. H will be free to return to the United Kingdom to reside with his mother at anytime.

6. If H chooses to remain in the United Kingdom at the end of 2006, H will still be able to choose to holiday in Australia at the times outlined above.

7. The holiday option will continue to be available to G irrespective of any decision that H makes.

8. Travel costs for H and G will be set aside from maintenance money provided by their father, J, the amount of which will be agreed when both parents find employment.

9. Enforcement provision??"

21. On arrival at court for approval of the agreement on 26 September, the mother withdrew from it. Discussions then ensued between the solicitors representing the parties, a new agreement was reached, and a consent order was made by the Registrar of the Family Court of Australia to the effect that: the father's application was adjourned to 25 August 2006; that meanwhile the children would reside with the mother in the United Kingdom, with contact to the father for a period of 2-4 weeks in April 2006, he meeting the costs of the children's travel; that the children would live with the father in Australia from 7 days after the commencement of the school summer holidays in 2006 until the hearing on 25 August 2006, the husband again meeting the costs of the children's travel: and that, forthwith upon the return of the children to Australia in summer 2006, the father would at his cost arrange for the children to see an expert to be agreed between the parties so as to obtain a report for the court as to the children's wishes.
22. The mother then returned from Australia with L and the children, C remaining in Australia. However, C subsequently returned to England to attend the University of Nottingham.
23. In February 2006 the mother made it clear that she did not intend to abide by the direction relating to the children's return to Australia and in April 2006 she did fail so to comply.
24. On 21 June 2006 the father applied to the Australian Central Authority to initiate proceedings pursuant to the provisions of the 1980 Hague Convention for the return of H and G based on the mother's wrongful retention of H and G in breach of the terms of the Australian court order.
25. On 28 September 2006 the father filed his originating summons in these proceedings seeking relief under the Child Abduction and Custody Act 1985, pursuant to Articles 3 and 12 of the Hague Convention; and in the alternative seeking an order for delivery of the children into the father's care and control in New South Wales under the inherent jurisdiction of the court. Following directions, the mother served her Statement of Defence on 16 August 2006.
26. For the purpose of proving wrongful removal and retention of the child under the Hague Convention, it is incumbent on the applicant to show that such removal or retention

"(a) .. is in breach of rights of custody attributed to the applicant, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."

In this case we are concerned with an alleged wrongful retention in April 2006.

27. The mother's first defence is that the Hague Convention is not engaged because the children were habitually resident not in Australia, but in England and Wales as at April 2006 because at that time they had been habitually resident here since 1997. She further submits that, if (contrary to her primary case) their habitual residence in England and Wales was interrupted by their visit to Australia in September 2005, they became habitually resident in England and Wales again shortly after their return from Australia on 2 October 2005.
28. Second, it is said that, if the Hague Convention is engaged and it is found that the mother wrongfully retained the children in England, there is a grave risk that their return will expose them to physical and/or psychological harm and/or otherwise place them in an intolerable situation; and the court should exercise its discretion not to order their return to Australia.
29. Third, (by amendment to the Statement of Defence on 21 November 2006) the mother relies upon the children's objections to return as set out in a report by Mrs Werner-Jones, a CAFCASS Children and Family Reporter, dated 16 November 2006.
30. Finally, in relation to the claim of the father under the inherent jurisdiction of the court, the wife submits that the case is unsuitable for a summary return order, given that such an order must be determined in accordance with welfare principles (see Re J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802). In that respect, it is submitted that the position of the children renders inappropriate any order for their summary return, given their habitual residence here; the fact that the mother has been the primary carer of the children all their lives; the objections of the children to going to Australia; and the fact that the father is well able to visit them here.

Habitual residence

31. In dealing with the disputed issue of habitual residence, I start with the following propositions which are not substantially in dispute.
32. First, habitual residence is a question of fact to be decided according to all the circumstances of the case. Second, where there is a dispute as to whether an established habitual residence has continued to exist or has recently changed, the burden of proof lies on the party who asserts that the change has taken place, the court looking at the evidence as a whole in this respect.
33. Third, in this case it is not in dispute that between 1998, when the family moved back to England, and 2 September 2005 when they arrived in Australia, the children, who throughout that time had lived in England, were habitually resident here.
34. Fourth, as a rule, one parent may not unilaterally change a child's habitual residence without the agreement of the other parent, unless quite independent circumstances have arisen pointing to a change. Since it is the mother's case (and there are a number of circumstances which support it) that, when the family arrived in Australia it was, so far as the mother and the children were concerned, not with the intention of living permanently in Australia, but of returning to England (where the mother still had a home to return to and where the children were at school), the burden in this case is upon the father to show that the position was otherwise and that the children became habitually resident in Australia in the course of a very short stay here before returning to England under the terms of the Australian court order where they have since remained.
35. Fifth, in order to establish habitual residence it must be shown that the person concerned was present in the country (i) voluntarily and (ii) for settled purposes and with a settled intention (see Al Habtoor v Fotheringham [2001] 1FLR 951; Re D (Abduction: Habitual Residence) [2005] 2 FLR 403; Re M (Abduction: Habitual Residence: Relocation) [2005] Fam Law 441) (iii) for "an appreciable period of time" (see C v S (A minor)(Abduction) [1990] 2 FLR 442… Thus, in R v B (Child Abduction: Habitual Residence) [1994] 2 FLR 915 it was held that a short time spent by a mother in another country, with a view to effecting a reconciliation with a father which failed, was insufficient for a settled intention to have been formed as to a change of residence. It is also clear that a stay in a country for the purposes of a holiday only does not mean that a child becomes habitually resident in that country (see: Re O [1995] 2 FCR 649). On the other hand, in the case of a family move in connection with a husband's temporary employment abroad it has been held that habitual residence was established on the basis that there was an undisputed and settled purpose of both parents to reside for a period of a few months (see Re R (Abduction: Habitual Residence) [2004] 1 FLR 216.)
36. Sixth, the fact that (a) the father, in light of his knowledge that the mother intended returning to England, applied to the Australian Court for a residence order and (b) the Australian Court made an order in respect of interim arrangements was, and is, not determinative of the question of the habitual residence of the children at that time, because that was neither the basis of the court's jurisdiction nor the purport of its decision. Thus, should I conclude that the children have remained habitually resident in this country despite their brief sojourn in Australia, that conclusion would not be in conflict with any finding made or jurisdiction exercised by the Australian Court. In any event my task is to apply the law of England in deciding the meaning and content of the term "habitual residence" within the context of this case: see Re R (supra) at paras [56]-[58].
37. Seventh, given that the children returned to England with their mother on 24 October 2005, it is the fact that, at the time of the mother's later alleged wrongful retention of the children in April 2006, they had lived in England for a period of 8 years, interrupted only by a period of 7 weeks residence in Australia, in August/ September 2005.
38. Eighth, the father's case, as originally advanced in the detailed affidavit of Mr Ranton his solicitor, (who is also qualified as an Australian barrister), has undergone a very significant change. The father's original position therein stated was that, at all times prior to the arrival of the family in Australia, the mother appeared to be happy with the proposal to move there permanently and was "unshakeable in her view that the move to Australia was the best for the children"; it was only shortly after her arrival in Australia that she began to express disquiet about remaining there and to agitate to return to the United Kingdom. The ground was thus laid to establish habitual residence in Australia on the basis of a settled purpose and common intention of both parents to live permanently in Australia, sufficient to establish habitual residence within days of arrival in Australia, and prior to a "change of heart" by the mother thereafter. In the event, the father has been obliged to retreat from that position in the face of the various matters set out in paragraphs 11 to 15 above, and in particular in the light of the way he put the matter before the Australian Court. (see paragraph 17 above).
39. In the light these difficulties, Mrs Taylor for the father has sought to put the matter in this way. She submits that, whatever the mother's reservations, the children acquired an habitual residence in Australia almost as soon as they arrived with both of their parents as a result of carefully made and agreed plans to move to live in Australia, such plans being evidenced and implemented by the following matters. The house was sold; the father gave up his job pursuant to his earlier notice; there was a farewell party at the English school, coupled with application to the Catholic school in New South Wales, places at which were confirmed by letter from the school to the mother on 11 August 2000; and the family travelled upon one-way tickets to Australia purchased by the mother.
40. While Mrs Taylor concedes a "degree of ambivalence" on the part of the mother in the run up to leaving for Australia, she submits that the court should infer, in the light of her travelling there nonetheless, that she was at least going with an open mind, intending to live in Australia with the children for a sufficient period to see if matters panned out. Mrs Taylor places reliance upon the decision of Munby J in Re R (supra) where he said at paragraph [50]

"True it is that on the finding of fact I have come to, the purpose of this family's move to Germany was a purpose intended, certainly so far as the mother was concerned and so far as their joint planning was concerned, to be fulfilled within a comparatively short duration; indeed, as I have found, within the period of something of the order of no more than six months. But that does not prevent there being habitual residence in Germany."

41. However, in the case of R it is plain that the conclusion of Munby J was based upon the fact that, short as the period intended to be spent, (and in fact spent,) in Germany was, it amounted to an appreciable period. Further, as between the parties and all the family, their residence in Germany was for a "settled purpose". In paragraph [49] immediately preceding the passage quoted above, Munby J stated as follows:

"Was this family's residence in Germany for a settled purpose albeit a purpose for a short duration? That is the test identified by Thorpe LJ in the passage I have referred to [in Al Habtoor v Fotheringham]. The answer, in my judgment, is that this family was living in Germany for a settled purpose; that is to say for the settled purpose of enabling the father to fulfil that, albeit short-term, assignment by his employers."

42. When taxed by me with the question what was the settled purpose of this family as at the time of their arrival in Australia, in particular as between the parents, Mrs Taylor was in truth unable to define it, given the clear situation which had emerged in evidence and was set out by the husband in the Australian proceedings. The best she could do was to invite the court to infer that, despite the mother's clear indications from day one in Australia (and indeed prior thereto) that she and the children would not stay there, the mother should be inferred as having in reality accepted that she and the children would live there for a time with the shared and settled purpose of a "trial period" of residence.
43. In my view such an interpretation is artificial, flies in the face of the evidence and is ultimately unsustainable.
44. True it is that, until August 2005, there was an apparent common intention and settled purpose as between the father and mother that they would start a new life in Australia, which survived and extended beyond the parties separation in May 2005. However, as it seems to me, the wife's change of heart was made manifest to the husband when he received the wife's solicitors' letter of 5 August 2005 and, whatever the precise terms of conversations which took place between them thereafter, the father was well aware that the mother only proposed to come to Australia with the children for a holiday despite the desire of the husband that they should come back there to live. At paragraph 29 of the husband's amended affidavit, the husband makes clear that the proposition that the mother would give Australia a go before finally making up her mind was no more than "a matter of impression" rather than the result of anything said by the mother to him when the plans were discussed in August following receipt of her solicitors' letter. Again, it is clear from his statement in the Australian proceedings that even that impression had been dispelled before they left for Australia. There is no suggestion in the father's evidence that, following arrival in Australia, any contact was made by the mother or the children with the Catholic school to which application had been made earlier in the year, or that in any of the discussions with the husband's family as to the future the mother relented from her intention to return to England with the children when the holiday was over. Thus, it is quite clear to me that there was no settled purpose, even for a short duration as in Re R and I do not consider that Mrs Taylor can derive assistance from their decision.
45. I conclude therefore that, in April 2006, at the time of the wrongful retention relied on, the children were, and had at all times since 1997, been habitually resident in England. The father's application under the Convention therefore fails.
46. That being so, it is unnecessary for me to give a decision in relation to the mother's alternative defences raised under the Convention. However, I propose to refer to them briefly.

Grave risk of harm

47. Suffice it to say that the defence that the return of the children to Australia would expose them to physical and/ or psychological harm and /or otherwise place them in an intolerable situation has scarcely been pursued before me. Bearing in mind the level of proof required in relation to this Convention defence, such evidence that I have on this topic is quite insufficient to establish the defence.

The children's objections.

48. Mrs Werner-Jones of CAFCASS interviewed H and G separately. She judged H's level of maturity and understanding to be commensurate with his age of 12½ and, in the case of G, she judged her level of maturity and understanding to be that of a 9 year old "if not above". Both expressed clear objections to returning to Australia. H said (i) He had always been here in England, he knew that his mother could look after him, and that he had friends here; he knew that his father could look after him, too, but he was working. (ii) All his sisters were here and he wished to stay with them. (iii) He was really close to his mum and did not really want to leave her. (iv) If his mum went back to Australia, he would go "but I have started school here". (v) It would be very upsetting and emotional going over to Australia – "a massive change". Asked if he had a message for the judge he replied "I hope that I can stay here and still be able to see dad".
49. G in turn said that she was only little when she left Australia and had lived in England all her life, stating "I like it here". Asked about her objections to returning she stated (i) She did not wish to go to Australia as she had all her friends here in England as well as her school and her mother. (ii) She had lived in England "for the longest time" and it was where she had grown up. (iii) Her mother could care for her better than her father because "my mum is mum". Her message for the judge was "I'd like to stay here more than I'd like to go to Australia".
50. As a result of the contents of that report I am satisfied that both children have attained an age and degree of maturity at which it is appropriate to take account of their views. I am also satisfied that while each child has to be considered separately in deciding whether or not he or she objects to being returned, in the light of their closeness and their general situation in the family, that closeness requires to be taken into account in exercising the discretion in relation to each: cf Zaphino v Zaphino (Abduction: Children's views) [2006] 1 FLR 410 [2006] 1 FLR 410 per Wall LJ at para [34].
51. Bearing in mind that I was informed in the course of the proceedings that if the children were ordered to be returned to Australia the mother would go too, if it were necessary to decide the issue of return or non-return under the Convention, the issue of the weight to be given to their objections would not be straightforward. I say this, in particular, because of the strong reminder in Zaphino that the nature and strength of a child's objections must always be balanced against the need to give appropriate weight to the principle and purpose of the Hague Convention (including comity and respect for the judicial processes in the requesting state) as well as general welfare considerations. (see per Thorpe LJ at para [19].)
52. That being so, I do not propose to perform that task. Rather, I reserve examination of the issues of comity and welfare to my consideration of the alternative application of the father.

The inherent jurisdiction

53. As already indicated there is in the originating summons a claim in the alternative for an order for the return of the children "under the inherent jurisdiction of the court with respect to children, as being consistent with the paramount welfare interests of the children".
54. In presenting her argument, Mrs Taylor has not unnaturally concentrated upon the conduct of the wife in entering into a consent order in the Australian proceedings and then reneging on the terms in which it was made. As Mrs Taylor puts it, the mother was content to have the benefit of the order for the purpose a negotiated return to this country with the children, only to repudiate its terms when later faced with her promise to return the children to Australia for a holiday in April, to attend their aunt's wedding. The wife has sought through her counsel, Miss Renton, to excuse this plainly reprehensible conduct by making clear the mother's fears that the children might not be returned, given the earlier action of the husband in seeking a residence order despite the fact that historically the mother had always been the carer for the children. That is an explanation which is understandable but does not amount to an adequate excuse.
55. Mrs Taylor also submits with some force that comity dictates that this court should respect and come to the assistance of the Australian Court in enforcing its orders so that it can consider the question of the children's residence, as it planned and had jurisdiction to do when approving the interim arrangements negotiated by the parties. That is plainly a consideration to be taken into account, not least because of the admiration and respect which this court accords to the Australian family justice system and the orders of the Australian family courts.
56. Nonetheless, as acknowledged on the Originating Summons, it is the welfare interests of the children which are paramount in a case of this kind, unconstrained (as I have held) by the terms and jurisprudence of the Convention. In my view, the welfare interests of the children strongly militate against the making of any such order. Quite apart from their wishes as expressed to Mrs Werner-Jones, and the plain upset which will be caused to them if those wishes are disregarded, the mother has been the primary carer of the children all their lives. They have lived in England for the last nine years. They are not only habitually resident, but well settled, here. It would plainly be highly unsettling if their present educational arrangements were disturbed. While they are anxious to maintain contact with their father and would like to see him, they do not wish to go to Australia to do so, but would prefer to see him here. It is not suggested that there is, or that the mother has erected, any barrier to his visiting them here in England. While he has maintained substantial indirect contact with them, that is not a step which he has so far taken. However it is plainly open to him.
57. So far as comity is concerned, I am confident that no undue offence will be caused to the Australian Court for the following reasons. The arrangements made and embodied in the Australian court order were plainly interim arrangements which contemplated that it was in the interests of the children to remain in the care of the mother in England pending any final disposition of the proceedings based on welfare principles. Equally, it is plain from the terms of the order that the court contemplated the necessity of obtaining an independent assessment of the children's wishes and feelings before making any order in a case where there was no dispute that the mother was, and had always been, the primary carer, or that the children had spent all but a few weeks of their life in England. There is a report before me by an eminent Australian family lawyer, Mr Ian Kennedy, obtained pursuant to the order of this court, which speaks to the jurisdiction of the Australian court in relation to the father's application. In that part of the report dealing with the Australian court's present jurisdiction (the children not having been returned to Australia and these proceedings being pending in England), Mr Kennedy expresses his opinion that, while the Australian family court could validly exercise jurisdiction, it would in the circumstances (particularly given the existence of these proceedings) defer to this court and await its determination of whether the matter should be referred back to the family court of Australia as the appropriate forum to determine the issues. Given that the matter is now before this court and that I have before me a clear indication of the children's wishes and feelings against the background I have described, I cannot conceive that the Australian court would regard it as other than appropriate that this court, rather than the family court of Australia, is the appropriate venue for consideration of the questions of residence and contact in relation to these children.

Conclusion

58. The relief claimed in the father's Originating Summons is therefore refused.