England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
THE SENIOR COURTS ACT 1981
IN THE MATTER OF M (A Child) (Born 5th July 2012)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/03/2014

Mrs Justice Russell :

1. The court is concerned with M, born on the [a day in] July 2012 he is now 20 months old. The matter is listed further to the order of Mr Justice Bodey, dated 30^th January 2014, to determine the issue of jurisdiction. Originally listed on the 28^th February it was adjourned to the 7^th March 2014 as the Respondent, K, was arrested outside court and taken to Holborn Police station for questioning regarding an alleged sexual assault on the Applicant, B. The hearing as to the habitual residence of the child took place on the 7^th March 2014.

Background

2. The parties' cases are set out in their respective statements. In short the Applicant/mother says that in July 2013, the parties agreed that M would travel to Singapore and remain with the paternal grandparents for a temporary period whilst she took exams in England. The Respondent/father says that they agreed that M would remain in Singapore, indefinitely, with his parents. The child was born in London and remained largely in his mother's care until they travelled to Singapore in July 2013; therefore until that date he was habitually resident in England. The issue before the court is whether the place of his habitual residence was changed to Singapore.
3. The parties met in Singapore in and married there on 28^th June 2011. The Respondent, who worked for a bank in London, had previously bought a property here to serve as the family home. B travelled to England when she had been granted a visa and joined K; M was born the following year on the [a day in] July 2012. Before he was born both the maternal grandmother visited and helped with the new baby for several months. The paternal grandparents visited after the birth for a period of five months.
4. It is clear, and not a matter of dispute, that the marriage had difficulties. The reasons for the difficulties are disputed but in February 2013 the police were called and there were concerns that B had been the victim of domestic abuse and K was taken into custody. Further concerns were raised that B was then minimising the incident. These concerns led to an assessment by Westminster social services. B was by then studying as well as looking after M full time and needed more assistance than she was getting from her husband; they were said to be arguing about whether to have a nanny or have the paternal grandparents involved.
5. This assessment is the only independent evidence that is before the court, and while I cannot place too much weight on it, it was largely unchallenged by either party and provided some further background to the case. The author records that there were no concerns as to the standard of care provided by B and that she appeared to be very well informed on child care.
6. The couple were reported as intending to remain in the UK. They owned their home and were working and studying here. B said that returning to Mongolia was not an option and that as a dependant of her husband she felt that there was no guarantee that she would be able to return to Singapore. This is a telling piece of evidence as it would not support the Respondent's case that there was a long standing agreement to return to Singapore.
7. In 2013 B took up a language access course which had classes lasting 3 hours most, but not every, weekday. The paternal grandparents visited again in 2013 and stayed for a few months during which time they certainly took care of M when his mother was at classes. The Respondent continued to work full time. He says his parents undertook the bulk of M's care which B denies. K was not there and I have not heard from them.
8. B had to take exams in October 2013 which would have been time consuming. It was undoubtedly agreed that M would travel to Singapore with his parents in July and that they would leave him there in the care of his parental grandparents. M's mother says she expected to him to return to England in November, but that K said he could not take any time off of work then. He booked and paid for flights for himself and the mother to travel to Singapore on 17^th January, a flight for all three to return to England on 25^th January 2014. Without telling his wife K resigned from his job in London and arranged to take up a position with his employer in Singapore.
9. Immediately on his arrival in Singapore in January, and unbeknownst to B, K commenced ex parte custody and divorce proceedings. B was served with the divorce and custody papers as she took lunch with her husband at the hotel where they were staying. He had also applied, without giving her notice, for a court order prohibiting her from removing M from the jurisdiction of Singapore. An attempt to serve this order, which he obtained in the ex parte hearing, took place when K and his Singaporean lawyer threw it at B at the airport as she was leaving the country.
10. It is not disputed that K then remained at "home" with his parents. He says she was welcome to stay there too. B's case is that she was left in a hotel with limited access to her son. Her immigration status in Singapore was and is dependant on the good will of K. She used the return ticket to return to London. Upon her return to England the mother discovered she had been locked out of the family home and that her ATM card to the party's joint account no longer functioned.
11. It is her case that M was unlawfully retained in Singapore as he is habitually resident in the UK. It is K's case that M remained in Singapore with his mother's consent and by agreement. To decide on the issue of the disputed consent I heard from both parties and I have read the documents filed in the case which included the assessment by Westminster social services.
12. Neither parent remained in Singapore with their young baby until the parents travelled there in January 2014. It is not disputed that until July 2013 the baby was habitually resident in England. He was a year old when he left for Singapore; he has now been there for almost 8 months. It is B's case that a 3 month temporary stay was initially contemplated, which was later extended to 5 months. It is K's case that it was agreed that the baby should move to Singapore and remain there with his parents while B continued her education and undertook a degree. It is argued on his behalf that the time spent in Singapore means that M has acquired a Singaporean habitual residence as a matter of fact as the purpose and intention of the parents is merely one of the relevant factors.
13. I shall review the evidence of the parents below, but first I set out the legal framework upon which I must base my decision on the evidence before the court.
14. The law regarding habitual residence has been the subject of much judicial scrutiny over recent years, including by Lord Justice Wilson, as he then was in the Court of Appeal in RE P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051.
15. However in Mercredi v Chaffe (Case C-497/10)79888FLR8706 Mercredi v Chaffe (Case C-497/10)NMercredi v Chaffe (Case C-497/10) [2011] 1 FLR 1293 [2011] 1 FLR 1293, Court of Justice of the European Union set out the "European test" for habitual residence. This test along with the decision of the European Court of Justice in Re A (Area of Freedom, Security and Justice) (C523/07), [2009] 2 FLR 1, was adopted by the Supreme Court when it considered the issue of habitual residence in A v A (Children: Habitual Residence) [2013] UKSC 60, [2013] 3 WLR 761. At paragraph 54, Baroness Hale, after a lengthy summary of the English and European jurisprudence set out a list of propositions drawing the threads of European jurisprudence together. They are as follows:

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."

16. In Re LC [2014] UKSC 1 the Supreme Court reaffirmed the decision in Av A and considered the impact of parental intention in respect of habitual residence and the situation of infants in particular and at [35] cited the decision of the European Court in the Mercredi case at paragraph 53. While it must be the case that M has been dependant on the care of his paternal grandparents in Singapore over the past eight months and therefore must be, as an infant, necessarily sharing their social and family environment it does not mean that the purpose and intention of the parents (as those with parental responsibility) becomes immaterial.
17. It was submitted, on behalf of his mother that the parties always agreed that M would remain in Singapore for a short temporary period of time, after which M would return to England to live permanently with both parents who have parental responsibility for him and I was reminded of the case of B v D (Abduction: Inherent Jurisdiction) [2008] EWHC 1246 (Fam) [2009] 1 FLR 1015 [2009] 1 FLR 1015, where a child sent abroad for 9 months of the year for education did not lose his habitual residence.

Evidence

18. I heard from both parents. K has filed evidence both in the proceeding here and, prior to that, in Singapore. To some extent his written evidence is contradictory. He also makes serious allegations about his wife which take the form of assertions and are wholly unsubstantiated; such as that she was involved in prostitution and that she tried to poison him so he feared for his life. Their inclusion was obviously intended to be prejudicial.
19. His evidence to the court in Singapore concentrated on his allegations that B threatened and intended to remove M and take him with her to Mongolia. He said that she had been doing so since the child was born. He described a marriage in disarray and accused her of seriously abusive behaviour. None of this is consistent with the plan that he says was agreed as to M being cared for by his parents to allow B to study which is his story before this court. If B was so dismissive of her son why would she threaten to remove him to Mongolia? The two, while not necessarily mutually exclusive provide enough of a contradiction to warrant an explanation which was not forthcoming.
20. K deliberately set out to mislead his wife as to his intentions when they returned to Singapore in January. He withdrew a substantial sum of money from their joint account (£18,000) the day before they arrived in Singapore. He did not tell her he had left his job, he did not tell her in intended to divorce her, he did not tell her he would be remaining in Singapore. Even on his own account that M was to remain in Singapore by agreement that was on the basis that both his parents would be working and studying in the UK. He renewed his work visa for the UK, unnecessarily, with the intent of compromising and invalidating his son's visa and his wife in the UK. This was to stop his son travelling here and to make B's immigration status precarious.
21. He bought return tickets for himself and his wife; and one for M. The speed with which lengthy documents were filed with the court on the Monday, after they had arrived on the Saturday in Singapore, makes it more likely than not that the case had been being prepared prior to his leaving London. Moreover he did not disclose to the court in Singapore the purpose of his trip to Singapore and the fact that the child's mother was present in the country. This is all consistent with a deliberate plan to separate mother and child indefinitely as, on his own evidence B could not remain in Singapore for long without his sponsorship. It is not possible to say when this plan was conceived but it may have been as early as before M was taken to Singapore in the first place or shortly thereafter.
22. K gave evidence that he was bullied and overborne by his wife who made him prepare documents for her, buy return tickets against his will. The only independent evidence available would indicate that it was he who was believed to be the bully and the manipulator. He travelled with an empty suitcase to Singapore in January and admitted to me in evidence that he had taken this and other steps to conceal from his wife what his intentions were. He claims that B was a neglectful mother and poor parent. The observation of the social worker entirely contradicts this claim.
23. B gave evidence with the assistance of an interpreter. Her English is good but she needed assistance from time to time. She was quiet in her manner, but calm and dignified. She denied ever agreeing to M remaining in Singapore indefinitely or for a period of at least a year. She has a place on a part-time course at Birkbeck College and has arranged a nursery place for M which K knew about. She accepted that she had gone to see nurseries in Singapore but said that she had done so for M and that contrary to K's evidence M could have gone there before the age of 18 months if both his parents were busy. It's a matter of record that B was advised of the benefits to M of his attending nursery when Westminster assessed the family because of concerns over domestic abuse by K. I gained the impression that when in Singapore B did not feel she was not in a position to object to any course of action suggested by her husband. She was certainly isolated and without family or support.
24. B gave a graphic and convincing description of being assaulted and put out of the house into the cold in the middle of the night. K's evidence that she chose to leave the flat in such circumstances is not credible. Both agree that the police were called and chose to resolve the matter by an officer flipping a coin as a result of which B left the flat. It is a pity that they do not have the officer's number so that this court could have followed up this curious approach to domestic abuse cases by the Metropolitan Police.
25. K did not impress me as a witness. He was curiously ignorant of his son's routines and I did not get any impression of M from his evidence. I was wholly unconvinced by his claims that he was bullied or coerced by his wife into doing things against his will. He had no idea what clothes B had bought M for his return; either he has no interest in what M's mother does for their son or he had already dismissed her as irrelevant. His actions were underhand, devious and cruel. He has, quite deliberately, sought to separate M from his mother, and clearly intended to do so permanently, as there is no plan in place to enable B to remain in Singapore. I do not accept his claim that B did not care for and look after M; there is no evidence that she was anything other than the primary carer.
26. I do not accept the evidence of K that there was any agreement that M remain in Singapore or that it was intended that they would bring M up in Singapore. I am sure it is his plan that he and his family do so but there is nothing in his conduct or his evidence that he intended to include M's mother in this plan.
27. M was habitually resident here. The purpose of his journey to Singapore, as agreed by his parents at the time was for a short period from August to November 2013, while B completed her English studies. This was extended to January as K said he could not travel until January 2014. Since January M has been retained there without his mother's consent. The orders of the court in Singapore were obtained without notice there has been no adjudication on the facts of the case.
28. I find that M did not acquire a habitual residence in Singapore. His stay was temporary and for a fixed purpose. He was not living with either parent. His mother expected and planned to resume his care not later than January 2014. The role of the paternal grandparents as carers was also a temporary arrangement, therefore applying the propositions propounded by Lady Hale in A v A I conclude that M's integration into the social and family environment in Singapore was temporary in nature, in fact and by intention.
29. There will be an order that K is to arrange that M is returned to this jurisdiction immediately to which a penal will be attached. M will be placed in the care of his mother.
30. This is my judgement.