England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		28th April 2015

MS. JUSTICE RUSSELL:

1. These proceedings are brought by the Applicant father in respect of the child A, born on 14 June 2011 for summary return to Italy pursuant to the provisions of the Child Abduction and Custody Act 1985, which drafted into UK law the provisions of the Hague Convention and the Civil Aspects of International Child Abduction signed in October 1980.
2. A is now three years and nine months old, and has been living in the UK with her mother since May 2014. A was born in Hungary and her mother is Hungarian, her father is Italian. Her birth was registered in Hungary and later by her father in Brindisi, Italy, where he lives with his mother. Throughout her life A has been in the care of her mother. Her father has been closely involved in her upbringing until December 2013 when the mother and child returned to Hungary. I shall return to the facts of this case and the child herself the legal framework for the case.
3. The Applicant father seeks an order for the return date to Italy and as it is his case that A was habitually in Italy there at the time of her removal from Hungary to the United Kingdom, which he says was unlawful and without his consent.

LAW

4. The Respondent mother defends this application, primarily, under Article 3, as she says A was not habitually resident; but in the alternative she says that there is a defence under Article 13(b); that a return to Italy would expose the child to physical or psychological harm or otherwise place the child, A, in an intolerable situation. Logic and law dictate that I should first consider the defence under Article 3 as, if it applies either because the child was habitually residence in Hungary or not habitually resident in any of the Contracting States, then the application itself fails, and I do not need to consider the provisions of Article 13.

THE LAW IN RESPECT OF HABITUAL RESIDENCE:

5. I have been referred by both counsel to the United Kingdom Jurisprudence and to the relevant case law concerning habitual residence. The law of the United Kingdom requires (as it has been held by the Supreme Court) that I apply European law based on the seminal cases of Re A (Area of Freedom, Security and Justice) [2009] 1 FLR 1, and Mercredi v Chaffe [2011] 1 FLR 1293. Following the Supreme Court decision of Re A (Jurisdiction: Return of a Child) [2014] 1 FLR 11 and the law that is to be applied is the European test on integration. The law is child-centric and not parent-centric - in other words, its purpose is to protect and safeguard children and not to assert parental rights.
6. As there is no dispute as to the legal framework to be applied, I do not intend to set it out in full in this short judgment.

THE LAW

7. Habitual residence is an issue which falls to be determined on the particular facts of each case. I have read the submissions of counsel and have refreshed my mind as to the relevant case law. In determining the habitual residence of A I shall consider all the relevant factors, including the duration of stay in each country in which she has previously resided, and whether circumstances of that duration reflected an adequate degree of permanence. That latter will also be determined by conditions in which A lived, the reasons for her stay in Hungary and Italy and her parents' reasons for being there, her attendance at nursery or school, and her family and social relationships.

HISTORY FROM A's BIRTH:

8. A was born in Hungary and her birth registered in June 2011. Both her parents had moved to Hungary from Italy, where they had been living for the previous nine months, in or around April 2011, and on the Respondent's case remained there until May 2012. It is the Applicant's case that they spent July to December 2011 in Italy. From May 2012 to December 2012 A was in Italy with her parents; and from December 2012 until June 2013 A lived in Hungary. From June 2013 A was in Italy until December 2013, when she then returned to Hungary with her parents and remained there with her mother, apart from one week she spent with both parents in Holland during Easter 2014. After that holiday she was driven back to Hungary by her father and remained there with her mother.
9. A's mother brought her to the United Kingdom in May 2014. The Applicant says that that removal was without his consent, and he reported it to the Italian police, who had instigated criminal proceedings which are still extant. As the Applicant claims to be powerless to halt these proceedings the Respondent (mother) risks prosecution and possible arrest if she is forced to return to Italy with A.
10. The timetable of movement which I have set out between Hungary and Italy is highly indicative of an arrangement whereby summers were spent in Italy and winters in Hungary. As I am concerned with the habitual residence of A, I must consider the fact of her residence in both countries and to what extent she was integrated into a social and family environment in Hungary and in Italy. In order to determine that, I must consider the reasons for the family's presence in each country and the intention of the parents. This latter is one of many factors relevant in determining whether there is a sufficient degree of stability and integration amounting to habitual residence or a change in habitual residence.
11. To return to the facts of this case, and putting to one side at this stage the serious allegations made by the Respondent about the Applicant's behaviour and alleged criminal activity and domestic abuse, it is clear that neither of them had a stable job in either Hungary or Italy. The Respondent claimed benefits in Hungary and as such was required to live in that country in order to claim those benefits. She agrees, however, that they liked to spend summers in Italy and take advantage of the weather and the facilities available.
12. The habitual residence of a child who is still a baby or an infant or a toddler, as A is now and was when she was removed from Hungary, is, as a dependent infant, a reflection of his or her main carer. In this proposition I make reference to para.55 of the Decision of the European court in the Mercredi case as quoted by Baroness Hale in Re A at para.50 of her Judgment. A has always been cared for by her mother and it is therefore necessary for me to assess her mother's integration into her own social and family environment.
13. When A travelled between Hungary and Italy, she was driven by her father, the Applicant, on what must have been a very long journey by road. The family never flew; I am told that was because of the costs. When in Italy A and her mother were entirely dependent on the Applicant father for financial support, and it follows that the Applicant's ability to travel was restricted. A and her mother lived with the paternal family in Italy and at no time did the family have separate accommodation of their own, although for a period of around one month they used the Applicant's grandfather's one bedroom flat while he was away. The rest of the time they slept in the paternal grandmother's home in the living room.
14. When in Hungary, the family lived with the maternal family or in rented accommodation. They lived in rented accommodation from around May 2011 and retained that property for 11 months. The Applicant paid the rent. The Applicant regularly travelled away from Hungary while A and her mother remained in Hungary. It is accepted by both parents that when they returned to Hungary in December 2012, they moved into the maternal grandparents' home where they had a room of their own and a separate kitchen. The Applicant paid for the room to be fully furnished and contributed towards new flooring for the bedroom and for the kitchen.
15. The family returned to Italy in June 2013 for six months and again lived in the paternal grandmother's home, sleeping in her sitting room. On A's return to Hungary in December 2013 she and her mother moved back into their room in the maternal grandparents' home and remained there until they came to the UK. The Applicant, on his own case, visited in February 2014 and then again Easter. He took A and her mother to Holland for a week, and brought them back to Hungary before he returned to Italy by himself. In his oral evidence, the Applicant claimed that he was expecting A and her mother to join him in Italy a week after they had returned to Hungary from Holland, although he had omitted to mention it in his very extensive statement.
16. It was recorded by the Italian authorities when the Applicant made his statement to them, that the Applicant had told the police that he accepted that A had returned and lived with her mother in Hungary, although that was "in spite of himself". The Applicant, much later, told this court that he was forced to do so by the Respondent's verbal aggression and behaviour. It is simply not credible to suggest that he would have overlooked telling the police that this was the reason when he made his statement in pursuit of the criminal prosecution of the mother of his child.
17. The Applicant accepted in evidence that in 2011, when A was a year old, he refused to allow her to travel with her mother to Hungary to attend the funeral of her mother's cousin. He did the same, again by his own admission, in October 2012 when the mother's grandmother died. He told me that he had not refused to allow the Respondent to travel to Hungary, he had just refused to allow her to take A with her to attend the funeral of the grandmother. As the mother of a very young infant he had effectively removed the choice of travelling, as she would not have left her baby behind, and he must have known that. It was an abusive act and an example of his controlling behaviour. It is simply not credible and unacceptable for him to tell me that he "cannot know why she did not go to Hungary".
18. The Respondent said in her evidence that she had intended that A and both her parents should live in Hungary, and that she had formed that intention by the time they moved there in December 2012. The evidence of this intention was borne out by the purchase of various items to furnish their own room and their kitchen in her parents' home. In terms of the Respondent's habitual residence, I find that she was habitually resident in Hungary from December 2012, as she was integrated into her family and her social environment there. The Respondent and her family provided a place in their home for A and the Respondent (and indeed for the Applicant) which remained in place during the trip to Italy for the summer of 2013. The accommodation and life in Italy was less permanent in its living-conditions, in its nature and its quality. It was a summer holiday albeit a lengthy one and not a secure home but the existence of visitors staying temporarily in the living room of relatives.
19. When A returned to Hungary with her mother in December 2013, she returned to the place where her principal carer, her mother, was habitually resident. A was enrolled in a nursery and spent several days each week at the nursery. A is integrated into her maternal family, her mother's home and her social environment. The actions of the Applicant support this factual reality. He left A and her mother in a home he had helped to furnish returning for visits and returning A and her mother to Hungary after a holiday in Holland. As he told me in his oral evidence and told the police, it was his case that he had not given the Respondent permission to remove the child from Hungary, not from Italy.
20. The Respondent's evidence was unconvincing, arrogant and evasive; he refused to answer questions he was asked on several occasions. For example, he was clearly implying that the letter from the nursery in Hungary regarding A's attendance there was either false or concocted in some way, as he made reference to the Respondent's sister being a teacher there, or teaching there. He then refused to reply to a direct question asking him if that was what he was saying. He gave evidence for the first time in the witness box about an agreement reached in Holland for the Applicant and her mother to go to Italy the week after they returned to Hungary and then said that his very experienced solicitors had left it out of his statement.
21. The Applicant described his job delivering leaflets door to door as secure, while accepting that it is indeed a casual job. The Applicant claimed that he had spent the time in Italy between December 2013 and May 2014 setting up or looking for a home for the family and a job for himself; not only is this not set out in his statement, but there is no supporting evidence of the accommodation that he said he had found, nor evidence that he had passed details of such accommodation on to the Respondent to approve. I find that the Applicant had accepted that A and her mother were resident in Hungary and his actions were consistent with his acceptance of that fact.
22. I find that A was habitually resident in Hungary at the time of her move to the UK in May last year. Her integration into social and family life was inextricably linked, as a very young child, with that of her mother. Her visits to Italy for holidays were just that; there is no secure home for her there and while she would undoubtedly enjoy spending the time on the Mediterranean coast and with her paternal family, it is her mother who is and was her main carer, and it is the maternal family that provided her with a secure home base in Hungary, and that is where she was more integrated into her own social and family environment. It was there that she was registered with her GP, had the financial support from the State, was enrolled in and went to nursery. There she no doubt made friends. It was in Hungary where she and her mother lived in their own space and not in temporary or makeshift surroundings. A did not at any time have the same kind of home in Italy.
23. As A was not habitually resident in Italy at the time of her removal to the UK, Article 3 does not apply and the application fails. No return to Hungry is sought. I do not have to consider Article 13(b). However, I consider the Applicant's suggestion that A and her mother could safely be returned to Italy and accommodated there by being placed in a convent, in which they would be effectively imprisoned as their movements would be restricted, to be a repugnant suggestion and wholly in keeping with the tenor of his evidence and his controlling attitude towards his child and her mother.
24. This is my Judgment.
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