England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		22nd June 2016

MR JUSTICE HOLMAN:

1. This is an application for this court to exercise its inherent, and also statutory, jurisdiction in relation to a child in somewhat unusual circumstances. The essential background facts and context appears to be as follows. The applicant mother is British and her home and background are here in England. The respondent father is American. His home and background appear to be entirely in America. However, he was formerly serving in the American military, and it was whilst he was based as an American soldier in Germany that he and the mother first met. They were able to marry in April 2011 by proxy in Montana, USA (proxy being recognised in America in the case of their military serving abroad). At that time, the mother continued to live in England. But in March 2012 the father was posted back to America. The mother travelled there and began living with him. It must have been very shortly after that that the one child of the relationship was conceived, since he was born in December 2012.
2. Since this judgment will be made publicly available, I will call the child by the letter 'C' although that is not the initial letter of either of his forenames. By a statement made in the present proceedings on 18^th February 2016, the mother describes how, in the year between her move to America in March 2012, and her ultimate return to England in March 2013, she was the victim of (if her allegations are at all true) the most appalling violence, including what she describes as "absolutely barbaric behaviour" when the father sadistically killed a number of her pet cats.
3. The father has chosen not to participate in any way at all in the present proceedings, so I do not have any evidence from him in relation to these allegations. I will not describe them further in the present judgment, since there may, of course, be another side to the story; and in any event, the truth or otherwise of the allegations is not ultimately relevant to the orders I have been invited to make and will make today.
4. As I have said, C was born in December 2012. The mother says that the violence continued after the birth and that she became increasingly desperate to escape and to be able to return to her home and family here in England. At paragraph 12 of her statement, she describes the following:

"I was absolutely shocked and relieved when the respondent suggested that I go back to England to live with my family ... and he told me that he planned on moving to England with us shortly after. The respondent wanted me to find a job and a place to live in England and then he planned to join us. He told me to book a one-way ticket, which I did. I booked mine and [C's] tickets on 14^th February 2013 and I emailed them to him on 7^th March 2013 ... as he wanted confirmation of our flights. The respondent drove us to the airport on 12^th March 2013 and said goodbye on the basis that he would be following us to England soon. I moved in with my mother and stepfather when I returned home to London, which is where I continue to live. The respondent knew this is where we would be staying. At first, I would speak to the respondent via Skype a couple of times a week and I would often bring [C] in the view of the screen so he could see him, despite him never asking about [C]."

5. The mother further goes on to describe, at paragraph 17 of her statement, that she, herself, made a return visit to the hotel in Georgia, USA, in which she and her husband had been living in the period before her return to England on 13^th March. She went there in order to collect clothes and documents which she had not originally brought with her because, she says, her husband had told her that he would bring them with him when he came to England to live.
6. The mother says that she was escorted by police to the property and that:

"The respondent was present, with his new girlfriend. He never said anything to the police officers about me having "absconded" with the child to the UK as he is now alleging."

7. The mother says that since about June of 2013, now three years ago, the father "has not tried to contact me or seek any contact with [C], despite him knowing my mobile number, my Skype details and my email address."
8. Pausing there, if what the mother says in the passages I have quoted or summarised is true, her move with the child to England in March 2013, now over three years ago, was entirely consensual, and indeed done at the original suggestion of the father. If what she says is true, he was well aware that she had booked one-way tickets, for he saw them. He, himself, drove her and the child to the airport, and the plan was that he would soon travel to England himself to join them here. Further, when she, herself, returned to Georgia during May 2013, he had an obvious opportunity to assert, if it was true, that she had "absconded" with or abducted the child, but he did not in any way avail himself of that opportunity.
9. Those, therefore, were the events of 2013. The mother says, and I accept, that she and the child have lived here continuously ever since then. It follows that the child was aged about 3 months when he first travelled to England with the mother. He has now lived, in a settled way, at the same address in England, with his mother, for over three years and, effectively, therefore, for the whole of his life. His mother is a British citizen. His father is an American citizen. He himself has dual nationality and both British and American passports.
10. The first question that I have to decide is whether, as the mother asserts, the child was, at the date of the commencement of the present proceedings in February 2016, habitually resident here in England and Wales, so as to found jurisdiction in this court of England and Wales. Frankly, it is quite unnecessary for me to incorporate into this brief judgment any of the relevant jurisprudence. On the facts as alleged by the mother, the essence of which I am quite satisfied is true, it is as plain as a pikestaff that this child has been habitually resident here for a long time now. He was habitually resident here on 18^th February 2016 and, indeed, is still habitually resident here today.
11. The next matter with which I must deal is the history of some much later and still relatively recent proceedings in the Superior Court of Gwinnett County in the state of Georgia, USA, which is the state in which the parties were living until the mother travelled here in March 2013. It is only relatively recently, namely during late January 2016, that the mother became aware at all of the proceedings to which I am about to refer. She has subsequently been able to obtain a number of documents from the Superior Court of Gwinnett County. From those documents, the following appears to be the case. In May 2015, lawyers called Taylor Made Legal Solutions LLC filed or presented, in the Superior Court of Gwinnett County, a complaint for divorce on behalf of the father, naming the mother as the defendant. That complaint states that, at that date, the plaintiff husband was, himself, a resident of the State of Texas, but that:

"Defendant is a resident of Gwinnett County, Georgia, although it is uncertain how long she has been so. Plaintiff has had no knowledge of defendant's whereabouts for nearly three years. Jurisdiction and venue are proper."

12. Of course, if what the wife/mother says is even remotely true, that proposition, which appears to have been the ground or basis of jurisdiction for the Superior Court of Gwinnett County, was completely untrue. The husband knew, in truth, that in March 2013 the mother had travelled to England with the intention of remaining here long-term, if not permanently. He knew where she was residing here in England, for initially he was in communication with her here in England.
13. One of the documents later supplied by the Superior Court of Gwinnett County, and now in the present bundle at page D7, is an envelope which was addressed to the wife, by name, at an address: 4657 Ash Street, Atlanta, Georgia 30340. The envelope is, in fact, clearly marked, in large capital letters, "Returned to Sender ... No one by this name at this address." Further, there is some form of official postal stamp upon it saying, "Return to sender. Non-deliverable as addressed. Unable to forward."
14. It thus seems, although this involves a degree of speculation, that the address that had been given to the court in Gwinnett County as being the address of the wife was that address at 4657 Ash Street. Further, in a subsequent application made to that court in January 2016 for a criminal arrest warrant against the wife/mother for having "absconded with the minor child ... in April 2012" [sic - although the child was not even born until December 2012], the same address is given as the address of the mother, namely 4657 Ash Street in Atlanta. That address appears also in the resulting criminal arrest warrant signed by a judge on 10^th February 2016. The wife/mother has assured me in court, here today, that the address at 4657 Ash Street is not an address at which she has ever lived, although it is the address of a person who was a friend of hers.
15. It thus appears that any communications in relation to those American proceedings were sent to an address at which the wife/mother had never resided and with which she certainly had no connection since her return to England several years earlier. There is now in the present bundle at page D19, a copy of the "Final Judgment and Decree of Divorce" in the Superior Court of Gwinnett County, State of Georgia, dated 23^rd December 2015. That grants a total divorce between the parties and continues:

"Child support is not contemplated as respondent [viz the wife/mother] was served by publication and is not within this court's jurisdiction. Sole physical and legal custody of the minor child ... is awarded to the [father]."

16. It is because the mother has subsequently learned of that American order, giving custody of the child to the father, and of the criminal arrest warrant that has been issued in America in February 2016, and because the lawyer, Warren Taylor of Taylor Made Legal Solutions, told the mother on the telephone in January 2016 that the father was going to seek a further warrant for her arrest in Texas and then commence extradition proceedings here, that the mother felt compelled to issue the present proceedings here in England in order to give her some security and protection.
17. The next matter with which I must deal is the question of service of these English proceedings upon the father. There are, within the bundle now before me, no less than three "Affidavit of Process Server" made by a process server based in Houston, Texas, namely Mark A. Whitmore, who swears that on each of 11^th March, 29^th April and 16^th June 2016 he personally served upon the father all the significant documents in these proceedings, including documents giving him notice of the previous interlocutory hearings and of the place, time and date of this hearing before me today. That evidence alone suffices to justify and, frankly, require me to conclude and be satisfied that the respondent has indeed been properly and personally served with all the relevant documents and due notice of these proceedings and of this hearing.
18. In addition, on 12^th May 2016, the mother's English solicitors sent, by email, to the email address of Warren Taylor of Taylor Made Legal Solutions, documents clearly describing and evidencing these proceedings. Additionally, emails have been sent to what are believed to be the current email addresses of the father. There has not been the slightest response by or on behalf of the father to any of these communications. It is indeed a matter of some regret that it appears that Warren Taylor and/or Taylor Made Legal Solutions did not, at least in the most formal of ways, extend the professional courtesy to colleague English solicitors of acknowledging their email. At all events, on the basis of all the material to which I have referred, I am quite satisfied today that the father has been served with notice of the present proceedings and with notice of this hearing, and appears deliberately to have made no attempt whatsoever to engage with, or participate in, these proceedings.
19. This child has always lived with his mother. It may be that it is in his longer-term best interests to have contact with, and a relationship with, his father, but that ball, frankly, is firmly in the court of the father. He knows where the mother is. He has known for several months now of the contact details of, and involvement of, the mother's English solicitors. He has not made the slightest effort or step to engage or seek contact. I have not the slightest reason to suppose that the mother is not, meantime, caring properly and well for this child.
20. On that basis, and for the above reasons, I will make an order today which includes a declaration that the child concerned was, in December 2015 (being the date of the American order) and in February 2016 (being the date of the commencement of these proceedings), and still is habitually resident in England and Wales and, accordingly, that the courts of England and Wales do have jurisdiction to make orders concerning matters of parental responsibility in relation to this child. Further, I will order that he shall live with his mother. I will order that the father is forbidden and prohibited, whether by himself or by instructing or encouraging any other person, from removing the child from the care of his mother or from the care of any person to whom the mother may, from time to time, delegate the care of the child, including any childminder, nursery or school, or from England and Wales. It is, of course, always open to a respondent to an application such as this to make a further application himself to this court in relation to the child, but I will provide that any such application must be made on notice to the mother and, in the first instance, to the High Court of Justice sitting here, at the Royal Courts of Justice in London.
21. I will order that a copy of my formal order today and of the official transcript of this judgment must be personally served upon the father, no doubt using, once again, a professional process server in America. In addition (but, I stress, not by way of service), copies of the order and of this judgment must be sent electronically to Taylor Made Legal Solutions for their information and also to the Superior Court of Gwinnett County in the State of Georgia for the information of that court. It seems to me important also that, in the event of any further proceedings in that court, that court should be aware of the full narrative case of the mother as set out in her statement made in these proceedings on 18^th February 2016. So that document also should be supplied for its information to the Superior Court of Gwinnett County. For those reasons I will now make an order in the terms I have indicated.