England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/07/2016

Judge Bellamy:

1. These proceedings concern a young boy, D. D is aged 8. His parents are TR ('the mother') and FP ('the father'). On 22^nd April 2016 the father issued an application under the Children Act 1989 seeking a child arrangements order, a prohibited steps order and a specific issue order. He subsequently issued an application for a return order. The purpose of this hearing is to determine a preliminary issue concerning the jurisdiction of the English court to adjudicate upon the father's applications. That issue hinges on the court's determination of whether, on 22^nd April 2016, D was habitually resident in England.

Essential background

2. The mother is aged 41. Her mother is French. Her father is English. She therefore has dual nationality, French and British. D also has dual nationality. Both the mother and D have English and French passports.
3. The father is aged 53. He is British.
4. The parents met in 2005. They began living together in London in 2006. D was born in London in 2008. The father's name appears on D's birth certificate. The father therefore shares parental responsibility with the mother.
5. In August 2011 the parents separated. The mother continued to live in London. D lived with her. She was his primary carer. Over time an arrangement was agreed whereby D stayed with his father every other weekend and at least once during the week. It appears that those arrangements worked well.
6. In 2012 the mother met her current partner, W. W is a French national.
7. In March 2013 the mother moved to live in Sussex. D went with her. The father says that this move occurred without his agreement. It was at about this time that the father first tried to persuade the mother to enter into a parenting agreement. He says she ignored his approach. The parenting agreement was not signed.
8. The move to Sussex was relatively short-lived. In June 2013 the mother and D returned to live in London. D returned to his old school.
9. Two months later, in August 2013, the father received a letter from the mother's previous solicitor indicating that she intended to move to live in France. She proposed to take D with her. The solicitor said that she had been informed by the mother 'that she has discussed this further with you yesterday and you both have indicated a wish to enter into mediation to investigate whether these issues may be resolved by agreement'.
10. The father's position is that he did not agree to the mother removing D to France but that he did agree to mediation. Once again he proposed that there should be a parenting agreement.
11. The history of the subsequent relationship between the parents is, in some important respects, controversial. It is appropriate to consider the evidence in respect of two time periods, firstly, from September 2013 to 19^th December 2015 and, secondly, from 19^th December 2015 to 22^nd April 2016.

September 2013 to 19^th December 2014

12. The father says that in September 2013, 'The mother took the decision to remove D (then aged 4) from the UK without my knowledge or consent, to France'. It became apparent from the father's oral evidence that that statement is not entirely accurate. The father had been willing to agree to the mother and D relocating to live in France but on condition that she should first sign a parenting agreement.
13. There were discussions between the parents concerning the proposed move. The father knew the mother's plans. He could have applied to the court for a prohibited steps order to prevent the mother from removing D from the jurisdiction. He did not do so. After the mother and D had relocated to France the father could have applied to the court for an order for D's summary return to England. He did not do so.
14. The father says that he 'did not perceive [the mother's] plan to go to France as anything other than temporary'. He continues to maintain that the removal was only intended to be temporary. At no time during the period from September 2013 to December 2015 did he ever come to the conclusion that 'temporary' had become 'permanent'.
15. The evidence points strongly to this being a permanent removal. A draft consent application and consent order were sent to the father by the mother's solicitor. The father accepts that he received them. The draft order includes the following: 'By consent it is ordered that: 1. The Mother shall have leave to remove the Child, D, to live permanently in France'. Although the draft application was never signed and filed at court, the inclusion of the word 'permanent' made it very clear how the mother viewed the proposed relocation.
16. On 19^th September the mother sent an e-mail to the father saying, 'I'd appreciate your response re order asap – all notices have been given ie flat and school, as I told you and based on our talk since we met last Friday'. The father replied the next day, saying 'Will I be able to see D next week…When are you leaving?'
17. Against that background it is difficult to understand how the father could have believed this to be a temporary removal. Indeed, as he gave his evidence the father was unable to explain what he meant by the use of the word 'temporary' in this context.
18. In her written evidence the mother says that she 'never presented our plan to move to France as anything but permanent'. I accept the mother's evidence on that issue. I am satisfied that this was not and was not intended to be a temporary relocation. I am satisfied that the father knew, or alternatively closed his eyes to the fact that, the mother intended the removal to France to be permanent.
19. On 26^th September 2013 the mother and D moved to live in France. They went to live with the mother's partner, W. W is a French national. He has lived in France all his life. He works as an engineer. He owns a three-bedroom house in Brittany, close to the sea. The mother describes it as a typical Breton cottage. She and D lived there with W almost continuously from 26^th September 2013 until 19^th December 2015.
20. There is evidence of some difficulties in the relationship between the mother and W in March 2014. A series of e-mails sent by the mother to the father on 20^th March suggest that there may have been something seriously wrong with their relationship. Indeed, the tone of the mother's e-mails suggests that she was very frightened. In her first e-mail she wrote 'Plse can we talk tomorrow – he's getting worse'. In a second e-mail a few minutes later she wrote, 'if you don't hear from me you will have to come here'. In a third e-mail she said, 'I'll send some numbers of people here if I can find them – but you must come if you don't hear'.
21. In her oral evidence the mother said that her partner had been under significant work pressures and was very stressed. She and D had spent a couple of nights staying with friends. She denied that W has ever used or threatened violence towards her. She described him as a very loving man whom she loves greatly.
22. I am satisfied that the mother has sought to underplay the seriousness of those events. However, whatever the state of their relationship may have been in March 2014, there is no evidence of any further difficulties in the relationship since that time. Indeed, the mother and W are now engaged to be married. They got engaged in October 2014. They plan to marry in October 2016. The mother does not agree with the father's description of the relationship as 'volatile'. Their relationship is stable.
23. In June 2014 the father was still endeavouring to persuade the mother to sign a formal parenting agreement. On 2^nd June he sent an e-mail to her in which he said,

'We have to formalise the draft agreement I sent you several months ago. Agreeing to your move to France has always been subject to us agreeing those points which we had outlined in the draft agreement verbally agreed…Until we have both signed off this agreement and recognised it as a legal court order document, then I have not given my consent for D to be taken to France. It is in your interest to make sure that we have reached agreement, as your failure to do so will be considered abduction'.

24. There were e-mail exchanges between the parents in August 2014 which suggested at least the possibility that in the longer term the mother and D may return to live in England. For example, on 18^th August the father wrote to the mother saying, 'I need to know what your true plans are as these can impact D and me'. The mother replied saying, 'I told you I am looking at opps for work and this incs the UK'.
25. It was at about this time (August 2014) that the mother informed the father that she proposed to study for a PhD in Politics at a university in England. This was to be a distance learning project. She would remain living in France. There was no requirement for her to live in England or to attend any formal course of study in England. According to her, the father wrote to her on 27^th August congratulating her on being accepted. He even lent her some of his books on research and data collection.
26. Part of the course required the mother to spend time living in the Netherlands undertaking specific fieldwork. According to the father, he was told by the mother that she had to be in the Netherlands for a full year. She was, in fact, only required to stay there for a little under three months. The father offered to care for D. The mother did not take up the father's offer.
27. On 28^th August 2014 the mother sent an e-mail to the father saying,

'It is good you can see the positives about my securing the PhD scholarship and that you are supportive about the move. I have secured a place at an excellent international school in the Netherlands for D where he will have the opportunity to learn through the medium of English which will allow him to catch up with his peers in time for the move to Cornwall next academic year where he is already on the list for an excellent school.'

28. The mother's two main links with England are her father (who lives in Sussex) and her brother (who lives in Cornwall). The father says that the reference to D attending a school in Cornwall is evidence of the fact that the mother did not regard her relocation to France as a permanent arrangement.
29. The mother moved to the Netherlands in or around September 2014. She remained there until the end of November. D went with her. They lived in student accommodation. In the father's opinion that accommodation was not suitable accommodation in which to bring up a young child. She enrolled D at a local international school. The father makes the point that although D had by then been educated in a French school for the last year the mother chose to send him to a school in the Netherlands where he would be working to a British curriculum. He submits that this is further evidence of the mother's intention, at some point, to return to England. D was a pupil at the international school from 2^nd October until 27^th November 2014. It is clear that the mother kept the father fully informed of her plans.
30. It is the father's belief that when the mother moved to the Netherlands she was effectively separating from her partner, W. The mother denies that that was the case. There is no evidence to support the father's belief.
31. The father was able to visit D twice whilst he was living in the Netherlands. Whilst there, he again asked the mother to sign a parenting agreement. He says that the latest version of the parenting agreement 'reflected discussions between the parties to date'. The agreement was not signed.
32. In late November 2014 the mother and D returned to live with W in France. They remained there until 19^th December 2015.
33. In July 2015, during a period of contact in England, without either informing the mother or seeking her consent the father registered D with his local GP. At the same time he arranged for D to receive the triple MMR vaccine. Immunisation had been a bone of contention between the parents for some while. The mother did not agree to D having the triple MMR vaccine. Although the GP was prepared to proceed on the basis of the father's consent I am satisfied that the father knew that the mother did not consent and that he was acting unilaterally. It is clear that in taking that step the father soured the relationship between himself and the mother. So far as the mother is concerned, the father's actions raise a serious issue of trust.
34. Throughout the period from September 2013 to December 2015 the father had regular contact with D, both face to face and by Skype. He took D on holiday to Euro-Disney, in Paris, and also to Greece. On at least twelve occasions D travelled to England for contact with his father. Sometimes the mother brought D to England. Sometimes the father collected him from France. What is very clear is that both parents were committed to maintaining the relationship between D and his father. Although the papers suggest that there were occasional strains in the relationship between the parents and notwithstanding the fact that the father was unable to achieve his objective of having in place a signed parenting agreement, the parents were for the most part able to work co-operatively in their parenting roles. The issue concerning immunisation is the most notable exception to that spirit of co-operation.
35. According to the father, in September or October 2015 the mother told him that she was looking for somewhere to live in Sussex. The mother denies this.
36. It is the mother's case that by December 2015 D was habitually resident in France. The father does not accept that to be the case.

19^th December 2015 to 22^nd April 2016

37. Christmas 2015 was the third Christmas since the mother and D had relocated to France. In 2013 and 2014 D had spent Christmas with his father. It was agreed that there should be the same arrangement in 2015. The mother brought D to London on 19^th December.
38. Whilst D was with his father the mother went to stay with her father (D's maternal grandfather). The grandfather lives in a flat in Sussex. He lives there alone. The mother says that when she arrived in England her father was very unwell. He was suffering from pneumonia. Shopping, cooking and cleaning were all extremely difficult for him. He required significant assistance. Her parents are separated. Her mother lives in Germany. Her brother lives in Cornwall. There was no-one to care for her father. As a result, she 'decided to temporarily stay in the UK for longer than I had anticipated'.
39. Once again the father says that he believes that the mother was separating from W. Once again the mother denies that to be the case. Although W had not been able to visit her during her stay in England, they had remained in regular contact by Skype.
40. After spending Christmas with his father, D joined his mother in Sussex. They remained in Sussex until 22^nd April 2016 when they returned to W's house in France. The mother's actions and intentions in respect of this period have come under close scrutiny. This being, according to the mother, a temporary stay in England, it is her case that throughout this period D remained habitually resident in France. It is the father's case that the mother had separated from W and until mid-April had intended to remain in England permanently and that by mid-April D had become habitually resident in England.
41. The mother says that when she and D came to England in December 2015 they came with one suitcase each. They had only intended to stay in England over the Christmas period. All of their other belongings remained in France. Their dog, Charlie, of whom D is particularly fond, remained in the care of W.
42. They stayed with the grandfather until he was fully recovered from his illness. The mother and D shared a bed in the spare bedroom. They lived out of the bare essential belongings they had brought to England with them. The mother's only source of income was the child maintenance paid by the father. She did not make an application for any kind of State benefits. She did not register with a GP. The only accommodation available to her was the spare room in her father's flat.
43. There are a number of factors which the father says point to the mother having had the intention of remaining permanently in England. I deal with each in turn and, in so far as it is possible, in chronological order.
44. The mother informed D's school in France that he would not be returning to school in January. An e-mail from the school makes it clear that the school believed that he had left the school permanently. The e-mail says that that is what the mother had told them. They had been surprised when D returned to the school in April. The mother does not accept that she had permanently removed D from his school in France. She says, in effect, that the school misunderstood what she told them.
45. The father says that further support for the belief that the mother was intending to remain in England can be found in an e-mail she sent to him on 4^th January 2016 in which she said, 'I have decided D should continue his education here in the UK so we will be staying here and he will start this new term here in Sussex.' The mother could have said that this was a temporary arrangement. She didn't. She could have said that she was staying in England to care for her father during his illness. She didn't.
46. In response, the mother says that although she enrolled D in a local school in Sussex, this was never intended to be a permanent arrangement. She says that she 'placed him in school temporarily' When she enrolled him in school she did so 'strictly on the basis that an attendance at the school would be temporary'. She told a number of mums at the school gate 'that our stay was temporary, and D knew the same'. Although she purchased a school uniform she did not buy him a PE kit 'as his time with the school was strictly temporary'.
47. The only evidence of the grandfather's illness comes from the mother. It is not supported by any medical evidence. The father says that the first he heard about the grandfather's illness was when he received the mother's written statement in these proceedings. The mother says that she informed the father of his illness in December when she handed D over to him for Christmas.
48. The father does not accept that the grandfather was seriously ill. He points to the fact that, as part of her PhD course, the mother went to the Netherlands for five days at the end of January leaving D in the care of her father. The mother accepts that to be the case. By then her father was recovering. D was at school during the day time and only needed to be cared for overnight. The grandfather was well enough to cope.
49. On 1^st February mother's previous solicitor wrote to the father saying,

'We have been instructed by our client that since the breakdown of your relationship in August 2008 [that should read '2011'] you have paid the sum of £450 maintenance for D and have made no other provision for him to include housing. In order to enable us to advise our client in relation to D's rights and remedies we require you to provide this firm with full and frank disclosure of your financial position…We look forward to hearing from you within the next 7 days with confirmation that you will provide this information so (sic) this firm within the next 21 days. If we do not hear from you we shall reluctantly proceed with an application on D's behalf under Schedule 1 of the Children Act 1989'.

50. The father submits that instructing her previous solicitor to send that letter, and in particular making the threat to issue proceedings in England, evidences an intention to remain in England. The mother does not accept that to be the case.
51. When she arrived in England in December 2015 the mother was unaware of the fact that she was pregnant with W's child. It was late January before she found out. She was delighted. On 2^nd February she began to suffer from heavy bleeding. She miscarried later that evening. She was not registered with a local GP. She contacted her father's GP surgery. The GPs at that surgery provided medical care for her. She had 'intended to return to France in February/March' but those plans were 'hampered because of my own ill health'.
52. The mother travelled to England by ferry. She came on a single ticket. She explains the reasons for this as follows:

'32. I did not have return tickets booked to return to France because I quite often don't book return tickets until later. As I don't always sail back from the same port (it alternates between Plymouth and Portsmouth) I sometimes wait before booking the return depending on who we are visiting previously. This is reflected in the travel tickets I exhibited previously.'

The mother exhibits to her statement a bundle of invoices from Brittany Ferries.

53. The mother returned to France by ferry on Friday 22^nd April. She could not remember precisely when she had purchased the ferry tickets but it would have been on either 20^th or 21^st April. She returned to France 'when it was clear that my father's health had improved'. She had timed her return to France 'to coincide with the end of the French school holidays'. D returned to his old school in France on Monday 25^th April.
54. Unlike her departure in September 2013, the mother did not tell the father the date when she was to travel or provide him with details of her travel arrangements. She says that she had found it difficult to engage with him of late, 'especially following his actions with regards to the secret vaccination of D behind my back. His actions made it impossible for me to trust him and therefore communication between us was strained.' Unlike her departure in September 2013, there had been no arrangement for the father to have a 'farewell' contact visit immediately prior to the mother's return to France.
55. On the day she left England the mother sent the father an e-mail informing him that she and D were returning to France. She said,

'As you know I returned to the UK in January due to my PhD and my father's illness. Since this time I have resolved the teaching element of the PhD and am able to continue distance learning and fortunately my father has recovered. D has been missing his school and friends back home. He tells me daily he misses his school, friends and cycling around the village and the freedom he had to play at the neighbour's houses after school…D has a much richer life in France and you'll recall he enjoyed sailing lessons, tennis, football and an outdoor lifestyle which he loves.'

56. In fact the father had discovered the mother's intentions the day before that e-mail was sent. The head teacher at D's school in France had copied the father into an e-mail to the mother confirming that D could rejoin the school on 25^th April. The father sent an e-mail to the mother on 21^st April saying,

'Seen your e-mail suggesting that you plan to take D out of his school in the UK and to go school back in France. I have not been consulted on this matter. When we last spoke we agreed that it was now in D's best interest to settle back in the UK at his new school. I have not agreed to D being taken out of his school in the UK to go to school in France. This would be abduction. We have not formally agreed a parenting agreement that gives my permission to take D to live outside of the UK. I have no idea why this is now happening and I strongly believe that it is not in D's best interest to be unsettled, yet again. As you know, I have started the process of applying for a court order, given your position of not wishing to mediate. Your actions would amount to child abduction and you will receive a formal letter from my solicitor as a matter of urgency.'

57. The father refers to what he describes as the 'clandestine nature' of the mother's return to France on 22^nd April. There can be no doubt that she was less open about her departure on this occasion than had been the case in September 2013. It could be said, of course, that if (as the mother contends) D remained habitually resident in France during the period of her sojourn in England for the first three and a half months of 2016, she did not need the father's permission to return 'home'. It could perhaps be said that the mother's decision to leave England in the way that she did is reflective more of the state of the relationship between the parents (in which the vaccination episode played an important part) than of a belief that she had no right to return to France and therefore needed to effect the move in a clandestine way.
58. The father believes that in the early months of 2016 the mother was actively looking to relocate back to England. There is some support for the father's belief. On 22^nd April, the day she and D returned to France, the mother sent an e-mail to the father which included the following passage:

'Being here these past few months has been a real eye opener as I have seen how much of a financial struggle it is to rent and how the work opportunities here are very limited especially when you consider the cost of renting versus wages. Buying here is now an impossibility for most people and renting is extremely expensive as you know. The papers are full of these stories and it only seems to be getting worse. For example back in France I am able to rent a two bedroom cottage with a garden by the sea next to school for 600 euro per month compared to a 2 bedroom flat in Sussex for £1600 per month with no garden. France offers a quality of life for D that is very hard to beat and one that he has grown accustomed to. It is very difficult to make ends meet here and I could not afford to stay any longer.'

In an e-mail sent by the mother to Mr Justice Mostyn on 4^th May she made the point that the father was only paying £450pm in child support 'which makes it unaffordable for D and I to live in England'. That suggests that whilst in England she may well have been exploring the possibilities of a permanent return.

59. Although in her written and oral evidence the mother has been clear that upon returning to France it was always her intention to move back to live with her partner, W, the wider evidence does raise at least a concern about the mother's precise plans. In an e-mail sent to the father on 22^nd April she says,

'I also now have the wonderful possibility of providing D with stability in the form of a family home in France. My family wish to purchase a property to run as a gite which would not only provide an income but a solid base for D. D wants to get back home and carry on with his schooling and activities.'

In another e-mail sent on 27^th April the mother includes the phrase '…I will be renting…' These two passages were not explored with the mother as she gave oral evidence. Taken at face value they raise at least a question mark over her asserted intention to remain living in W's home.

60. The mother emphasises how settled D is when living in France. He is integrated into the life of the village where they live. He is settled at school. It is a French-speaking school. He has been learning French since he was five years old. He is fluent in both spoken and written French. He has a circle of friends. Their home is close to the sea. He enjoys going sailing with W who he gets on with well. D is very good at tennis. He enjoys playing football. He plays the Breton game of gourlem. He loves nature. The area where they live is part of a conservation area.
61. The father suggests that the mother is isolated in France. She does not have any family living nearby. Her mother lives in Germany, her father and brother in England. Although her mother has family living in France, they do not live close to the mother's home in Brittany and are therefore unable to provide her with any practical support. The mother does not accept that she is isolated. She is supported by her partner, W. She has more support available to her in France than she has in England.
62. The father emphasises how quickly D reintegrated into life in England after his arrival on 19^th December. He settled quickly at his new school in Sussex. The previous arrangement of alternate weekend staying contact was re-established without difficulty. D had some regular activities he is involved in when visiting his father including belonging to a chess club and a football club.

The father's applications

63. On the afternoon of Friday 22^nd April the father attended at the Royal Courts of Justice where an urgent hearing took place before Mr Justice Wood. The father appeared in person. By the time of the hearing the mother was back in France. The father was not aware that the mother had returned to France. The mother was unaware of the hearing.
64. Wood J made a passport order. He also made a prohibited steps order intending to prohibit the mother from removing D from the jurisdiction.
65. Contained within the hearing bundle is a transcript of that hearing. Wood J said in terms that the jurisdiction for the purposes of the order, 'is based on the boy's nationality, which is English, and it is on the limited evidence available to the court that he is habitually resident in England and Wales'.
66. Although it is right to note that the father was acting as a litigant in person, that he had no previous experience of appearing before a judge and that his application was made in some urgency, it is nonetheless interesting to note the facts relied upon in support of his application for urgent relief. He told the court that,

'There is an unfortunate history of changing his, his place of living. I'd never agreed to him moving abroad without a parenting agreement and she has never signed one, although verbally agreed to one. We recently – I tried to, I had to go to a lawyer to, to try and negotiate for mediation on the grounds that there was some domestic violence, but there hasn't been any. We haven't been living together for over four years, and she had moved to France and it was a fait accompli. I couldn't do anything about it but I had, I had been seeing him, you know catching the ferry over there, and then she, she sent me an e-mail saying that she was coming back because she wanted him to, to go to school here in the UK. I think also she had fallen out with her partner, which has a bit of a history of instability in terms of their relationship, and I have been e-mailed by her requesting me to help her on one occasion, because of his behaviour.'

67. The next hearing was on 27^th April before Mr Justice Mostyn. The father again appeared as a litigant in person. The mother was not present and was not represented. The order contained some important recitals:

UPON an order having been made by Mr Justice Roderic Wood on 22^nd April 2016 prohibiting the mother from removing the child D from England and Wales'

AND UPON the Mother having left with D for France on that day before the order was notified to her

AND UPON the Father informing the court that the Mother has today on 27^th April 2016 agreed by e-mail to sign the parenting plan proposed by the Father

AND UPON the court being satisfied that it has jurisdiction in this matter by virtue of the nationality of D and his habitual residence in England and Wales.'

68. Mostyn J discharged the orders made by Wood J on 22^nd April. He went on to order that,

'If the Mother has not signed the parenting plan pursuant to the court and sent by e-mail a scanned copy to the Father by 16.00 on 4^th May 2016 she must return D to the jurisdiction of England and Wales by 16.00 hours on 6^th May 2016.'

69. According to the father, the mother returned the parenting agreement to him unsigned and with amendments that were not acceptable to him.
70. On 9^th May there was another hearing before Wood J. By then the time for compliance with the order made by Mostyn J had expired. The mother had not complied. She had not signed the parenting agreement. She had not returned D to England. Wood J made D a ward of court and ordered the mother to return D to England by 10.30am on Friday 13^th May.
71. On 12^th May the mother issued an application to stay the return order pending determination of the issue of jurisdiction. Her application was granted. Directions were given for the determination of the issue of jurisdiction.

The law

72. The father applies for a child arrangements order, a prohibited steps order, a specific issue order and a return order. The issue for determination at this hearing is whether the court has jurisdiction to consider the father's applications. The starting point for determining that issue is Council Regulation (EC) No 2201/2003 ('BIIA').
73. Article 8 of BIIA provides as follows:

'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. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.

Through their counsel, both parents accept that the provisions of Articles 9, 10 and 12 have no application in the circumstances of this case. I am concerned only with the application of Art 8(1). More particularly, I am concerned with questions relating to D's place of habitual residence on 22^nd April 2016, the day when the father issued his applications and also the day when the mother returned to France with D.

74. The approach to the determination of 'habitual residence' has been considered in a number of cases before the Court of Justice of the European Union and the United Kingdom Supreme Court. Although the basic approach of the court in the United Kingdom is now clear, I have been referred to two decisions from the Court of Justice of the European Union and it is appropriate to refer briefly to both of them.
75. The first in time is Re A (Area of Freedom, Security and Justice) Case C-523/07, [2009] 2 FLR 1. In that case the court considered four specific questions, the second of which is relevant to the issue I have to decide in this case:

'[30] By its second question, the referring court is uncertain about the interpretation to be given to the concept of 'habitual residence' within the meaning of Art 8(1) of the regulation, in particular in a situation in which the child has a permanent residence in one Member State but is staying in another Member State carrying on a peripatetic life there.,,

[37] The 'habitual residence' of a child, within the meaning of Art 8(1) of the regulation, must be established on the basis of all the circumstances specific to each individual case.

[38] In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.

[39] In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration.

[40] As the Advocate General pointed out in point 44 of her opinion, the parents' intention to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that state.

[41] By contrast, the fact that the children are staying in a Member State where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State.

[42] In the light of the criteria laid down in paras [38]–[41] of this judgment and according to an overall assessment, it is for the national court to establish the place of the children's habitual residence…

[44] Therefore, the answer to the second question is that the concept of 'habitual residence' under Art 8(1) of the regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.'

76. The issue of habitual residence was again considered by the Court of Justice in Mercredi v Chaffe Case C-498/10, [2011] 1 FLR 1293. The court reaffirmed the approach set out in Re A (Area of Freedom, Security and Justice). The following passages from the judgment are relevant to the issues which I have to determine:

'[41] By its first question, the referring court seeks clarification, in essence, on how properly to interpret the concept of 'habitual residence' for the purposes of Arts 8 and 10 of the Regulation, in order to determine which court has jurisdiction to make orders on matters relating to rights of custody, in particular where, as in the case in the main proceedings, the dispute concerns an infant who is lawfully removed by her mother to a Member State other than that of her habitual residence and has been staying there only a few days when the court in the State of departure is seised…

[44] In that regard, it must first be observed that the Regulation contains no definition of the concept of 'habitual residence'. It merely follows from the use of the adjective 'habitual' that the residence must have a certain permanence or regularity…

[51] In that regard, it must be stated that, in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case…

[53] The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant…

[56] It follows from all of the foregoing that the answer to the first question is that the concept of 'habitual residence', for the purposes of Arts 8 and 10 of the Regulation, 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.

77. I have also been referred to three decisions of the United Kingdom Supreme Court. The first is Re A (Jurisdiction: Return of Child) [2013] UKSC 60, [2014] 1 FLR 111. One of the issues considered was whether, in the circumstances of that case, the court had jurisdiction under Art 8 of Regulation BIIA. After analysing the relevant authorities, Baroness Hale said this:

'[54] 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. BIIR 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 focused 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 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 Re A (Area of Freedom, Security and Justice), it is possible that a child may have no country of habitual residence at a particular point in time.'

78. It is the mother's case that her stay in England from 19^th December 2015 until 22^nd April 2016, though longer than she had originally intended, was nonetheless a temporary visit and that at no time did she have the intention of making her return to England permanent. On this issue it is appropriate to note the observation of Baroness Hale that,

'[43] It follows from the requirement that residence be habitual that it is not lost by temporary absences, such as that of the mother giving birth while on holiday in France or the mother on the run from a Slovakian children's home. Thus one can be habitually resident somewhere where one is not actually present at the relevant time. No one doubts that this mother remained habitually resident in England during her enforced absence in Pakistan. From this too, it can appear artificial to construct a rule that physical presence at some time, however fleeting, is an essential prerequisite.'

79. It is the father's case that when she returned to England in December 2015 the mother intended to remain in England. So far as concerns the issue of parental intent, Miss Rushworth, for the father, relies on a passage from the judgment of Baroness Hale in Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75, [2014] 1 FLR 772. Having made the point that there is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents, Baroness Hale went on to make the point that,

'[23] Nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child's leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence.'

80. It is the father's case that even though he moved to live in France in September 2013, D has at all times been habitually resident in England. If D was still habitually resident in England on 19^th December then it is unarguably the case that he continued to be habitually resident in England up to 22^nd April 2016. However, if, on the other hand, by 19^th December 2015 D had become habitually resident in France then the question for the determination of the court is whether, during the period since 19^th December 2015, D has ceased to be habitually resident in France. On that issue my attention has been drawn to Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 1 FLR 561. This was a majority judgment of 3:2, in which Lord Wilson said this:

'[30] Two consequences flow from the modern international primacy of the concept of a child's habitual residence. The first is that, as Reunite submits to this court and as the respondent broadly accepts, it is not in the interests of children routinely to be left without a habitual residence…

[31] The second consequence is that the interpretation in the courts of England and Wales of the concept of habitual residence should be consonant with its international interpretation..

[32] The present case requires the court to turn its attention to a third aspect of the concept of a child's habitual residence, namely the circumstances in which he loses it, and to ask itself whether the longstanding domestic analysis of those circumstances, yet again heavily dependent on parental intention, is consonant with the modern international concept…

[39] It is worthwhile to note that the new criterion requires not the child's full integration in the environment of the new state but only a degree of it. It is clear that in certain circumstances the requisite degree of integration can occur quickly. For example Art 9 of BIIA, the detail of which is irrelevant, expressly envisages a child's acquisition of a fresh habitual residence within 3 months of his move…

[45] I conclude that the modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.

[46] One of the well-judged submissions of Mr Tyler QC on behalf of the respondent is that, were it minded to remove any gloss from the domestic concept of habitual residence…the court should strive not to introduce others. A gloss is a purported subrule which distorts application of the rule. The identification of a child's habitual residence is overarchingly a question of habitual residence might be lost and gained, I offer not subrules but expectations which the fact-finder may well find to be unfulfilled in the case before him:

(a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

(c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.'

81. There is one final issue of law to which I must turn briefly. I noted earlier that on 1^st February 2016 the mother's previous solicitor wrote to the father inviting him to put forward proposals for improved financial provision for D and indicating that if he did not do so the mother would make an application to the court for financial provision for D pursuant to the provisions of Schedule 1 of the Children Act 1989. The question of law that arose was whether the mother needed to be habitually resident in England in order for the court to have jurisdiction to hear such an application. If habitual residence were required then, so the argument runs, even the threat of making such an application should be considered to be a relevant factor in determining the mother's intent to remain in England and therefore to the question of whether the mother and D are now in fact habitually resident in England.
82. The starting point is Council Regulation (EC) no 4/2009, known as the 'Maintenance Regulation'. Art 3 sets out a number of general provisions relating to jurisdiction. The relevant parts are subparts (a) and (b) which are in these terms:

'In matters relating to maintenance obligations in Member States, jurisdiction shall lie with:

(a) the court for the place where the defendant is habitually resident, or

(b) the court for the place where the creditor is habitually resident.'

There are two following subparagraphs which are not relevant to this particular case.

83. The interpretation of those provisions has recently been considered by the Court of Appeal in Re H (A Child) [2016] EWCA Civ 343 (unreported). Giving the leading judgment, McFarlane LJ said this:

'19. Mr Stocker makes, to my mind, the even more powerful point that, as a matter of common sense, the whole Regulation could not function unless it engaged with individuals (in this case the defendant father) irrespective of where else in the world they may be. The terms of Article 3 do not require both parents to live in the EC. What has to be established is either the defendant or the creditor being habitually resident in a Member State. If one or other of those two provisions is met, and of course if both provisions are met, then the court has jurisdiction'.

Discussion

84. I deal firstly with the period from September 2013 to December 2015. During that period was D habitually resident in France or in England?
85. The principal factors relied upon by the father in support of his contention that the answer to that question is England are, firstly, that the mother's relocation to France was only a temporary removal. In August 2014 the mother said that she was 'looking for opps for work and this incs the UK'. That same month she spoke of a 'move to Cornwall next academic year where [D] is already on the list for an excellent school'. He says that in September or October 2015 the mother told him that she was looking for somewhere to live in Sussex, though that is denied by the mother.
86. Secondly, the father also continues to emphasise the fact that at the time the mother left for France in September 2013 he had made it clear that he wanted her to sign a parenting agreement and that that was a condition precedent to him giving his consent to the proposed relocation. Throughout the period from September 2013 to 19^th December 2015 the mother failed to sign a parenting agreement despite having repeatedly been asked to do so.
87. Against that, the following factors would tend to suggest that during this period (September 2013 to December 2015) D did become habitually resident in France:

a) although the father does not accept this, I am satisfied on the evidence that D left England in September 2013 with his consent;

b) save for a few weeks in the autumn of 2014 when living with his mother in the Netherlands and for periods of agreed contact with his father in England, for the entire period from September 2013 until December 2015, D lived with his mother in France; he was totally dependent upon her as his primary carer;

c) notwithstanding the father's continuing insistence that he understood the relocation to be a temporary and not a permanent arrangement, it was the mother's intention that the relocation should be permanent; that was made plain in the draft consent order sent to the father; I have found that the father knew or ought to have realised that that was her intention;

d) when living in France the mother and D had a settled address living with W at his home in Brittany; the mother was in a long-term, settled relationship with W to whom she is now engaged to be married;

e) D was enrolled at and during all of his time in France attended a local state school; he has become fluent in French, both spoken and written, and has made good progress at school;

f) whilst living in France, D developed significant friendships with a number of local children, in and out of school;

g) whilst living in France the mother acquired a dog, Charlie, to which D quickly became closely attached;

h) not only did the father agree to the relocation, he and the mother were also able to agree arrangements for him to have regular contact with D in England and in the Netherlands and for additional holiday contact in Paris and in Greece; without exception or protest, the father always returned D to his mother's care at the end of each contact visit; and that

i) notwithstanding the absence of a signed parenting agreement and of engagement in mediation (despite the father's best efforts), at no time did the father approach the UK Central Authority with a view to proceedings being issued in the French court for an order for the summary return of D to England.

88. I am satisfied that in the period from 26^th September 2013 to 19^th December 2015 D became integrated into a social and family environment in France to such a degree that he became habitually resident in France. When the mother and D came to England on 19^th December 2015, D's place of habitual residence was France.
89. The second and more difficult question is whether, during the period from 19^th December 2015 to 22^nd April 2016, D lost his habitual residence in France.
90. In Re B (A Child)(Habitual Residence: Inherent Jurisdiction), Lord Wilson made the point that though conceivable it is highly unlikely that a child will be in limbo such that she is not habitually resident in any State. In this case neither parent suggests that that unusual position has arisen. Both parents accept that on 22^nd April 2016 either D was habitually resident in France or he was habitually resident in England. If he lost his habitual residence in France then he gained habitual residence in England. I agree.
91. In explaining the approach to determining whether a person has gained habitual residence in one State and lost habitual residence in another, Lord Wilson used the analogy of a see-saw. In the context of the case with which I am concerned, it is a very helpful analogy. I have found that by December 2015, D had put down roots representing the requisite degree of integration in the environment of the new state, France. I am satisfied that, as a result, up came D's roots in his old State (England) to the point at which he has achieved what Lord Wilson refers to as 'the requisite de-integration (or, better, disengagement) from' his old State. The question which now falls for determination in this case can be refined as follows: In the period from 19^th December 2015 to 22^nd April 2016 did D put down roots which represent the requisite degree of integration in the environment of the new State (England) with the effect that his roots in his old State (France) have been pulled up to such an extent that he has achieved the requisite degree of 'de-integration' or 'disengagement' from his old State (France)?
92. At §§49 and 50 Lord Wilson undertook what was, in essence, a balance sheet approach to determining a question similar to that which I posed in the last paragraph. I propose to follow the same approach.
93. Each of the following factors might contribute to a conclusion that by 22^nd April 2016 D had achieved the requisite degree of disengagement from his French environment:

a) his mother had removed him from his school in France; she gave the school the impression (intentionally or unintentionally) that the removal was permanent;

b) the mother wrote to the father on 4^th January 2016 informing him that she had 'decided D should continue his education here in the UK and he will start his new term here in Sussex'; she did not state that this was to be a temporary arrangement whilst she cared for her father; the mother's apparent decision that D should be educated in England is consistent with the e-mail she sent to the father in August 2014 where she indicated a long-term intention that D should be educated in England;

c) the mother's assertion that it was because of her father's ill-health that she remained in England longer than intended is unsupported by any corroborative evidence; it was whilst the grandfather was, apparently, unwell, that she went to the Netherlands for five days leaving D in his care;

d) on 19^th December 2015 the mother came to England by ferry; she came on a one-way ticket; she did not purchase a return ticket until 20^th or 21^st April 2016 and it was not until about that same time that she contacted D's old school in France to arrange for him to return to that school; she did not tell the father that she was leaving until the very day of her departure; the father characterises these arrangements as 'clandestine';

e) the mother's e-mail to the father dated 22^nd April suggests that whilst in England she had been exploring the possibility of finding long-term accommodation in Sussex; that impression is reinforced in her e-mail to Mr Justice Mostyn dated 4^th May in which she said that the current level of maintenance being paid by the father 'makes it unaffordable for D and I to live in England';

f) the e-mail sent by the mother's previous solicitor to the father on 2^nd February indicated an intention to issue proceedings in England under Schedule 1 of the Children Act 1989; in that letter the solicitor links maintenance to the mother's housing needs saying 'you have paid the sum of £450 maintenance for D and have made no other provision for him to include housing'; so far as this issue is concerned, it is clear from the Maintenance Regulation and from the decision of the Court of Appeal in Re H (A Child) that this was an application the mother could have made even when living in and habitually resident in France; however, the timing of her approach is, says the father, significant;

g) during his stay in England, D had regular alternate weekend contact with his father (similar to the arrangements that had been in place prior to his move to France in September 2013); his father had enrolled him in local clubs (chess and football);

h) D is a British citizen and holds a British passport.

94. The following facts might contribute to a conclusion that by 22^nd April 2016 D had not achieved the requisite degree of disengagement from his French environment:

a) until 19^th December 2015 D had lived in France almost continuously since 26^th September 2013; whilst there he had a settled home, was established in a local school, had a circle of friends, had become competent in both spoken and written French, and was part of a settled family unit comprising his mother, W and himself;

b) the mother is engaged to W and plans to marry him in October 2016; although W did not visit the mother in England during her four month stay the mother says that they remained in regular contact by Skype;

c) although the mother came to England on 19^th December on a one-way ferry ticket, it is clear from the Brittany Ferries invoices she has disclosed that there have been other occasions when she has travelled to England on a one-way ticket;

d) the mother says that when they came to England on 19^th December she and D brought one suitcase each; most of their belongings (including D's toys) and the family dog, Charlie, remained in France;

e) throughout all of the time D was in Sussex he stayed in his grandfather's flat and had to share a double bed with his mother; there is no evidence that the mother was pro-active in seeking alternative accommodation, for example by viewing properties to purchase or to rent or by applying for social housing;

f) there is no evidence to suggest that the mother applied for any kind of State benefits during her stay in England;

g) the mother has no employment in England and neither is there any evidence that she looked for employment whilst she was here;

h) the mother did not register either herself or D with either a local GP or dentist;

i) although in January 2016 the mother enrolled D in a local school in Sussex he stayed there for just one term, returning to his previous school in France on the first day of the next term (25^th April); although she purchased a school uniform for him the mother did not buy him any special clothing such as a PE kit;

j) although, on the mother's account, she and D remained in England for longer than had been intended at the time when they arrived in England, the period they spent in England (just under 18 weeks) was, in relative terms, short;

k) D is not only a British citizen and the holder of a British passport, he is of dual nationality being also a French citizen and the holder of a French passport.

95. The one issue which gives me pause is the length of time the mother and D remained in England – almost 18 weeks, a full school term. The father would say that D was here for long enough to have picked up the threads of his life in England and, more importantly, to have acquired habitual residence here.
96. I referred earlier to §43 of the judgment of Baroness Hale in Re A (Jurisdiction: Return of Child). She there makes the point that physical presence is not an essential prerequisite to establishing habitual residence in a particular State and that habitual residence 'is not lost by temporary absences'. My concern about that passage is that the two illustrations there given – a mother giving birth while on holiday abroad or a mother on the run from a Slovakian children's home – both suggest that 'temporary' also means 'short'. What are the limits to what can properly be described as 'temporary'?
97. In Mercredi v Chaffe the point was made (§51) that 'in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence'. I also bear in mind the 'expectations' offered as guidance by Lord Wilson at §46 of his judgment in Re B (A Child)(Habitual Residence: Inherent Jurisdiction).
98. In this case I am satisfied that by December 2015 D's life was deeply integrated in France and that he had acquired a degree of permanence there. There is no evidence of the mother having engaged in actual pre-planning of the move to England before she and D arrived here. Such limited arrangements as she made (accommodation and schooling) both seem to have been made after she and D arrived in England. It is clear that the 'central members of the child's life in the old state' – W and D's pet, Charlie – remain in France as do most of his clothes and toys.
99. I come to the conclusion that, ultimately, the decision about whether a child has gained or lost habitual residence in a particular State is quintessentially fact-specific. In arriving at its decision the court must take account of all of the relevant circumstances of the particular case, of which length of presence is only one, assessed in the light of the guidance set out in the authorities. In this case I conclude that, taken cumulatively, the factors set out in §94 above are stronger than those set out in §93. Having regard to the totality of the evidence in this case I am satisfied that at the time when D returned to France on 22^nd April 2016 he retained habitual residence in France. The father's applications are therefore dismissed.