England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/08/2016

Mr Justice Hayden :

1. I am concerned here with B (a girl) who was born on 1 March 2013. These proceedings concern an application by B's mother for the summary return of the child to the jurisdiction of New York State, USA. The matter has been listed before me for two days, commencing 22 August 2016, for final determination.
2. The father opposes the application. He asserts that B is habitually resident in England and Wales. In any event, it is submitted on his behalf, that by 1st July 2016 the child was no longer habitually resident in New York. The father contends that the mother consented to the relocation to England or alternatively that she acquiesced in her retention in England in the terms contemplated by Article 13 A. It is also the father's case that a summary return to New York would expose B to a grave risk of harm and/or place her in an intolerable position, within the terms of Article 13 B.
3. The father, aged 33 years, is a French citizen who was born in Senegal. The mother, who is now 24 years of age, is an American citizen. The parties first met when the mother was only 17. The father, who at the time was in his mid-20's, was running a small stall outside his home. The mother visited regularly. Listening to them both in evidence it is plain that there was a spark of attraction between the couple. However, nothing came of it and the father returned to France.
4. In June, 2012, the father was visiting New York on a business trip. He contacted a number of friends and acquaintances whom he had not seen in the intervening years since his return to France. The mother was amongst their number. I think the mother was pleased to be contacted. Though there is some dispute as to the extent of the contact which followed, the impression both gave to me is that they spent a lot of time together over a period of two to three days. The relationship, at least from the mother's perspective, was intense.
5. When the father had returned to France, the mother discovered that she was pregnant. I asked her if she had been taking any contraception. I found her response troubling and naive. She told me that she did not think she would get pregnant and that she took a "holistic" approach to the issue. She has an interest in what she describes as 'holistic medicine'. I did not enquire further. She was 20 years of age at the time of the pregnancy, living in New York City.
6. In July 2012 the mother broke the news of her pregnancy to the father. Both of them strike me as having been, understandably, in a state of shock and confusion at this time. In the months that followed, the father had met somebody else and it was obvious that, from the outset, this relationship was important to him, indeed it continues to endure. The mother and father met in New York in 2012 to try to forge plans for the baby. In her evidence the mother told me that she felt down and dispirited during the course of her labour. This was 'not what she had planned for' herself, it interrupted her education. She felt isolated and alone. Though she did not say so expressly, I sensed that she was disappointed by the fact of the father's new relationship.
7. The discussions in November 2012 have been the focus of much enquiry during this hearing. Both parties have their own recollection of what was agreed but I find that the plans were, perhaps inevitably, nebulous. I am however clear that the mother was very keen that the father should play an active role in their child's life. Again, though she did not say so in terms, I had a strong sense, from her evidence, that her firm belief that B should have a relationship with her father was rooted in her own childhood experiences.
8. B was born in New York on 1 March 2013. The father was not present at the birth. However uncertain the future may have appeared, it is clear that the mother would very much have liked the father to have been present at the birth. She criticised his failure to be there. Father visited in April 2013 when B was a few weeks old and signed her birth certificates. It is important that I record that the father has not sought to shirk his responsibility to his daughter.
9. On 29 July 2013 there followed an unexpected development. The father was contacted by the maternal grandmother. That came as a great surprise to him as their relationship had been far from cordial. She told him that she thought the mother was 'in danger'. She described her daughter as being "out of her mind" and that she was engaging in prostitution. The mother herself later contacted the father to inform him that she and the baby had been evicted by the grandmother. On 7 February 2014, the mother told the father that the government wanted to 'take her daughter from her'. In her statement filed in these proceedings dated 16^th August 2016 the mother described these messages as 'an over reaction' on her part. She contended that the social services were merely asking rudimentary questions regarding a security card. Of her mother's report that she had become involved with prostitution she said that this was motivated by her mother's belief that she and the father were in a continuing relationship and that she was unhappy that her daughter had been seeing another man. I am bound to say I found these explanations rather convoluted in writing but wholly unconvincing in the mother's oral evidence. In her evidence the mother presented as a psychologically fragile personality. It was clear that she found life as a single mother very difficult to cope with.
10. I have found it difficult to unravel the couple's thoughts or plans in the months that followed, but by the autumn it is clear that the mother had resolved to travel to Paris. That the mother should do this, never having been to Europe before, without obvious means of financial support (other than from the father) and with a baby to care for, I consider to be reflective of how unsatisfactory she had come to find life in New York. She purchased a return ticket for herself and the baby. Though her funds were extremely limited she managed to identify a travel company known, somewhat dispiritingly, by the name of Cheapo Airways. The journey involved travelling via Moscow and took mother and child some 16 hours.
11. A particularly strange feature of this plan to move to France, is that by this time the father was living in London. I am satisfied that one of the objectives behind the arrangement was to secure for B a French passport. Though this could have been organised from London the father told me he preferred to make the arrangements in his own town, Amiens, where he was familiar with the system. On 19 December 2014 father and daughter flew back to London where they lived with the father's partner (S). Though the mother accepts that she agreed with this arrangement, she also told me that B was at that point being weaned of breast feeding. The mother plainly contemplated a significant period of separation between her child and herself at this stage. I regret to say I was left with the impression that the mother was not instinctively in tune with the needs of her baby.
12. November 2014 marked the beginning of a very chaotic time for B. Mr Gration, who appears on the half of the mother, has provided a convenient chronology setting out the extent of B's travels. I pause to note that neither the mother nor the father seemed to have any sense that this level of chaos in their child's life might be detrimental to her welfare. Indeed, the mother seems to have believed that the opportunities for travel, before she started school, were a good thing for her daughter. I emphasise that B is, at the time of this hearing, still only 3 ½ years old.
13. Another striking fact of this case is that both parent's call their child by a different name. The father was asked, by Mr Gration, whether he thought that was a bad thing for his daughter. He responded that he had come to realise, during the course of these proceedings, that other people might think this was a bad idea and he volunteered, in future, to call his daughter by the mother's chosen name. Mr Gration submits that this reveals little insight into the needs of a child. In addition I also note that when in her father's care, B has found herself cared for, for quite long periods by babysitters that the father has engaged to look after her and who sometimes have been entirely unknown to her.
14. Mr Gration's chronology, which is agreed, requires to be stated in full:

a) November 2014 – December 2014, to Amiens, France with the mother and the father;

b) 19^th December 2014 – 21^st January 2015 to London, England with the father;

c) 21^st January 2015 – 24^th January 2015 to Lille, France with the father;

d) 24^th January 2015 – 9^th February 2015 to Italy with the father;

e) 9^th February 2015 – 16^th February 2015 to Paris, France with the father;

f) 16^th February 2015 – 18^th February 2015 to London with the father;

g) 18^th February 2015 in London with the mother;

h) 20^th February 2015 – 6^th March 2015 to Paris, France with the mother;

i) 6^th March 2015 – 28^th March 2015 in London with the father;

j) 28^th March 2015 – 8^th May 2015 to Senegal with the father;

k) 8^th May 2015 – 5^th June 2015 in London with the father;

l) 5^th June 2015 – 22^nd July 2015 to Paris, France with the mother;

m) 22^nd July 2015 – 29^th October 2015 in New York, USA with the mother;

n) 30^th October 2015 – 31^st October 2015 to Paris, France with the mother;

o) 31^st October 2015 – 11^th January 2016 in London, at times with the father but also being cared for by others;

p) 11^th January 2016 – 13^th March 2016 to Senegal with the father.

15. By way of completeness it should be added to the above that between the 13^th March 2016 and 22^nd April 2016 B was in London with the father.
16. It is obvious from the chronology that B's habitual residence does not reveal itself instantly. Both counsel have, in their respective Skelton Arguments, analysed the evolution of the Supreme Court case law extensively and with characteristic skill. In her document Ms Chokowry distils a number of propositions that she contends can be gleaned from the five Supreme Court judgments, addressing habitual residence, delivered since 2013: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, sub nom Re A (Children) (Jurisdiction: Return of Child) [2014] 1 FLR 111 ("A v A"); In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2014] AC 1017, sub nom Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction) [2014] 1 FLR 772 ("Re KL"); In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038 sub nom Re LC (Children) (Abduction: Habitual Residence: State of Mind of Child) ("Re LC"); In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2016] AC 76, sub nom AR v RN (Habitual Residence) [2015] 2 FLR 503 ("Re R"); Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 2 WLR 557 ("Re B").
17. I think that Ms Chokowry's approach is sensible and, adopt it here, with my own amendments:

i) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test).

ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (A v A, Re KL).

iii) In common with the other rules of jurisdiction in Brussels IIR its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned': A v A (para 80(ii)); Re B (para 42) applying Mercredi v Chaffe at para 46).

iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent (Re R);

v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (Re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration.

vi) Parental intention is relevant to the assessment, but not determinative (Re KL, Re R and Re B);

vii) It will be highly unusual for a child to have no habitual residence. Usually a child lose a pre-existing habitual residence at the same time as gaining a new one (Re B); (emphasis added);

viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move (Re B – see in particular the guidance at para 46);

ix) It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (Re R and earlier in Re KL and Mercredi);

x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (Re R) (emphasis added);

xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months). It is possible to acquire a new habitual residence in a single day (A v A; Re B). In the latter case Lord Wilson referred (para 45) those 'first roots' which represent the requisite degree of integration and which a child will 'probably' put down 'quite quickly' following a move;

xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (Re R).

xiii) The structure of Brussels IIa, and particularly Recital 12 to the Regulation, demonstrates that it is in a child's best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, "if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former" (Re B supra);

18. If there is one clear message emerging both from the European case law and from the Supreme Court, it is that the child is at the centre of the exercise when evaluating his or her habitual residence. This will involve a real and detailed consideration of (inter alia): the child's day to day life and experiences; family environment; interests and hobbies; friends etc. and an appreciation of which adults are most important to the child. The approach must always be child driven. I emphasise this because all too frequently and this case is no exception, the statements filed focus predominantly on the adult parties. It is all too common for the Court to have to drill deep for information about the child's life and routine. This should have been mined to the surface in the preparation of the case and regarded as the primary objective of the statements. I am bound to say that if the lawyers follow this approach more assiduously, I consider that the very discipline of the preparation is most likely to clarify where the child is habitually resident. I must also say that this exercise, if properly engaged with, should lead to a reduction in these enquiries in the courtroom. Habitual residence is essentially a factual issue, it ought therefore, in the overwhelming majority of cases, to be readily capable of identification by the parties. Thus:

i) The solicitors charged with preparation of the statements must familiarise themselves with the recent case law which emphasises the scope and ambit of the enquiry when assessing habitual residence, (para 17 above maybe a convenient summary);

ii) If the statements do not address the salient issues, counsel, if instructed, should bring the failure to do so to his instructing solicitors attention;

iii) An application should be made expeditiously to the Court for leave to file an amended statement, even though that will inevitably result in a further statement in response;

iv) Lawyers specialising in these international children cases, where the guiding principle is international comity and where the jurisdiction is therefore summary, have become unfamiliar, in my judgement, with the forensic discipline involved in identifying and evaluating the practical realities of children's lives. They must relearn these skills if they are going to be in a position to apply the law as it is now clarified.

The simple message must get through to those who prepare the statements that habitual residence of a child is all about his or her life and not about parental dispute. It is a factual exploration.

19. In my review of the case law I note the observations of Lord Wilson in Re B (a child) (supra):

"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."

20. Finally, the observation of Mc Farlane LJ in Re R (a child) [2015] EWCA Civ 674 strikes me as important to bear in mind on the facts of this particular case and more generally:

"When determining habitual residence there is no requirement that, to be sufficient to support a finding, the individual needs to be happy, well cared for or free from abuse. The 'social and family environment' into which a child might be integrated may include both positive and negative factors. These will not be irrelevant. In the present case the judge took full account, as he was entitled to do, of the negative aspects of the mother's life in Morocco. But in this case, where the judge was entitled to hold that the child's habitual residence was dependant upon determination of the mother's habitual residence, the primary, if not the sole, focus must be on evidence relating to the mother rather than the child. The negative aspects of the child's experience once she arrived here are not, therefore, in point in this context (although they obviously will be given full weight within any care proceedings)."

21. Both Ms Chokowry and Mr Gration submit that if I find the child was not habitually resident in the USA at the relevant time, I do not need to consider whether the mother consented to or alternatively acquiesced in the child's retention in this jurisdiction. That is plainly right. Nor is it necessary for me to address whether the Article 13 b defence is made out.
22. I do not consider that either parent had a defined or clearly considered plan as to where B would live, long term, following her first visit to Europe in November 2014. It is obvious from the social media messages between the parents, prior to the trip, that the father had general anxieties about his daughter's welfare. He pursued those concerns with the mother in a way that he perceived to be 'diplomatic', to use his term in evidence. In their various exchanges, a sample of which has been filed in the Court bundles, it usually involves the father trying to pin the mother down to clear and structured arrangements. The messages reveal that whilst the father rarely expresses exasperation, the mother nonetheless senses it. When she has had enough she withdraws from the conversation. Thus neither party is being entirely open or candid with the other. This situation is inimical to joint planning.
23. Though she resists the suggestion, it is very clear that this mother has continuingly harboured hopes that she and the father might effect what Ms Chokowry has termed 'a rapprochement'. I hope Ms Chokowry will forgive me for saying so but I do not think that is quite the correct term, in so far as it implies a coming back together. The truth is that, for the father, he and the mother were never anything other than a fleeting, sexual encounter. Though the mother knows this too on some level, she has been highly motivated to provide a family life for her daughter.
24. In his evidence the father told me how, when B first came to Amiens, he had arranged a small party for friends and relatives. He told me that this was, to paraphrase him, a special memory. However, he quickly became aware that the mother was deriving the wrong signals from this simulacrum of family life. Though the father can be dogmatic and defensive I consider that he was sensitive in his approach to the mother and highly attuned to her vulnerability to receiving the wrong messages. He told me that she would sometimes pester him as to why he did not find her attractive. Disparagingly and reflecting her own jealousy, I note that she refers to the father's partner, who is significantly older than her, as 'the whale'.
25. I am satisfied that the mother both permitted and encouraged the development of the relationship between B and her father. I find it informative to consider her underlying reasoning. This I consider to be threefold: the mother was a young woman experiencing European culture for the first time, she visited Marseilles and forged relationships there, the text messages reveal that she was enjoying her freedom and opportunity to socialise; she firmly believes that B is entitled to a relationship with her father and, perhaps most importantly of all it is clear that she considered that the more time she and the father spent in their daughter's orbit, the greater the prospect of her achieving the fantasy of their living together as a family.
26. It is also clear from the text messages that it is the father who tries to keep B's needs in focus. It is he who repeatedly enquires about 'getting her stuff' organised and whether she needs rest between journeys. It is the father who brings up important topics such as educational provision and opportunities for B to socialise. In her evidence the mother construed this as criticism of her parenting, it was not. When the father wanted to take B to meet his parents in Senegal he repeatedly pressed the mother on the need for injections. She largely avoided the father's request. He told me that she did not consider they were necessary, preferring to rely on her holistic medicine. Fortunately for B the father was able to prevail.
27. I have no doubt that the father did not get everything right, he too had no previous experience as a parent. I am sure that Mr Gration is correct to highlight, as he does and as I have alluded to above, some of the father's shortcomings. That said, I was left with the clear impression that the father was far more in tune with his daughter's needs than was the mother. The relevance of this, I find to be, is in evaluating the father's consistently expressed objective to bring 'stability' into his daughter's life. I am satisfied that he tried hard to achieve this. The chronology might, if considered superficially, seem to indicate that the father was not successful. However, the reality is rather more multi faceted.
28. The father plainly wanted his daughter to have a life that was grounded by a sense of family. The trips to Senegal were either designed to or had the tangential benefit of providing an opportunity for B to see her extended paternal family, which both parents appear to agree she enjoyed. The father was also keen to keep on amicable terms with the mother and to promote his daughter's relationship with her. At the same time, like many other parents, he had to work and negotiate child care. All these challenges will be instantly recognisable to many parents. The added complication in this family is that balancing them all required moving between at least four countries.
29. In January 2015 the father had to go to Italy to work. B went with him. A full time babysitter was arranged and B spent most of the day with her as the father worked long hours. I note that the father tried to encourage the mother to have B with her at this period. She gave me no convincing reason why she had been unable to agree to do so.
30. As the evidence progressed it became very clear to me that it was the father who was most consistently identifying B's broad spectrum of needs. I was left with a persistent sense that the mother struggled to understand them. The father I found has given B a real sense of her identity. He told me she speaks English, French and Fullani, his African dialect. He told me that she sings some French songs, though not very many yet. He has lived at the same address in London since B arrived. She has her own bedroom, decorated as she wishes. The father has also been in a stable relationship which itself will have contributed to B's sense of security. Though S has never tried to be a substitute for the mother, it is plain that she has been able to provide continuity for B and has become a significant person to her. It is of course not the mother's fault that she has not been able to provide this kind of consistency for her daughter, but it is what is happening in B's life that really matters in this enquiry. Also of relevance, on many levels, is that the father and his partner S have just had a baby. I am told and accept that B has welcomed this event and was looking forward to it.
31. Delivering the news of S's pregnancy to the mother was, as I have analysed the case above, inevitably going to cause her to confront the hopelessness of her own wish to be a family with the father. Almost immediately upon hearing the news she decided that the time had come for her to take her daughter back to the USA. It is that decision that has precipitated these proceedings. It is clear to me that the father's initial response was to agree to the mother's suggestion, with the hope that the reality would be that they could negotiate. His approach, as I have outlined above, was never to confront matters directly with the mother, but to address them obliquely. However, it soon became clear that this was not going to be possible.
32. In an otherwise peripatetic life B had, in my judgement, managed to put down secure roots in England with her father and his partner. The simple fact of this emerges quite strikingly from the evidence. To the question, where does B think of as home?, there seems to me to be one obvious answer. Her home is in London with the father.
33. S bought the property, a two bedroom house with a garden, in 2004. S is plainly settled there. She met the father, working together in Senegal, in August 2012. He moved in with her later that year. What is striking is that father immediately told her that he had just found out the mother was pregnant with his child. Their's strikes me as a relationship with a high degree of openness and honesty. It is clear that S is extremely fond of B. Her statement relates how she and father take turns giving her a bath and taking her to bed and reading bedtime stories. She recounts how she takes B to swimming classes once a week and goes swimming a few times during the course of the week. This is apparently because B is so fond of swimming. S relates how excited B has been about the arrival of her 'brother' and her enthusiasm for redecorating to prepare for his arrival. Now that B's French passport has arrived she has been able to get into a nursery that both father and S are very enthusiastic about. There has been much mention of 'Jessica', B's nanny, who has been a consistent figure in the home of this busy professional couple. I also note that at the weekends 'play dates' are arranged at B's home or at her friend's houses and sometimes in local parks. S considers that B is a very sociable child.
34. S's statement is unchallenged. Mr Gration is not in a position to challenge it. The mother knows very little of B's life in London. That may say something about the nature of the mother and daughter relationship, but its primary significance is that it casts into stark relief the fact there is little, if indeed any evidence of competing integration by this child elsewhere. Mr Gration suggests that something of the picture created is a confection constructed by the lawyers to focus, at least to some degree, on the applicable criteria. Thus he suggests that B joining the nursery in April 2016 was crafted to create the impression of a child integrated into the community. Despite its coincidence with the contemplation of proceedings, I am satisfied, on the father's evidence, that the nursery placement was achieved because the French passport had arrived at the end of March thus permitting her enrolment. So structured is B's life elsewhere in London that I am persuaded that the father has had this nursery in mind for sometime and was anxiously awaiting the passport which would be the key to achieving a place.
35. Accordingly, I have come to the firm conclusion that B is habitually resident in the United Kingdom. Her life here has been, I find, qualitatively more stable and secure than anywhere else. It is in some ways an irony that in her determination to provide a family life for her daughter the mother achieved her goal. Sadly, she was not to be part of that unit. It is not merely that the father has provided a better quality of care for B, it is that the social and family environment he created for her enabled her to integrate into life in London. Perhaps because she has travelled so widely she put down her roots in the only fertile soil available to her.