England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 September 2016

See also: [2016] EWHC 2414 (Fam)

ALEX VERDAN QC:

Introduction

1. In this case I am concerned with one child: a boy born on 10.10.13 and so aged almost 3. For the purposes of this judgment I will identify him as D.
2. His mother is Katy Ashworth. His father is Ben Alcott.
3. The father's application dated 21.07.16 is for the summary return of D to Australia, pursuant to the Hague Convention 1980 on the Civil Aspects of International Child Abduction.
4. The mother opposes the application on the grounds of habitual residence, as by reason of Article 4, the Convention only applies if the child was habitually resident in Australia immediately before any breach of custody or access rights.
5. The case was listed for final hearing on 21-22 September 2016.
6. I have read all the relevant documents in the bundle prepared for this hearing including all the evidence. In addition, both parties attended the hearing and gave oral evidence.
7. The father was represented by Miss Jacqueline Renton (counsel); the mother by Mr Edward Devereux (counsel). I am grateful to them for their assistance in this case.
8. The hearing was completed in the allocated two days but I adjourned so as to consider the submissions.
9. However, unusually but with the support of the mother and the father not opposing the proposal, I informed them of my decision to dismiss the application at the end of the hearing on 22 September.
10. I decided to prepare a written judgment primarily in light of applications made by the media who attended throughout the hearing, the case having attracted significant press interest. I have prepared a separate judgment in respect of these applications.

Background

11. The father is aged 42 and lives in New South Wales, Australia. He is a television director. At the relevant time he rented a property at 17 Kepos Street, Redfern.
12. The mother is aged 30 and is British and has lived all of her life in England save for a short period of about 9 months in Australia when she was aged 19. Until earlier this year the mother worked as a television presenter with the BBC.
13. The parties started their relationship in May or June of 2011. They never married. D was born in Britain. He is their only child. The mother took 9 months maternity leave and has always been D's primary carer.
14. The parties' relationship was long distance given where they each lived. In addition, they separated and reconciled on a number of occasions: e.g. in 2011, 2012 and as recently as 2015.
15. Prior to April 2016 the mother and D visited Australia on two occasions, namely for relatively short holidays in September 2014 and October 2015.
16. The mother and D travelled to Australia arriving on 5.04.16. The father says this was a permanent move. The mother says it was a trial attempt to see if their relationship would work out long-term.
17. The mother and D only stayed at the father's address for 3 nights, leaving on 8.4.16 when she moved to the father's sister's home for 2 nights before moving to her cousin's home for 1 night before flying back to the UK with D on 12.4.16. The main reason the mother left Australia was that she discovered material on the father's computer which indicated to her his infidelity. Her email to the father dated 8.04.16 states: " Ben. I know everything. I'm done. I have packed up and left…" [C75]. Her email to the father dated 13.04.16 (when back in the UK) says "thank goodness I found out all the lies before moving to Australia to be with you for good" [C91].
18. The only issue in this case is whether immediately before 12.04.16 D was habitually resident in Australia.

Law

19. The applicable law in respect of habitual residence is not disputed and uncontroversial and I have been provided with the relevant case-law.
20. In addition, I asked counsel to prepare an agreed statement of the relevant legal principles. The following paragraphs are a copy of that statement.
21. In A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening [2014] 1 AC 1, Baroness Hale (at paragraph [54]) summarised the correct approach as to the determination of habitual residence in the following way:

"(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." (emphasis added)."

22. Further guidance has been provided on the concept of "habitual residence" in a number of more recent authorities:

(i) In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1017;

(ii) In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] AC 1038;

(iii) AR v RN (Habitual Residence) [2015] 2 FLR 503; and

(iv) Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] 1 FLR 561.

23. In re LC (supra), Baroness Hale gave an illuminating commentary on the sorts of considerations that are relevant when assessing a child's "habitual residence". At paragraphs [59] – [60] she said as follows:

"The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so…

In the case of these three children, as of others, the question is the quality of their residence, in which all sorts of factors may be relevant. Some of these are objective: how long were they there, what were their living conditions while there, were they at school or at work, and so on? But subjective factors are also relevant: what was the reason for their being there, and what were their perceptions about being there? I agree with Lord Wilson (para [37]) that 'wishes', 'views', 'intentions' and 'decisions' are not the right words, whether we are considering the habitual residence of a child or indeed an adult. It is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there – their state of mind. All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed 'habitual'.

24. At paragraphs [62] – [63], Baroness Hale went on to state:

"…It is the child's habitual residence which is under consideration. Each child is an individual with his own experiences and his own perceptions…where parents are separated, there may well be two possible homes in which the children can live and the children will be well aware of this. This may well affect the degree of their integration in a new environment.

The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later…" (emphasis added)

25. In Re B (A Child) (Habitual Residence: Inherent Jurisdiction) (supra), Lord Wilson, giving the judgment of the court, said at paragraph [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 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.

…

The identification of a child's habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub rules 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."

26. In considering the particular facts of this case I am guided by the above legal principles.

Father's case

27. The father seeks the child's return to Australia. His case is that the move to Australia was intended to be a permanent move and that immediately before the mother and D returned to England, D was habitually resident in Australia.
28. I have considered all the points made in Miss Renton's skeleton argument but do not repeat them all here. Suffice to say that in support of her main submission Miss Renton makes the following key points:

a. The parties had discussed living together in Australia on frequent occasions;

b. D had visited Australia before and was familiar with it;

c. The mother was saying she would move to Australia to live with the father;

d. The parties had discussed D attending Sydney Grammar School (when he was older);

e. The mother had handed in her notice with the BBC in November 2015;

f. The mother had asked the father to explore work options in Australia;

g. The mother drafted a business plan for opening a restaurant in Sydney;

h. The mother gave notice to her landlord in Manchester;

i. The father's view was that the parties' relationship was at its most stable in 2016;

j. The father's home was set up as a home for D;

k. The mother left Australia without the father's consent or knowledge.

29. Miss Renton therefore submits that D had acquired a sufficient degree of integration in Australia by 12.04.16 and reminds the court that it is legally possible for habitual residence to be acquired in one day.

Mother's case

30. The mother opposes the father's application asserting that D never became habitually resident in Australia.
31. Mr Devereux submits that all the contemporaneous documentation supports the mother's case that this was a trial move to see if the parents' relationship would work out.
32. His main points in support of the mother's position on habitual residence are as follows:

a. Prior to 5.04.16 the mother's entire life had been centered in England;

b. The parties' relationship was unstable and difficult as evidenced by their numerous separations and agreement to seek couples' counselling;

c. The mother was always D's primary carer;

d. The mother retained employment options in England from July to December 2016;

e. The mother had no employment in Australia and no employment permit;

f. The mother never signed any school application forms for D and D never attended any play group or nursery;

g. The mother only had a visitor visa and had no right to stay in Australia;

h. The mother was apprehensive about the move;

i. The mother only travelled with one large suitcase of clothes and possessions leaving all larger items including furniture in England;

j. The mother and D travelled on return air tickets as the plan was to return to England after 3 months;

k. Almost all of the mother's family and her friends remained in England;

l. D only had a UK passport and not an Australian one;

m. The father's property was unstable in that its lease was also held by another person, his business partner, who I will identify as F1.

33. On arrival in Australia, as mentioned above the mother discovered evidence, namely women's clothing in the father's home and more importantly messages on his computer from other women, F1 and three others who I will identify as F2, F3 and F4, which suggested to her that he was having sexual relationships with them. This discovery led her to leave the father after only 3 days. The mother and D only spent 7 days in total in Australia before flying back to England.
34. Mr Devereux therefore submits that neither the mother nor D ever became habitually resident in Australia.

Discussion

35. I found the mother's evidence to be clear and consistent and supported by the documents. I found the father's evidence to be inconsistent, unreliable and unconvincing. I prefer the mother's evidence to the father's and where they conflict, I accept hers.
36. The identification of D's habitual residence is of course a question of fact.
37. Having considered carefully the written and oral evidence my conclusions are as follows.
38. In evidence the parties describe their relationship in different terms. The father said that it had been through 'troubled times' but was at its most stable in 2016. I disagree with that description. In my view it was always an unstable relationship with deep problematic fault lines. Not only was it long-distance and with a history of break-ups but neither party trusted the other and the father certainly, as he accepts, was not open and honest with the mother. I find the mother's description that the relationship was "turbulent" to be more accurate. I also accept that the state of the relationship caused her much stress and anguish. The state of the parties' relationship is clearly relevant to the question of integration.
39. I accept that the parties discussed a move to Australia and living together as a family with D on a number of occasions and that the mother hoped that it would work. I accept there was a certain amount of pre-planning of the move but also find that there were not many plans about D's day to day life in Australia. However I also accept that the mother was apprehensive about the move and unsure that the relationship would endure. I also accept her evidence that at the time she was taking time out to consider what she was going to do with her life. Her emails/messages at C43, C70, C73, C115, C223 and C224 support these conclusions.
40. Moreover, I accept that the mother did not intend the move to be permanent without conditions; whether or not she stayed in Australia depended on whether the parties' relationship worked out. The father's intention is less clear. Although he said he saw this as a permanent move; the report to the police on 12.04.16 [C84] and the letter from his then solicitors dated 13.04.16 [C93] suggest that he was contemplating a 3 month trip, at least in the first instance. In my view it is significant that the solicitor's letter states that one of the purposes of the trip was "to explore the possibility of cohabiting." In answer to a question from the court, the father accepted at one point that this was the case, which I find clearly confirms the mother's case that this was a trial move. I do not accept that the mother left England with any intention of emigrating and certainly she had not made all the necessary plans to do so. I find that the mother left England in ambiguous circumstances. I do not find that there was any clear plan to move permanently.
41. In any event, even if the intention was for a permanent move this was on the basis of the parties' relationship being based on trust and openness. The father admits he was in a sexual relationship with one of the four identified women up to February 2016 (i.e. after the date he says the parties' had agreed a move to Australia and started planning it) and he accepts that the mother did not know about this. The father's denial that he had had recent sexual relationships with the other three women was, in my view, unconvincing although I do not make specific findings in this respect. He struggled to explain the content and tone of the email messages, some of which were suggestive and some intimate and explicit, that had been discovered on his computer. But in addition, the father also admits that an objective onlooker could reasonably conclude that the messages between him and at least two of the other four women indicated a sexual relationship. The father accepted that on any reckoning his personal life was "a very complicated one;" that "it was very difficult to balance the different female interests in his life" as "his decks were very crowded." Another way of putting this is that the father's personal relationships with these women involved a high level of deceit and dishonesty. My conclusion is that any agreement by the mother to move to Australia was based on a fundamentally flawed premise and therefore also vitiated by material non-disclosure and untruthfulness. If the mother had known the true state of affairs I am satisfied that in all likelihood she would not have moved to Australia with D even for a trial period.
42. The father's accommodation was unstable and did not represent a secure home for the mother and D. Its lease was held in the joint names of the father and F1 and the computer messages referred to above strongly indicate that F1 was unhappy with the mother living there, considered the property to be her home and that there was a plan discussed with the father whereby the mother would move out. Although the father denied this was the case he accepted that is how the messages read and also that F1 had keys to the property. In oral evidence the father also revealed for the first time that he had actually given up this tenancy and was shortly to move somewhere else apparently because the landlord had not done any work to the property for some time.
43. For the avoidance of doubt I also agree that the points Mr Devereux makes that are referred to at paragraph 32 above, when taken together, support a firm conclusion that D was not habitually resident in Australia at the relevant time.
44. Having considered the particular facts of this case and applying the above law, I find that D was deeply integrated in England and that D never acquired habitual residence in Australia.
45. I conclude that D was not integrated to a sufficient degree in a social and family environment in Australia and that the mother was probably not integrated at all. Put a different way, I find that D had not, in the short period of time in question, acquired the necessary degree of stability in Australia. He had not put down roots. He only slept at the father's home for 3 nights. On the particular facts of this case I find that D remained habitually resident in England.

Decision

46. In the above circumstances and for the above reasons I dismiss the father's application. The mother did not wrongfully remove D from Australia on 12.04.16. For the avoidance of doubt she did not abduct him.
47. This judgment will be published in a non-anonymised form in that the mother and father's names will be used and the other details provided will remain. The parents do not object in principle to their names being identified. However D's name will not be revealed. The reasons for adopting this course are explained in my second judgment which deals with the applications made by the media. I have taken the identification of the mother and father into account in deciding the form and content of this judgment.

AVQC

27.09.16