England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003
AND IN THE MATTER OF EE AND ME (CHILDREN) (HABITUAL RESIDENCE)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2016

Mr Justice Baker:

1. In this judgment I consider a difficult question as to whether this court has jurisdiction to hear an application under the Children Act 1989 in respect of two children, a girl E aged 9 and a boy M aged 4. The father, the applicant, contends that this court has jurisdiction on one of two grounds: (1) that at the date on which proceedings were started, namely 22 February 2016, the children were habitually resident in England and Wales and that, as a result, this court has jurisdiction under Article 8 of Council Regulation (EC) 2201/2003 ("Brussels IIA"), or alternatively (2) that the children were wrongfully removed from England and Wales to Latvia in September 2015 at a point when they were habitually resident here, that the father has neither consented to nor acquiesced in their removal, and that as a result this court has jurisdiction under Article 10 of Brussels IIA. The mother, the respondent to the proceedings, contends that at all material times the children were habitually resident in Latvia and that the courts of that country have jurisdiction under Brussels IIA in respect of all matters of parental responsibility. In the alternative, she wishes to argue that, if this court has jurisdiction under the regulation, it should initiate the process under Article 15 of Brussels IIA to transfer jurisdiction to Latvia on the grounds that a court of that country is better placed to hear the case. In the course of the hearing, however, it was conceded on behalf of the mother that this court does not at present have sufficient information to determine an application under Article 15. In the event that I conclude that this court has jurisdiction on one or other of the grounds claimed by the father, the question of whether to initiate the procedure under Article 15 will be adjourned to another occasion, assuming the mother decides to proceed with that application.

The Law

2. Article 8 of Brussels IIA provides:

"(1) The courts of a Member State [of the EU] 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."

3. Article 10 provides:

"In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or

(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met

(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limits set in paragraph (i);

(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11 (7);

(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention."

4. "Wrongful removal" in this context is defined in Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980:

"The removal or the retention of a child is to be considerd wrongful where

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that state."

Under Article 5 of the 1980 Convention, "rights of custody" shall include right relating to the care of the person of the child and, in particular, the right to determine the child's place of residence. Under the law of England and Wales, a married father has parental responsibility and therefore rights of custody in respect of children of the marriage. A father who is in prison is not thereby automatically precluded from exercising his rights of custody: Re A (Abduction: Rights of Custody: Imprisonment) [2004] 1 FLR 1.

5. This case therefore turns on the question of the habitual residence of the children. On that matter, there has been a considerable body of case law in recent years, most importantly the decisions of the CJEU in Proceedings brought by A (Case C-523 – 07) [2010] Fam 42 and Mercredi v Chaffe (Case C-49710 PPU) [2012] Fam 22 and of the Supreme Court in A v A (Children: Habitual Residence) [2013] UKSC 60, Re LC (Children) [2014] UKSC 1 and Re B (A Child) [2016] UKSC 4. From these cases, the principles relevant to the current application can be summarised as follows.

(1) Habitual residence is a question of fact and not a legal concept.

(2) "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 enquiry would produce" A v A (Children: Habitual Residence), per Baroness Hale of Richmond at para 54 (vii) A gloss is "a purported sub-rule which distorts application of the rule" per Lord Wilson in Re B at para 46.

(3) The test for the determination of habitual residence should be the same under the Hague Child Abduction Convention, Brussels IIA and domestic law: A v A (Children: Habitual Residence), per Baroness Hale of Richmond at para 54 (iv) and (v).

(4) The test adopted by the European Court, which must be applied in cases in this country, is that habitual residence is "the place which reflects some degree of integration by the child in a social and family environment": Proceedings brought by A (decision), A v A (Children: Habitual Residence), per Baroness Hale of Richmond at para 54 (iii).

(5) 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: Proceedings brought by A.

(6) It must be shown that the child's presence in the Member State in question is not in any way temporary or intermittent but rather of a lasting character: Proceedings brought by A, Mercredi v Chaffe.

(7) "The social and family environment of an infant or young child is shared with those (whether parents or others) on 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" A v A (Children: Habitual Residence), per Baroness Hale of Richmond at para 54 (vi).

(8) "This is a child-centred approach. It is the child's habitual residence which is in question. It is the child's integration which is under consideration. Each child is an individual with his own experiences and his own perceptions. These are not necessarily determined by the decisions of his parents …. The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once the child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. Furthermore, 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" per Baroness Hale in Re LC para 62.

(9) "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 … limbo …. 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" per Lord Wilson in Re B para 45.

(10) In identifying the point at which habitual residence was lost and gained, the court might find that

"(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."

These "suggestions", made by Lord Wilson in Re B at para 46, are not intended to be glosses or sub-rules but, rather, expectations which may or may not be fulfilled on the facts of each case.

Summary of facts

6. The father is aged 40 and from Nigeria but has lived in England for many years. The mother is aged 36 and from Latvia. She has an older daughter, A, born in 2003.
7. In 2005, the mother came to Scotland leaving A with her parents and in 2006 moved England where she met the father. In April that year, they started living together. At the end of 2006, the mother discovered she was pregnant and moved back to Latvia. In May 2007, she returned to England and on 1 July 2007 she and the father were married. On 26^th July, the mother gave birth to E.
8. A few weeks later the mother was assaulted by the father. She called the police and the father was arrested. The mother says that she subsequently dropped charges, although the father has produced a document showing that he was cautioned for common assault. He says that this demonstrates that he did not inflict any actual bodily harm on the mother on this occasion, otherwise the police would not have proceeded by means of a caution. It is the mother's case, however, that she remained concerned about the father's behaviour and at the end of August 2007 she took E to Latvia, where they went to stay with her parents and A. They remained there for 21 months.
9. The father says that during this period he sent money to the mother to support E. On 19^th December 2007, he executed two statutory declarations, the first authorising the mother to travel with E "to and from various locations" and further declaring that the mother was travelling with B with his "full consent and knowledge", the second authorising the mother to apply for a Latvian passport for E and further authorising the Latvian authorities to register the child as a Latvian citizen and issue her with a Latvian passport.
10. In May 2009, the mother and E returned to England and resumed living with the father. A stayed with the maternal grandparents in Latvia. It is the mother's case that her relationship with the father continued to be marked by arguments and after three months she and E returned to Latvia. On this occasion they stayed there for 10 months. Once again, however, the mother agreed to resume cohabiting with the father, and in June 2010 she returned to England, on this occasion bringing A as well as E.
11. By this point, the father was living in a one-bedroom flat. Accommodation was therefore very cramped. According to the mother, arguments continued and she alleges that in April 2011, the father assaulted her again. The police were called and the father was arrested and told that he should keep away. Once again, however, the parties resumed cohabitation. The mother and the children travelled to Latvia but returned back to England in August 2011. At that point, however, the mother became pregnant again and in December 2011 she and the two girls again returned to Latvia. One reason for the mother's decision to return on this occasion was that she was experiencing problems with her pregnancy and wanted to get medical treatment in her home country. It is a recurring theme in this case that the mother prefers medical treatment provided by the Latvian medical services rather than the National Health Service in this country.
12. On 6 May 2012, the mother gave birth to a son, M. In June 2012, the father visited the mother and the family for one week in Latvia. In December 2012, the mother and three children returned to the UK and once again resumed living with the father. By January 2013, she was pregnant again. In February 2013, the mother went to Latvia by herself to undergo an abortion, leaving the children with the father in England. It is her case that the father pressurised her into having a termination. Afterwards, she returned to England but a few weeks later another argument took place which led to the police being called. On this occasion (according to the mother) the father took off all his clothes so that when the police arrived he was standing naked in the house. The police did not arrest him on this occasion but, according to the mother, asked him to leave.
13. In April 2013, the mother and three children were back to Latvia again, but, as before, she remained in communication with the father and eventually agreed to return. In May 2014, the mother and the three children once more came back to this country. Meanwhile, the father was continuing to press his case to be allowed to remain in this country. He has produced for these proceedings a copy of a handwritten document apparently written by the mother in June 2014 in support of his application for leave to remain in the UK. In the document, the mother asserts that she had been working in England since 2009, that she had been living in London during this period and that the children lived here. Following submission of this letter, the father was issued with a permanent residence card as the spouse of an EEA national exercising their treaty rights in the UK. Further documentary evidence exhibited to the statements shows that HMRC allocated tax credits to the father and mother as a couple in the tax year ending April 2015.
14. On the mother's account, the same problems arose between the parties, with the father continuing to behave in an aggressive manner. In August 2014, the mother took the children back to Latvia.
15. In September 2014, the mother returned alone. According to her first statement in these proceedings, the purpose of this visit was to see if she was able to secure separate accommodation for herself and the children. In her second statement, she added:

"I spoke to social services and obtained an advice about securing alternative accommodation for myself and the children in the UK. I desperately wanted to separate from the applicant and live separately from him. When speaking with social services I understood from them that [the] council would be able to assist in accommodating me due to his abusive behaviour if I left him. However, in order to receive the help from [the] council I was advised that the children needed to be present in the UK. I decided that I would travel to Latvia in order to bring the children back to the UK."

While she was visiting the flat to collect belongings, an argument ensued during which the father assaulted her with a shoe, perforating her eardrum. The police were called again and the father was arrested and this occasion charged with assault occasioning actual bodily harm. On 20 October 2014, the mother returned to Latvia but five days later returned to England with all three children. She returned to the family home but social services insisted that, because of the alleged domestic violence, she should leave the property. Having done so, however, she was told by the housing department that they had no accommodation for her. Following the intervention of her MP, however, she and the children were accommodated temporarily in a hostel in the same London borough

16. In November 2014, E started attending a primary school. At that point, A was waiting for a secondary school place which did not become available until March 2015. After spending three uncomfortable months in the hostel, the mother and children were moved to a local authority unfurnished flat, where the mother continues to live. In her statement in these proceedings, she described this as "permanent" accommodation. After they moved in, the paternal grandfather came over from Latvia to help the mother look after children and stayed for several months.
17. Meanwhile, the criminal proceedings against the father were continuing. Having initially pleaded not guilty, so that the mother was required to attend the trial, the father eventually changed his plea to guilty on the morning of the trial. On 29^th April 2015, he was sentenced to 16 months' imprisonment and made subject to a protection from harassment restraining order.
18. On 13^th September 2015, the mother, her father and the three children travelled to Latvia. In her second statement in these proceedings, the mother states that the main reason for this trip was because of what she regarded as a risk of misdiagnosis of tuberculosis in England, and her overall concern about the children. She had asked her GP in England to check for TB but he had apparently replied that test was only carried out when there were signs that the child was suffering from the illness. The mother commented about this in her statement:

"That appears scary to me. I therefore did not have a choice but to return to Latvia where I was sure that children would be checked by medical professionals as a priority in light of my past experiences in having medical examinations/treatment in Latvia."

On arrival, however, she found that the process of getting the children checked took longer than expected, because, according to the mother, the doctor had concerns about the children's health. She was warned that the testing could take six months. She therefore decided to leave E and M with her parents in Latvia and return to England with A. She explained her thinking as follows at paragraphs 16 and 17 in her second statement:

"I discussed this with my parents. We decided that the best decision was for E and M to stay with my parents until an [sic] issues with their health were resolved or at least stable. I arranged for both E and M to be enrolled at the local school and pre-school. As A was attending the school in UK, we agreed with the family including the children that she would return with me but at the end of the academic year we would come back to take them back with us to UK. Both E and M agreed and were happy to stay with their grandparents in Latvia …. Due to M and E's health issues I left them with my parents in Latvia, also thought it is a good thing to give them a time to settle after the stressful situation we all experienced in the UK."

19. The mother returned to UK with A. E started school in Latvia and M attended preschool nursery. The mother alleges that in February 16 they visited the children in Latvia for a week during A's half term in England, although the father's counsel has challenged this account pointing to evidence that the mother used an English cashpoint during that week.
20. Although the father had been entitled to apply for early release from prison in August 2015, he was detained by the Home Office Immigration Enforcement Authority. In January he was issued with a deportation order but subsequently lodged an appeal against the order. On 11^th February 2016, he was released on immigration bail. At the time of his release, he was on licence to the probation service until August 2016, the licence being subject to conditions not to speak to, approach or communicate with the mother or A, or speak to, approach or communicate with E or M without the prior approval of the family court or social services. A few days after his release, the father filed an application in the East London Family Court seeking a child arrangements order in respect of all three children and a prohibited steps order preventing the mother removing the children from the jurisdiction. On 9 March 2016, District Judge Davies ordered the mother to return the children to this country by 31^st March, gave directions for the filing of statements, and ordered CAFCASS to complete a risk assessment by 8^th May. According to the mother's second statement, on 20^th March she returned to Latvia in order to bring the children back to the UK in accordance with the court order, but they refused to return. She therefore spoke to social services in Latvia and was referred to the Orphan Court. A psychologist was appointed to see the children and subsequently reported that the children had expressed fear of the father. E was reported as saying that she likes living in Latvia because she doesn't have to see her father, and is afraid to go to England because her father is there.
21. On 28 April 2016, the father filed an application in this court under the Child Abduction and Custody Act 1985 and Brussels IIA, apply for the children "to be made wards of court and returned to the UK". On 5^th May, the father filed a further application seeking the mother's committal to prison for failing to return the children in accordance with the order of 9^th March. At the next hearing on 12^th May, counsel for the mother raised the issue of jurisdiction, and the deputy district judge listed the matter before a circuit judge in August, giving directions for the filing of further evidence. In the event, the case was referred to HH Judge Atkinson, the Designated Family Judge, who transferred the case to the Family Division. On 15^th August, Keehan J listed the matter for a full hearing on 17^th and 18^th November and gave further directions.
22. Thus the issue of jurisdiction came before me on those dates in November. Preparation of the case was impeded by the fact that the mother changed solicitors and the public funding certificate was not transferred until shortly before the hearing. As a result, a direction by Keehan J for disclosure of information from the Home Office concerning the father's immigration status was not complied with until a late stage. Counsel were instructed a day or so before the hearing. For that reason, I am very grateful to counsel for their assistance in preparing detailed skeleton arguments on the issue of jurisdiction at short notice, and supplementing those arguments with helpful oral submissions.

Submissions

23. On behalf of the father, Mr Jacob Gifford Head conceded that until 2014 the children were habitually resident in Latvia. He submitted that that they were not deeply integrated in that country because they spent regular periods living in England, but nonetheless accepted that they were habitually resident there. His principal argument was that subsequently they became habitually resident in England prior to returning to Latvia in 2015 and further they remained habitually resident in England up to February 2016 when the father filed his application in the East London Family Court. On that basis, he submitted that this court has jurisdiction under Article 8. In the alternative, Mr Gifford Head argued that, even if the children ceased to be habitually resident in this country at some point between September 2015 and February 2016, the father neither consented to not acquiesced in their removal from this country so that this court has jurisdiction under Article 10.
24. In support of his submission that the children had acquired habitual residence in England by September 2015, Mr Gifford Head relied on the following arguments.

(1) The mother returned to England in May 2014 with all three children, intending to resume her relationship with the father. They returned to Latvia for two months between August and October before coming back to England and remaining here from October 2014 to September 2015.

(2) In her letter of support of the father's immigration application in 2014, the mother asserted that she had been in continuous employment here since 2009 and that her children lived here. Although this was plainly not an accurate account, Mr Gifford Head submitted that it was an indication that she saw England as the location of the family home.

(3) Further documentary evidence exhibited to the statements shows that HMRC allocated tax credits to the father and mother as a couple in the tax year ending April 2015.

(4) In September 2014, after her relationship with the father had finally broken down, and during the two-month period when the children were in Latvia, the mother visited England with the express intention of finding alternative accommodation. She applied for housing in the same London borough in which she had lived with the father previously.

(5) When the mother brought the children back to England in October 2014, they were initially living in a homeless hostel. The mother, however, persisted with her application for housing because she wanted a permanent home here. She enlisted the help of social services and her local MP. Mr Gifford Head submitted that the mother would not have taken these steps had she not intended to remain here.

(6) The mother persisted in trying to find permanent accommodation here, notwithstanding the fact that her relationship with the father had finally broken down, and notwithstanding the fact that other members of her family were all living in Latvia.

(7) After returning in October 2014, E attended primary school and M went to nursery. A's name was placed on a waiting list for a secondary school until a place became available in March 2016.

(8) After returning in October 2014, both children were registered with a GP in this country and have remained registered there ever since.

(9) After the mother was allocated permanent housing, her father left his job in Latvia and came over to assist looking after the children and stayed for several months.

(10) When the mother took E and M back to Latvia in September 2015, it was for the express purpose of trying to obtain medical treatment for them which was apparently unavailable here. It was the mother's clear intention that they should only remain in Latvia for as long as the treatment was required before returning to this country. When it became apparent that the treatment would take several months, the mother decided that the children should remain in Latvia until the end of the academic year in May 2016. In the circumstances, Mr Gifford Head submitted that the visit to Latvia was "temporary or intermittent".

(11) Meanwhile, the mother and A remained in England after September 2015, and have continued to reside in the same accommodation.

(12) The statutory declarations signed by the father in 2007 were executed for the purpose of enabling E to be issued with a Latvian passport and the authorisation granted by the father only extended to travel as opposed to relocation and in any event only applied to E and not M.

(13) Until the hearing before District Judge Davies on 9 March 2016, it remained the mother's intention that E and M would return to England at the end of the school term in Latvia in May 2016. Following that hearing, the mother went to Latvia with the intention of bringing the children back. It was only when they refused to come with her that she formed the intention of leaving them there.

(14) The fact that immediately after being released from prison the father applied for a prohibited steps order is evidence that he had not consented to the removal of the children to Latvia.

(15) There is no evidence that the father was aware that the children had been taken to Latvia in September 2014. There is therefore no evidence to support any suggestion that he acquiesced in the children remaining there.

25. On behalf of the mother, Ms Lindsay Adams put forward the following submissions in response.

(1) The children has spent the majority of their lives in Latvia. Up to June 2016, E spent 2105 days in Latvia compared to 1171 days in England, and M spent 968 days in Latvia compared to 369 in England. Even if one stops counting at an earlier date – March 2016 or earlier in September 2015 – the greater part of each child's life has been spent in Latvia.

(2) The pattern of the family's life indicates that the mother and children return to Latvia as a "bolthole" or safe haven. An example of this is the mother's account that one reason for returning to Latvia in September 2015 was to give the children time to settle after stressful experiences in the UK.

(3) Although E (and A) have been at school in England, each child has spent longer in school in Latvia.

(4) Both children were registered with GPs in Latvia throughout their lives.

(5) Although the mother may have planned to continue to live in England after the breakdown of the marriage, that plan did not work out.

(6) The fact that the mother had to ask her own father to come to help her look after the children indicates that the family was not really integrated here.

(7) The father has always agreed to the children travelling to Latvia as demonstrated in the statutory declaration signed in 2007, and is only raising objections now because he wishes to avoid deportation.

(8) The children are now settled in Latvia. They are attending school and nursery. They are living with their grandparents with whom they have lived for most of their lives. They are well integrated in that country with friends and other family members.

(9) In contrast, the children's lives in England were always uncertain due to the volatile relationship between the parties.

(10) Following the decision of the Supreme Court in Re B, a child will only rarely be found to be "in limbo" without any habitual residence. Where the facts are capable of two interpretations – one that favours habitual residence and the other that does not – the court should prefer the former. In this case, the court should conclude that E and M were habitually resident in Latvia at all times.

Discussion and conclusion

26. I bear in mind Baroness Hale's observation in Re LC, supra, that the court must adopt a child-centred approach. It is the children's habitual residence and integration which are under consideration. Each child is an individual with her or his own experiences and her or his own perceptions. These are not necessarily determined by the decisions of their parents. On the other hand, I also bear in mind Baroness Hale's observation in A v A that the social and family environment of an infant or young child is shared with those (whether parents or others) on whom she or he is dependent.
27. In this case, M is a very young child whose social and family environment is inevitably shared with those on whom he is dependent. E is somewhat older – 9 ½ - and has been attending school for some time so that, to adopt Baroness Hale's words, her social world is somewhat wider. Overall, however, I find that both M and E are principally dependent upon their mother. They are close to their maternal grandparents and perhaps also to other members of the maternal family, but their lives have largely followed their mother's life. For the substantial preponderance of their lives to date, they have lived with their mother. When a separation has occurred, it has only been temporary.
28. Prior to 2014, as Mr Gifford Head conceded, the children were habitually resident in Latvia. Throughout their lives, however, they have spent significant periods of time in England. It seems likely, therefore, that they were not as deeply integrated in Latvia as they would have been had they lived continuously in that country.
29. In 2014 the mother brought all three children – E, M and their older sister A – to England. It is to my mind significant that the mother decided to bring not only the two younger children but also their older sister. In my judgment, that is a clear indication that the mother was intending to settle in England in the long term.
30. A few months later, the relationship between the parents finally broke down after the father assaulted the mother with a shoe. It might have been expected at that point that the mother and children would then relocate to Latvia again. In fact, the opposite occurred. During the children's visit to Latvia in early autumn 2014, the mother came over to England to try to arrange permanent accommodation for her and the children away from the father's property. In other words, there was an element of pre-planning to her actions at this point. Then, in October 2014, the mother brought all three children back to this country and the mother actively sought permanent housing here, enlisting the help of social services and her MP. E and, in due course, A started attending school here and M attended nursery. The children were registered with a GP.
31. In September 2015, the mother decided to take E and M to Latvia for medical treatment. Her intention was that they would remain there only for such time as they were receiving treatment. When it became clear that the treatment would take several months, she decided that they should stay in Latvia for the rest of the academic year until May 2016. But it was always her intention that the children would return to live in England. It was only after Judge Davies' order in March 2016 that the mother changed her mind.
32. A further important point is the fact that, save possibly for a short visit during the February half term, the mother and A remained in England throughout this period. It follows that, although the maternal grandparents and other members of the maternal family were with the children in Latvia, the "central members of their family" – that is to say, their parents and their older sister – were all living in England.
33. It will therefore be seen that all of the factors which Lord Wilson in Re B suggests might be of significance in determining habitual residence point in this case to these two children being habitually resident in this country.
34. In my judgment, this is a finely balanced decision but I have reached a clear conclusion that, by September 2015, E and M were habitually resident in England and Wales.
35. I further find that the children's removal to Latvia in September 2015 was only intended to be temporary. It was the mother's clear intention that they would return to England at the end of the academic year. I therefore find that E and M remained habitually resident in England at the date when the father started these proceedings in February 2016. As result, this court has jurisdiction under Article 8 of Brussels IIA.
36. In the alternative, I find that the father has not given his consent to the children moving to Latvia. I accept Mr Gifford Head's submission as to the proper interpretation of the 2007 statutory declaration which, in any event, applied only to E and not M. Accordingly, even if the court does not have jurisdiction under Article 8, it has jurisdiction under Article 10.
37. It is important to emphasise that my decision at this stage is merely that this court has jurisdiction. I have yet to decide whether to initiate the process for transferring the case to Latvia under Article 15 or, if the case is not transferred, what order should be made as to the future welfare of the children. It should not be assumed that, simply because the court has concluded that it has jurisdiction, it will find in favour of the father's application. The mother will plainly put forward arguments that the children should continue to live in Latvia, but the question as to precisely what orders should be made is for another occasion.
38. I invited counsel to agree alternative directions orders dependent upon my findings as to jurisdiction, but I understand that they were unable to reach complete agreement. I shall therefore hear further submissions about directions immediately after this judgment has been handed down.