England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL 2.25pm – 3pm
		24th August 2017

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MR JUSTICE KEEHAN:

1. Further to the ex tempore judgement I gave in this matter on 11 August 2017, in respect of which I ordered an expedited transcript, two matters have arisen. First, I incorporated into the draft transcript the reasons for my decisions on the issue of jurisdiction of this court over IL and JL, which was a decision I had announced on 9 May 2017. Miss Saunders on behalf of the mother has asserted in the hearing today that my reasons on this issue were inadequate and/or contradictory.
2. Second, and in any event, the mother made an application to admit what she has asserted to be fresh evidence and invited me to change my decision in light of the same. The fresh evidence related to events which have occurred subsequent to my ex tempore judgment on 11 August.
3. In relation to the first matter, it is submitted by Miss Saunders that the reasons I set out for coming to the view that the boys lost their habitual residence in Australia, when they left there to come to the United Kingdom in July 2015, are inadequate as set out in the judgment at paragraphs 28-31 of the judgment. I do not agree. It is right that I made reference to the judgment of Lord Wilson in the case of Re B (A child) [2016] UKSC 4, and noted Lord Wilson's observations that it would be unlikely and unusual that a child would be found to have lost habitual residence in one country, yet had not acquired habitual residence in another country and, as I put it in my judgment, unlikely but not impossible.
4. I was quite satisfied on the particular facts of this case, and I remind myself that the determination of habitual residence is a matter of fact, that the family, as a whole, left Australia on a plan to settle into new life in Scotland – albeit they first came to England and moved to Scotland in October 2015. On the basis of them leaving as a family on a settled plan, agreed between the parents, to begin a new life in Scotland, I was entirely satisfied, notwithstanding what was said in Re B, that on the facts of this case, taking into account in particular the numerous occasions that the family had moved between Australia and England, that both IL and JL had lost their habitual residence in Australia by the time the mother's application was made to this court on 6 February 2016. Because of the short and itinerant nature of their time in Scotland, I found that the boys had not acquired that degree of social integration in that remote part of Scotland, and it meant that they had not acquired habitual residence in Scotland.
5. As I set out in the judgment on 19 January 2016, at a time when the mother had left the country for a short trip to Australia, the father moved the boys from Scotland down to the Midlands, where he enrolled them in new schools as from 1 February. Once again, I was not and am not satisfied that either IL nor JL had, by 6 February 2016, acquired that degree of social integration necessary for them to be said to be habitually resident in this jurisdiction. I accordingly found that this court had jurisdiction on the basis of their presence within the jurisdiction.
6. I found that the boys, between 19 January and 16 July, had settled in this jurisdiction. They went to school, they had a stable home, they had school friends and the like. Further I was satisfied that, by the time JL left this country with his mother on 20 July 2016, subsequent to and consequent upon the order of District Judge Gailey, he had acquired habitual residence in this country. Although he was going with his mother to Australia on the basis of the permission granted by District Judge Gailey, the family were not travelling together as a family, for the father and IL were still in this jurisdiction and, on that basis, I was satisfied that JL did not lose his habitual residence in this jurisdiction on the day that he left this country on 20 July, nor at any time between then and the date of the father's application to vary the order of District Judge Gailey.
7. I also was satisfied that JL had not acquired habitual residence in Australia by the time the father made the application to vary the order on 25 September 2016, because as I set out in my judgment, he did not have a settled life with his mother. They lived in three different locations and had only lived in their final home just a matter of weeks before the father's application was made.
8. The second criticism is that were inconsistencies between what I said in paragraph 31 of the judgment and what I said at paragraphs 38 and 39, which I have just rehearsed. I am quite satisfied that there is no inconsistency between finding that the boys had lost their habitual residence when they left Australia in July 2016 and that they had acquired habitual residence in this country by the time of the father's application in September 2016, and that JL had not acquired habitual residence in Australia before that date.
9. It is further said that there is inconsistency between paragraphs 58 and 67 of my judgment. In paragraph 58, I made the following observation:

'My view is that if the mother wished to live in this jurisdiction she would find the means and the way to do so. I mean of course entirely lawfully, and would pursue applications of visas relentlessly. However, I have to accept that I cannot make that as a finding and I have to proceed on the basis ultimately that any decision I have to make has to be on the premise that the mother will not be able to live permanently in this country'.

10. In paragraph 67, I said the following:

'Against the background of the Welfare Checklist and the factors set out in Section 1(3) of the Children Act 1989, in essence I have to decide what arrangement and what order will best meet the welfare best interests of both boys. I endorse the view of the Children's Guardian that the ideal solution would be for the children to live together in this country with both parents present, and for there to be a shared-care arrangement. However, that is not something I can order. That is only something that the parents can agree and put in place themselves. If, for whatever reason, it is not possible to achieve that ideal solution, there is, I regret, no easy answer or solution'.

11. In that latter paragraph, I was simply endorsing the view as to what the ideal arrangement would be. I do not resile from that endorsement but I recognised that it might not be able to be achieved, not least because the mother may not, despite her best endeavours, in fact obtain the appropriate visa to enable her to live in this country, and that is precisely why I put the last sentence that I did into paragraph 67.
12. Moving on from what the ideal solution must be, I had to consider the options and on the basis that the mother would not be entitled to live in this country. Once again, I see no inconsistency in the reasons that I have given.
13. The second matter relates to fresh evidence. I have been referred to a number of authorities, in particular Nottinghamshire and City of Nottingham Fire Authority v Gladman Commercial Properties [2011] EWHC 1918 (Ch) (20 April 2011), the decision of Smith J, and the case of Re L and B (Children) [2013] UKSC 8, a decision of the Supreme Court setting out the circumstances in which a judge is entitled to change his or her decision from that announced at the end of a hearing to that decision set out in a judgment. I am also referred by Miss Jackson on behalf of the father to the well-known case of Ladd v Marshall [1954] EWCA Civ 1. I entirely accept that I have the discretion and I may admit fresh evidence and consider the same even after handing down a judgment. The more so because this is a children's case, one wants to ensure that one obtains the right welfare result for the children. I ask myself: is this truly fresh evidence which requires the court to reconsider its original decision? My clear and unequivocal answer is no.
14. The mother says in a statement that, over the weekend after my judgment, that is the weekend of 12/13 August, she was having contact with and had spoken with IL. IL had of course been told the outcome of this case by his father and he knew that he was not going to be forced or required to live full-time in Australia. When his mother told him that he will need to come to Australia twice per year for contact, IL, to her surprise, readily agreed. That is said to be new evidence and to demonstrate that IL was not as fixed and as firm in his views about a refusal to live permanently in Australia. I regret I do not agree at all. I note the mother does not assert that she asked IL or IL told her that he would be happy to live in Australia, or even that he would contemplate living with her in Australia. It is asserted that, in the course of enquiries with the Children's Guardian, IL complained that he got airplane sick and so he would not be keen on flying to Australia for contact.
15. I accept that was said. It was said at a time when IL, in my judgment, feared that he was going to be forced against his wishes to go and live in Australia. The fact that once he knew that that was not going to happen he took a much more relaxed view of matters, is entirely what one would expect from a 13-year-old young person. It does not surprise me at all. It is not fresh evidence. It does not in any way undermine any of the findings or principles on which I made my decision as set out in the judgment of 11 August.
16. IL is said to have complained to his mother that his father, on an almost daily basis, would say to him something to the effect of 'Do you think I'm doing the right thing?' That it is submitted is evidence of the father putting improper, inappropriate emotional pressure and influence upon IL. Once again, I respectfully completely disagree. If it was being asserted that the father told IL that he must stay in this country, he must not consider going to live in Australia, this would be a completely different matter. The father suffers from mental health problems, was extremely anxious, perhaps overly anxious, and overly involved his son in these matters. Simply asking, 'Am I doing the right thing?' is, in my judgment, an entirely open-ended question. It is not evidence of the father improperly putting pressure upon IL. Moreover, IL was seen on four occasions over a period of time by a very senior and experienced Children's Guardian, to whom he gave a consistent response. I am content that I received a clear and unequivocal picture of IL's own clear views.
17. When Mother returned to Australia, having left this jurisdiction on 14 August and landed in Australia on Wednesday 16^th, she told JL of the outcome of the case. JL was desperately upset and said that he hated his father and he hated IL. When IL learned of that, he was understandably upset and so was the father. That reaction from JL was entirely anticipated by me in the judgment that the news that he was going to have to live with his father and IL in this country, away from his mother, would cause him emotional distress, but I was satisfied, as I remain, that that would be short-lived and, as I am helpfully reminded, today of course the parties agreed a family assistance order for six months, precisely because there would be expert and professional help on hand to support IL, but most importantly JL, adjust to the new arrangements.
18. Further, it is asserted that the father's reaction to these recent events is evident that he will not support contact between the mother and the father. I do not accept that. It was not seriously pursed at the hearing for me prior to 11 August. Any ill-advised remarks made by the father are in the context of the abrupt change by the mother, having previously agreed the terms of an order to effect the transfer of JL from Australia to his father's care in this country.
19. The mother has made a visa application. She asserts the outcome will be known in three weeks' time. I am invited to await the outcome of that application. That is not fresh evidence. I commented in the judgment on the paucity of the evidence about the immigration status of both the mother here and the father in Australia. I lamented the fact that no proper enquiries had been made. In the mother's case, much of the evidence was coming on the hoof as the hearing progressed.
20. I questioned whether her recent application was a litigation tactic. I am satisfied that it would not be appropriate for me to make that finding, but I do make the finding that her immigration status or whether she has applied for a visa or not is not fresh evidence. I entirely anticipated that if the boys were to live in this country, Mother would be relentless in seeking to obtain visa status in this country. Moreover, I have predicated the judgment on the basis that I should work on the basis that the mother would not be able to come and live in this country. Accordingly, I am not satisfied that there is any fresh evidence which requires me to admit it or, for me to reconsider the decision that I made in my judgment of 11 August.
21. The mother, in my judgement, is seeking to have a second bite of the cherry. What she would seek me to do is for IL to undergo some form of expert therapy to ensure that his wishes are genuine and on the basis of the outcome of those enquiries to then order IL to live with the mother and JL in Australia. I was not prepared to do that on 11 August and I am not prepared to do it now. I considered it contrary to the interests of IL and JL on 11 August in light of what they have been told, I am still of the firm view that it would be wholly contrary to inimical to the welfare interests of both boys for there to be any further delay in the arrangements that they will both have from now on.
22. I remind myself that time is short. I expressed the view that JL should be back in this country in time to begin the new academic term on 4 September. It remains my view that it is important to achieve that goal. In light of those findings I am minded to order the mother to surrender custody of JL by nine o'clock tomorrow morning local Australian time, unless and except that there is an agreement in writing between the parents to the contrary. I note that Miss Jackson, who appears on behalf of the father, suggested that there be a neutral venue to which the mother brings JL to Brisbane on Saturday when she is not working. This has merit, but I fear in light of the mother's actions to date that that handover would not occur.
23. Upon announcing my decisions in relation to the submissions of inadequacy or inconsistency of my judgment of 11 August, Miss Saunders on behalf of the mother sought permission to appeal. I refuse that application on the basis that I do not consider that the proposed appeal has any reasonable prospects of success at all. Further, I was invited to stay the order, consequent upon my judgment. I declined a stay because 1) I do not consider that this proposed appeal has any reasonable prospects of success; 2) I consider a stay, and therefore a delay in securing the new arrangements for JL to live in this country, would be wholly contrary to the welfare best interests of both JL and of IL. It would be damaging to both boys, the longer they live apart and do not live together. The surest way of them being able to resolve their problems and restore their very close relationship, particularly JL in having to come to this country, will be for them to live under one roof.
24. That is all I propose to say, except that there will be an expedited transcript of my judgment at public expense.
End of Judgment