England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2017

NATHALIE LIEVEN QC:

1. This case concerns two boys, K aged 3 ½ and S aged 1 ½. The boys are presently in Madagascar. The Applicant, the mother seeks their return to the jurisdiction and that they be placed in her care. The respondent is the father.
2. The children are both UK citizens and have UK passports. I understand that they are both entitled to Madagascan citizenship.
3. I have heard oral evidence from the Mother and from the Father through a phone link.
4. The issues that I have to decide are firstly, whether the children were at the relevant date habitually resident in England and therefore whether this Court has jurisdiction; and secondly, whether I should order their return under the Court's inherent jurisdiction.
5. The Applicant is represented by Dr Rob George of counsel, the Respondent by Mr Edward Bennett of counsel.

The facts

6. The parties married in spring 2012. The Father is a UK and Madagascan citizen and was residing in the UK. The mother is an Indian citizen and came to the UK on a student visa in 2011 and initially lived with her sister. The parties met through a matrimonial agency and married shortly thereafter. After the marriage they moved to the family home outside London. The Mother was granted limited leave to remain in the UK. I was told that she now has indefinite leave to remain, and that does not depend on the children being in the UK.
7. The first child K was born in autumn 2013.
8. There are allegations in this case by the Mother of domestic violence against the Father, and against the paternal Grandparents. Both counsel agreed that it is not necessary for me to make findings of fact in respect of those allegations. However, I will record below the nature of the allegations and where there is supporting material.
9. According to the Mother problems first started occurring in the marriage when the Father's parents ("the Grandparents") came for an extended stay in March 2013. The Grandparents are Madagascan and their home is in Madagascar. The Mother was approximately four weeks pregnant when the Grandparents first came to stay.
10. The Mother's evidence is that the Father and Grandparents were both physically and verbally abusive to her. She says there was extensive controlling behaviour including in respect of money, contact with the Mother's own family, and matters such as what she wore. She says that she was constantly bullied and that she spent her days cooking, cleaning and working in the house.
11. Much of this is disputed by the Father. In particular he says that it was the Mother's choice not to continue to work outside the home as a careworker, and that he did not control her money. I have seen bank statements which show the majority of the Mother's earnings were transferred to the Father's account, but it is perfectly possible that this was just for the costs of maintaining the home.
12. The Mother's evidence is that in about June or July 2014 she was assaulted by both Grandparents and then a little later by the Respondent. She was initially threatened with being forced to leave the house. Three days later whilst out shopping she phoned the police. Her father-in-law was arrested and she and K were taken to a refuge for a week. After a week she says she phoned the Father and they decided to give the marriage another chance and she returned home. The grandparents returned to Madagascar in September 2014.
13. Mr Bennett argued that the fact that the police did not press charges and the Mother returned to the family home places some doubt over her evidence. I do not accept that submission as the Mother's behaviour is very consistent with common patterns found in cases of domestic violence. It is not possible to know, on the evidence, why the police did not pursue charges. However, as I have said I am not going to make any findings of fact in this regard.
14. S was born in the autumn of 2015. The Mother said that the Father slapped her on at least two occasions shortly after the birth.
15. There was an incident in early August 2016 when the Mother alleges that the Father hit her and the Mother called the police. The Father was arrested and released the following day. She was visited on a number of occasions by a social worker from the local authority. According to the Mother, the Father agreed to move out of the home. At the hearing the Father gave evidence that he had told the social worker that he was intending to take the children on holiday to Madagascar and his wife was going to India to visit her family. This was the first time this had been suggested and there was no disclosure request to the local authority, so it is not possible to determine whether this was the case or not. The Mother says the social worker knew, as she believed to be the case, that she and the children were going to stay with her parents in India.
16. The Mother's evidence is that the Father told her on 25 August 2016 that the entire family would be going to India the following day. She says she did not know about this in advance. Her evidence was that the Father had told her that she and the children would travel on from Delhi to the town where her parents live.
17. The Father's evidence is that the plan to go to India to see the Mother's family had been made the previous week and it was the Mother's suggestion that they go to India to see her parents. He said that the Mother knew that the plan was that the Father and children would fly on from Delhi to Madagascar and she would go on her own to spend time with her parents.
18. The Mother's evidence was that before they departed the Father had insisted that the children's clothes be packed in a separate bag from the Mother's clothes. She did not understand at the time why he was so insistent upon this. This evidence supports the Mother's case that she knew nothing about the Madagascar plan.
19. The family flew to Delhi on 26th August. The Mother says that the Father kept her passport save when she was going through passport control and kept her mobile phone. Again the Father denies this. The Mother says that she did not see the tickets that showed that only she was flying on to her parents' home town and that the children had tickets with the Father to go to Madagascar.
20. When the family arrived in Delhi they stayed one night in a hotel. The next day the Mother visited the Temple in Delhi. According to the Mother this was at the Father's suggestion and he insisted on keeping the children with him. She says that she went round the Temple for about one hour and then got the same taxi driver to take her back to the hotel. The taxi driver said that he had taken the Father and the children to the airport. Once back at the hotel the Mother said she realised the Father and children were missing, she went to the airport and after some searching and phone calls discovered the Father and children had flown to Abu Dhabi and then on to Madagascar. The Father had taken her passport.
21. The Father's account of these events is very different. He says that they had agreed that the Mother would stay in India with her parents. He would take the children to Madagascar to stay with the Grandparents. She would then join him and the children in Madagascar and they would all return to the UK together.
22. He accepts the flight tickets were only booked on 25 August but says that was in order to get the cheapest tickets. He says that the Mother had her own passport. The Father's case seems to be that he originally took the children to Madagascar intending to return to the UK. However, when the Mother accused him of abducting the children he decided that he could not return to the UK but would instead stay in Madagascar. He left the car at Heathrow.
23. The Mother contacted the Father by Whatsapp and had some limited contact with them over the internet. She got help in Delhi to get a replacement passport and visa and returned to the UK on 13 September. She has been living in the family home but in October the Father ceased paying rent on that property. I am told that she has to give up possession in early April.
24. The Father and Mother messaged each other and the Father asked the Mother to go to Madagascar. The Mother said that he refused to show her the children. There is a dispute over the nature of the contact that then followed. The Mother says she had very limited contact over IMO with the children. She says that what contact there was, was instigated by her, that in did not last more than 2-3 minutes and that sometimes the Father did not actually allow the children to come to the computer.
25. The Father says that he did give the Mother contact. However he says that she swore and upset the children and that is why he ceased such contact after a few weeks. There is no dispute that since at least October 2016, and possibly since early September the Mother has had no contact with the children. The Father says that this is in the children's best interests.
26. The Father says that he wishes the children to stay in Madagascar and that he wanted the Mother to live there with them.
27. He says the children are happy in Madagascar living with him and his parents. His evidence is that K is in nursery five days per week and is doing well there. S mainly stays at home and is looked after by a combination of the Father, Grandparents and servants employed in the house. The Father is working for the family business but works from home. He says that he usually take the children to the seaside at the weekend, where the family has a house.
28. The Applicant applied to the Court on 11 October 2016 in a without notice application. On the same day Holman J found on a provisional basis that the children were, on 27 August 2016, habitually resident in England and Wales; that they had been wrongfully retained outside the jurisdiction and that the court had jurisdiction in respect of matters of parental responsibility under BIIA. He ordered that they be made wards of court and ordered the Respondent to attend the next listed hearing.
29. The matter was adjourned by Moor J on 27 October as the Applicant's solicitors were awaiting information regarding the Respondent's whereabouts. It was adjourned again on 10 November by Baker J for the same reason. On 16 November Russell J again ordered the Respondent to attend.
30. On 14 December the matter came before Cobb J, who requested the Madagascan authorities to assist the Applicant in locating, safeguarding and facilitating the return of the children to England. He also requested the Foreign and Commonwealth Office and HM Passport Office to issue Emergency Travel Documents for the children.
31. Moylan J on 8 March made directions for a final hearing, ordering that the Respondent must either attend the hearing personally or attend via video link.

The law

32. The first issue is whether the children were habitually resident in England as at the date of their removal, or whether they are habitually resident in Madagascar. Before considering the correct legal approach to the determination of habitual residence as a matter of fact, it is necessary to establish the correct jurisdictional starting point.
33. Mr Bennett in his Skeleton Argument raised jurisdiction as an issue, and argued that the Court did not have jurisdiction because the children were habitually resident in Madagascar when the Mother commenced proceedings. During the hearing he was rather more realistic and conceded that the Court did have jurisdiction, but tentatively argued that it was only on the basis of Article 14. Given that habitual residence was by this stage effectively conceded, I will deal with the matter relatively briefly.
34. It is not in dispute that jurisdiction relating to matters concerning parental responsibility in England and Wales is governed by Council Regulation (EC) 2201/2003 (Brussels IIA).
35. The relevant articles are;

a. Article 8;

The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

b. Article 10, as relevant states;

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 …

c. Article 12(3)

3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:

(a) The child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State;

And

(b) The jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.

d. Article 14, which provides for the situation in which the child has no habitual residence.

36. Dr George argued that the Court had jurisdiction on four alternative grounds – articles 8, 10, 12 and 14. Mr Bennett in his Skeleton Argument sought to argue that Article 10 does not apply between a Member State and a non-Member State (self-evidently Madagascar is not a member state of the EU) . However, this matter was considered and decided by the Court of Appeal in Re H (Jurisdiction) 2014 EWCA Civ 1101, where it was held that Article 10 did apply in those circumstances. Mr Bennett conceded in oral argument that the Court did have jurisdiction under Article 14. He also accepted that Article 10 applied, which would necessarily mean that the Court had jurisdiction under that limb as well.
37. There is no doubt that the children were habitually resident in the UK on 25 August 2016 when they left England to fly to Delhi, and that they remained habitually resident here when the Father took them to Madagascar. On the assumption, which is undoubtedly the case that Article 10 applies then the relevant date for determining habitual residence is the date of the wrongful removal of the children.
38. Further, and in any event I agree with Dr George that Article 8 applies and they remained habitually resident on the date when the Court was seised, namely 11 October 2016. The tests for habitual residence in this context has been recently considered in a number of Supreme Court and CJEU decisions. The principles are helpfully summarised by Hayden J in Re B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam). The key parts for present purposes are in para 17;

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);

39. These children had spent their lives in England. K had spent one period in Madagascar but that was a holiday and not in any sense a period in which he was residing there. Their Mother, who undoubtedly had been their primary carer, remained in England. They are UK citizens. It is not clear that as at October 2016 the Father had determined to remain in Madagascar and as at October 2016 the main focus of their lives remained in the UK. It is difficult to see how they had stability in Madagascar at a point when they had been removed there without the Mother's consent and at such a very young age.
40. For all these reasons I have no doubt that as at October 2016 the children remained habitually resident in England. I should add that I am not convinced that Article 12(3) applies because the Father's consent to the proceedings has not been clear cut. I do not need to consider Article 14.
41. In those circumstances the next stage of the legal analysis is whether it is in the best interests of the children for me to order that they be returned to the UK, so that this court can determine what arrangements should be made in respect of them. The legal approach in non-Hague Convention cases is set out in Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80. The principles from the speech of Baroness Hale are well known and I do not need to set them out in detail. The Court must act in accordance with the welfare of the children (para 25); summary return should not be the automatic reaction but may be in the best interests of the child (para 28); the judge may find it convenient to start from the proposition that is it is likely to be better for the child to return to his home country for any disputes about his future to be decided there but the weight to be given to that proposition will vary enormously (para 32); an important variable is the degree of connection with each country (para 33); and the length of time the child has spent in each country (para 34); great weight should be given to the child's need for a meaningful relationship with both his parents (para 41).

Findings of Fact

42. In respect of the events leading up to the flight to Delhi and the events in Delhi, I very much prefer the Mother's evidence to that of the Father.
43. As Dr George submitted, it does not make a great deal of sense for the father and children to have flown to Delhi if the family's intention was for them to fly on to Madagascar and if the Mother had been aware of this throughout. Delhi is not on the way to Madagascar and the Father then flew back to Abu Dhabi to change planes for Madagascar. Such a course of conduct makes even less sense with very small children. It therefore seems to me to be highly likely that the Mother did not know of the Father's plan, and that he flew to Delhi in order effectively to leave her in India and remove the children.
44. Further support for the Mother's evidence comes from the statement from the Indian police that she had sought their help when the children were removed. I can see no possible reason why the Mother would have done this if her evidence was not true. The fact that there were no return flights booked from Madagascar, although in no sense determinative, also adds weight to the Mother's version of events.
45. I also do not accept the Father's evidence that the Mother had control of her passport and that this was evidence that she also had the relevant tickets and therefore knew the plans. There is no doubt that the Mother obtained a new passport in India dated 2 September 2016. It would be an extraordinary coincidence if the Mother happened to lose her passport at exactly the point her husband and children went to Madagascar. Again I think it far more likely the Father retained the Mother's passport or disposed of it, as part of the plan to leave the Mother in India and that she did not have sight of her ticket on her own to Seurat.
46. The Father said in oral evidence that the social worker knew about the plan for a holiday in Madagascar. However, this had not been mentioned in statement before and there is no supporting evidence.
47. The youngest child S was 11 months old when he was taken to Madagascar. Up to that point the Mother had been his primary carer, the Father working, on his own evidence, very long hours. The Mother case is that S was still breast feeding. It seems unlikely that the Mother would have agreed for him or K to go to Madagascar with the Father, without her.
48. I therefore find that the Father did wrongfully remove the children, without the Mother's knowledge or consent, when he took them from Delhi to Madagascar.
49. I further find that the Father has wholly wrongly, and inexcusably, denied the Mother contact with the children since at least October 2016. These are very young children who had spent virtually their entire time with the Mother until the Father wrongly removed them from her care. The Father's conduct both to the Mother, but also to his own children can only be described as callous in the extreme. It may be that the children were upset by seeing their Mother over the IMO internet link, but that can only be as a consequence of the Father's actions in removing them in the first place.
50. Although the Father said in his oral evidence that he would now facilitate contact between the Mother and the children, I find that I can place absolutely no reliance on that statement. Up until giving that oral evidence the Father had made no proposals for contact, and said that he thought contact would be detrimental for the children. This indicates to me that firstly he is unlikely to continue to support contact and secondly that he has no appreciation of the importance for the children of having close contact with their Mother.
51. The Father argues that the children are happy and settled in Madagascar and that it is in their best interests to remain there. He points to the material advantages that they have there. He did make an allegation of physical chastisement of the children by the Mother, but that was withdrawn at the hearing by Mr Bennett.
52. In my view it is plain that is in the best interests of these children to return to the UK as speedily as possible so that they can be reunited with their Mother and the English court can decide, on full evidence, what is in their best interests in the long term. It is open to the Father at that stage to argue that the children should return to live in Madagascar.
53. Firstly, the Mother was at all times before their wrongful removal their primary carer. There can be no doubt, both from their young age and the Mother's evidence that she had an extremely close relationship with them. It is not in their interests to be separated from her.
54. Secondly, there are serious allegations of domestic violence here. I am not in a position to make findings of fact upon them, but I am concerned that it is not in the children's interests to leave them in the sole care of the Father without these allegations being investigated and properly considered by a Court. As was said in Re L (Contact: Domestic Violence) [2001] Fam 260, domestic violence is a significant failure of parenting – by the failure to protect the child's carer and to protect the child emotionally.
55. Thirdly, I accept the children have been in Madagascar for 6 months and that is a relatively long period in their short lives, particularly that of S. However, that fact does not remove their exceptionally strong interest in having a close relationship with their mother, and ignores the reason why they have spent 6 months in Madagascar, namely the wrongful removal.
56. Fourthly, the Father by his conduct has shown himself to be entirely unfeeling to the needs of his children. To remove two such young children from the care of their mother, remove them to another country and then deny them contact with their mother suggests a lack of understanding of their needs and feelings that gives me absolutely no confidence that it is in their best interests for them to remain in Madagascar in his sole care.
57. Mr Bennett points out the Mother does not allege that the children are suffering any form of harm in the Father's care. However, I have no doubt they suffer emotional and psychological harm from being separated from their mother. In terms of any other form of harm, I accept there is no evidence of any such harm.
58. Fifthly, Mr Bennett argues that there is no detailed information about accommodation or other proposals for the children if and when they do return. However, the Mother is in the course of arranging new accommodation and there is no reason to believe she would not obtain this if the children return to her care. It is not reasonable to expect her to have accommodation at this moment given the uncertainty over the children's position.
59. For these reasons I will make an order for the children's return to the UK and into the care of their Mother.

29/3/17