England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/10/2018

HHJ JESSICA PEMBERTON:

1. This is an application by the applicant father for the summary return of the child, A (dob [a date in] 2014) (A boy), to Latvia. It is opposed by the mother.
2. The mother denies that the child was habitually resident in Latvia on 4 July 2018, the date of removal and in the alternative, the mother relies on article 13 (b), i) acquiescence (by conduct); ii) grave harm and iii) intolerable situation and invites me to exercise my discretion and refuse to return A to Lativa.
3. The applicant is RV, whom I shall refer to as the father throughout this judgment. He was born in Latvia on [a date in] 1991 and is now 27 years old.
4. The Respondent is VT. She is of Russian origin, but lived in Latvia from birth/an early age. She was born on [a date in] 1994 and is now 24 years old.
5. The father's application was issued in August 2018 and came before Mrs Justice Parker on 23 August 2018 who made an ex parte order to locate the mother and child. At a further hearing on 19 September, directions were given for the filing of further evidence and this hearing was listed.
6. Both parents had the assistance of an interpreter at this hearing. Whilst the mother was not legally represented at this hearing, she was legally represented and advised on the preparation of her statement and the statement of defence filed on her behalf was prepared by Charles Strachan solicitors. The mother is clearly an articulate and intelligent young woman and I am satisfied she has been able to fully follow participate in the proceedings.
7. I have read all of the papers filed in the trial bundle and the position statement and case law filed on behalf of the applicant father.
8. I have heard oral evidence from both parents.

Background and evidence

9. There is a large measure of agreement between the parents as to the background and the arrangements for A prior to his return to Latvia. Indeed, there is no real dispute about the arrangements for A whilst he was in Latvia. The real question is whether these arrangements led to A gaining a new habitual residence.
10. The parents met in 2009 whilst living in the same city in Latvia and I understand their relationship commenced shortly after meeting.
11. A was born in Latvia in 2014. At that time the parents were living with the maternal grandparents. The parents moved in October of that year to stay with the mother's brother who lived in England. The mother says this was a decision to permanently move but it is the father's case that there was no agreement to live in the UK permanently and no discussion about such a plan. Nevertheless, the family clearly settled in England and remained in this country for nearly 4 years.
12. A was registered with a doctor and in due course, a dentist and with a nursery in England. The father obtained employment and the mother stayed at home for the first year to care for A.
13. It is common ground between the parents that the relationship was unstable, the mother alleges that the father cheated on her on a number of occasions, whilst the father alleges that the mother would go out socialising on a frequent basis.
14. The parents and A were living in a household with the maternal uncle and maternal uncle's partner and at some stage the maternal grandmother joined them. The couple decided to get their own home in early 2016. By this time the mother was also in paid employment and I understand that the parents made arrangements for them to share the care of A.
15. Sadly, the change of accommodation did not lead to greater stability in the relationship and the parents separated for a final time in September 2016.
16. The parents lived separately with A spending time with both of his parents. The mother complains that the father's interest in spending time with A decreased and he began spending less regular time with his son. The father states that it was the maternal grandmother who was providing the majority of care for A (until sometime in the summer of 2017), whilst the mother was working in a bar and the father alleges, continuing with her "partying lifestyle". The father was working and states he was supporting A by buying him clothes and other necessary items.
17. There is a dispute as to how much care the father was providing for A during this period, but on both parents' accounts, A was spending significant periods of time with each of them.
18. It is the mother's case that separation of the parents led to her struggling financially and she alleges that there was no financial support from father. These financial difficulties, she says, led to her proposing that A go to stay with the maternal grandmother who was once again living in Latvia. She states that the proposal was for A to stay in Latvia "for a few months". She states that the agreed plan was for him to stay in Latvia from February until sometime after his birthday in June. She states that it was agreed between the parents that A would then come back to the UK in the summer of 2018. Although no set date was agreed, she states it was agreed that it would be after his birthday.
19. It is clear that the parents agreed that A should go to stay with his grandmother in Latvia. The dispute between the parents is whether this was intended to be a permanent or long-term move or whether it was always agreed as a short-term and temporary measure.
20. The written evidence of both parents is unfortunately vague and at times clearly incorrect in terms of dates. For example, the mother's statement refers to A being transported to Latvia on the 23^rd June. This is clearly an error.
21. Whilst both parents were able to provide a little more detail through their oral evidence, it is unfortunate that a large focus of both parents' evidence was on complaints about each other's behaviour rather than the life experiences and perceptions of their son. However, both parents in their oral evidence did present in a straightforward way. I am satisfied that both were trying to assist the court in explaining their own perception of the circumstances.
22. The mother travelled with A to Latvia on 23 February 2018. She stayed with him for four days. She then left him in the care of his maternal grandmother. Arrangements were made for him to have contact during the weekends with his paternal grandparents.
23. The father travelled to Latvia at the end of March. He had informed the mother that he intended to stay for a two-week holiday. He told me in his oral evidence that it was only when he arrived in Latvia and realised how much he had missed his son, he changed his plans and decided to remain in Latvia. He did not communicate this plan to the mother. He stayed with and continues to live with A's paternal grandparents.
24. On his arrival in Latvia, he assumed care of A and A was registered as living with him at his address (the home of the paternal grandparents). An agreement was made between himself and the maternal grandmother that A would spend time at the weekends with the maternal grandmother.
25. In his oral evidence the father told me that he assumed full time care of his son, the day after he arrived in Latvia, i.e. on 1 April. He secured employment some two weeks later, at which point A began attending nursery.
26. The mother expresses that she was disappointed that the father had not informed her directly of his intention to remain in Latvia and that he had not discussed the arrangements for A with her. The mother states that she received the information via the maternal grandmother. However, I note that she took no steps to communicate with the father nor to alter the arrangements the father was putting in place.
27. The mother refers to receiving information via a mutual friend of the parents that the applicant intended to stay full-time in Latvia and for A to live with him. The mother says she sought advice both from the citizens advice bureau in England and in Latvia. The advice she received was that the father could not retain A in Latvia as he was habitually resident in England.
28. In her statement, the mother refers to return visits to Latvia to see A, but she does not specify how frequently she visited or when these visits took place.
29. During the course of the father's evidence he confirmed that she had visited at the end of April for four or five days. The mother agreed that this was the case.
30. The mother then arrived in Latvia at some point a few days prior to A's fourth birthday. The mother had by this time purchased tickets for herself and A to leave Latvia on 4 July.
31. The mother complains that when the father delivered A to her care on 24 June 2018, he did not inform the mother that he wanted A to live with him, nor did he inform her that he objected to A leaving Latvia. The mother however accepts that she did not raise either of these subjects. It is the father's case that there was a verbal agreement between the parents that A would stay with his mother for "a few days" and be returned to his care on 4 July.
    
32. One thing I have found remarkable in this case is the apparent lack of discussion and planning that these parents engaged in to determine the best arrangements for their son. They share parental responsibility for their son yet both complains that the other failed to consult them on important issues. Despite these complaints, neither of them appeared to instigate or recognise the need for them to sit down and discuss the arrangements for their son, and in particular where he would live and be educated from September 2018.
33. It is the father's evidence that the mother indicated that A would need to be in the UK from September, in order to begin school. The father told me that he agreed with the mother that "something needed to be sorted out" but did not at that stage or, as far as I can tell at any other stage instigate a conversation with her about how this issue would be resolved. There is also no evidence that he informed the mother of his view that A should remain living with him in Latvia. When I asked the father what A himself believed would happen in September, he told me that he had not discussed these matters with A.
34. Whilst A was at this stage only just 4 and his wishes and feelings and views on his future carry limited weight, but I am conscious and aware of the amount of preparation that usually goes into preparing children for attending at full-time school. A did not have such preparation.
35. I do not consider that either parent had a defined or clearly considered plan as to where A would live, long term, and indeed the father suggested during his oral evidence a tentative plan that A would spend one year with his father and the next with his mother. I note that neither the mother nor the father seemed to have any sense that this level of uncertainty and lack of communication about their child's life might be detrimental to his welfare.
36. During the course of the oral evidence the mother raised, for the first time, concerns about the care A had received whilst in Latvia. She told me that A had become more aggressive and started fighting and using rude language. This is not something she had referred to in her written evidence. It was at this stage during her oral evidence that she also raised complaints that have been made to the Latvian authorities ("orphans court"). On further enquiry it appears that following the father's complaint to the police about the removal of A from Latvia at the beginning of July, the grandmother had responded with criticisms and complaints about the care that had been afforded to A by his father. Neither parent appeared particularly clear about this information or the outcome, although both confirmed that there are no proceedings in Latvia and no action had been taken against the father.

Habitual residence and the Hague Convention - relevant law

37. This application is determined by reference to the provisions of the Hague Convention, the objectives of which were summarised by Baroness Hale in the decision of Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961 wherein she said at paragraph 48:

"The whole objective of the convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home' but also so that any dispute about where they should live in the future can be decided in the courts of their home country according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."

38. The starting point is Article 3, which specifies that the removal or the retention of the child is to be considered 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 the retention (my emphasis).
39. 'Habitual residence' is not statutorily defined. I have considered a number of cases that counsel for the father has referred me to in her position statement and submissions. I have found it particularly helpful to consider the judgment of Hayden J in the case of B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam) in which he summarises a number of propositions that can be gleaned from the five Supreme Court judgments, addressing habitual residence, delivered since 2013:-

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 loses a pre-existing habitual residence at the same time as gaining a new one (Re B);

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;

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);

40. Hayden J refers to the clear message emerging both from the European case law and from the Supreme Court, that the child is at the centre of the exercise when evaluating his or her habitual residence.  This will involve a real and detailed consideration of (inter alia): the child's day to day life and experiences; family environment; interests and hobbies; friends etc. and an appreciation of which adults are most important to the child.  The approach must always be child driven.  Habitual residence of a child is all about his or her life and not about parental dispute.  It is a factual exploration.  
41.  I have also found it helpful to consider the observations of Lord Wilson in Re B (a child)) [2016] UKSC 4.

"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."

My Analysis in relation to the facts of this case

42. It is clear that until February 2018, A was habitually resident in England. He had been in England almost all of his life and clearly had established full integration and stability.
43. Whilst his mother was his primary carer, his father played a significant role in his life (as did his maternal grandmother). They are no doubt the most significant people from his perspective.
44. His maternal uncle and his partner were also relevant adults although there is no evidence as to the extent of his connection with them immediately prior to his move to Latvia in February 2018.
45. From February until 1 April 2018, A lived with his maternal grandmother in Latvia. She was a familiar figure to him, having been part of his household or care provision for substantial periods during his childhood.
46. His mother was present for 4 days of this time at the beginning and visited for a further 4/5 days sometime at the end of April.
47. The Father arrived in Latvia on the 31^st March 2018 and assumed care of A the following day. From this point he lived with his father, paternal grandparents having regular contact with his paternal aunt and uncle and his paternal cousins. He spent time nearly every weekend with his maternal grandparents.
48. A began attending at a local nursery in mid-April 2018. Whilst the evidence in relation to the nursery attendance is very unsatisfactory (the letter from the nursery refers to A attending from September 2017, which cannot be correct as A was not even in Latvia at that time) the mother does not dispute that he commenced attending nursery in mid-April. She did not attend or speak with the nursery and is not a position to comment on his degree of integration in nursery life. His cousins attend the same nursery and A was sometimes collected from nursery by his paternal aunt.
49. He was registered with a doctor in Latvia.
50. A speaks Latvian, this being the language that is father and paternal grandparents spoke to him in. He also speaks Russian with his mother (and I believe his maternal family) and I believe he speaks English.
51. There was no clear plan as to when, or indeed if, he would return to the UK. The mother's intention was that A should return to her care in the UK in "the summer". Other than the original discussion about A travelling to Latvia to stay with his grandmother until sometime "after his birthday" in the summer, the mother's intention was never discussed with or communicated to the father.
52. The father delivered A to the mother's care under the belief that it was for A to spend a few days with his mother at the beginning of July 2018. The mother made a unilateral decision to remove A from Latvia. She did not tell the father of the plan or the date.
53. A did not have the opportunity to say goodbye to his father or his paternal family, or to have the opportunity to collect his belongings.

My findings

54. I find that the relevant date (4 July 2018) when the mother removed A, from Latvia, A was habitually resident in Latvia. I am satisfied that he was integrated into life in Latvia with many familiar family members around him. He was engaging in nursery life and making friends at nursery. He was living with his father and paternal family and having regular contact with his maternal grandparents. Whilst his mother was not part of his day-to-day life, she had visited and I am told, had regular telephone/ Skype contact. The familiarity of the people and places that were his day-to-day life in Latvia, I am satisfied will have led to him integrating relatively quickly, feeling familiar, stable and settled in his father's care. I am satisfied that the seesaw analogy referred to by Lord Wilson had tipped well and truly in favour of Latvia. As such, his removal by his mother on 4 July was wrong.
55. I have considered the defences pleaded on the mother's behalf in the statement from her then solicitors of 3 October 2018. Dealing firstly with the issue of consent. There is no evidence whatsoever that the father consented to the child's removal from Latvia, indeed, the evidence points to the alternative with the mother accepting that she did not tell the father about her plan to travel back to the UK because she "expected him to cause a scene". It was apparent to me from all of the evidence that she knew that the father would not consent to A's removal.
56. Furthermore, on 12 July 2018, the father contacted the Ministry of Justice in the Republic of Latvia to seek advice and assistance following his son's removal. This then lead to the current application.
57. The mother argues that the return of A, would place him at risk of psychological harm or otherwise place them in an intolerable situation. The defence pleaded is that he would be in unfamiliar surroundings with unfamiliar people. This is simply not factually correct and it was in fact the mother herself, who placed him in Latvia in February 2018.
58. I do accept that separation from the mother will be distressing for A. In the defence statement, the mother asserts that she is unable to return to Latvia due to the commitments in England. I do not have any details about this. I hope she will be able to look at ways of travelling to Latvia to spend significant periods of time with her son. I note that the mother herself did not see separation of A from his parents, for a period of several months between February and the summer, as placing A at grave risk of psychological harm or placing him in an otherwise intolerable situation. Whilst I accept that he has now started school in the UK, this in itself is insufficient to satisfy me that a return to Latvia would place him at such risk.
59. Whilst the mother raises the issue of "settlement" in her defence statement given that this application was made immediately following the removal of A from Latvia and not after a 12 month period, I cannot see that the discretion is available.
60. For all of the above reasons, I order that A should be returned to Latvia within 14 days, and I invite discussion between the parties as to the practical arrangements for this.