England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22 November2019

MRS JUSTICE JUDD:

1. This is an application by a father, AB, for the return of his son, E, who was born in 2016 to Brazil, pursuant to the Hague Convention 1980. It is opposed by the respondent mother, CD.

Background

2. The father is a Brazilian National. The mother has dual nationality. All E's grandparents live in Brazil, as well as other family members. The mother left Brazil in 2004 when she was a student and spent time in Europe and elsewhere. She arrived in the UK in 2007 and since then has had an academic career, doing an MPhil, from 2007 to 2008, an MSC, an MBA and then a PhD. She has been awarded a number of scholarships and in 2016 she became a British Academy Postdoctoral Fellow at a prestigious university for a period of three years, due to end in October 2019. When she gave birth to E the Fellowship was extended to allow her a period of maternity leave.
3. The father has lived in Brazil, at least until he met the mother, for his entire life. He runs a business which he founded with a friend in 2004. He lived in a rented flat for about nine years, which he gave up about two years ago because, he says in his statement, it would not be convenient financially to pay for rent in both Brazil and the UK.
4. Since October 2017 the mother has rented a flat in her own name in the university town. She has lived there with the father, save for periods of time when he and they have been in Brazil, and, after he was born, E.
5. After E was born, he remained in England continuously from his birth until he was about 4 months old, when the family went to Brazil for a period of two months. During the period before that, the mother was in England for the whole time and the father for most of it, although he travelled to Brazil two or three times and for one period of over two weeks.
6. After two months in Brazil the parties and E returned to the UK for three months, and then returned to Brazil. They had return tickets booked to England just over a month later. After about 4 weeks in Brazil, in circumstances which are disputed, the parties decided to delay the return date by another six weeks so that the period of time they were expecting to be in Brazil would be for some two and a half months. During this period of time the mother underwent an operation for a minor, but painful, condition.
7. About three weeks before they were due to come back to the UK there was an argument between the parents because the father had become fed up with being at the maternal grandparents' home. He left and went to stay with another family member for a bit and then in some other family accommodation. About a week after this the mother suddenly left Brazil with E to visit a friend in North America, she says to discuss a job offer with a company which is based in London. The father, who said he had no idea about this plan, was distressed and claimed that the mother had abducted their son. The mother and E returned to the UK about a week later, by which time the father had filed a formal complaint as a child abduction with the Brazilian Authorities. He then commenced this application.

The Parties' Respective Cases

8. The father's case is that E was habitually resident in Brazil at the time of his removal by the mother, and that his removal was made without his agreement and was therefore wrongful within the meaning of Article 3 of the Hague Convention. In the statement filed on his behalf at the commencement of the proceedings, it is said that:

"It is the father's case that whilst the child had periods of time staying in England and Brazil, the child was habitually resident in Brazil immediately before the wrongful removal."

In the father's own statement, after setting out a substantial amount of detail as to the arrangements for the family in Brazil and what he considered to be their future intentions, the father states that:

"E's state of settlement alternated between the two countries, Brazil and England, and he became integrated at each environment when he was there."

The father's case is that he did not consent to the mother removing E and indeed that his consent was based on the particular circumstances that he would go to England and on the premise that the parties would stay together as a family. So far as the mother's Article 13(b) defence is concerned, he is prepared to offer undertakings. In the event that the court concludes that E is not habitually resident in Brazil, I am invited to return him to Brazil pursuant to the inherent jurisdiction.

9. The mother's case is, firstly, that E has never been habitually resident in Brazil and in particular was not so on the date he was removed, so that the Convention does not apply and the removal was not wrongful. In the alternative, she states that the father consented to her taking E to North America and then back to England. She says that the father knew of and agreed to the plan for her and E to go to North America, even if it was only discussed a few days beforehand. Even if I do not accept that the father knew of the particular plan, it is argued that the consent to the removal to England was not vitiated as the time of the mother's departure with E there had been no decision to separate and the mother was intending to go back to England. Finally, the mother relies on Article 13(b), stating that
   a return to Brazil would present a grave risk of harm for E and that he would face an intolerable situation.
10. The Law – Habitual Residence

I have been provided by both parties with submissions on the law in relation to habitual residence, and I have read and considered them both carefully. I intend to quote from the position statement prepared on behalf of the father. In the case of TY v HY [2019] EWHC 1310 Fam, the relevant principles to be considered were summarised by MacDonald J:

"35. The term 'habitual residence' is not defined in the 1980 Convention or the 1985 Act. The Court of Justice of the European Union has however stated that habitual residence will be evidenced in each case by some degree of integration by the child in a social and family environment (see Re A (Area of Freedom, Security and Justice) [2009] 2 FLR 1).

36. Whether there is some degree of integration by the child in a social and family environment is a question of fact to be determined by the national court, taking into account all the circumstances specific to the individual case. Within this context, the factual enquiry in this case must be centred throughout on the circumstances of the NY's life that are most likely to illuminate her habitual residence. With respect to those circumstances, in Re A (Area of Freedom, Security and Justice) and Mercredi v Chaffe [2011] 2 FLR 515 the Court of Justice of the European Union identified the following, non-exhaustive, list of circumstances that might be relevant in a given case:

i) Duration, regularity and conditions for the stay in the country in question;

ii) Reasons for the parents move to and the stay in the jurisdiction in question;

iii) The child's nationality;

iv) The place and conditions of attendance at school;

v) The child's linguistic knowledge;

vi) The family and social relationships the child has;

vii) Whether possessions were brought, whether there is a right of abode and whether there are durable ties with the country of residence or intended residence.

37. The test articulated and illuminated by the Court of Justice of the European Union is the test that is applied by the domestic courts following the decision of the Supreme Court in Re A (Jurisdiction: Return of Child) [2014] 1 FLR 111). Whilst Re A (Jurisdiction: Return of Child) was not a case under the 1980 Convention, the Supreme Court made clear in Re KL (A Child) [2014] 1 FLR 772 that the same test is applicable in proceedings under that Convention. That decision, and the decisions of the Supreme Court subsequent to it in Re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] 1 FLR 772, Re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] 1 FLR 1486, Re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] 2 FLR 503 and Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] 1 FLR 561 have articulated the following principles of general application relevant to the case before this court:

i) It is the child's habitual residence which is in question and hence the child's level of integration in a social and family environment which is under consideration by the court determining the question of habitual residence.

ii) In common with the other rules of jurisdiction, the meaning of habitual residence 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.

iii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must also weigh up the degree of connection which the child had with the state in which he resided before the move.

iv) 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.

v) 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.

vi) In circumstances where the social and family environment of an infant or young child is shared with those on whom she is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned.

vii) In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parents who effected the move.

viii) The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day. There is no requirement that the child should have been resident in the country in question for a particular period of time.

ix) A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for her. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused.

x) Parental intention is relevant to the assessment, but not determinative. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely.

38. With respect to the latter point, the parents' intention to settle permanently in the State, manifested by certain tangible steps, for example the lease of a residence, may constitute an indicator of the transfer or residence (Case C-523/07) [2010] Fam 42). However, parental intent is only one factor, along with all other relevant factors, that must be taken into account when determining the issue of habitual residence (Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75).

39. In considering the question of habitual residence, it is not necessary for the court to make a searching and microscopic enquiry (Re B (Minors)(Abduction)(No 1) [1993] 1 FLR 988). In Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] 1 FLR 561 (a case not under the 1980 Hague Convention) Lord Wilson noted as follows at [45]:

"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."

40. Within this context, as noted above, the requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day and there is no requirement that the child should have been resident in the country in question for a particular period of time. In this regard, I note that in Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] 1 FLR 561 Lord Wilson noted as follows at [46]:

"One of the well-judged submissions of Mr Tyler QC on behalf of the respondent is that, were it minded to remove any gloss from the domestic concept of habitual residence (such as, I interpolate, Lord Brandon's third preliminary point in the J case), the court should strive not to introduce others. A gloss is a purported sub-rule which distorts application of the rule. The identification of a child's habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him:

(a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

(c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it."

"The term 'habitual residence' is not defined in the 1980 Convention or the 1985 Act. The Court of Justice of the European Union has however stated that habitual residence will be evidenced in each case by some degree of integration by the child in a social and family environment (see Re A: (Area of Freedom, Security and Justice) [2009] 2 FLR 1."

"Whether there is some degree of integration by the child in a social and family environment is a question of fact to be determined by the national court, taking into account all the circumstances specific to the individual case. Within this context, the factual enquiry in this case must be centred throughout on the circumstances of the child's life that are most likely to illuminate her habitual residence. With respect to those circumstances, in Re: A (Area of Freedom, Security and Justice) and Mercredi
v Chaffe [2011] 2 FLR 515, the Court of Justice of the European Union identified the following, non-exhaustive, list of circumstances that might be relevant in a given case:

(i) Duration, regularity and conditions for the stay in the country in question;

(ii) Reasons for the parents move to and the stay in the jurisdiction in question;

(iii) The child's nationality;

(iv) The place and conditions of attendance at school;

(v) The child's linguistic knowledge;

(vi) The family and social relationships the child has;

(vii) Whether possessions were brought, whether there is a right of abode and whether there are durable ties with the county of residence or intended residence."

11. The Hague Convention applies to any child who is habitually resident in a contracting State immediately before any breach of custody or access rights. It follows, therefore, that the first point for me to determine is whether or not E was habitually resident in Brazil before he was removed by his mother. Consent as a defence under Article 13 will only come into play if the answer to the first question is in the affirmative; likewise the defence under Article 13(b). Given the summary nature of these proceedings, I do not intend to set out exhaustively here the evidence written or oral of each of the parties on this or any other point. Having heard the parties and read the evidence, and after careful consideration, a number of points are clear. First, the mother left Brazil in 2004 and has been living in England since about 2007. When they commenced their relationship the father gave up his rented accommodation in Brazil, and when in England he lived with the mother in accommodation rented in her name. After the father gave up his accommodation, the parties had no home of their own in Brazil. When they visited they would stay with relatives, in particular the mother's parents and also the father's grandparents in a hotel owned by them. The mother has never had accommodation of her own in Brazil. She obtained a prestigious Fellowship which was due to last from 2016 to 2019 but was extended to 2020 to allow her to take a period of maternity leave following E's birth. The mother also took on responsibilities at the university, but relinquished them when her return from Brazil was postponed. The father had his own business based in Brazil, which he was able to run remotely from England, although it did require him to travel there from time to time, and when he was in Brazil he tended to go to work every weekday.
12. During the mother's maternity leave she spent the time looking after E, save that early this year she lectured on two days a week in London. She gave a one hour lecture on one of the days, and a two hour lecture on the other. She travelled to London on each of these days by train, leaving E in the care of his father for the time it took deliver the lecture and get there and back. E was registered with a GP and he went to music classes. The mother has many friends around the university and in London who have children, and they have been involved in many outings, trips and social gatherings since E's birth. These events have also included the father.
13. In Brazil each of the parents had close and wider family and also friends. E was taken to a paediatrician there once or twice, and when the parties were present in Brazil he was taken to music and some other classes. The mother had an urgent operation after the return was postponed, during which she spent two nights in hospital. During the most recent visit the family lived with the mother's parents in their apartment, but it was clear after a few weeks that the father was finding this very challenging and wanted to find other accommodation for the remainder of time before returning to England. He left immediately after the argument and went to stay with his family (and possibly in other accommodation for a day or two), where he remained, and was, when the mother left with E.
14. The parties did enquire as to the renting of an apartment for a month, although this was never taken up, maybe because events overtook them. The father has also produced
    a document which makes a sale proposal with respect to a unit of two suites and a parking space. The mother denied having anything to do with it, or any knowledge of it. Even if the document is genuine it was never suggested to her that she had been to view the property or that it had been seriously discussed, and I do not believe this is evidence of an intent on behalf of either of them to buy a property in Brazil, at least not in the near future. My judgment is that these parties had not decided where they would live in the long term, and that they were looking at various options, including Brazil.

Habitual residence at the time of the departure to Brazil (E's second visit)

15. The situation for the parties just before their departure to Brazil was that the mother was clearly habitually resident in England, in my judgment. Her home and job were here, so too were her child and her partner (for the most part). She was on a lengthy period of maternity leave, most of which she had spent in England. So far as E was concerned, he had been continuously in the care of his mother since his birth and had never spent a night away from her. He was fully breastfed until he was six months old. He travelled to Brazil with his parents between the ages of four and six months, staying with family members but also for a time in an Airbnb. He had been cared for by his father alone for several hours on two days a week between the ages of six and eight months, but apart from that he was usually cared for by the mother, or both parents. He was registered with a GP and had his routine medical treatment and checks here. In my view he was clearly integrated in the social and family environment in this country with his mother. He was also habitually resident in England, in my judgment.
16. The father's situation was a little different. He had spent much less time than the mother living in England and he travelled more frequently to Brazil for his work. He was living with the mother and E but his name was not on the tenancy agreement. He was also travelling in and out of the UK as a tourist. He did not have his own home anywhere else, although I accept his family in Brazil would always welcome him into their home, and he was managing to run his business remotely. His original intention was to go to Brazil for six or seven weeks when E was four months old and then to come back while the mother resumed her Fellowship. The likelihood is that as at the time the parties went to Brazil in April the father was still habitually resident in Brazil at this point, although with the passage of time and given the plans that the parties had at that particular stage, he was moving towards a new habitual residence in this country, but that stage had probably not been reached.

The Trip itself

17. The trip to Brazil was originally intended to be for a few weeks only as return tickets were booked. The plan was for the parties and E to base themselves with the maternal grandparents. At some point after about four weeks the parties decided to change the plan to come back after another 6 weeks and flights were booked then. It had been intended for the mother to come back and resume her work with students, but she decided for whatever reason not to do that and simply to rely on her income from the Fellowship, which she intended to resume at the beginning of the academic year. When the family were in Brazil the father went into work. The mother arranged to have an operation there. The family engaged in lots of social activities with other family members and friends, and E went to music and other classes. The mother had a job offer, as I stated earlier, and the parties discussed it. It seems to me that it was never in doubt that the parties intended to go back to England and resume their lives there, at least unless or until the mother found another job which was suitable for her, E, and also to the father. With this in mind the mother applied to the Home Office for a Tier 1 Visa. The father knew about it and assisted. There is a dispute between the mother and father as to why she did not include him later in Stage 2 of the application process. He maintains that she left him off without telling him, and she that he did not want to pay the fee and preferred to travel in and out on a Tourist Visa. I note that the father in his written evidence stated that he was hesitant to pay the fee for this application, but that he did not object to it being made. The father does not seem to have harboured any particular anxieties at any stage before the mother left Brazil that there would be any difficulty with his being able to travel back to England at the end of the visit to be with his family, and I accept the submission on behalf of the mother that he expected to be able to do so on a Tourist Visa albeit he knew that his situation would have to be regularised at some point.
18. Given the mother's long-standing residence in the UK and the plans that she and the father had made, I am clear again that she did not lose her habitual residence here at any stage during that trip to Brazil. Of course she had her own family ties to Brazil and still refers to it as home, but this is in the context of an expatriate who has made most of her adult life here. She had confirmed her return to her employment at University. She retained the family home with all her (and E's) possessions, and continued to pay rent and other bills on it. E continued to be registered with the GP and so did she. The fact that she had an operation while she was in Brazil or that she and the father considered renting an apartment for one month, or that they had a wonderful time with family and friends, falls a long way short of providing the sort of evidence that the mother could have lost her habitual residence here, let alone acquired a new one in Brazil. Evidence was provided that a year or so earlier she had explored job opportunities in Brazil, but this does not change my view, and I note that there was no evidence that she was exploring employment in Brazil when she was there most recently.
19. I accept that the mother and father had not come to a firm view about where they would wish to live in the long term, and that they were considering all options including Brazil, but this was well in the future. The current plan was to go back to England. There was no particular date in mind for a return to Brazil by any of them, or indeed to go anywhere else after that.
20. I also note that during the time they were in Brazil the family did not have particularly stable accommodation. They were staying with the elderly maternal grandparents in their apartment, but even for the limited amount of time they expected to be there it was not a happy arrangement, at least so far as the father was concerned, and the family looked around for something else to stay for a month or so.
21. So what does all this say about E's habitual residence? It is his habitual residence which is relevant for the purposes of the Convention, not that of either of his parents, and it is upon him that I must have my focus. It is right that by the time of his departure he was almost a year, and had spent almost five months of his life in Brazil. I expect that he was used to hearing both English and Portuguese spoken to him. In Brazil he was with not only his parents but also grandparents, great-grandparents, aunts, uncles and cousins. He had visited
    a paediatrician in Brazil and he went to music classes as well as many outings and family gatherings. His accommodation was not settled, which is not surprising given the parties' plans. At his very young age his world and his security is very much tied up with those who care for him. In this case it is the mother who I find is the parent who spent most of the time with him and was most intimately involved in his care. In saying this I do not want to minimise the father's role, but his characterisation of himself as the primary carer of E's is simply not borne out by the evidence. He tried to suggest that E was not cared for by his mother in Brazil when he was at work, but by others, something I did not believe. I find that like his mother, E was visiting Brazil between their arrival and the date of their departure, visiting the extended family and taking advantage of the fact that the mother was on maternity leave. It started off as a relatively short visit. It was extended, but it never constituted residence. The fact that the father may have retained his habitual residence in Brazil, at least for the time being, does not alter that fact.
22. In all the circumstances, therefore, I find that at the relevant date E was not habitually resident in Brazil but in fact that he was habitually resident in the United Kingdom. It follows from that that the father's application cannot succeed and I do not need to go on and consider the question of consent. I have to say that having heard evidence about it, whilst I believe the mother did discuss going to North America to see her friends and discuss possible job opportunities, with the father, and indeed that he encouraged it,
    I do not think he realised that she and E were going to go there and then and just like that.
    I think the mother must have known about the flight she and E were about to take during the day she spent with the father and chose not to tell him.
23. The situation between the parents was very fraught. They had just had an argument and I do not doubt that each of them was very upset. The mother, I find, decided to cut the Brazil trip short and go back to England via North America. No doubt she knew the father would not want her to do that, so she did not tell him about that until she was at the airport. He was really, really upset and quickly invoked the whole child abduction process, reporting her and her family to the police. He suggested that he had not been able to contact the mother at all, which I find he knew not to be true.
24. This action on behalf of the mother was not an abduction within the meaning of the Convention, or indeed in any other sense. She cut short the trip that they were on and returned home; her home, E's home. Even if I am wrong about that, I also consider that the father had unequivocally consented to E going back to England. In coming to this view I am guided by the judgment of Ward LJ in Re P-J (Children) (Abduction: Consent) [2009] EWCA Civ 588; [2009] WLR (D) 207 for a summary of the main principles that should be applied by the court in examining the issue of consent:

"In my judgment the following principles should be deduced from these authorities.

(1) Consent to the removal of the child must be clear and unequivocal.

(2) Consent can be given to the removal at some future but unspecified time or upon the happening of some future event.

(3) Such advance consent must, however, still be operative and in force at the time of the actual removal.

(4) The happening of the future event must be reasonably capable of ascertainment. The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled. Fulfilment of the condition must not depend on the subjective determination of one party, for example, "'Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child." The event must be objectively verifiable.

(5) Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract.

(6) Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.

(7) The burden of proving the consent rests on him or her who asserts it.

(8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

(9) The ultimate question is a simple one even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?"

25. The father had not agreed to E leaving Brazil as early as he did, or to his going via North America, but he had agreed that E was going back to England. Things had been very difficult between the parties for the week before the mother went, but the parties had not called time on their relationship nor had anyone, not least the mother, concluded that they should not come back. That was still the plan even though the parents obviously both thought that they needed to have some couple therapy and to work on their relationship. When she left Brazil with E the mother was on her way to England, albeit she was going via North America. The plan to return to England had not been changed and the father had not revoked his consent to that. So I do find the defence of consent proved, although I do not, as I have already made clear, accept all the mother's evidence on this point. I think both the father and the mother have not been entirely frank in their evidence about what happened then.
26. Given my finding, first of all, that E was habitually resident in England and was not habitually resident in Brazil immediately before he was removed from Brazil, and also my finding, (which is not necessary but I still make), that the father did unequivocally consent to his removal, there is no need for me to go on and consider the mother's Article 13(b) defence.
27. The father invites me, in the event that I do not find E to be habitually resident in Brazil, to make an order for his return under the inherent jurisdiction. This is an invitation
    I decline, as I would need to have more detailed welfare evidence on the point, which I do not. The father's applications are therefore dismissed.
28. I want to say that I do have considerable sympathy for the father and the mother in the situation that they find themselves in. Their relationship is relatively new, even though
    I read from the statements that they have known each other for very many years. I hope that this will stand them in good stead, as well as the fact that their wider families communicate. They both adore their son, and I am sure that he has brought them both joy every day of his life. No doubt it is possible in a new relationship, and in an international relationship, for mistrust to creep in between the parents. I do not doubt that the father felt wrong-footed and extremely insecure when the mother left Brazil in June, and I have no doubt that that is what inspired him to make all the applications that he did. Both these parents have a lot to offer their child. I do hope that the way that these proceedings have come about does not mean that they remain at loggerheads forever. I do hope that even if their relationship stays separate and they even live in different countries that they are able to come to a working arrangement so that they can both share in the relationship with their son, which I am sure that he very much needs. I hope they can achieve some sort of closure after the very torrid time that they have both had in the last months.
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