High Court of Justice in Northern Ireland Family Division Decisions

The application

Background

(a) 1986-1990 – Bahrain.

(b) 1990-1991 – Paris.

(c) 1991-1992- Cyprus.

(d) 1992-1994 – Jeddah.

(e) 1994-1996 – Dubai.

(f) 1996-1998 – Jordan.

(g) 1998-2001 – Jeddah.

Habitual residence

(i) The question of whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. (see Re J (a minor) (abduction: custody rights) 1990 2 AC 562. The concept of habitual residence if widely accepted in family law cases throughout the Hague Convention countries and beyond principally because of the flexibility of the notion and its ability to respondent to the demands of a modern mobile society which to some extent serves to trump the notion of domicile or nationality. It is worthy of note that in order to preserve that notion of flexibility, no definition has ever been embraced within the Hague Convention or any of the subsequent Hague conferences.

(ii) The court should normally stand back from the evidence and take a general view rather than conducting a microscopic search. Rules concerning the burden of proof or inapposite to the approach of the court which is never adversarial, nor inquisitorial, but sui geners (see Re N (child abduction: habitual residence) 1993 2 FLR 124.

(iii) There is general agreement on a theoretical level that because of the factual basis of the concept there is no place for an habitual residence of dependence (see Veaumont and McEleavey "The Hague Convention on International Child Abduction" at page 91). The reality is however that in practice it is often not possible to distinguish between the habitual residence of a child and that of its custodians. In Re F (a minor) (child abduction) Butler-Sloss LJ (as she then was) stated:

"A young child cannot acquire habitual residence in isolation from those who care for him. While 'A' lived with both parents, he shared their common habitual residence or lack of it."

(iv) I do not consider it is possible for one parent unilaterally to terminate the habitual residence of a child by removing the child from the jurisdiction wrongfully in breach of another parent's rights (see Re J (a minor) (abduction: custody rights) (1990) 2 AC 562. In my view one parent may not unilaterally change a child's habitual residence without the agreement of the other parent, unless quite independent circumstances have arisen pointing to a change. (see Re A (wardship: jurisdiction) (1995) 1 FLR 767. In substance therefore, it is my view that both in Hague Convention cases and, as in this instance, non-Hague Convention cases, a wrongful removal or retention must not be allowed to bring about a change in habitual residence of the child involved because to allow otherwise would legitimise the abductor act unless wholly exceptional and particular circumstances obtained. In Re J (a minor) (abduction: custody rights) 1990 2 AC 562, in the course of a Hague Convention case, Lord Donaldson said:

"In the ordinary case of a married couple, in my judgment it would not be possible for one parent unilaterally to terminate the habitual residence of the child by removing the child from the jurisdiction wrongfully and in breach of the other parent's rights."

The rationale is derived from the view that an habitual residence can only be acquired voluntarily and cannot therefore result from a wrongful act. Obviously the passage of time maybe the exceptional circumstances that will override that principle eg. if the child has resided in the particular country for many months and is well integrated into the local environment. An interesting case in this context is Re HB (abduction: children's objections) 1997 1 FLR 293 where is was conceded by an abducting respondent that a child who had originally come to England as part of an open ended stay, would not be returning, still retained his habitual residence in the country of origin in Denmark. Certain academic concern has been raised as to whether in fact the boy may have lost his habitual residence by the time the return petition was initiated, particularly where the views of older children are sought, but I remain unconvinced that such a short period of time would be likely in most circumstances to bring about such a change.

(v) It is possible that a family, or part of a family, may have severed all ties with their habitual residence without necessarily relocating to a particular destination. Thus one parent theoretically might tire of a peripatetic existence and return with children to the former home country. In the meantime the other parent may continue to settle in the state from which the children were removed. In such circumstances potentially a gap may exist during which, on an objective assessment, the child may not be said to be habitually resident in either place. However, the courts do strain to avoid finding a lack of habitual residence especially where, on a broad canvas, the child has settled in a particular country (see Re F (a minor) (child abduction) 1992 1 FLR 548.

(i) For at least the last four years all of these children have been not only essentially resident in Bahrain but have been integrated into the local environment. There they had their primary home, their school, their friends and their established way of life. Visits to Northern Ireland have been sporadic and usually for defined purposes for a short finite period.

(ii) I believe that the respondent in this case recognised this as recently as a short time prior to her departure from Bahrain to Northern Ireland. Attempts had been made to draw up an agreement between the parties to settle their matrimonial family affairs and whilst such an agreement was never finalised, it is clear from the drafts put before me that the mother never seriously suggested that the children had an habitual residence in Northern Ireland or that they should live anywhere other than Bahrain. I believe that this is indicative of the mother's recognition that Bahrain was their habitual residence.

(iii) I recognise that presently all three children are enrolled and attending at schools in Northern Ireland as well as having been registered with the local general practitioner and dentist. They are also significant family ties in Northern Ireland with the respondent's immediate family residing in Northern Ireland. However, I do not believe that the mother or these children have yet been settled in Northern Ireland sufficiently long to have formed a settled intention to take up long term residence here so as to expunge the habitual residence in Bahrain. That is particularly so when as in this instance the children have been abducted. The decision of Sir George Baker P in Puttick v Attorney General and Another (1980) Fam 1 clearly establishes that a fugitive from foreign justice will not acquire habitual residence in this jurisdiction simply by reliance on a temporal period during which the claimant has outwitted authority. In a very different context, dealing with the concept of settlement within the Hague Convention, Thorpe LJ said in Cannon v Cannon (2005) 1 FLR 187:

"This brings me to the second factor, namely the impact of concealment or subterfuge on an assertion of settlement within the new environment. The fugitive from justice is always alert for any sign that the pursuers are closing in and equally in a state of mental and physical readiness to move on before the approaching arrests. … To consider only the physical element is to ignore the emotional and psychological elements which in combination comprise the whole child. A very young child must take its emotional and psychological state in large measure from that of the sole carer. An older child will be consciously or unconsciously enmeshed in the sole carers web of deceit and subterfuge."

I think these broad general principles apply equally well to the question of acquiring habitual residence with the necessary sole intention when, as in this instance, children have been wrongfully taken from one jurisdiction to another. Accordingly I do not consider that habitual residence has been established in this instance.

Recovery of a child from Northern Ireland in a Non-Convention case

(a) So long as the country from which the child came applies principles acceptable to the English courts, subject to contra-indications such as those in Article 13 of the Hague Convention, or risk of persecution or discrimination, then the questions as to the child's future must be decided by the courts of the court of the child's habitual residence.

(b) (See Re F 1991 1 FLR 1).

(c) Normally the best interests of children are best secured by having their future determined in the jurisdiction of their habitual residence.

(d) The court will take account of those matters which it would be relevant to consider under Article 13 of the Hague Convention.

"12.(i) States parties shall assure to the child who is capable of forming his or her views the right to express these views freely in all matters affecting the child, the views of the child being given due weight and accordance with the age and maturity of the child.

12.(ii) For this purpose the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."

It must be remembered that a child is a person with human dignity and not merely the object of a parental dispute. A child's fundamental rights, including the right to be heard, must be respected in all forums including the confounds of the Hague Convention and non-Convention case. A child therefore possesses the right to self-expression.

"(If) the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention."

(i) S

Dr Leddy was satisfied that S was well aware of his situation and discussed the alternative possibilities with intelligence. She regarded him as a very mature boy. She felt that throughout their discussion it was clear he was able to distinguish between realistic and unrealistic solutions. He has had the experience of spending time in Northern Ireland and in Bahrain and is well aware of the differences between the two countries. She found absolutely no evidence of undue pressure being exerted upon S by his parents and he showed no evidence being burdened with the emotional responses of his parents. She felt that he was in tune with his own needs in relation to his day to day life in the next few years. She was satisfied that there was no indication that he was likely to receive hostility from the extended family nor was there any indication that S has had to promise somebody what he will say.

(ii) It was her view that S clearly wishes to stay in Northern Ireland and to have regular contact both direct and indirect with his father. He would like his father to move to live in London but realises that this may not be possible.

(iii) He was able to appreciate that his mother had done something which was not right in taking them back to Northern Ireland without telling the father but had not come to terms with that. He is currently attending school in Northern Ireland and this is going well. He has begun to make friends, denies any worries, and told Dr Leddy that if his brother and sister wanted to go back to Bahrain to live with their father, he would still want to stay in Northern Ireland.

(iv) The boy indicated that he would not like to move to Bahrain because he did not like being on his own. He said he had had previous experience of living with his father and spending substantial periods on his own because his father was working. He said that his father would come home for his lunch at the time that he got home from school and he would spend an hour or more with him before going back to work. He also was not disposed to return to Bahrain because his mother had told him that she would not return. When asked how he thought it would be if she decided that she would return, S said that this would not be a good solution because it would be like it was before, with his mother being unhappy and crying. He told me that she is happy in Northern Ireland because she has her parents and he mentioned several other family members who are also here. He added that he was pleased to be starting school in Northern Ireland and he knew that he would only have one school for the rest of his school life and this made him feel happy. He told Dr Leddy that if he stayed in Bahrain, he did not know when he might get moved because of his father's job and with the consequence of having to change school.

"In Bahrain S went to an English private school, and as it seems, was bullied by his peers for the last two years, both physically and psychologically. Children called him names, knocked him about in corridors and ganged up to hit him in confined spaces. This forced S in loneliness to avoid the bullies. This was up until an incident occurred at school, when S typed rude words on a PC about one of the bullies and printed them out. This was brought to the families attention, who also learned about the bullying that was going on for the past two years."

His thought content revealed anger and ambivalence about 'having two homes, mums and dads', 'dad is going out with another lady', 'why? Will this lady's kids take out place in dad's heart?.' He has a low self-esteem, cannot stand up for himself and cannot speak up his anger. He feels helpless about the bullying and 'learn to accept it'."

The conclusion of the report although presented in two varying forms, included the follows:

"S is a young man with significant issues of anxiety and low self-esteem. At present the situation between mum and dad is contributing directly to his insecurities and unrevealed anger. He has also developed learn helplessness from being bullied over the years. S, no doubt will need formal counselling and CBT, to let him accept the present situation between his parents, to ventilate his anger, and to boost his self-esteem and image. Because of the severe anxiety that mounts often to panic attacks when he is speechless and frozen, S needs to be seen by a child psychiatrist."

(i) This was the middle child in the family of three. Dr Leddy concluded that this child's most profound wish is that the parents should be able to live within the same country so that she can have contact with both of them. This has been a driving force of her since the time of her parents separation and she is pre-occupied with grief over their current circumstances.

(ii) This child did not wish to chose between her parents. Again Dr Leddy was satisfied she was not under any pressure from either of the parents but she concluded that the child felt making a choice would result in a worsening of guilt feeling. She will feel guilt in respect of whichever parent she is living with. N therefore in her opinion had not been unduly influenced by anybody and had a good understanding of the alternatives open to her.

(iii) This child manifested a strong belief that whatever decision the court makes, it should be the same for all three of the children. She is happy about being in Northern Ireland although again she equally saw advantages in Bahrain.

(iv) Dr Leddy's view was that this was a very mature well balanced child, one of whose primary concerns was that the children, having been split up enough times already, should now be together. Referring to her younger brother C, she thought that he wanted to stay in Northern Ireland but he was okay as long as he food and a Play Station. This also indicated to me the maturity of this child for one so young.