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Family Law

The leading authority on all aspects of family law

30 MAR 2015

Re O (Child Abduction: Habitual Residence) [2015] EWFC 16

Re O (Child Abduction: Habitual Residence) [2015] EWFC 16
(Family Court, Peter Jackson J, 25 February 2015)

Abduction – Habitual residence – Application for summary return to Mexico under the Hague Convention – Whether the child had been wrongfully retained

The full judgment is available below.


The mother’s application for summary return of the child was refused based upon a finding that the child was habitually resident in England.

IN THE FAMILY COURT

Case No: FD14P00992
[2015] EWFC 16

25 February 2015

Before :

THE HONOURABLE MR JUSTICE PETER JACKSON
Sitting at the Royal Courts of Justice

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Between :

A
Applicant

-and-

S
Respondent

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Katy Chokowry (instructed by Dawson Cornwell Solicitors) for the applicant
Alex Tatton-Bennett (instructed by Campions Solicitors) for the respondent

Hearing dates: 23, 24 & 25 February 2015
Judgment date: 25 February 2015

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JUDGMENT

Mr Justice Peter Jackson
:

[1] These proceedings under the Child Abduction and Custody Act 1985 concern C, a little girl aged two. The applicant, C's mother, seeks an order for her summary return to Mexico. She says that C came to England for a short visit and that the respondent father has retained her here. This is challenged by the father, who says that the family had emigrated from Mexico to England as part of an agreed plan.

[2] I will describe the history as I find it to have been, making any findings of disputed fact on the balance of probabilities.

[3] Both parents are in their early 30s. The father is English. In 2006, he went to live in Mexico and in 2009 he met the mother. Both of them were working. They married in December 2011 and C was born a year later. She is a Mexican citizen and is also entitled to British citizenship.

[4] In September 2013, the family visited England for 2½ weeks, staying with the father's parents. This was a reconnaissance. The parents had been discussing the possibility of moving to live in England, and it was an opportunity for the mother to form a view.

[5] The mother describes this as having been a good holiday during which the father's family was welcoming. The prospect of a permanent move was discussed, but she says that she did not respond. However, the evidence as a whole includes a message from the father to his mother on return to Mexico in which he speaks of them coming to live in England as a matter that had been decided; there are also statements from the father's mother and sister describing conversations with the mother herself about the impending move. I find that in consequence of the trip in September 2013, the mother and father agreed to move to live in England as soon as their affairs in Mexico could be sorted out.

[6] The couple had a number of difficulties to deal with. Money was a problem and there were debts. The father lost his job. The mother was not reliably working. Her family was in turmoil as result of her father's alcoholism. The plan, reflected in a text message written by the mother to the father in January 2014, was to have "a fresh start".

[7] There were a number of issues that needed to be dealt with: obtaining employment, regularising the mother's immigration status, finding a house, buying a car, making arrangements for the two family dogs, choosing a school for when C was older. The original plan was that the family would move to England together, but the mother wanted further time. She also had a planned holiday with friends in the United States. It was therefore agreed that the father would go on ahead to work on the issues that needed attention. He had been offered a job by a friend.

[8] On 20 December 2013, the father purchased a return air ticket for himself (out 16 January, back 17 April). Both parents agree that it was not intended that the return ticket would be used on 17 April. The mother says that the date would be changed to coincide with her own return ticket to Mexico once that was bought. The father says that a return ticket was cheaper and that it was always intended that he would cancel the return leg to reclaim taxes. In the case of the mother and C, it was also desirable for them to have a return ticket to prevent immigration difficulty on entry to England. I accept the father's account and find that the existence of return tickets is of no significance in this case. Indeed, the father did cancel his return ticket on arrival in England. When he came to buy tickets for the mother and C, he chose a random return date whose only significance was that it was shortly before the expiry of C's passport.

[9] The family spent Christmas 2013 at their apartment. At this point the mother's mother, brother and sister had moved in for about two weeks because of the behaviour of the mother's father.

[10] On 16 January 2014, the father travelled to England and moved in with his parents. The promised job never materialised.

[11] Meanwhile, the mother remained in Mexico. There were practical and financial difficulties surrounding the move. The documentation shows efforts to surrender the tenancy of the apartment and disentangle the family from utilities contracts. The process of arranging immunisations and travel for the dogs also proved problematic. Online messages between the parents throughout the early part of 2014 reflect these issues, a common theme being the mother's requests for money which the father said he could not meet in full.

[12] It is also clear that the mother was ambivalent about the plans that had been made. Among the documents are a large number of conversations by Facebook, Whatsapp and e-mail between the parents and between the mother and her friends. These have been pored over during the course of the hearing. There are some points at which the mother suggests to friends that the move is not a permanent one: e.g. 28 December, when she tells one (only) of a large number of friends that her Facebook posting "#goodbye Mexico #welcome UK" was the equivalent of an April fool joke; 2 January, when she told friends that there were some plans but the family was just going for a limited time; 9 February, when she told a friend that her marriage was in crisis, she felt under pressure and did not want to go to England because she was scared the father might want to divorce, that she might be coming back in August or not going at all, and that moving to England was a horrible idea; 16 April, when she texted friends that she would be back in Mexico on 31 July and was extremely nervous.

[13] I have set out these communications in some detail, but they are substantially outweighed by the extent of the communications between the parents and between the mother and the father's family. For example, on 2 January (the same day she told a friend that she was going for a limited time), she wrote to the father's mother that she was really looking forward to closing a difficult period in her life and living in another country. Likewise, the communications between the parents are focused on executing the move, not debating it. At times, the dialogue becomes fractious: e.g. 27 March, when the father complains about an incident involving the mother and C and says that the mother should either come over to England or stay in Mexico and be divorced. Nonetheless, at no stage does the mother ever suggest to the father or his family that she will not be moving to England. The most that she says is that she feels "in two parts" and that it is not easy. In response to the father's threat of divorce, the mother wrote that he should not be angry at the delay in her arrival as they were going to be in England for "a lifetime".

[14] My conclusion about this is that there was an agreed plan for the mother and C to join the father and live in England. The mother's communications with others show that she had misgivings, as well she might have done, but they do not displace the solid body of evidence showing the couple making the necessary plans for the mother's departure from Mexico with C.

[15] During this period, the parents continued to discuss housing options, travel arrangements for the dogs (one was given a microchip), C's future schooling (the mother asking the father to speak to the priest even though C was only a year old), the costs of surrendering the Mexican apartment, the gathering of birth certificates for the mother and C, the registration in England of the marriage, their overall household income, and so on.

[16] On 31 January, the mother left a job that she had started in October. She has produced a letter dated August 2014 suggesting that she then applied for another job. I do not accept that. The letter comes from a friend who works in the same field and has none of the indicators of a serious job offer. That is not to say that the mother would not find a job in Mexico, merely that she was not offered one before she left.

[17] In early February, the mother had a farewell party with friends. She sold a number of personal possessions and items such as a microwave and refrigerator. She encountered difficulties in making arrangements for the dogs to travel, including around cost.

[18] On 20 March, the mother vacated the apartment and went with C to live with her parents. It appears that the apartment has still not been re-let, and that the landlord has a claim for unpaid charges against the father.

[20] On 26 March, the mother moved away from her parents because of the conditions there, and moved in with friends. At that time, there was an incident when the mother's family alleged that she had left C in a taxi: I make no finding about that, but it led to the angry message from the father on that date, mentioned above.

[20] On 19 April 2014, the mother and C arrived in England on 6 month tourist visas and went to live with the father and his parents. This would have continued until the family found somewhere of its own, but in the event, the parents' marriage lasted only 18 days more.

[21] In that short time, the parents visited a number of new-build properties, which were beyond their means. The mother registered C at a toddler group and offered to volunteer there. As part of her evidence, she has produced an e-mail from them dated 25 April containing their thanks for her help "in this 2 months". Alerted by the incorrect English, counsel for the father asked for sight of the original message. It does not contain those four words. The mother admits that she doctored the message to support her case. It is not the only instance of misrepresentation on her part. I remind myself that there may be a number of reasons for lies, including misguided attempts to support a true case. Nonetheless, this crude attempt to mislead the court shows that statements by the mother must be viewed in the light of any objective or contemporaneous material that is available.

[22] On 4 May, there was a row between the mother and the father's mother about C's feeding arrangements. The mother, father and C spent the night at the Ibis hotel. They returned for the night of 5 May, which was the last night they spent together. On 6 May, the mother left with C without telling the father where she was going and went back to the hotel for the next two nights. On 8 May, the parents had a text conversation in which they agreed to meet the following morning.

[23] However, events intervened. Unaccountably, on the evening of 8 May, the mother left the hotel at about 7:30 pm, leaving C (aged 16 months) unattended in the room. The mother seems to have met a female friend and through her a man with whom she spent the evening. At about 10:00 pm, the hotel staff heard C and when they realised she was alone, they called the police. The mother returned to the hotel with the man at 2:17 am the next morning and was arrested for neglect. C was taken into police protection and spent the night with a foster carer. The following day, the father's identity was discovered. C was placed with him at his parents' home, and there she has remained.

[24] At this point, 9 May, the father told the mother that the marriage was at an end.

[25] The mother’s initial response to her arrest was to suggest that it would not be a problem in her country to leave a child of this age unattended. I entirely reject that. In any event, the mother accepted a caution for child neglect on 13 June.

[26] Unfortunately, the mother has not subsequently been frank with social services or the court about the circumstances in which C was removed from her. Her presentation to social services that C had been taken from her, without explaining why, even lead to the convening of a MARAC conference, with the father being characterised as perpetrator. When these proceedings were launched, the court was asked to make, and made, a location order without being aware of the facts. The mother's statement in these proceedings is also misleading in that its detailed account of the events of 9 May omits any reference to the man with whom she spent the evening.

[27] In June, the mother posted a Facebook entry untruthfully stating that she had started working at a major medical centre in England.

[28] Contact between C and her mother restarted about a week after her arrest with short visits at specified venues. On 18 July, contact was due to take place between 2 and 4 pm. Instead, the mother disappeared and took C to an airport hotel overnight. The father contacted the police and at 2 pm on 19 July, the mother was arrested with C on an aeroplane that was about to depart from Gatwick airport. She was in possession of air tickets purchased the previous day and funded by friends and family in Mexico.

[29] The mother says that she did not inform the father of her plans because he would have tried to prevent her taking C. She says that she had contacted Reunite for advice a few days earlier and been told that she was acting within her rights in removing C in this way. In the absence of confirmation, I can reach no conclusions about what the mother was told. However, I very much doubt that Reunite would have given any such advice had it known the true circumstances of the case.

[30] At this point, the father started proceedings in England. On 23 July, he issued an application and at a without notice hearing the mother was prohibited from removing C from the country. On 29 July, a further order was made and on 15 August the case was timetabled for a hearing to determine the question of C's habitual residence.

[31] Those proceedings were however stayed on 24 October, when the mother issued these proceedings, seeking C's summary return to Mexico.

[32] At the beginning of November, the father filed an answer to the mother's application in these terms: he contended that C was not habitually resident in Mexico at the time of the alleged retention (Article 3) and that a return to Mexico would place C at grave risk of harm (Article 13(b)).

[33] Contact continues to take place 3 to 4 times a week. An expert report on Mexican law has been obtained.

[34] At this hearing, I have heard detailed submissions from Ms Chokowry and Mr Tatton-Bennett. Initial proposals that there should be oral evidence were withdrawn after an exhaustive examination of the written evidence had been conducted. There is an abundance of information and in my view little if anything would have been added if the parties had given evidence.

[35] The mother has had the benefit of an interpreter at this hearing, but her command of English is now such that she has not needed simultaneous translation.

[36] Drawing these matters together: C was clearly habitually resident in Mexico until her arrival in England on 19 April 2014, aged 16 months. There are a number of possible reasons for presence in another country: a holiday, a reconnaissance, a trial visit, a move for an indefinite period, a permanent move. It is possible for a move to be conditional on other events ("If you get that job, we’ll stay. If not we'll go back.") It is possible for the adults to be united in their approach or to have varying degrees of enthusiasm. It is possible for them to be at cross-purposes. I have considered all of these possibilities in this case.

[37] My finding, as foreshadowed above, is that following the reconnaissance trip in the previous September, C came here with her mother as part of a family plan to relocate to England indefinitely and possibly permanently with a view to making a new life here.

[38] As to the other possibilities, I reject the assertion made in the mother's application that this was a family holiday. I reject the assertion in the opening statement of the mother's solicitor that the mother made it plain to the father that the trip was only for a short period of time in order for C to spend some time with her paternal family. There is no indication of this in the great majority of the contemporaneous material, which clearly contemplates a long-term move. I also reject the case contained in the mother's statement that the father told her that he would be travelling to England for 3 to 6 months for the sole purpose of work and that they had arranged to visit him here between 19 April and 31 July when C was due to return to Mexico. I further cannot accept the submission of Ms Chokowry, which does not spring from the mother's own descriptions, that this should be regarded as a conditional plan, with the continued unity of the family being what she describes as a condition precedent. There is a difference between something being a goal and it being a condition: here it was the former. Lastly, borrowing from paragraph 63 of Re LC (below), I do not consider that C’s departure from Mexico took place in ambiguous circumstances. The future had uncertainties, of which both parents were aware but those uncertainties were inevitable in either country given the circumstances of this family.

[39] I base these factual conclusions upon the objective material. They are not centrally dependent upon doubts over the mother's credibility. Nor are they influenced by the highly unusual events of 9 May and 19 July.

[40] Turning to the law, Article 3 of the Hague Convention reads as follows: The removal or the retention of a 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 retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

[41] The mother contends that C was wrongfully retained in England on 9 May, when it was clear that the father would not let her out of his care, still less allow her to return to Mexico. Alternatively, she submits that the relevant date would be 19 July, when she was prevented from returning to Mexico, or 23 July when the father began proceedings and obtained an injunction preventing C leaving England.

[42] I therefore address the question of whether C was habitually resident in Mexico on 9 May, or either of the July dates. Allied to this, though it is a different question and not decisive, is the question of whether C was habitually resident in England at those times.

[43] The mother argues that as she was C's main carer, C’s habitual residence should be taken to be aligned with hers. As the family unit collapsed within a very short time of her own arrival in England, she cannot be said to have lost her Mexican habitual residence, and in consequence nor can C.

[44] In considering whether C had acquired habitual residence in England, Ms Chokowry draws attention to the temporary and unstable nature of the arrangements that existed even before the family breakdown.

[45] I have been referred to the well-known authorities in the Supreme Court: Re A (Jurisdiction: Return of child) [2013] UKSC 60, Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75, Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1, and the European Court decisions in Re A (Area of Freedom, Security and Justice) (C-523/07) and Mercredi v Chaffe (Case C-497/10).

[46] I refer to paragraph 73 (2) of Re A in the European Court:

“The concept of ‘habitual residence’ under Art 8(1) of regulation No 2201/2003 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and the conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.”

and to Re LC at paragraphs 59, 62 and 63:

“[59] The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is a word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so. An illegal immigrant may desperately want to become habitually resident in this country, but that does not mean that he does so. A tax exile may desperately want to lose his habitual residence here, but that does not mean that he does so. Hence, although much was made of it in argument, the question of whether or not a child is ‘Gillick – competent’ is not the point. …

[62] Clearly, therefore, this is a child-centred approach. It is the child’s habitual residence which is in question. It is the child’s integration which is under consideration. Each child is an individual with his own experiences and his own perceptions. These are not necessarily determined by the decisions of his parents, although sometimes these will leave him with no choice but to buckle down and get on with it. The tiny baby whose mother took him back to her home country in Mercredi v Chaffe was in a very different situation from any of the three children with whom we are concerned. The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once a child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. Furthermore, where parents are separated, there may well be two possible homes in which the children can live and the children will be well aware of this. This may well affect the degree of their integration in a new environment.

[63] The quality of a child’s stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another.“ [Emphases added]

[47] In this case, an assessment of C's habitual residence at any of the suggested dates for retention is heavily dependent upon the state of mind and actions of her parents. The position of the mother is important, but C has two parents who were acting in concert, and the position of the father is also relevant.

[48] On this central question, I find that at the point of her departure on 19 April 2014, C lost her habitual residence in Mexico. Her parents had thrown in their lot with a long-term future in England and were no longer thinking of their daughter having an upbringing in Mexico. Their state of mind was reflected in the actions that they took to bring about their relocation. Insofar as there was unfinished business in Mexico (the un-surrendered apartment, the left-behind dogs), that was not intentional: had they been able to sort these matters out, they would have done.

[49] Although it is not a necessary conclusion, I further find on balance that by 9 May (the date most favourable to the mother's case), C had become habitually resident in England. She had been welcomed into the paternal family home and plans for her future here were being made by both parents. She was already comfortable here. The fact that the family's plans sadly foundered so soon means that the period of habitual residence was one of days or weeks only, but the short duration does not invalidate habitual residence. Had things gone better, with the family remaining together until the present day, it is clear to me that C would have been habitually resident in this jurisdiction from the day of her arrival.

[50] Were I to be wrong about C having acquired habitual residence from the start, and that instead she was only in the process of acquiring habitual residence as at 9 May, it would make no difference to the outcome as I am quite clear that she was not habitually resident in Mexico on that date. In those circumstances, she would have had no place of habitual residence on 9 May. However, for the reasons in the preceding paragraph I prefer the bright-line conclusion that C's habitual residence transferred from Mexico to England at the time that she moved here.

[51 It follows from this that there has been no wrongful retention in this case and that the mother's application for a summary return under the Convention must fail.

[52] I note in passing (though it is irrelevant to the process of decision) that the opposite conclusion would have had the strange consequence of stigmatising as a wrongful retention, the father's actions in providing a place of safety for C after the mother's arrest on 9 May and in taking steps to prevent what can colloquially be described as an abduction on 19 July.

[53] Continuing, I reject the father's defence under Article 13(b), particularly in the light of his declared intention to accompany C to Mexico if she was returned there. There are a number of unsatisfactory aspects to the situation that would exist if C was to be returned, but these do not reach the level where a grave risk of physical or psychological harm, or an intolerable situation, is demonstrated. As C's future remains to be determined, I say no more about this. There are unsatisfactory aspects of the situation in this jurisdiction as well.

[54] In considering the court’s power to return C to Mexico under the Convention and the inherent jurisdiction respectively, I am guided by the decisions of the Supreme Court in Re M (Abduction: Zimbabwe) [2007] UKHL 55 and Re KL (A Child) [2013] UKSC 75.

[55] All matters touching on C's welfare are relevant. On the mother's behalf, attention is rightly drawn to her parlous position as an overstayer with no access to public funds. The expert evidence establishes that there is a welfare-based relocation jurisdiction in Mexico.

[56] While understanding, and sympathising with, the considerable difficulties in which the mother finds herself, I am nonetheless in no doubt that it would not be in C's interests to order an immediate return to Mexico. She has been in her current home for nine months and it is not in her interests to disrupt this. A decision about her long-term future needs to be taken as soon as possible and on the available information it is likely to be taken significantly sooner in this jurisdiction than in Mexico.

[57] Once the parties have had an opportunity to consider what applications they wish to pursue, I will give directions to ensure that they are timetabled to a conclusion and will consider whether it is appropriate for C to be represented in those proceedings.

[58] Finally, in response to a request from the court overnight, the parties have made supplementary written submissions on the relevance or otherwise of Article 13(a) – consent. Had C continued to be habitually resident in Mexico after her arrival in England, I can see no reason to believe that this Article would have been engaged. However, in view of my conclusion that this was not a wrongful retention, consideration of that issue is not necessary; had it been, an application to amend the Answer would have been required. 59. At the same time, the father added the propositions that the mother had acquiesced in the retention of C in this jurisdiction and that at the relevant time she had not been exercising rights of custody. I am not impressed by either of these propositions, but again they do not, in the end, arise for decision.

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