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Family Law

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06 JUL 2015

Re R [2015] EWCA Civ 674

Re R [2015] EWCA Civ 674
(Court of Appeal,McFarlane, Kitchin, Floyd LJJ, 2 July 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2016] 1 FLR 1119]

Jurisdiction – Habitualresidence – Care proceedings following non-accidental injury – Mother and childlived peripatetic lifestyle – Whether the child was habitually resident in Morocco or Englandand Wales

The full judgment is available below

The father’s appeal from a decision determining thatthe English court had jurisdiction based upon the 4-year-old child’s habitualresidence in England and Waleswas dismissed.

The child was born in2010 in Moroccoto an American mother and Moroccan father. The mother, who had lived in England since she was 13, travelled to England shortlyafter the birth and fraudulently registered the birth. Thereafter, she returnedto Moroccowith the child for periods of time.

In public lawproceedings the judge found that, based upon the mother’s habitual residence,the child had been habitually resident in Englandand Walesthroughout her life. The mother had lived a peripatetic lifestyle and had notintegrated in Morocco.The father appealed.

The appeal wasdismissed. The Court of Appeal was critical of the scope of the findings madeby the judge in particular that the child had been habitually resident here forher entire life when all that was necessary was a finding that she was habituallyresident here at the relevant time. In a case such as this where the mother andchild had led a peripatetic lifestyle the wide ranging finding prevented theappeal court from taking an alternative route and, therefore, if the judge hadbeen wrong the matter would have to be remitted for determination.

The key question hadbeen whether the mother lost her habitual residence here while she wastravelling to Moroccofor periods. McFarlane LJ commented that when determining habitual residencethere was no requirement that to be sufficient to support a finding the personneeded to be happy, well cared for or free from abuse. The social and familyenvironment which the child might be integrated into may include both positiveand negative factors.

In cases such as thiswhere the child’s habitual residence was dependent on the mother’s, the courtwas entitled to focus the factual enquiry on the mother. The fact that no partyargued against the child’s habitual residence being fixed in Morocco prior to the removal to England did notpreclude the court from reaching a different conclusion.

After paying regard to the subtle details of the caseand affording respect to the advantage of the trial judge in such a complicatedcase, the conclusion on habitual residence could not be said to be perverse andhad to be upheld.



Neutral Citation Number: [2015] EWCA Civ 674

Case No: B4/2015/1048

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, FAMILY DIVISION
Mr Justice Hayden
ZC14C00005

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/07/2015

Before :

LORD JUSTICE MCFARLANE
LORD JUSTICE KITCHIN
and
LORD JUSTICE FLOYD

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Re: R (A child)

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Mr Frank Feehan QC and Mr Christopher Barnes (instructed by Goodman Ray) for the Appellant
Mr Henry Setright QC and Miss Sally Bradley (instructed by Freemans Solicitors) for the Respondent
Mr Edward Devereux (instructed by Duncan Lewis) for the Children’s Guardian
Mrs Finola Moore (instructed by the London Borough of Hackney) for the Local Authority

Hearing date : 5th June 2015

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Judgment
Lord Justice McFarlane: 

[1]  At a hearing in January 2015 Mr Justice Hayden was required to determine whether or not the Family Court in England and Wales had jurisdiction to entertain public law care proceedings under Children Act l989, Part 4 with respect to a four year old girl, S. The basis of jurisdiction under the Brussels II Revised Regulation (“BIIa”) is habitual residence. At the conclusion of a reserved judgment handed down on 19th March 2015 Hayden J held that S’s habitual residence was, and had been throughout her life, the United Kingdom, with the consequence that jurisdiction with respect to issues relating to S’s welfare attaches to the court in England and Wales.

[2]  S’s father, who is a Moroccan citizen, now seeks permission to appeal against that determination. The application for permission to appeal was adjourned by Ryder LJ to the full court, with the appeal to follow if permission is granted. We granted permission to appeal to the father during the oral hearing.

Background

[3]  Before turning to a brief recital of the factual background to this case, it is right to observe that the process of determining that factual background presented a considerable challenge during the four day hearing before the judge. The difficulties encountered included the need to receive the father’s evidence over an audio (but not video) link from Morocco via an interpreter in the courtroom in London, difficulties associated with the mother’s mental health, periods during the mother’s adult life when she had made frequent and erratic changes in the location in which she has based herself and, finally, the judge’s conclusion that neither the mother nor the father were reliable witnesses and that both were, at times “plainly dishonest” when giving their evidence.

[4]  S was born on 29th May 2010 to an American mother and a Moroccan father. Although born and brought up in America, the judge found that the mother had, during her adult life, had “an ambivalent relationship with her own country”. She regards herself as having had an unhappy childhood prior to coming to England when aged 13 years. She was greatly affected by her parent’s divorce and these unhappy memories apparently coloured her relationship with the country of her birth. The judge found that this state of affairs was in contrast with the mother’s connections with England which he found were “deep seated” for the following reasons:

“She was educated here to post-graduate level at highly respected universities. She won an internship with the BBC. She presents in evidence as a highly articulate and intelligent woman. She evidently flourished at college. I suspect that her success there did something to boost her self-confidence and at least effect some repair to the damage of her childhood. Fragile though they may be, she put down roots in England in this period and there, in my assessment of her evidence, they remain.”

[5]  The mother apparently ceased to have a permanent residence in the UK in 2006 when she met the father in Morocco and, in 2007, married him.

[6]  S was born in Morocco in May 2010. However, as the judge found, it is clear that both parents had intended the child to be born in the UK. The judge found that in August 2010 the parents travelled to Casablanca together to register S’s birth with the US Consulate. Within a few weeks the parents decided that S should travel to England, and, again as found by the judge, on 14th September 2010 the mother, together with a male purporting to be the father, registered S’s birth in England, claiming, fraudulently, that the child had been born in Kent. Shortly thereafter the mother returned to Morocco but, less than 2 months later, she departed again and on this occasion travelled to France and then on to Switzerland. In August 2011 the mother and S travelled briefly to London before going on to Istanbul and returning to London. They then travelled to America before returning to Morocco in November 2011. From that time they remained in Morocco for approximately 16 months. The period in Morocco ended on 12th March 2013 when the mother and S flew to England. They have remained in this jurisdiction since that date.

[7]  The trigger event which gave rise to the care proceedings, within which the issue of jurisdiction now arises, occurred on 22nd October 2013. On that date S was taken to Homerton Hospital’s Accident and Emergency department by ambulance, having lost consciousness. Although the care proceedings are still at a preliminary stage, the judge observed that there was “no doubt that this was a serious and potentially life threatening episode”. The local authority case is that S is likely to have suffered significant harm as a consequence of excessive physical restraint used by the mother. On her release from hospital S was placed in foster care, initially with the mother’s agreement for the local authority to accommodate her pursuant to CA l989, s 20. The care proceedings were not issued until 17th April 2014, some 6 months after S, aged three, had been placed in foster care. Pausing there, I would entirely endorse Hayden J’s criticism of the local authority for allowing a protracted period of s 20 voluntary arrangements to develop in a case where the obvious potential for a jurisdictional issue must have been plain for all to see.

The judge’s decision

[8]  The judge’s judgment provides a full account of the evidence in the case and the detailed submissions made by each of the parties, including the local authority and S through her Children’s Guardian. Before turning to the evidence on jurisdiction presented during the hearing, the judge made reference to material arising from two separate assessments conducted within the care proceedings. In the first, a parenting assessment, he noted that the mother stated that at times she felt herself to be “overwhelmed” by her own mental health difficulties. The second assessment was undertaken by a multi-disciplinary team, including a psychiatrist and a psychologist, at the Anna Freud Centre. Although, of course, the conclusions of that assessment may yet be disputed by the mother in the care proceedings, the judge found this report to be useful “in offering alternative explanations to what might otherwise appear to be lies on the mother’s part”. In particular, the judge noted the conclusion of that report regarding the mother’s mental well-being as indicating that she displays “marked features of both Narcissistic and Borderline Personality Disorder with some traits of both Antisocial and Dependant Personality Disorder”.

[9]  Under the heading “Habitual Residence”, the judge summarises the relevant law, relying, to a large extent, on the “clear and unambiguous” statement of the law by Baroness Hale at paragraph 54 of A v A (Children: Habitual Residence) [2013] UKSC 60. He also referred to paragraphs 60 to 63 of Baroness Hale’s subsequent judgment in Re: LC (Reunite: International Child Abduction Centre intervening) [2014] UKSC 1. At paragraph 18 of his judgment the judge expressly adopted a list of the core characteristics of the test applicable to the determination of “habitual residence” presented by Mr Henry Setright QC, leading Miss Sally Bradley, who appeared before him, and before this court, for the mother. For the sake of convenience, I reproduce the list adopted by the judge in full:

“(a) The test for the determination of habitual residence applies equally in intra-European cases as in Hague Convention proceedings involving non-European member states [A v A and another ( Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2014] AC 1; In re L ( A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening ) [2014] AC 1017;].
 (b) The test for habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce [ A v A].
(c) The concept corresponds to “the place which reflects some degree of integration by the child in a social and family environment. This depends on numerous factors, including the reasons for the family’s stay in the country in question.” [A v A]
 (d) There is no legal rule that a child automatically takes the habitual residence of his parents. [A v A; re L].
 (e) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. [A v A]
(f) It is possible that a child may have no country of habitual residence at a particular point in time [A v A]
(g) the following factors must be taken into consideration in the factual enquiry into a child’s habitual residence:

‘2. The concept of “habitual residence” under article 8(1) …. 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 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.' [A v A].”

[10]  The position of the parties before the judge was that the father sought a positive finding that S was habitually resident in Morocco. The mother was essentially “neutral” contemplating a variety of possibilities, including habitual residence in the UK. The local authority did not, according to the judge, engage deeply in the analysis of habitual residence, but suggested that S may have been habitually resident in Morocco but later transferred that status to the UK. For the Guardian, however, Mr Edward Devereux submitted that at the relevant date under BIIa S was habitually resident in England and Wales and, in fact, she was habitually resident in England and Wales prior to the period of s 20 accommodation which commenced on October 2013 which would, in Mr Devereux’s submission, be the alternative applicable date if the l996 Hague Convention on Child Protection were to apply in place of regulation BIIa.

[11]  In describing his approach to determining the issue of habitual residence the judge said this at paragraph 28:

“Whilst I have referred to the nature of this inquiry as ‘factual’, I intend by that only to convey that it has required oral evidence to investigate it. It is too easy, particularly where a child has changed countries regularly, to be deflected by concrete facts, such as where the child was born or by how long a child was in a particular place, as if that were somehow determinative. Sometimes these aspects of the evidence can be misleading, as I sought to illustrate in MB v SB [2014] EWHC 3719 (Fam). ‘Integration’ as a concept involves a fusion of both the factual and the emotional, it is where a child feels settled, secure, happy and where the focus of his interests and attachments lie. It is not merely geographical, identifying habitual residence requires much greater nuance than that, drawing inferences from facts, the parents’ conduct, the feelings a child communicates and what the child may say. Lord Wilson encapsulated the point in Re LC (supra) at para 37 emphasising that integration encompasses more than the ‘surface features’ of a child’s life.”

[12]  The judge then moved on to describe and analyse the underlying factual matrix. Following a description of the mother’s early connection with England prior to meeting the father in Morocco in 2006 the judge, at paragraph 35, stated:

“It is clear that in what has been a peripatetic existence for her in recent years, the UK is undoubtedly where she regards as home. This, to my mind, is why she wished her daughter to be born here and to gain entitlement to British citizenship. By contrast, during her time in Morocco the mother learnt next to no Arabic and did not improve her ‘risible’ French (her phrase). I have no sense of her integrating into life in Morocco at all, indeed she appears to have spent much of her time on social media on the internet. This I find was also a source of conflict in the parent’s relationship and something the father took great objection to for both personal and cultural reasons. He told me that he did not like the mother communicating with other men. This plainly applied to all conversations however innocuous and superficial they might be.”

[13]  Having set out the details of the registration of S’s birth, both in Casablanca and in Kent, and describing the mother’s peripatetic perambulations around Europe and America in 2010/2011, the judge describes the mother’s return to Morocco in November 2011 in these terms:

“She told me in evidence that she felt that for the time being there was no option open to her or S other than a return to Morocco. On an intellectual level the mother, I believe, would wish for S to have some real relationship with her father. This resolve is, in part, powered by her sense that such opportunity was denied to her during the course of her own childhood. However, the gulf between her capacity to understand the importance of such a relationship for her daughter and the reality of knowing how to achieve it is a wide one for this mother to bridge.”

[14]  With respect to the 16 months between November 2011 and March 2013 when S and her mother were in Morocco the judge summarises his approach as follows at paragraph 37:

“Mr Feehan (counsel for father) alights on this period as one which he contends establishes S’s habitual residence in Morocco. Superficially that might appear attractive if I could identify any sense of either S or her mother being settled or integrated in any way into the life of or the community in Chefchaouen. During this period the grandmother LV visited. She plainly regarded the parents relationship as being in trouble. I have to say that this period, though crucial to the father’s claim that it established habitual residence in Morocco, still remains obscure. The father deals with it in eight lines only in his statement. Essentially he says:

“our relationship was generally good during this time, it did have its ups and downs, but for the main part we managed to work things through””

[15]  The judge was struck by how little information the father was able to give the court as to his daughter’s routines, relationships, interests or pastimes during this period in Morocco. The judge concluded that the father’s inability to create a picture of S’s life in Morocco was likely to be due to the father playing an inconsistent part in it.

[16]  It was common ground that for significant periods of time when the mother was in Morocco the parties were living apart. The mother alleged that the father was violent to her, and the judge found her evidence on this point to be entirely credible.

[17]  As the judge moved towards his final conclusion, he summarised the position with regard to this crucial period in Morocco as follows:

“46. I am satisfied that it is likely that the mother did not always cope well with day to day life in Morocco. I consider it probable that she was, for the reasons already discussed above, at times overwhelmed. It is also the case that the mother was physically incapacitated for six months in consequence of a broken leg. She was, I find, the victim of domestic violence. There were protracted periods of parental separation. It is obvious that the mother was unhappy. She had returned to Morocco, as she explained, with reluctance having exhausted her options and to some extent her energy. Her return was, I find, nothing more than a quest for temporary harbour. For all her difficulties this mother is a fiercely independent minded young woman. It is difficult to see how the circumstances she describes in Morocco were ever going to be conducive to her settling there. This unhappiness must, inevitably, have communicated itself to S and, even at her tender age, adversely impacted on her own capacity to settle.”

[18]  The judge’s ultimate conclusion is contained in one relatively complicated paragraph which will, in due course, require detailed analysis. For present purposes I simply reproduce it in full at this stage:

“47. I have already observed that I find neither mother nor father to be reliable chroniclers of the truth. That, in part, explains why pieces of the evidence are contradictory. More than that, contradictory feelings are intrinsic to the human condition particularly in times of stress or unhappiness. Added to this in the mother’s case are mental health issues. Ultimately, the court can only evaluate the witnesses and the key points of the evidence against the established framework of the law. In A v A (supra) Baroness Hale emphasised that the test derived from R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309 should be abandoned when determining the habitual residence of a child: thus the ‘purposes’ and ‘intentions’ of the parents are one of a range of relevant factors and not determinative. The Supreme Court identified the social and family environment of an infant or young child as being shared with those (whether parents or others) on whom the child is dependant (Hayden J’s emphasis). Logically therefore, as Baroness Hale emphasised, it is necessary to assess the integration of that person (i.e. on whom the child is dependant) in the social environment of the country concerned. Here I am quite satisfied that, despite her sometimes disillusioned statements to the contrary, this mother has only really, for much of her adult life, integrated into the UK. It is to the United Kingdom that she has regularly returned. To achieve British citizenship for her daughter she was prepared to jeopardise her own good character. S’s sense of well being, her security whilst an infant in Morocco, was inevitably and inextricably linked to her mother. For most of the time S’s mother has been her entire social and family environment; as such I find that her own habitual residence is and has been throughout her life, like that of her mother, the United Kingdom.”

The appeal

[19]  The father’s appeal has been presented with great force, clarity and charm by Mr Frank Feehan QC, leading Mr Christopher Barnes. The three core grounds of appeal can be summarised as follows:

1. The judge’s finding that the mother and child were, and had at all times been, habitually residence in the UK was manifestly contrary to the weight of the evidence and “perverse”.
2. The judge’s finding as to habitual residence was contrary to any recognised authority.
3. The judge, in his summary of the case, misstated the position of the mother and of the Children’s Guardian.

[20]  In his oral presentation, Mr Feehan accepted that the ground that I have numbered “3” above, in reality his ground 2, did not take the matter further. The main force of the father’s submissions were therefore concentrated on the judge’s approach to determining habitual residence on the basis of the evidence in this case as set against any of the previously decided recognised authorities.

[21]  Mr Feehan opened his submissions by stressing that, within the broad range of factors to be considered by a court determining habitual residence, high on the list was the need to consider the daily reality for the child and, in this case, to ask the question “what was the daily reality for S in particular, in the period March 2013 to October 2013 when she was received into public care?”. To highlight the importance of that question Mr Feehan then took the court to a range of detail within the papers for the care proceedings which described the quality of S’s life with the mother during that period. The pair were effectively “homeless” living in bed and breakfast or refuge accommodation and there were numerous reports of the mother screaming and shouting at the child. The care proceedings include evidence that S was being neglected during this period. In addition there was, of course, the occasion when she was admitted unconscious to hospital as a result, it is said, of the physical actions of the mother.

[22]  Mr Feehan is critical of the judge for making no reference at all in the judgment to the daily reality of life in this country for S at that time. He also criticises the judge for failing to refer to other aspects of the evidence, including a close supporter of the mother’s who disputed that the mother was habitually resident in the UK.

[23]  Those observations were part of a wider submission made by Mr Feehan, taking in the whole of S’s life including the period of time in Morocco, to the effect that it was simply not possible to hold that “in all ways and everywhere” S was “at all times” habitually resident in England and Wales. Such a conclusion, submitted Mr Feehan, was absurd. The conclusion that S had always been habitually resident in England and Wales, when, prior to March 2013, she had only visited the country for short periods, ignored the fact that no party before the court had been suggesting that there was no habitual residence in Morocco. In that context, Mr Feehan submitted that the conclusion that S had been habitually resident in England and Wales “throughout her life” was truly perverse.

[24]  Mr Feehan argued this core submission from a number of different angles. For example, he described the 13 month settled period of residence in Morocco and submitted that, had S been “abducted” from Morocco when she departed for England in March 2013, all of the extant English case law would hold that she had been habitually resident in Morocco at that time.

[25]  Another manner in which Mr Feehan sought to support his central submission was to argue that the approach of the judge was wrong as a matter of law insofar as he sought to describe a state of affairs by which the mother held on to a core connection with the UK from 2006 onwards, notwithstanding the fact that she did not reside in this country at all thereafter until her return seven years later to temporary accommodation. In this regard, Mr Feehan submitted that the judge was really entertaining some variation of the concept of domicile, rather than considering, as he should have been, habitual residence.

[26]  Finally, Mr Feehan supplemented his skeleton argument with a further submission based upon paragraphs 55 to 58 of the leading judgment of Baroness Hale in A v A [2013] UKSC 60; [2014] AC 1. In those paragraphs consideration is given to the position of a child who had never set foot in the jurisdiction which was, nevertheless the state of habitual residence of his carer. Baroness Hale, and the other three Supreme Court Justices who made up the majority, expressed a strong preference for holding that the emphasis on the factual situation of the child required priority to be given to the need for actual presence in the jurisdiction as 'a necessary precursor to residence and thus to habitual residence' as opposed to affording priority to an approach which focuses on the relationship between the child and his primary carer. At paragraph 55 Baroness Hale illustrated the point as follows:

“It is one thing to say that a child's integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been.”

[27]  In my view Mr Feehan was right not to afford undue prominence to this argument as part of the appellant's case. The observations of the majority in A v A on this point are expressly not part of the ratio of the decision for the reasons given by Baroness Hale in paragraphs 56 and 57. Secondly, on the facts, the present case can be distinguished from A v A as S had been physically present in England and Wales on a number of occasions following her first visit to the jurisdiction at the age of only four months.

[28]  Responding to the appeal Mr Henry Setright stressed that determination of the issue of habitual residence depended upon the individual factual circumstances falling to be assessed in each case. The court must look at all the circumstances of the case and it is possible to contemplate different judges coming to different answers on the same range of factual evidence; an outcome which was particularly to be contemplated where the judge has heard extensive oral evidence. In the present case the judge concluded that neither the mother nor the father were reliable, such a conclusion, submitted Mr Setright, extended the range and flexibility of the factual evidence even further than in a more straightforward case.

[29]  Although no party apparently contested the suggestion that S had been habitually resident in Morocco prior to the departure to the UK in March 2013, Mr Setright submitted that a finding to the contrary was certainly open to the judge. The central point relied upon by the father with respect to this period in Morocco is the length of time that S was there. However, Mr Setright submits that “length of time” is never determinative and the court must look at other factors particularly “permanence” and “stability”.

[30]  Mr Setright drew attention to paragraph 35 of the judgment (set out above) in which the judge focussed upon the peripatetic nature of the mother’s existence and the lack of any real connection with any country after her departure from the United Kingdom, together with his conclusion that there was “no sense of her integrating into life in Morocco at all”. On that basis, submits Mr Setright, the judge was entitled to hold that the mother maintained her habitual residence prior to embarking upon this, albeit extensive, peripatetic and rootless period. He refuted the suggestion that this amounted to domicile, and drew attention to the extensive and correct citation of the law that Hayden J had undertaken.

[31]  Mr Setright submitted that the judge’s ultimate finding, namely that the mother, and therefore S, had been habitually resident in the UK throughout S’s life, was much wider than it needed to be. As a matter of law, all that was required was a finding as to habitual residence in England and Wales as at the relevant date. Given the breadth of the judge’s overall findings, his conclusion, which encompasses in a wider time frame a finding as to the relevant date was sustainable.

[32]  Although the judge concentrates on the period following the birth of S, Mr Setright took the court to a Viability Assessment report on the father prepared within the care proceedings in which the father gives an account of the mother’s movements in the period between 2006 and S’s birth in 2010. The couple met during a one month stay that the mother undertook in Morocco in 2006. She then returned to London, but re-visited Morocco for an extended period of nine months during which, in 2007, the couple were married in a local mosque. At the end of that nine month stay the mother returned to London but, over the next two years, visited Morocco “on a regular basis”. That arrangement apparently continued until the time of S’s birth which, as I have indicated, the couple had anticipated would take place in England if the pregnancy had reached full term.

[33]  Following Mr Setright’s submission, the court had the benefit of hearing directly from S’s maternal grandmother who highlighted certain parts of the factual evidence that she considered to be relevant. Thereafter short submissions were made on behalf of the local authority which effectively adopted and endorsed the mother’s case.

[34]  Finally, on behalf of the Children’s Guardian, Mr Devereux stressed the difficulties facing a judge in these proceedings which arose from the peripatetic nature of the mother’s life after 2006 which was compounded by the difficulty in obtaining reliable evidence from either the father or the mother. Mr Devereux submitted that the judge undertook a thorough investigation over the course of a four day hearing, adopted a strictly factual approach and reached a conclusion which was entirely open to him on the evidence.

[35]  Mr Devereux submitted that the judge made clear findings on three principal areas. Firstly, that the mother had put her roots down in England prior to 2006. Secondly, that she did not in any way settle or integrate into life in Morocco or the immediate community where she was staying. Thirdly, that the very relationship between the couple was unstable and, on the judge’s findings, unhappy so far as the mother was concerned, and this too fed into a conclusion that her time in Morocco had characteristics which were the opposite of being settled or integrated. In consequence, Mr Devereux submits that the judge was fully entitled to regard the mother’s return to England as a physical taking up of a state of habitual residence which had been in existence throughout the relevant period.

[36]  Before the judge Mr Devereux had raised an interesting question as to the inter-relationship between regulation BIIa and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (“the l996 Hague Convention”). In essence Mr Devereux’s submission to the judge was that, if the point arose, there was a need to determine which of these two instruments had priority over the other as it was likely, on the facts of this case, that the applicable date at which jurisdiction fell to be determined would differ with the date when protective measures were taken being the relevant date under the l996 Hague Convention (October 2003) as opposed to the date when proceedings were commenced (April 2014) being the date under BIIa. In the event, as the judge concluded that S had been habitually resident in England and Wales throughout her life, the point did not arise, and is therefore, in Mr Devereux’s submission, not directly engaged in this appeal. I agree with Mr Devereux’s analysis on this point and it is not therefore necessary in the context of this case, in the light of the judge’s finding, to take that interesting point any further.

Discussion and Conclusion

[37]  A finding as to habitual residence is a question of fact. Any appellate court must, rightly, afford a high level of respect for factual determinations made by a judge who has enjoyed the privileged position of immersing himself or herself to the full in the factual evidence and who has seen (or at least in the case of this father, heard) the key witnesses give their evidence in the course of an extended hearing. In the present case, as I have already observed, the task facing the judge was complicated by a range of difficulties, not the least of which was his inability to rely fully upon either of the key witnesses. These difficulties, and our consequent further disadvantage in gauging the oral evidence for ourselves, should, in my view, increase the degree to which an appellate court should hold back from interfering with the judge’s factual determination.

[38]  Any factual determination on the issue of habitual residence must, of course, be undertaken within the legal context now established by the relevant case law. Hayden J gave a careful and relatively full description of the approach which, as a matter of law, he was required to take. No point is taken by Mr Feehan, or any other party, on the judge’s description of the law and I, for my part, can see no ground for concern that the judge had in some manner misunderstood or misstated the relevant law. That conclusion must enhance the respect to be afforded to the judge’s conclusion on the facts. Mr Feehan’s case, however, is that, notwithstanding his correct directions on the law, the judge has come to a conclusion which is simply outside that which was open to him on the law and the evidence.

[39]  One area in which I would, however, be critical of the judge relates to the scope of the ultimate conclusion to which he came, which was to hold that S’s habitual residence had been the United Kingdom ‘throughout her life’. The question before the court related to jurisdiction with regard to the care proceedings issued in April 2014, when S was nearly three years old, and the relevant date at which the question of S’s habitual residence fell to be determined was either April 2014, or, if the 1996 Hague Convention applied, October 2013. Whilst evidence relating to S’s habitual residence prior to those dates may have been relevant, it was not necessary for the judge to make any finding with respect to any earlier period.

[40]  Of course, in a case where a child has always lived in England and Wales, and has never left this jurisdiction, a finding that the child has always been habitually resident here throughout her life will readily provide the answer to the more tightly focussed, and the relevant, question of whether she was habitually resident here at the relevant date for jurisdiction in specific proceedings. Where, however, a child has had a peripatetic existence, there may be other routes, justified by the evidence, to a finding of habitual residence on the relevant date and a single global finding of habitual residence ‘throughout her life’ may prevent the judge (and, in turn, the appeal court) from considering those possible alternative routes. In the present case, there is simply no finding from the judge on one possible alternative route to a conclusion that S was habitually resident in England on the relevant date, namely that she, through her mother, acquired habitual residence here after her arrival in March 2013 as a result of the mother re-acquiring an habitual residence in England that had lapsed at an earlier date. On an issue such as this, it is not for this court to offer its own findings, for the first time, on any alternative conclusions not considered by the judge and all counsel are agreed that, if the judge’s ‘throughout her life’ conclusion cannot be upheld, then the case must revert back to a High Court judge for re-determination.

[41]  Having made those three more general observations, I shall turn to look at the detail within the judge’s judgment in the light of the submissions that we have heard.

[42]  Firstly, in a case where there was little solid ground, the judge’s conclusion that the mother had lost her earlier habitual residence in the USA and had acquired habitual residence in the UK prior to 2006 was entirely justified by the evidence and is not challenged in this appeal. It provides the starting point for further consideration so far as her habitual residence is concerned.

[43]  Secondly, the evidence of the mother’s connection with Morocco in the period prior to November 2011, when she commenced a 16 month stay in that country, was insufficient to establish a new habitual residence in Morocco by that date. Both the judge’s findings as to the mother’s movements in the period after S’s birth, and the evidence from the father as to the earlier period of 2006 to 2010 to which Mr Setright took this court, fail to establish the necessary degree of integration by the mother in a social and family environment in Morocco. Again, Mr Feehan does not assert that there was an habitual residence in Morocco prior to November 2011.

[44]  The position in the period 2006 to November 2011 is not, however, irrelevant and the judge was justified in regarding it as of importance in his overall conclusion. Given the starting point of a mother who had established an habitual residence in England over the period of ten or more years at school, as a student and then in work, and where no new habitual residence is established in Morocco, the question arises whether the mother ever lost her habitual residence in England, despite her absence from this country for much of this time. The judge concluded that she did not lose her established habitual residence during this period and, in the context of an appeal, it is for the appellant to establish that this factual conclusion was not supported by the evidence or was otherwise wrong.

[45]  The findings that the mother ceased to have any permanent residence in the UK after 2006, and that she married the father in Morocco in 2007, suggest that the mother may have being cutting her links with this country at that time. But when one looks at the father’s account, as recorded in the Viability Assessment, the mother spent nine months in Morocco in 2007, but, thereafter, was apparently based in the UK over the next two years, albeit visiting Morocco ‘on a regular basis’. In addition, the judge placed weight, as I consider he was entitled to do, on the joint intention of the parents that S should be born in England. Also the judge was entitled to place significant weight on the mother’s decision to commit a criminal act in order to achieve the registration of S’s birth in England.

[46]  The factors that I have now summarised were given prominence by the judge in his final conclusion which was that:

‘… this mother has only really, for much of her adult life, integrated in the UK. It is to the United Kingdom that she has regularly returned. To achieve British citizenship for her daughter she was prepared to jeopardise her good character.’

In terms of the period prior to the extended stay in Morocco from November 2011, that conclusion is, in my view, unassailable and, indeed, Mr Feehan does not seek to challenge it in terms. Given the mother’s return to live full time in the UK in March 2013 then, if the conclusion that she was still habitually residence in the UK in November 2011 stands, the key question was whether the mother lost her habitual residence in UK during her extended stay in Morocco between those two dates. Again, in the context of an appeal, the question for this court is whether the judge’s finding that she did not lose her habitual residence in the UK during that period is wrong or otherwise unsustainable.

[47]  In identifying this as the key question, I am not, with all due respect to Mr Feehan, persuaded that a further question of S’s actual integration in the UK after her arrival in March 2013 falls to be given serious consideration on the facts of this case. That submission, which I have recorded at paragraph 21 above, was to the effect that the daily reality of the existence that the mother and S had in England prior to local authority intervention was so grim, listless and neglectful of S’s needs that to hold that S was integrated into a social and family environment here at that time was simply untenable. When determining habitual residence there is no requirement that, to be sufficient to support a finding, the individual needs to be happy, well cared for or free from abuse. The ‘social and family environment’ into which a child might be integrated may include both positive and negative factors. These will not be irrelevant. In the present case the judge took full account, as he was entitled to do, of the negative aspects of the mother’s life in Morocco. But in this case, where the judge was entitled to hold that the child’s habitual residence was dependant upon determination of the mother’s habitual residence, the primary, if not the sole, focus must be on evidence relating to the mother rather than the child. The negative aspects of the child’s experience once she arrived here are not, therefore, in point in this context (although they obviously will be given full weight within any care proceedings).

[48]  A further, more general, reason why a child’s experience of abusive parenting should not be determinative of the issue of a young dependant child’s habitual residence is that, if that were so, it might, consequently, be difficult for child protection measures to be taken with respect to any child who is alleged to be the victim of protracted abuse; particularly if that child has originated from another State.

[49]  I turn then, finally, to the key question that I have identified in relation to the judge’s conclusion that the mother did not lose her habitual residence in the UK during the 16 month stay in Morocco. I do so with the general statements of the need for respect of the fact finding judge’s position with which I commenced this section of my judgment very much to the fore. My conclusion on this point is that Mr Feehan’s submissions have failed to persuade me that the judge reached a determination which was not open to him as a matter of law or one which was not justified on the evidence.

[50]  In stating that result, I do not in any manner suggest that Mr Feehan’s core submissions lack force. If one approaches the case simply with headline points in mind it is, at least at first blush, hard to see how an individual who has not lived permanently in the UK since 2006, and who returns in 2013 without any fixed or permanent abode, can be said to have been habitually resident here throughout that period. Equally, the conclusion that a young child who has only visited the UK for short periods prior to March 2013 was, in fact, habitually resident here ‘throughout her life’ is, if looked at on the same headline basis, hard to accept. But to approach this case simply in headline terms is to miss the subtlety of, and the complications within, the evidence. This was, as is accepted, a most difficult fact finding exercise. The judgment, however, shows that, during the four day hearing, the judge was able to drill down through some, at least, of those complications to see the reality of what had been taking place in the mother’s life. I too have attempted to focus on the same detail, and the judge’s conclusions with respect to it, in the analysis that I have already given and which has led me to accept that the conclusion that the mother retained her habitual residence in the UK at least up until November 2011 is tenable. Beneath the headlines, the mother was in fact coming back to the UK frequently, and was, to a varying degree, based here prior to November 2011. She had placed a premium on S being born here and being registered (falsely) as having been born here.

[51]  The appellant’s case is, in part, based on the agreed position that before the judge no party had challenged the assumption that the mother had become habitually resident in Morocco during her 16 month stay. But, as Mr Setright and Mr Devereux rightly submit, the fact that the parties may take one position does not prevent the judge coming to another conclusion.

[52]  Mr Feehan’s submission to the effect that, if this were a child abduction case considering where S was habitually resident immediately prior to his removal to the UK in March 2013, no court would contemplate an outcome other than habitual residence in Morocco fails, once again, to grapple with the detailed and complicated facts of this case or, more importantly, with the judge’s conclusions on those internal facts. It is, as Mr Setright submits, a submission which looks simply at the length of time that the mother and S were there, and ignores the central question of the extent to which they, and in particular the mother, achieved the necessary degree of integration in a social and family environment in Morocco.

[53]  Despite the length of time, which is plainly a factor in favour of finding habitual residence in Morocco prior to March 2013, the judge took account of the following factors:

a)Integration encompasses (per Lord Wilson in Re LC) more than the ‘surface features’ of a child’s life and includes consideration of where an individual feels settled, secure and happy and where the focus of his or her interests and attachments lie (judgment paragraph 28, set out at paragraph 11 above);
b)During her time in Morocco the mother learned next to no Arabic and did not improve her ‘risible’ French;
c)The judge had ‘no sense of her integrating into life in Morocco at all, indeed she seems to have spent much of her time on social media on the internet’ (paragraph 35);
d)The judge could not ‘identify any sense of either S or her mother being settled or integrated in any way into the life of or the community in Chefchaouen’ (paragraph 37);
e)She went to Morocco in November 2011 because there was no other option open to her;
f)The period in Morocco, though crucial to the father’s case, ‘still remains obscure’ and was dealt with in only eight lines of evidence from the father;
g)The father’s inability to create a picture of S’s life in Morocco was likely to be due to the father playing an inconsistent part in it;
h)The parents lived apart for significant periods of time and the father was at times violent to the mother;
i)There was a source of conflict in the parents relationship which arose if the mother had any conversation, however innocuous or superficial, with any other man;
j)The mother was unhappy, incapacitated for 6 months and at times overwhelmed during this period;
k)The mother’s return to Morocco was ‘nothing more than a quest for temporary harbour’.

[54]  If it is only looked at from a high level, without regard to the underlying detail, the judge’s conclusion may initially seem surprising. However, once the judge’s findings as to that underlying detail are analysed, and full respect is afforded to the substantial advantage that he as the trial judge had in this complicated case, I consider that his determination that the mother had always retained her habitual residence in the UK, and that this was not lost during her extended stay in Morocco, is not perverse and, indeed, that it is in accordance with the law and is supported by the evidence. His conclusion that S’s habitual residence was, on the facts of this case, effectively determined by her mother’s habitual residence, given the degree of dependence that the one had on the other, is uncontroversial. The appellant’s challenge to the judge’s ultimate conclusion that S has been habitually resident in the UK throughout her life therefore fails.

[55]  For the reasons that I have given, I would dismiss the appeal and uphold the judge’s determination of habitual residence.

Lord Justice Kitchin:

[56]  I agree.

Lord Justice Floyd:

[57]  I also agree.

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