R v A
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Parker |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWHC 692 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD13P00049 |
| Date | 27 March 2013 |
[2013] EWHC 692 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Parker
Case No: FD13P00049
Mr Edward Devereux of counsel (instructed by Messrs. Bindmans) for the Applicant father
Ms Jacqueline Renton of counsel (instructed by Messrs. Nelsons) for the Respondent mother
Hearing dates: 25, 26, 27 February 2013, 8 March 2013
Judgment (anonymised)
The concept of habitual residence, (the jurisdictional trigger in most if not all international family disputes), has generated much litigation, including at appellate level. Particular difficulties are created by cases, of which this is one, of conditional or time limited move, and particularly where the parties do not agree what the terms were, or assert that the other misled them.
Three children, A, born 2000 (now 12) F, born 2005 (now 7) and M born 2010 (now 2 3/4), are the subject of Hague Convention return proceedings. The two elder children were born and lived in the USA until December 2009, then came to England until January 2012, the father says on a time limited and conditional basis, the mother says as a planned family relocation. M was born here. The mother and the three children went to the USA in January 2012. The mother says that this was on a temporary basis, and that she and the children remained habitually resident in England. The father says that the two older children remained habitually resident in the USA throughout, but that in any event all three were habitually resident in the USA on 12 August 2012 when the mother removed them, she says by agreement, he says surreptitiously and without his agreement.
If I find that the children were habitually resident in California on 28 August 2012, the mother raises defences of (i) consent (ii) alternatively acquiescence (iii) Article 13(b). If the children, or any of them, were not habitually resident as at 28 August 2012, then the father applies for a summary return, or move, to the USA, pursuant to the inherent jurisdiction of the High Court.
I did not have sufficient time to give judgment at the end of the three day hearing on 27 February 2013 so reserved my decision, which in any event I wanted to consider. I gave my decision that the children should return pursuant to the Hague Convention on 8 March 2013, and reserved judgment.
The evidence
The parties have each filed their own statements, to which a very large number of documents have been exhibited. The father filed statements from his father, mother and brother, all of whom were called to give evidence by video link. The father's mother seemed to have great difficulty in giving evidence and understanding questions, including the oath. Her statement did not bear any indication that it had been interpreted to her. I decided to abandon her evidence very shortly after it commenced. Miss Renton later submitted that the failure in understanding was contrived. In my view permitting further attempts at eliciting her evidence would not have assisted the resolution of that issue or the case. I decided that I had to rely on the evidence of the paternal grandfather and brother.
The mother filed a statement by her brother-in-law. He was not called for cross examination: he was said to be in Zimbabwe and it was said that a video link was not available. I admitted his evidence as hearsay pursuant to the Civil Evidence Act 1968 without opposition from the father: weight is of course for me.
Mr Devereux has stressed that the original documents might be the best guide to establishing the facts: authority supports this approach: I have carefully re-examined the documentation in the case whilst preparing this judgment.
In her statement the mother makes complaints of ill-treatment by the father's family and that the father is an irresponsible provider. The father strongly disputes these. These complaints may, if well founded, explain the mother's actions. But they are irrelevant to the issues which I have to determine, and no oral evidence on these issues was examined before me. It is specifically not the mother's case that she at any time wanted to end the marriage or that unhappiness in the marriage was relevant to any of her actions which I shall now describe.
The background
The family is of South Asian Muslim background. Both parents and their families originate from Zimbabwe. Their two families are interlinked by other marriages. The father and his family are now based in California, the mother's family is now based in Leicester. The parents have known each other since they were children. Their fathers were friends and their courtship was approved and encouraged. Their marriage was preceded by a long engagement: almost 7 years (this may have been because the father needed to establish his residence status in the USA). The mother moved to California after the marriage in February 1999 and the two elder children were born there. The mother is a pharmacist qualified in England but not the USA. The father runs or ran a shoe shop in California.
By autumn of 2009 the father's business was in difficulty. A four bedroom house in California was purchased in the mother's sole name, with funds that were provided by her father: she says as an investment for him. The father says that it was to be their family home. The father executed a "Quit Claim Deed" in respect of the property: i.e. relinquishing any claim to the property. He says that the property was put in the mother's sole name in order to protect it against creditors. The mother says that this property was an investment for her father. The mother says that this gave the father no rights, the father says that the moneys advanced by his father-in-law were essentially by way of mortgage and the agreement was that he would repay this to his father in law by instalments to clear the loan: and that eventually he would have an interest in the property. The parties executed at their own expense initial works: new flooring and redecoration: at a cost of between $4,000 and $5,000. The family moved into the house in October 2009, at about that time the mother became pregnant: she says unexpectedly. She learnt that she was pregnant in early November.
The mother now says that the father had given agreement to the permanent move of the whole family before the pregnancy was discovered and that her pregnancy was not the catalyst. She says that her ability to work in England and support from her family was the main reason for return, that the father would or could not provide medical insurance for the children, and that the father's family would not assist her. She says that she had been discussing this plan with the father since October 2009. He denies that.
The mother had had two previous emergency caesarean sections after trial of labour. The father says that about 10 December 2009 the mother told him that she needed to return to England because she would need to undergo a third operative delivery. The family insurance did not cover all the cost: it would have required a top up of $3,000 to $4,000. He knew that as a British citizen, provided that she established residence in England, she would be entitled to free services under the NHS. She told him that she would return no later than a month after the baby was born. The father says that the likelihood of another operative delivery was high. He was presented with a fait accompli and although he was very reluctant he felt that given the medical realities he had to agree and also that it was reasonable in the circumstances that she should be with her mother, another reason given for the return.
On about 11 December 2009 the mother purchased single tickets for her and the children to fly to England on 14 December 2009, although she said in evidence that she had reserved them the week before. The luggage was all within her and the children's baggage allowance: the father says only three suitcases: the mother in evidence first agreed that and then changed her evidence and said that they had taken six large suitcases.
In April 2010 the father made an application for an inter-district transfer of schools in California: he says so the children could go to better schools on their return.
The mother was operatively delivered of M in England on 3 June 2010. The birth was registered in Leicester pursuant to the Births and Deaths Registration Act 1953. The father says that after the delivery the mother told him that she needed to have reconstructive surgery and had been advised not to fly, that she was waiting for surgery and would let him know when she was fit to return. The mother denies that she said that.
The father visited his family for two to three weeks in September 2010 and again in January 2011. He says that he could not afford to travel more often nor leave his business. For the next year or so the mother continued to say that she could not travel. The father spoke to the mother and children once every couple of days.
The paternal grandfather says that he spoke frequently to the mother and she said that she had had some medical issues after the birth, that she was waiting to see a specialist, and that she had to wait and have surgery there. The father then told him that she was returning and he was going to fetch her and the children in December. He and the maternal grandmother made the house in California ready for their return.
The medical records show that the mother sought medical attention frequently after the delivery. She had a hernia and her midline abdominal muscles needed repair and at one point it was thought that she had a fibroid and/or ovarian cyst. She had to wear an abdominal support, she reported abdominal discomfort or frank pain, and she found her condition cosmetically...
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