A A v A B
| Jurisdiction | England & Wales |
| Judge | Ms. Justice Russell |
| Judgment Date | 28 April 2015 |
| Neutral Citation | [2015] EWHC 1699 (Fam) |
| Court | Family Division |
| Date | 28 April 2015 |
| Docket Number | Case No. FD15P00046 |
[2015] EWHC 1699 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Ms. Justice Russell
(In Private)
Case No. FD15P00046
Miss J. Renton appeared on behalf of the Applicant Father.
Mr. H. Khan appeared on behalf of the Respondent Mother.
These proceedings are brought by the Applicant father in respect of the child A, born on 14 June 201for summary return to Italy pursuant to the provisions of the Child Abduction and Custody Act 1985, which drafted into UK law the provisions of the Hague Convention and the Civil Aspects of International Child Abduction signed in October 1980.
A is now three years and nine months old, and has been living in the UK with her mother since May 2014. A was born in Hungary and her mother is Hungarian, her father is Italian. Her birth was registered in Hungary and later by her father in Brindisi, Italy, where he lives with his mother. Throughout her life A has been in the care of her mother. Her father has been closely involved in her upbringing until December 2013 when the mother and child returned to Hungary. I shall return to the facts of this case and the child herself the legal framework for the case.
The Applicant father seeks an order for the return date to Italy and as it is his case that A was habitually in Italy there at the time of her removal from Hungary to the United Kingdom, which he says was unlawful and without his consent.
LAW
The Respondent mother defends this application, primarily, under Article 3, as she says A was not habitually resident; but in the alternative she says that there is a defence under Article 13(b); that a return to Italy would expose the child to physical or psychological harm or otherwise place the child, A, in an intolerable situation. Logic and law dictate that I should first consider the defence under Article 3 as, if it applies either because the child was habitually residence in Hungary or not habitually resident in any of the Contracting States, then the application itself fails, and I do not need to consider the provisions of Article 13.
THE LAW IN RESPECT OF HABITUAL RESIDENCE:
I have been referred by both counsel to the United Kingdom Jurisprudence and to the relevant case law concerning habitual residence. The law of the United Kingdom requires (as it has been held by the Supreme Court) that I apply European law based on the seminal cases of Re A (Area of Freedom, Security and Justice) [2009] 1 FLR 1, and Mercredi v Chaffe [2011] 1 FLR 1293. Following the Supreme Court decision of Re A (Jurisdiction: Return of a Child) [2014] 1 FLR 11 and the law that is to be applied is the European test on integration. The law is child-centric and not parent-centric — in other words, its purpose is to protect and safeguard children and not to assert parental rights.
As there is no dispute as to the legal framework to be applied, I do not intend to set it out in full in this short judgment.
THE LAW
Habitual residence is an issue which falls to be determined on the particular facts of each case. I have read the submissions of counsel and have refreshed my mind as to the relevant case law. In determining the habitual residence of A I shall consider all the relevant factors, including the duration of stay in each country in which she has previously resided, and whether circumstances of that duration reflected an adequate degree of permanence. That latter will also be determined by conditions in which A lived, the reasons for her stay in Hungary and Italy and her parents' reasons for being there, her attendance at nursery or school, and her family and social relationships.
HISTORY FROM A's BIRTH:
A was born in Hungary and her birth registered in June 2011. Both her parents had moved to Hungary from Italy, where they had been living for the previous nine months, in or around April 2011, and on the Respondent's case remained there until May 2012. It is the Applicant's case that they spent July to December 2011 in Italy. From May 2012 to December 2012 A was in Italy with her parents; and from December 2012 until June 2013 A lived in Hungary. From June 2013 A was in Italy until December 2013, when she then returned to Hungary with her parents and remained there with her mother, apart from one week she spent with both parents in Holland during Easter 2014. After that holiday she was driven back to Hungary by her father and remained there with her mother.
A's mother brought her to the United Kingdom in May 2014. The Applicant says that that removal was without his consent, and he reported it to the Italian police, who had instigated criminal proceedings which are still extant. As the Applicant claims to be powerless to halt these proceedings the Respondent (mother) risks prosecution and possible arrest if she is forced to return to Italy with A.
The timetable of movement which I have set out between Hungary and Italy is highly indicative of an arrangement whereby summers were spent in Italy and winters in Hungary. As I am concerned with the habitual residence of A, I must consider the fact of her residence in both countries and to what extent she was integrated into a social and family environment in Hungary and in Italy. In order to determine that, I must consider the reasons for the family's presence in each country and the intention of the parents. This latter is one of many factors relevant in determining whether there is a sufficient degree of stability and integration amounting to habitual residence or a change in habitual residence.
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