B v D (Abduction: Inherent Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Baron |
| Judgment Date | 22 April 2008 |
| Neutral Citation | [2008] EWHC 1246 (Fam) |
| Docket Number | Case No. FD07P02634 |
| Court | Family Division |
| Date | 22 April 2008 |
[2008] EWHC 1246 (Fam
Before : MRS JUSTICE BARON
Case No. FD07P02634
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR SHARAZ AHMED (instructed by Knights Solicitors) appeared on behalf of THE APPLICANT MOTHER
MR EDWARD DEVEREUX (instructed by Dawson Cornwell) appeared on behalf of THE RESPONDENT FATHER
Hearing dates: 17th, 18th and 22nd April 2008
Mrs Justice Baron:
This is an application by J B (to whom I shall refer as “the mother”) under the inherent jurisdiction of the High Court and also under section 41 of the Supreme Court Act 1981 by which she seeks an order for the return of the two children of the family, namely A (known in the family as “S”), who was born on 30 November 2003 and is now 4 1/2 years old, and C (known as “T”) who was born on 23 June 2005 and so she is now 2 and 3/4 years old. The mother wants the children to return from Portugal to London. Her application is opposed by Mr R D (“the father”).
This case was originally listed for 1 1/2 days but has, in fact, taken 2 1/2-3 days of court time. I have heard extensive oral evidence from each party. In addition, I have read their lengthy statements. I have had excellent written/oral submissions from counsel who have appeared on their behalf. I have also had the benefit of several authorities being cited to me. In short, this has been a very full hearing. All the issues have been ventilated in detail. I therefore feel that I am in a good position to make positive findings of fact.
The Factual Matrix
I will now set out the relevant facts as I find them. For the avoidance of doubt, insofar as the matters set out differ from the evidence of either the mother or the father, this is because I have preferred the evidence of the other or because I consider that documents produced confirm my findings of fact. I do not believe that either of the parties has given me a wholly truthful account of the situation from about March 2007 to date. This judgment will therefore incorporate what I find is the true reality of the underlying situation.
The mother was born in the Philippines on 8 September 1974, so she is now 33 years old. She came to the United Kingdom when she was 16 years old and has become a British citizen. I understand that she attended London University, where she took a degree. Her own mother (“the maternal grandmother”) and one sister (for she has two) also live in England. Since about 2004 this family made its home with the maternal grandmother. Upon leaving university the mother commenced employment as an IT specialist and was working as such when she met her future husband.
The father was born in Portugal on 20 November 1974. He is also 33 years old. He is a Portuguese citizen. I have not been told a great deal about his education, but he is obviously well educated for he has a good job and, like his wife, is an IT specialist. It would seem that his expertise is greater than hers because, as I understand it, he is employed to redesign corporate software so as to tailor it for a particular customer's needs; whereas the mother's job was originally as a software engineer and latterly as a project manager.
The parties met whilst they were each working for X. The mother was five months pregnant when they married in July 2003. They moved to Brussels and their son S was born there in November 2003. The father alleges that the mother suffered from acute antenatal (wrongly stated, for he meant postnatal) depression after the birth of their son. He says that she found it difficult to cope and if she did not get her way, tended to self-harm. His evidence to me referred to her hitting her head against a wall in order to secure compliance with her wishes. The father stated that she only displayed this behaviour in front of him and never in front of others. The mother denies his assertions. Whatever the truth of her alleged depression, it does not seem that she obtained any medical treatment.
To assist the parties, the father's sister came to live with them for a short period of time whilst they were in Brussels. I accept that the mother was unhappy in that country, away from her home and family in England. The parties remained in Belgium until 31 July 2004 when, by agreement, they returned to London. Their first home in England was a rented apartment in London. The mother was nearer her family and, as such, they began to assist with the care of the children. Although the parties had a young baby, it was agreed by both of them that each would work. At that time the mother's employment required her to attend at X's premises and so she needed assistance with the care of the baby. As I understand it, a cousin came and assisted with S's care. I do not consider that the mother can be criticised for this situation, given that it was agreed by the parties that she should be in remunerative employment. I say this only because in his oral evidence to me the father seemed to indicate that the mother was not the primary carer. Obviously she could not look after the child whilst she was away at work; but I accept that the arrangement with her cousin was by way of her being (in loose terms) a nanny. I accept that each of the parties assisted with child-care duties at the weekend, although I cannot make any finding on the evidence available to me as to who (if either) did more.
Within a short period of her return to this jurisdiction, the mother became pregnant for a second time. She gave birth to T in mid-2005 and was on maternity leave for the next twelve months. It was agreed by the parties that they would give up their rented accommodation in order to live with the maternal grandmother. It was hoped that she would assist with the care of the two children and also, I have no doubt, money was short with the result that the parties thought that they should save rent. The family therefore moved to London. The mother was, as I have already stated, on maternity leave for a year. The father accepts that during this period she cared for the children on a full-time basis. It had been hoped that the maternal grandmother would assist, but it seems that she spent a great deal of her time assisting her second daughter who also had a young child.
Throughout this period the father continued to work for X. In about November 2006 the mother returned to work. However, it was accepted by her employers that with two children she could not attend their office premises on a regular basis. Consequently her role within the company changed and she became a project manager working from home. I understand that she was able to fulfil her duties over the telephone because she could assist by having conference calls. She was expected to hold them in the morning and in the afternoon.
I am clear that money was still in short supply in this family and the mother's earnings were an integral and important source of funding. By this stage the father had ceased to be an employee of X and he had become a self-employed contractor. He had formed a company in England and another in Portugal. No doubt it made fiscal sense for him to route his earnings through those corporate entities. However, in reality, his main source of gainful employment remained, as before, with X and he used to travel to their site on a daily basis. He told me that it was his habit to leave home at between 7am and 7.30am each day in order to travel to work by train.
In addition to this employment the father acquired contracts from an American corporation to undertake work on their behalf. He was able to do this work from home and on line. It is clear that whilst the mother was actually working she needed some support with the children. It was in this way that her mother assisted on an ad hoc basis. However, despite this, from 2005 onwards I am sure that she had the main responsibility for caring for the children during the week. The father told me that he assisted at weekends. I expect that he did, but I have not heard detailed evidence about this aspect and so I am not in a position to decide which, if either, party did more at weekends during this period.
The parties agreed that S should be placed in a private, fee-paying nursery school. I have no doubt that this was a financial burden that they both thought was worth it. The father complained that the mother did not always take him to school on time and there were a number of days when he missed classes. The father felt very keenly that this was a waste of money. Accordingly from the autumn 2006 the parties began to discuss the cost of S's education and whether it could be afforded. The mother went to see a number of schools. The parties also considered whether a local state school might not be appropriate, particularly a Catholic school. This would have necessitated regular attendance at Mass, which was not their habit as a matter of course.
On 26th January 2007 the mother informed S's school that he would not be attending it for the next semester, i.e. after Easter, because they were “going to the Philippines”. At this time it was the family's plan that the mother would visit the Philippines for about two months and take the children with her. This had been agreed with the father on the basis that she would be able to continue working for X and earning whilst she was abroad. The mother's evidence was that X agreed to this but I prefer the father's evidence on this point, to the effect that the time difference made it impossible from a work perspective. Hence the plan was abandoned.
At about this time the maternal grandmother had also planned a holiday and she continued with her...
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