Christopher Robert JONES v Kate Helen JONES
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 2005 |
| Neutral Citation | [2005] EWHC 2998 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD05P01540 |
| Date | 21 December 2005 |
[2005] EWHC 2998 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Mr Justice Sumner
Case No: FD05P01540
Miss Catherine Wood (instructed by White and Sherwin) for the Applicant
Mr Stephen Parker (instructed by Thomas Andrews & Partners) for the Respondent
Hearing dates: 9 September 2005 and 6 December 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. MR JUSTICE SUMNER
This judgment is being handed down in private on 21 Dec. 05. It consists of 24 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
The Hon. Mr Justice SUMNER :
Introduction
On 5 August 2005 the Plaintiff father, Mr Christopher Jones, a 30 year old United States citizen living in Connecticut, issued an application under the Hague Convention. He seeks an order that his 4 year old daughter, Alexandra Jones, "Alex", born on 12 September 2001, be returned forthwith to the United States. That application is opposed by the mother, 29 year old Mrs Kate Jones, a UK citizen. Alex has lived with her mother in Wales since October 2004.
The hearings
The matter came before me on 9 September 2005. Miss Catherine Wood appeared for the father, and Mr Stephen Parker for the mother. I heard evidence from the father, the mother, and a maternal uncle, Mr Phillips. There was insufficient time for counsel to make closing submissions at the end of a vacation sitting. I was due to go on Circuit at the beginning of term. It was agreed that submissions would be made in writing.
Having received them, it was apparent that difficulties remained. I contacted counsel immediately. I highlighted them. I suggested a further oral hearing. Because mainly of my absence on Circuit and listing problems, it could not be further heard until 6 December.
The issues
I shall start by setting out the essential background. I limit this to the extent necessary to understand the issues raised by the Respondent mother. They are in brief that Alex was not habitually resident in the United States at the relevant time. Next the father consented to or acquiesced in Alex remaining here. Finally it would expose Alex to grave risk of harm if she were not ordered to be returned. I shall refer to the parties as the mother and father.
The background: 1999 – Oct 2004
The parties were married in Massachusetts in August 1999. They returned to Wales where the mother grew up within a month. They purchased a home in Wrexham, and remained there for 4 years until September 2003. By then Alex was 2 years old.
The father obtained employment in Wales. He stopped in January 2003 because of stress. They decided to return to the United States. They moved there in September 2003. The mother applied to be a teacher and they purchased a home 3 months later in Suffield, Connecticut.
The mother had in October 2003 applied for a visa to stay in the United States as the wife of a US citizen. This is a long process. It had not been completed by the time that the parties separated in December 2004. Alex's status was different from that of the mother as she is a dual American and British citizen. She is entitled to reside in the United States. This was not known until after these proceedings were started.
The mother was on a Visa Waiver Programme. As a result she was only entitled to remain in the United States for a maximum of 90 days at any one time. Because of this and with the father's agreement, the mother and Alex left the United States 5 times between September 2003 and October 2004. They were in Wales with the mother's family between the 4 th and 24 th of November 2003, the 5 th and 22 nd of February 2004, the 17 th of May and the 2 nd of June 2004, the 13 th and 27 th of July 2004, and after 23 October 2004. I shall return to the detail of these absences.
October – 21 December 2004
With the father's consent the mother and Alex stayed on in Wales after 23 October. The mother's sister was to be married on 21 December which the father was to attend. He arrived on 14 December.
Prior to his arrival the parents had been in regular email contact. Some 40 messages have been exhibited. Those sent by the mother are rightly described by her as warm and happy. These messages indicated that she was missing home in Connecticut and wanted to return. She sent the father details of her return flight with Alex on 27 December.
The parties' relationship broke down shortly after the father's arrival. As a result he wanted to return early. He was persuaded to stay for the wedding. He went back to the United States on 23 December.
The parties thereafter exchanged messages by telephone and email. The father did not ask Alex or the mother to return. No action was taken until the mother was served with proceedings in August 2005.
The Hague Convention
It became part of British domestic law pursuant to the Child Abduction and Custody Act 1985. As is well known, it governs the position where a parent takes a child wrongfully from Convention country A to Convention country B or retains the child wrongfully in country B. It is an essential precondition that the other parent in country A has rights of custody and that the child was habitually resident in country A at the time of the wrongful act. If so then the courts of country B must on application return the child forthwith to the jurisdiction of country A for the courts of country A to decide where the child shall live. However the parent who has taken or retained the child can raise limited defences which they must prove. If they do so, the courts of country B have a discretion whether to return the child or not.
The relevant defences arise under Article 3(a) (habitual residence) and Article 13 (consent, acquiescence, grave risk):
"Article 3
The removal or 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 exercise, 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 ……
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation ………"
It is accepted by the parties that, if the father proves that Alex was habitually resident in the United States on 27 December, the mother wrongfully retained Alex in Wales. It is also accepted that at that time the father had rights of custody.
Defences – A. Habitual residence
The mother says firstly that there was no wrongful retention of Alex for the purpose of the Convention. This was because Alex was not on 27 December 2004 habitually resident in the United States. She and Alex were only there as visitors with no right to remain. She was habitually resident in Wales. Whilst it was intended that they would reside in the United States, this had not been effected.
Alternatively the mother was habitually resident in both the United States and Wales. At the time she was resident in Wales. In the final alternative the mother had no habitual residence at the relevant time. In short whatever view is taken she was not habitually resident in the United States.
The father disputes this. The parties intended to remain in the United States. They had taken all practical steps necessary to achieve their intention. They had been there for an appreciable period. The absence of the necessary visa for a permanent stay is no bar to the acquisition of habitual residence.
B. Consent
Secondly the mother says the father consented to Alex's retention in North Wales. The father had agreed the marriage was over and that Alex would remain with the mother wherever she was. This and the father's acceptance that Alex remain before he left is clear and unequivocal evidence of his consent.
The father says there was no clear consent. An agreement if proved that a child would stay with one parent should they separate is not consent to an unlawful retention. He did not consent prior to leaving Wales that Alex should remain there.
C. Acquiescence
Next the mother says the father acquiesced in Alex remaining in Wales. Looking at all the conversations and messages between the parents, this is clear. Alternatively the father led the mother to believe that he was not...
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