ES v AJ
| Jurisdiction | England & Wales |
| Judge | SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION |
| Judgment Date | 19 May 2010 |
| Neutral Citation | [2010] EWHC 1113 (Fam) |
| Docket Number | Case No: RG09P01767 |
| Date | 19 May 2010 |
| Court | Family Division |
[2010] EWHC 1113 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: Sir Nicholas Wall, the President of the Family Division
Case No: RG09P01767
Alev Giz (instructed by Tanner & Taylor LLP) for the Applicant
Richard Clough (instructed by Truemans) for the Respondent
Hearing dates: 29 April 2010
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.
This judgment is being handed down in private on 19 May 2010 It consists of 7 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.
Sir Nicholas Wall P:
This is an application in wardship proceedings made by the mother of twin children born on 30 October 2007 (the twins) for an order against their father that the twins be returned forthwith to the jurisdiction of England and Wales and into her care and control.
A preliminary issue has arisen, which can be shortly stated. Since an unspecified date in November 2008 the twins have been living with their paternal grandmother in the British Cameroons in West Africa (the Cameroons). Under the Family Law Act 1986 I only have jurisdiction to make the orders sought by the mother if either (a) the twins are physically present in England and Wales (which plainly they are not); or (b) if they are habitually resident in England and Wales.
The mother's case is that the twins were wrongly removed by their father from this jurisdiction in November 2008 and, that as a consequence, they have never lost the habitual residence in England and Wales which it is common ground they had immediately prior to their removal. The father's case is that over the period between November 2008 and today's date the twins have become habitually resident in the Cameroons.
In the alternative, the father argues that if I find the twins to be habitually resident in England and Wales, I should, nonetheless, on the facts and as an exercise of discretion, refuse to make an order for their return to England and Wales. In this respect, the father relies upon the length of time which the twins have spent in the Cameroons, coupled with that he submits was the mother's agreement that they should go there in the first place, and her subsequent acquiescence in the twins remaining there.
The Facts
Both the parents originate from the Cameroons, although the father has lived most of his life in England and Wales. He told me that he underwent his secondary education in this country. He and the mother met whilst he was on a visit to his family in the Cameroons. It is plain that the parents’ respective families live within close proximity of each other in the Cameroons, and know each other well. The mother was born and brought up in the Cameroons, where she was educated to University level.
The parents underwent a customary marriage in the Cameroons and a civil ceremony of marriage in England on 7 April 2007. The twins were born in England on 14 November 2007. The parents lived in the house of the paternal grandmother. The mother's case is that she was abused both by the father and the paternal grandmother, and regularly taunted with the fact that she did not have permanent leave to remain in England and was therefore vulnerable to the father's controlling behaviour towards her.
In November 2008, the children, who had British passports obtained by the father, went to live in the Cameroons. They were accompanied by the paternal grandmother. They have lived in the Cameroons ever since.
The mother's case is that the despatch of the twins to the Cameroons was done without her consent and contrary to her wishes. She accepts that she accompanied the children to the airport and that she saw them off. She explains this by saying that she had been presented with a fait accompli and was unable to prevent the father and this mother removing the children. The mother also says that she could not travel because she did not have a British passport and that the mother was holding her Cameroons passport
The father's case is that the decision to send the children to the Cameroons was consensual; that his mother's house was on the point of being re-possessed; that the parties, who were both working but had lost their jobs, were not in a financial position to care for the twins, and that it was therefore expedient to send the twins abroad for a time, until their parents’ financial position improved.
Amongst the somewhat exiguous documentation with which I have been provided is a form from the Reading Citizens Advice Bureau (CAB) which records that on 17 November 2008, the mother made an enquiry of the CAB about her situation and rights “as I am going through some matrimonial problems”. Whether this appointment precedes or post-dates the removal of the children is not clear. What, however, is plain is that as at 17 November the mother either knew the children were going or that they had gone; and what is equally plain is that she did not seek advice from the CAB either about the proposed removal or about how the return of the children could be achieved.
In the supplemental form C1A to her Form 100 relating to D, which is dated 4 November 2009, the mother asserts that in the early hours of 3 February 2009, the father attempted to throttle her and held a knife to her throat.
In April 2009 there was an incident between the parents which resulted in the police being called and the father being arrested. The mother says that he beat her and that as a result she went to hospital. The father was, however, released without charge. In the same statement, the mother asserts that on a regular basis she was locked out of her home; that the father would push her and that, throughout her pregnancy with D, the father was verbally and emotionally abusive towards her. These allegations are denied by the father, and I make no findings in relation to them.
On 25 July 2009, the mother gave birth to third child, a boy, D. By this point it would seem that the marriage had irretrievably...
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