KG v JH
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Lewis,Lady Justice King |
| Judgment Date | 27 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1123 |
| Docket Number | Case No: B4/2021/0507 |
| Court | Court of Appeal (Civil Division) |
In the Matter of the Child Abduction and Custody Avt 1985
And in the Matter of IG (Child Abduction: Habitual Residence: Article 13(b))
[2021] EWCA Civ 1123
Lady Justice King
Lord Justice Baker
and
Lord Justice Lewis
Case No: B4/2021/0507
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Mrs Justice Arbuthnot DBE
FD20P00679
Royal Courts of Justice
Strand, London, WC2A 2LL
Marisa Allman and Lara Izzard-Hobbs (instructed by Slater Heelis) for the Appellant
Mark Jarman (instructed by Sherma Polidore) for the Respondent
Hearing dates: 13 May 2021
Approved Judgment
This is an appeal by a mother against the order of Arbuthnot J made under the Hague Child Abduction Convention for the summary return of her son, IG, to South Korea.
The principal issues raised on this appeal are two matters which have caused considerable problems for judges in recent years – the determination of a child's habitual residence and the approach to the defence available under Article 13(b) of the Convention.
Background
The child's father, who is now aged 28, was born in South Korea. The mother, now aged 24, was born in England. In 2018, the parties met online while the mother was studying at university. In August of that year, the mother travelled to South Korea on a student exchange visa, and the parties started a relationship. In January 2019, the mother discovered she was pregnant and moved to live with the father's family in Chuncheon while continuing to attend university in Seoul some 75 km away. In May 2019, the parties underwent a civil marriage ceremony and the following month took part in a traditional Korean wedding ceremony which was attended by the mother's parents.
At the end of June 2019, the parties travelled to England and the father was granted a six-month tourist visa. In September 2019, the mother gave birth to IG.
In December 2019, the family travelled to South Korea, arriving there on 29 December, when the mother was granted a tourist visa valid for three months.
It was the mother's case that difficulties between the parties arose shortly afterwards when the father refused to allow her to book return tickets to England. The mother wanted to return in June 2020 but alleges she was told that she would not be allowed to leave with the child.
On 30 January 2020, an application was made on the mother's behalf for a spousal visa in South Korea. On 2 March 2020, she was issued with an alien registration card.
On 6 March, the maternal grandmother arrived in South Korea. Three days later, the mother, grandmother and IG left the country without informing the father.
During the following six months, there were text communications between the parties which were the subject of evidence before the judge. On 26 August 2020, the father contacted the Central Authority in England. At the beginning of September, he arrived in England and was granted a six-month tourist visa. On 22 October, the mother issued divorce proceedings in the Central Family Court. On the following day, the father filed an application in the Family Division under the Hague Child Abduction Convention seeking an order for the summary return of IG to South Korea. The mother filed an answer, alleging that at the date of his removal from South Korea on 9 March 2020 IG had been habitually resident in England. In the alternative, if he was habitually resident in South Korea at that date so that his removal was unlawful, the mother raised two defences under the Convention – first, under Article 13(a) of the Convention, that the father acquiesced to IG remaining in this country and, secondly, under Article 13(b), hat there was a grave risk that the return of the child to South Korea would expose him to physical or physiological harm or otherwise place him in an intolerable situation.
At a preliminary hearing on 2 November, the proceedings were adjourned to allow the parties an opportunity to mediate and an agreement was reached for the father to have contact three mornings a week, subject to supervision until his passport was lodged with his solicitors. An order was made preventing him from removing the child from the jurisdiction. Subsequently, the father lodged the child's Korean passport with his solicitors, the mother lodged his British passport with her solicitors and thereafter the child's contact with his father has been unsupervised.
The parties were unable to resolve the dispute through mediation. At a hearing before Theis J at the end of November 2020, directions were given including an order for a report from a South Korean legal expert. That report was duly filed in January 2021. On 29 January, at a further hearing before a deputy judge, further directions were given, including permission to the parties to put additional questions to the expert. Those questions were duly asked and a brief response received at the beginning of February. In answer to questions about the mother's immigration status, the expert, Ms Soya Kim, stated that the mother would be entitled to apply for an extension of her current spousal visa until the conclusion of divorce proceedings, and thereafter to apply for a visa to permit her to remain in Korea to raise IG as a child born during a marriage to a Korean citizen. Any such visa would be for a limited period, but it would be open to the mother to apply for further extensions up to the child's 18 th birthday. In answer to a supplemental question, Ms Kim added that the examination will be conducted entirely by the Ministry of Justice and Immigration Office which “has a wide range of discretion”. In answer to questions about the recognition and enforcement in Korea of orders made by and undertakings given to the English court, she advised that only a final decision of a foreign court can be recognised and that interim “preservative” orders would not be considered binding, although they “may be considered” by a Korean court making its own decision on the issues. Ms Kim also advised about the interim remedies under Korean law regulating the care of the child pending final determination. An application for such “prior disposition” can only be made within a substantive suit, although it would be possible for the mother to initiate proceedings before she arrived back in Korea. Ms Kim also provided some information about the availability of legal aid and about remedies for victims of domestic abuse.
The hearing of the application took place before Arbuthnot J on 8 March on submissions only. At the conclusion of the hearing, the judge adjourned judgment until the following afternoon. In the event, she was unable to start delivering judgment until 4pm that day. In short, the judge concluded that:
(1) at the date of his removal IG had been habitually resident (although it is said on the mother's behalf that her precise finding about when he acquired habitual residence in that country is unclear);
(2) there was no evidence of any weight that the father had acquiesced to the mother's retention of the child in this jurisdiction;
(3) there was no grave risk of harm or reliable evidence that IG would be placed in an intolerable situation if returned to South Korea (although again it is said on the mother's behalf that the basis on which the judge concluded that the Article 13(b) defence was not established is unclear).
Following the delivery of the judgment, the mother's counsel, Ms Allman, asked the judge to address a matter which she asserted had been omitted from the judgment, namely the practical circumstances which the child would face on being returned to South Korea. A lengthy discussion took place between the judge and counsel about the undertakings which the father was offering to facilitate the return. At the end of these exchanges (which have been transcribed for the purpose of this appeal), the judge agreed to prepare a supplemental judgment dealing with that issue. Ms Allman then made an oral application for permission to appeal which was refused. On the following day, counsel filed supplemental written submissions on the proposed undertakings offered by the father.
On 15 March, the judge approved an order directing the mother to return IG to South Korea forthwith and in any event by 6 April 2021; and further directing the mother to provide the father with details of the property in that country in which she intended to live, and copies of the flight tickets purchased for the child's return, with a direction to the father to reimburse the mother for the costs of the child's flight. On the same day, the order was sealed. Appended to the order were two annexes containing undertakings given by each party. There was some repetition within the undertakings given by the father which in summary were:
(a) to pay for accommodation for the mother and IG in Chuncheon “at £300 to £400 per month for a 12 month period or until a final order is made in respect of IG's welfare by the Korean court (whichever is the later)”;
(b) to provide the mother with financial support of £200 per month for the same period, “in addition to £400 the mother is already entitled to” by way of state benefits from the South Korean government;
(c) prior to the mother's departure from England, to provide £600 to cover the first month in South Korea (“£400 of which would usually be state benefits and the £200 top up from the father”);
(d) by 21 March 2021, to pay a lump sum of £5,200 into a bank account to be set up by the mother, comprising £600 support for the first...
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