L-S (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice McCombe,Lady Justice Sharp |
| Judgment Date | 20 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2177 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2017 |
| Docket Number | Case No: B6/2017/1544/FAFMF |
[2017] EWCA Civ 2177
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 11 May 2017
Mrs Justice Parker
FD17P00163
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice McCombe
and
Lady Justice Sharp
Case No: B6/2017/1544/FAFMF
James Turner QC and Ms Katy Chokowry (instructed by Miles and Partners Solicitors) for the Appellant
Timothy Scott QC and Miss Clare Renton (instructed by Thomas Dunton Solicitors) for the Respondent
Hearing dates: Tuesday 21 November
Judgment Approved
The present appeal relates to proceedings brought under the Hague Convention on the Civil Aspects of International Child Abduction with respect to a boy, M, who is 21 months old. The three central issues in the appeal relate to the child's habitual residence, whether or not his father had subsequently acquiesced if he had been wrongfully removed from the USA to England, and whether the circumstances are sufficient to engage Article 13(b) of the Convention by establishing that there is a grave risk that his return to the USA would “place the child in an intolerable situation”.
M had been removed from the USA by his mother on 25 April 2016. In a judgment given at the conclusion of a 2 day hearing, which included an element of oral evidence from each of the two parents, Mrs Justice Parker determined that M had been habitually resident in the United States at the time of his removal, she rejected the mother's case on acquiescence and Article 13(b), with the consequence that an order for M's return to the United States was made. It is against that outcome that the mother now appeals to this court, permission to appeal having been granted by Lady Justice Black (as she then was) on 21 July 2017.
Background
The background facts can be shortly stated. Although of South African origin, the mother lived for much of her childhood in England and was habitually resident here prior to moving to America when she was aged 21. Whilst there she met the father, who is an American citizen, in 2010 and they were married on 6 January 2011. The couple remained living together in America, albeit in a series of different locations in what has been described as a nomadic or peripatetic lifestyle, until 6 October 2015 when the mother, who was then some 28 weeks pregnant, came back to England where she accessed maternity care under the NHS.
On 25 February 2016, when M was only 4 weeks old, the mother flew with him back to America. While she had been away the father had yet again moved home to a different US state. The mother and M lived with the father for the next two months, until, on 25 April, the mother removed M back to England on a one-way air ticket without telling the father of her intention.
Since that time M has remained in his mother's care in England.
On the judge's findings, during the summer of 2016 the father obtained some information about his ability to apply for M's return to the United States under the Hague Convention. He did not mention this to the mother. He told the judge, however, that it was in his mind to start Hague proceedings from that time onwards, but, apparently, he was prevented from doing so until February 2017 because he did not, until that stage, have a copy of the child's birth certificate.
In the autumn of 2016 the father did commence divorce proceedings, with the agreement of the mother. The divorce petition asserts that “the parties separated on or about October 1 st 2015”.
The divorce petition records that the parties have entered into an agreement concerning marital separation and property settlement which “encompasses child custody, child welfare, child support, parenting obligations, health insurance and marital assets”. The petition sought the court's approval of the agreement.
The agreement, which appears to be in a standard form, includes the following:
“Child custody and visitation:
Respondent [mother] shall have full legal and physical custody of the child. Both parties agree for the petitioner [father] to have visitation over summer break of the child, and until the child attains school education. Any visitation for the petitioner [father] will be mutually agreed upon between respondent [mother] and petitioner [father].”
Later under a heading of “Representation” a number of representations made by each party to the other are recorded including:
“(c) Each understands and agrees that this Agreement is intended to be the full and entire contract of the parties.
(d) Each agrees that this Agreement and each provision of it is expressly made binding upon the heirs, assigns, executors, administrators, successors of interests and representatives of each party”.
The Agreement was signed by the mother in England, before a notary, on 29 November 2016. Under the mother's signature the printed text reads “STATE OF GEORGIA”, however “GEORGIA” has been crossed out and replaced in writing by “England and Wales United Kingdom of Great Britain and Northern Ireland.” The Agreement is recorded as having been signed by the mother in Kent, and the notary's address is an address in Kent.
During the hearing before the judge the father mentioned for the first time in cross-examination that he had left a number of voicemails for the mother to pick up via the ‘WhatsApp’ messaging service. At the time that he gave this evidence neither the voicemails nor the date upon which they had been transmitted was available to the court. For the purposes of the appeal, and without opposition from the mother, we have admitted fresh evidence that establishes that all 3 of the messages were sent within a short time of each other in the early hours of the morning on 11 December 2016. Although the messages were ostensibly from the father to his 11 month old child, they were plainly intended to be heard by the mother. The first message runs for only 33 seconds and is of no relevance. The second message, which lasts nearly 2 minutes, records the father's opposition to M being known by a different surname. The third message which lasts for 46 seconds, is as follows:
“Little bunion? I also wanted to let you know that daddy's gonna do all he can to bring you back to your family that, you know, you were taken away from because you have blood family, direct relatives even a sister here that you were abducted and snatched away from so daddy's gonna take care of you and do everything he can so that you can be with your family. I love you little munchkin, don't worry I got it all planned out. I love you little munchkin.”
Although at that time the court was unaware of the content, the judge found that the mother was aware of the voicemails and, indeed, the tick marks on the screen shot of the ‘WhatsApp’ account that we have now viewed suggest that that is indeed so. The judge's finding on this point is not challenged.
The final decree of divorce was issued on 24 January 2017. The father's voicemail messages sent on the 11 December 2016 therefore sit in the chronology between the signing of the divorce agreement and the final decree encompassing its terms.
The father issued his application under the Hague Convention on 24 February 2017 and, as I have indicated, the case came up for final hearing before Parker J in early May.
The only other factual matter to record at this stage relates to the current circumstances in America if the appeal fails and the mother is required to return M to the USA in accordance with the judge's order. The father has moved to another new location and is living in a mobile home, which he undertook to vacate to provide accommodation for the mother and child. The mother's general case in the context of Article 13(b) is summarised by the judge (at paragraph 99) as follows:
“The child is attending baby and toddler groups, which apparently he is enjoying. The mother thinks that she might be isolated in the United States and unable to access any such facility. She does not know whether they exist. She says that she had no friends there who can support her, whereas she does in England. She has long-standing friends from her childhood who are already willing and able to step up to the plate to assist her. She says that she requires some form of alternative accommodation for the baby during the day. She is concerned that the father may not be able to provide accommodation.”
The mother was also concerned about the father's ability to provide financial support and/or pay for medical care. The Green Card that she had previously held has now expired. Although the judgment does not record this information, this court was told, apparently without challenge, that the mother's immigration status in America would be limited to entry on an ordinary 90-day tourist visa.
Issues before the judge
The issues of habitual residence, acquiescence and the engagement of Article 13(b) were each raised before the judge.
On habitual residence, the judge was invited to determine the question of the mother's habitual residence because of its impact on the ultimate question of whether or not M was habitually resident in America at the time of his removal on 25 April 2017. The mother's primary case was that she had retained her habitual residence in England throughout the period of over 5 years during which she became married and lived with the father in the USA. The judge rightly rejected that submission and her decision on that point is not now challenged.
The mother's secondary position was that almost immediately upon her return to England in October 2015, she regained her habitual residence in England and lost any habitual residence in America. The mother's case was that, thereafter, her habitual residence remained in England, notwithstanding her return to America for 8 weeks between February and...
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JK (Mother) v LM (Father)
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