L v M

JurisdictionEngland & Wales
Judgment Date08 February 2019
Neutral Citation[2019] EWHC 219 (Fam)
CourtFamily Division

Jurisdiction – Abduction – BIIR, art 10 – Application to non-EU state – Whether reference to CJEU as to scope of art 10 necessary.

The parents were both born in China and came to England as students. They met and made their home together in London, where both had jobs in the banking sector. Both were granted indefinite leave to remain in the UK in August 2015. Having been unable to conceive naturally, the mother undertook successful IVF treatment in China and she gave birth to twins in England in July 2017. The twins were registered at a number of London private primary schools, and were offered a place at a school with a nursery section. They were registered with a local GP and had their relevant immunisations there.

The mother, who was no longer working, then planned a family trip to China, discussing the arrangements with the father. The mother's family sent two helpers to England from China, to help with packing and travelling with the twins, who were still breastfeeding. The parents gave very different accounts of the days immediately leading up to the departure, but agreed that there was a very serious argument in which the mother mentioned divorce. The twins and the parents left England for China together on 14 December 2017; one of the children was travelling on the father's ticket, with a return date on January 2018 and the other was travelling on the mother's ticket, with a return date in March. The mother's case was that there had never been any intention of splitting the twins and that the tickets were simply a convenience; the father's case was that he was expecting to return with one of the children, leaving the mother and the other child behind. The parents separated on arrival in China, the mother and the twins went to stay with her family and the father went to stay with his family. The father returned to England in January 2018 without either child. When he visited the mother in China in February the mother repeated her request for a divorce, stating that she did not intend to return to the UK at that stage.

In March 2018, the father consulted English solicitors, but took no legal action. He was having indirect contact with the twins up to 25 March. On 26 March the mother wrote to the father, formally indicating that she wanted a divorce and had hired lawyers in China. Thereafter the father had no contact with the twins until November. The father did not join his parents in visiting the maternal family in April (he claimed this was because of involvement in a road traffic accident in London). The father saw English solicitors again in May. In June, the mother filed for divorce in China; the father resisted this, claiming that a reconciliation had been underway in February. The Chinese court rejected the mother's divorce application in October; the mother appealed. The Chinese court had made no orders and was not yet considering children arrangements. In July the mother obtained a job in Hong Kong with her previous employers. After taking this up, she stayed in Hong Kong during the week, leaving the twins with the maternal family and nannies and returning to see them every second weekend and during holidays.

In October, the father applied to the English High Court for an order in wardship under the inherent jurisdiction. In particular he sought a ruling as to jurisdiction and an order that the twins be returned to England, or orders about them in China. In November, the father's contact with the twins resumed, and he began having a 10-minute video call with the children each day.

An issue arose as to the interpretation of art 10 of Brussels IIR and whether BIIR applied to an alleged unlawful retention of children in a non-EU member state.

Held – (1) Re H (children) (Reunite International Child Abduction Centre intervening)[2014] EWCA Civ 1101 applied and was binding on the court: accordingly art 10 of BIIR applied in this case even though the children had been moved to a non-EU member state and the court had to consider whether the twins were habitually resident in England at the relevant date under art 10. It was impossible to argue that the purposes of art 10 had not been considered in Re H or that the decision was per incuriam. It might be that there was some doubt over the jurisdictional scope of art 10, but in the light of this binding authority it was not appropriate for this court to make a reference to the Court of Justice of the European Union; it would be for a higher court to decide whether to do so (see [37], [45], below).

(2) What the court took from Re C (children)[2018] UKSC 8 was that the court should look for some objectively identifiable act of repudiation of the previously agreed position. In relation to unlawful retention, there was some danger of trying to impose a highly legalised analysis in the context of people who were not contemplating legal agreements and who were going through a highly traumatic time of family breakdown. In this case there had been no clear, or really articulated agreement between the parents as to where the children would live in the medium term; the situation had fluctuated and both sides' wishes, intentions and emotions had been changing. The relevance of intention was potentially complicated; in some cases the parental intention might be absolutely clear and there would be objective evidence; in this case the mother's intention may have been somewhat uncertain in early 2018, and may well have fluctuated (see [48], [49], [71], below).

(3) There were three potential relevant dates: the date of the departure for China; a date between then and when the mother wrote to the father indicating that she would not be returning to the UK; and the date on which the proceedings were issued. Clearly the twins were habitually resident in England until they left for China, having lived their entire lives there with both their parents and being integrated there, to the extent possible given their very young age. However, the date on which they left England was not a relevant date under art 10, as the father had undoubtedly agreed that the twins would spend some time in China. Rejecting some of the father's evidence on this point, the common understanding had been that both children would remain in China with the mother for a period. The evidence did not support a conclusion that, at the time she left, the mother had had a clear intention not to return to England. It was not possible to pin down a precise date on which the mother had decided not to return to England, but by the end of March 2019 the mother was unequivocally saying to the father that she and the twins would not be returning. Applying Re C, the objectively identifiable act came at the end of March 2018, when the mother wrote to the father formally indicating that she wanted a divorce and had instructed lawyers. The instruction of lawyers seemed to be the kind of objective act that the Supreme Court had been looking for. The end of March was the date at which the court should determine the twins' habitual residence, and therefore the date relevant to the decision about jurisdiction (see [56]–[61], below).

(4) Using the check list of factors helpfully summarised in Re B (a child) (custody rights: habitual residence)[2016] EWHC 2174 (Fam), the court concluded that in March 2019 the twins were habitually resident in China. At that time they were living in China with the mother, who had been their primary carer throughout their lives, with their maternal grandparents and nannies. With very young children integration into a country or community was necessarily limited but, to the extent possible, these children had been well integrated into their Chinese social and family environment by March; it was not necessary for them to have been 'fully' integrated into the new country. It was the stability of the child's residence that was important, not its permanence. There was no suggestion that the twins' immigration status in China was precarious and, while there might have been some uncertainty as to whether the children might at some point move to Hong Kong, the mother had been clear that the children would be staying in the region and residing with the maternal family rather than returning to England. Although Hong Kong was obviously a different jurisdiction to China, it was very much closer to China than England, in particular the area the mother's family lived in, not only geographically but also in terms of the children's environment. Applying Re B, integration could develop quite quickly; this was quintessentially a question of fact. The children's 'roots' in England had been slight, given their age; ethnically and culturally they were Chinese, with extensive family and cultural ties in China. This was a case in which habitual residence could and had changed quite rapidly. Applying Re B and Re R[2015] UKSC 35, it was now possible for one parent to change a child's habitual residence without the consent of the other parent and the mother's unequivocal position by the end of March, and her own plain change of habitual residence, had led to a change in the twins' habitual residence. The fact that their father was in England and they had still had a home in England was relevant, but did not outweigh all the factors which pointed to habitual residence having been acquired in China. There was no conflict between the children's best interests and their being found to be habitually resident in China (see [62], [63], [65]–[70], [72], below).

(5) As the children were habitually resident in China by March 2018, the date on which they had been unlawfully retained under art 10, the English court had no jurisdiction (see [73], below).

(6) If art 10 did not apply, then the relevant date would be October 2018, when the application had been made. Self-evidently, in the court's view at that date the children had been habitually resident in China (see [74], below).

(7) In any event, it would not have been in the...

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