Re G (Abduction: Consent/Discretion)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Baker,Lord Justice Nugee |
| Judgment Date | 09 February 2021 |
| Neutral Citation | [2021] EWCA Civ 139 |
| Docket Number | Case No: B4/2020/1914 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2021 |
[2021] EWCA Civ 139
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
Nicholas Cusworth QC (sitting as a Deputy High Court Judge)
FD20P00434
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lord Justice Baker
and
Lord Justice Nugee
Case No: B4/2020/1914
Dorian Day and Sarah Tierney (instructed by Hecht Montgomery Solicitors) for the Appellant
Mother Christopher Hames QC and Alistair Perkins (instructed by Makin Dixon Solicitors) for the Respondent Father
Hearing date: 28 January 2021
Approved Judgment
This is an appeal in proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’). By an order of 13 November 2020, Mr Nicholas Cusworth QC, sitting as a deputy High Court Judge, ordered that two children (I, aged 6, and P, aged 3) should be summarily returned to Romania. The proceedings had been brought by their father, who lives in Romania. The effect of the order would be that their mother, who lives in England close to her own mother, would return with the children to await the outcome of proceedings in the Romanian court.
An unusual feature of the case is that, although the Judge found that the father had consented to the mother bringing the children to England in February 2020, he nevertheless exercised his discretion to make a return order. The mother appeals primarily from that exercise of discretion. By a Respondent's Notice, the father challenges the Judge's conclusion on the issue of consent.
The background
The Judge's findings about the history were based on matters agreed between the parents, supplemented by their oral evidence in relation to consent. Where there was a conflict between them, he unhesitatingly preferred the evidence of the mother.
The parents and children are Romanian citizens. The parents married in 2013 and their first child I was born in 2014. In 2015, the family relocated to England for five months but returned to Romania. In 2017, P was born there and in March 2018 the family again moved to England, where the mother worked as a nurse. In October 2018, the father returned to Romania alone and the mother and children remained here for the next year, with the father visiting from time to time. In February 2019, the mother visited Romania and the parents agreed to divorce.
The Judge found that in Romania a divorce can be progressed through lawyers if all is agreed, and otherwise through the court. Because the parents were agreed, they wanted to take the first route. The mother travelled alone to Romania and on 14 March 2019 she and the father entered into a notarised agreement by which she was permitted to travel out of Romania with the children, without the father, for a period of three years. Before a divorce could be granted, there needed to be a social welfare assessment. During that assessment, which took place on 18 March 2019, the parents explained that the children would live with the mother in England. They then discovered that if they wanted a formal record of their proposal that the children would live abroad, they would have to have a court divorce. To avoid this, at the time of their divorce on 15 April 2019 they entered into a notarised agreement that parental authority would be exercised by both parents and that after the divorce the children would live with the mother in Romania. Despite that, the parents had in fact agreed that the girls would continue to live with their mother in England, and this is what actually happened. In June 2019, the children spent four weeks with their father in Romania before returning to their mother, and the father then visited for I's birthday in August 2019.
Not surprisingly the parents agreed, and the Judge so found, that as at September 2019 the children were habitually resident in England, where they had lived for the previous 18 months.
Events between September 2019 and February 2020
For this period of twenty weeks, the children were in Romania, apart from a brief visit to England at Christmas. On 18 September 2019, the mother brought the children there and on 4 October 2019, she left them in the care of their father. It was common ground that the parents had decided that they might reconcile and the mother's account, which the Judge accepted, was that this amounted to a trial of the father caring for the children. She was concerned about his ability to manage at the same time as working as she had always been their main carer and she did not want to give up her own job and move back without being sure that the arrangement would work. She visited Romania in November and December and the father and children spent Christmas with the mother in England. At that point, the Judge found, the parents agreed that it would be better overall for the children to return to live with the mother in England in late January/early February 2020.
On 23 January 2020, the mother sent a text message to the father about documents that the children would need for travelling, namely the permission to travel documents and the children's birth certificates. On 27 January she booked tickets to come over on 5 February and to return with the children the following day, and she informed the father of that. She duly travelled to Romania on 5 February. She met the father between 2 and 3 p.m. During the meeting she told him that she had formed another relationship, which upset him. However, he gave her the travel documents and the birth certificates. At 5 p.m. she collected I from nursery. The staff said that I had been excited all day. They knew it was her last day at nursery and they gave the mother her belongings. The father then took the mother and I to his own parents' home, where he and the children had been living, to pick up P. While there, he gave her the children's passports and they packed travelling cases with the children's belongings. The parents agreed that it would be best if the mother and children stayed overnight at her family home, where her brother was living, and the father drove the mother and children there. At 4.30 a.m. the next morning the mother and children set off to catch the 6.00 a.m. return flight to England, where they have remained.
Unbeknownst to the mother, on 5 February, after their meeting the father had visited a notary and executed a document revoking his March 2019 agreement to her travelling with the children. He gave the document to his Romanian lawyer, who appears to have sent it to the border authority, which registered it on the following day, but after the mother and children had departed. The document records that the father bound himself to bring the document to the mother's attention, being aware that the revocation was only effective from the moment of its communication to her. His account was that he showed the document to the mother when they first met on 5 February. But the Judge found that while the mother was in Romania the father neither gave her the revocation document nor informed her of its existence, and he accepted that she had only learned about it when she saw it on the family's shared photo drive five days after she returned to England.
Proceedings
The first proceedings were begun by the mother in Romania on 16 March 2020 seeking an order that she did not require the father's permission for the children to travel. She has since made further applications and the proceedings are ongoing, with an awareness of the Judge's decision and this appeal.
On 17 July 2020, the father's proceedings were issued in England, seeking the children's summary return. The mother defended on the basis that the children were not habitually resident in Romania on 6 February 2020 so that their removal was not wrongful, that the father had consented to the removal, and that the older child objected to return.
In August 2020, the court directed Cafcass to prepare a report on the children's wishes and feelings in relation to returning to Romania, and that was filed on 10 September. The reporter described the children as having lived through two attempts by the family to relocate to England and then having experienced the demise of their parents' relationship, an attempted reconciliation, and the divorce. With some fervour, the older child I expressed a clear wish not to return to live in Romania, but she expressed no fears about returning or about any of her family there. In the light of this, the child's objections defence was scarcely pursued and the Judge rightly rejected it.
The judgment
After a hearing on 3 and 4 November 2020, the Judge delivered a reserved judgment on 13 November. He expressed regret that it had taken so long for the matter to be heard and explained why, unusually in Convention proceedings, he had heard oral evidence. After making his findings of fact, which are unchallenged on this appeal, he addressed in turn the issues of habitual residence, consent and discretion, directing himself in accordance with the terms of the Convention and the leading domestic authorities.
The Judge expressed his conclusion about habitual residence in this way:
“33. The… emphasis [is] firmly on the situation of the child as at the date of removal, as opposed to a weighing of comparative connections between competing jurisdictions.
34. The father's assertion to me that the children's stay with him in Romania was intended to be permanent from the outset was not accurate – I accept the mother's account that the...
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