Re P-J (Abduction: Habitual Residence: Consent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Wilson |
| Judgment Date | 23 June 2009 |
| Neutral Citation | [2009] EWCA Civ 588 |
| Docket Number | Case No: B4/2009/0751 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 June 2009 |
[2009] EWCA Civ 588
Lord Justice Ward and
Lord Justice Wilson
Case No: B4/2009/0751
FD08P02518
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRESIDENT OF THE FAMILY DIVISION
HIGH COURT OF JUSTICE (FAMILY DIVISION)
Clive Newton QC and David Blake (instructed by Messrs Mark Saunders) for the appellant Mother
Teertha Gupta (instructed by Messrs Dawson Cornwell) for the respondent Father
Richard Harrison (instructed by Messrs Lyons Davidson) for the Guardian
Hearing date: 9th April 2009
Lord Justice Ward:
Introduction
The respondent and the applicant are husband and wife having married on 20th May 1995 in Spain. The respondent is a Spanish national serving as an officer in the Spanish army. The mother is Welsh. She is a school teacher. They have five children, S who will be 13 in a few weeks time, J now aged 11, T who is 9, E aged 6 and D who is 4 years old. On 27th March 2009 Sir Mark Potter, the President of the Family Division, ordered that the mother should forthwith return or cause the return of the children to the jurisdiction of Spain, that order not to be enforced by way of a tipstaff collection order or otherwise until after Saturday 11th April 2009. That was Easter Saturday and so this court sat as a matter of urgency on Maundy Thursday to hear the mother's application for permission to appeal the President's order which Wall L.J. directed be heard on notice to the respondents with the appeal to follow if permission is granted. S is the second respondent, the CAFCASS officer having been appointed her guardian ad litem. Having heard full argument, we granted permission to appeal, but dismissed it for reasons we would give in writing. These are my reasons for arriving at that conclusion.
The background
Until recent times the family unquestionably lived in Spain. The marriage may not have been an auspiciously happy one –so far as the mother at least was concerned, it had its difficulties and it has probably now irretrievably broken down. The President was not in a position to make findings, nor was it necessary for him to do so, in relation to the individual allegations of misconduct made by the mother against the father, but he was able to say “with confidence”, that “the precipitating factor for her wish to escape the marriage and her fears for the future are based less on any incidents of violence which may have occurred than upon the father's controlling nature, volatility, and his refusal to take medical or counselling advice in respect of his bad temper despite promises in the past to do so”.
The crucial issue in dispute was where the children were habitually resident, in Spain or in Wales. It is common ground that the family home was in Spain. Then on 23rd August 2007 father drove whole family to the maternal grandmother's home in Wales, father returning alone to Spain about a week later. Thus it was not in dispute that until this move the parties and the children were all living together and habitually resident in Spain. The mother asserted that she and the father agreed upon a trial separation for a year but the President became satisfied that no such separation was agreed in any formal or definite sense. Instead, as the President found:
“58. … She and her husband were essentially at one in their evidence that it was desirable and convenient for the children to have a school year in England without unduly interfering with their Spanish schooling and at a time when the house, in which it was agreed they would live in Spain on their return, required extensive refurbishment, involving an architect and contractors, upon which the father would himself work, as well as supervising the operation while staying on in their army accommodation. As I have already indicated, it was not a consensual separation in any sense other than an arrangement between the parents, in the light of their then circumstances, that the mother and children would move to England and stay with the grandparents for the next school year, with the father visiting when he could.
59. It was the mother's evidence that, in the light of the state of the marriage, she had earlier in 2007 made known her desire for divorce; she had wanted to go in February but had been persuaded by the father's sister to stay. However, it was clear to me, both from her and the father's evidence that, in so far as he may have known of her desire or intentions at that time, he certainly never accepted them and they stayed together. The mother stated in her oral evidence that, although he knew her position, he simply ignored her views and mechanically went on planning for the future together. She also stated that, so far as she herself was concerned, the separation involved in her taking the children to England was temporary and represented a good opportunity to have “space” from her husband. Having heard and considered the parties' evidence, I am satisfied that, when the mother and children left Spain to go to Wales, their absence from Spain was by common agreement for the period of the children's school year only and it was their common hope and intention (whatever may have been the mother's private concerns about the future) that they would all return to Spain to resume family life together there in the home by then refurbished for that purpose.”
By June 2008 the mother had had a change of heart or a stiffening of resolve, whichever way one looks at it. The President made these findings:
“62. … while in many respects, in relation to later events, I prefer the account of the mother, having heard her oral evidence, I do not accept that the question of a possible non return by the mother or children at the end of the children's school year surfaced in any real or meaningful sense between the parties until the visit of the father to Wales in June 2008, when, (on an occasion denied by the father but vividly described to me by the mother) she informed the father that she did not wish to return to Spain but wanted a divorce and to remain in South Wales with the children. Until that time, as she essentially accepted in cross-examination, (a) she was aware that the husband did not accept or contemplate that they should separate, (b) she knew that he was expecting and planning for the whole family to return in July/August 2008 and (c) that her own state of mind was one of lack of decision, she retaining the hope that the marriage would still work. It was only gradually over the time of her stay in Wales that she came to see things clearly and decided that the relationship was over. Accordingly, in June she informed the father that she wanted a divorce. She also made clear that she did not wish to return to Spain.
63. Nonetheless she did so. On her own account, this happened because, at the time of her ultimatum, the father, having acknowledged that his behaviour had been intolerable and that he would seek professional help, persuaded her to return to Spain to give the marriage one last chance. I accept that on that occasion he assured the mother that, if things did not work out, he would personally accompany her back to Wales with the children to live and resume their schooling there. Nevertheless it was by agreement and with a view to resuming permanent residence in Spain that the father drove the children back to Spain, and the mother agreed to follow (as she did) thereafter. Thus, the mother returned in pursuance of the common hope and intention of the parties to save the marriage; she took up residence in the family home prepared for that purpose; and the children resumed schooling in Spain.” [The emphasis is the President's.]
The detail of the family's return to Spain is this. The father flew from Barcelona to Wales on 9th August to help the family pack and effect the removal. On 15th August he drove the children back to Spain in the family motor car leaving the mother in Wales. She followed on 3rd September, but had to return to the United Kingdom a week later to collect the family dog and she and the family pet returned to Spain on 15th September.
On that day the children started school in Spain. The parties had arranged in March 2007 before the move to Wales, that the children should resume their education in Spain in the Arabel School. During a visit to Spain in February the parents viewed the school, met the teachers and informed the head teacher of their intention that the children who were then in Wales would attend the school in the academic year 2008/2009. That was not accepted by the mother but it was confirmed by a letter from the school. On 31st March 2008 the father completed application forms and on 26th May the school published the list of pupils for that year including S, E and D. On 9th September 2008, the day before the mother's return to Wales to get the family dog, the parties both attended the Arabel School together to confirm that S would be starting there but that the other children would be going to another school. A letter from the Arabel School confirmed that position.
As to what happened on the mother's return, the President accepted the picture of a rapid development of unhappiness in the home and a resumption of arguments between the mother and the father. He found:
“64. … I accept that there a was conversation with the father at one point in which he appeared to accept that the marriage was over and spoke of going on a pilgrimage to reconcile himself to it. Despite this however, I am satisfied that, once again, the mother agreed to a further period of effort to keep...
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