Re R (Abduction: Habitual Residence)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY |
| Judgment Date | 24 July 2003 |
| Neutral Citation | [2003] EWHC 1968 (Fam) |
| Court | Family Division |
| Date | 24 July 2003 |
| Docket Number | FD03P00812 |
[2003] EWHC 1968 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London WC2
Mr Justice Munby
FD03P00812
MR JAMES TURNER QC appeared on behalf of the CLAIMANT
MS DEBBIE TAYLOR appeared on behalf of the DEFENDANT
Thursday, 24 July 2003
These are child abduction proceedings under the Hague Convention. A father alleges wrongful retention by mother. It is common ground that the outcome of this case turns on the question of the child's habitual residence at the relevant date.
The father was born in the United Kingdom. The mother was born in Australia. They met in London in 2000. They married in London on 23 March 2001. Their daughter, Isabella, who is the subject of the present proceedings, was born in London on 22 January 2002. At that time the family was living in a rented property in London. Father was employed pursuant to a contract dated 19 March 2001 with the London branch of a German company, Commerz Bank AG. He was employed as a debts capital markets junior, reporting to the head of the global debt origination department of the bank, a Mr Marc Bajer. The contract was expressed to be subject to English law. His salary was expressed in terms of pounds sterling. His "current normal place of work" was said to be in the City of London. His holiday entitlement was expressed in part by reference to "English Bank Holidays". Amongst the conditions which he had to demonstrate that he was able to satisfy to take up the employment, he had to show that he was properly authorised by the relevant English regulators under the Financial Services Act 1986.
In the course of 2002 his employer posted him to Germany. It is that posting which has generated the current litigation. The subsequent facts (by facts I mean for this purpose matters which are not in controversy) can be summarised follows.
He commenced his posting in Germany on 5 August 2002. On 7 August 2002 he moved into temporary accommodation in a small furnished apartment in Germany, the mother and daughter remaining at that time in this country.
On 18 August 2002 the mother's parents arrived in this country from Australia and they and she went on holiday initially to the Faroe Islands before meeting up with the rest of the family in France.
On return from holiday mother packed up the family's furniture and possessions in London and arranged for them to be put into storage. It is a matter of significance that the items which were put in storage were not merely very extensive but included, in addition to the family's furniture, a very substantial amount of the family's personal possessions —photographs, CDs and other matters of that sort.
On 15 September 2002 father, mother and Isabella went to Germany. They lived for the next couple of weeks or so in the small temporary apartment. On 29 through to 30 September 2002 they moved into a larger apartment in Germany. That apartment was taken on a lease which ran until 31 January 2003 subject to automatic extension thereafter in the absence of notice to determine. Mother then returned briefly to this country to finish the clearing out of the London house, the lease of which, in the events which have happened, was duly determined on 13 October 2002. Thereafter mother and father returned to Germany living together with Isabella in the furnished apartment which they had obtained.
Father returned from time to time to this country at weekends. He came to this country for the weekends of 11/12 October 2002, 25/26 October 2002 and 21/22/23 November 2002. On those occasions, as is apparent from the evidence, he mixed business, personal and social activities. Mother on those occasions remained in Germany with Isabella.
From 15 through to 29 December 2002 father travelled from Germany on business partly to this country but primarily to the United States of America. For part of that time, from 21 to 29 December 2002, mother and Isabella were in this country visiting friends and relatives. They all returned briefly to Germany for 30 and 31 December 2002 before leaving for a four-day skiing holiday in Austria from 1 to 4 January 2003. Father returned again to this country for the weekend of 17/18 January 2003 and again from 31 January to 2 February 2003.
On 5 February 2003 mother, with father's approval and consent, travelled to Australia with Isabella for a holiday in order inter alia to see her parents, who, as I have said, live there. The return ticket was booked for 6 March 2003.
According to mother's evidence on about 15 February 2003 she telephoned the father to say that she wanted to stay in Australia with Isabella until 17 March 2003. That was because there was planned for 16 March 2003 a party for the 80th birthday of one of her uncles. She was understandably anxious to be present with Isabella at that party. She feared it would be the last time she would see that uncle. It was going to be a big family celebration and other members of the family would thereby have the opportunity of seeing Isabella. Moreover it would extend the holiday only for a comparatively short period.
There is a dispute between father and mother as to whether the original plan was that mother was to return on 6 March 2003, being the date of the return ticket, or whether, as mother says, it was always planned that she would return on 12 March 2003, the tickets having been bought for an earlier date because, as she understood it, that was a means of obtaining a cheaper ticket. Be that as it may it does not seem to me that anything very much turns on it.
When mother and father spoke on the telephone, according to mother that conversation being round about 15 February 2003, father's response was that her proposal was unacceptable and according to her he launched into a tirade about how this was kidnapping.
On father's case the telephone conversation took place somewhat later. He dated it at 2 March 2003. The precise dates seems not to matter because, as he accepts, he made it clear (if only on 3 March 2003) that he did not consent to the extension of the holiday. Indeed he sent mother a fax saying, amongst other things:
"I would not keep Isabella in another country away from her home in Frankfurt against your will. That would not be acceptable. Likewise I find your recent behaviour doing just that unacceptable … please … come home with Isabella."
Two days later on 5 March 2003 the father's German lawyers wrote to mother saying, amongst other things:
"The delayed return to Germany is considered as an illegal retention of the child. Due to the international legal rules you are obliged to return as soon as possible to Germany."
The letter went on to state:
"In case of any delay in your confirmation you should be aware that your husband will take all legal steps in order to return the child to Germany where all issues concerning the child have to be handled due to international law."
It is a matter regrettably, so far as this court is concerned, only between father and his conscience whether he believes that was an appropriate way of responding to what appears to have been the reasonable request of his wife and the mother of his daughter for a short extension of the holiday to enable his daughter to meet her wider family.
Having put German lawyers into action with astonishing rapidity father then made appropriate inquiries, as a result of which he discovered on 20 March 2003 that mother had changed not merely the date of her return but her destination, her revised plans by then being that she was to fly from Australia to this country. Having approached the German Central Authority he obtained ex parte on 21 March 2003 from this court orders in the usual form, which had the consequence that when mother arrived at Heathrow Airport on 22 March 2003 she was met by the tipstaff and served with the Hague Convention proceedings.
Mother's evidence, which seemed to me to have the ring of truth about it, was that her plan had been to return to Germany, albeit via this country, her wish being to have an opportunity of seeing members of the wider family and, as it were, drawing breath before returning to what no doubt she correctly anticipated would be a very highly charged situation in Germany.
The proceedings in this court have thereafter proceeded in the usual way and came on for hearing before me on 22 July 2003. The main issue, as I have said, is accepted as being where Isabella was habitually resident at the relevant date; that is to say in March 2003.
Father's case very shortly is that his posting to Germany by his employer was for an indefinite period intended to extend into the foreseeable future and in any event for a minimum period of six months.
Mother's case put very shortly is that the posting was essentially temporary and short-term in its nature and for a maximum period of six months.
A variety of written and oral evidence has been adduced on behalf of both father and mother. I, of course, have regard to the totality of the evidence and to the differing accounts given on that crucial issue not merely by the mother and father but also by the various witnesses called on their respective behalves, some of whom did, but some of whom did not, also give oral evidence in front of me. It seems to me that some witnesses are more helpful than others in pointing to a conclusion on this central and crucial issue.
Father's case is supported by his employer, and in particular by Mr Bajer, effectively his line manager, who swore an affidavit on 17 July 2003 in which he said:
"In August 2002 Hugo commenced work in Germany on a full-time...
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