Re A (Removal outside jurisdiction: Habitual Residence)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Mr Justice Coleridge,Lord Justice Wilson |
| Judgment Date | 17 March 2011 |
| Neutral Citation | [2011] EWCA Civ 265 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2011 |
| Docket Number | Case No: B4/2010/1434 |
[2011] EWCA Civ 265
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
THE PRESIDENT, SIR NICHOLAS WALL
Before: Lord Justice Wilson
Lord Justice Munby
and
Mr Justice Coleridge
Case No: B4/2010/1434
In the Matter of A and D (Children)
Mr Stephen Cobb QC and Miss Alev Giz (instructed by Tanner and Taylor) for the Appellant (mother)
Mr Richard Clough (instructed by Truemans) for the Respondent (father)
Hearing date: 18 November 2010
Approved Judgment
Lord Justice Munby:
This is an appeal, pursuant to permission which we granted at the beginning of the hearing, from a decision of the President, Sir Nicholas Wall, on 19 May 2010.
The proceedings relate to twins, born in October 2007, who were taken from this country to Cameroon by their paternal grandmother in November 2008. A year later, in November 2009, the twins' mother, by then embroiled in litigation here with their father in relation to their youngest child, a boy born in July 2009, sought an order that the father disclose the whereabouts of the twins. However, it was only on 21 April 2010 that she issued her originating summons in wardship. On 20 April 2010 the father had appeared before the court. The twins were still in Cameroon. On 29 April 2010 there was a hearing before the President to determine whether (as directed by an order made on 27 April 2010) the twins were habitually resident in Cameroon. The President heard evidence from both the father and the mother. On 19 May 2010 he handed down the judgment from which the mother now appeals: [2010] EWHC 1113 (Fam). The President found that the twins were habitually resident in Cameroon and that the English High Court accordingly had no jurisdiction in respect of them. He dismissed the originating summons and refused the mother permission to appeal. The mother issued her notice of appeal a few days out of time on 11 June 2010.
The appeal came on for hearing before us on 18 November 2010. The mother was represented by Mr Stephen Cobb QC (who had not appeared below) and Miss Alev Giz. The father was represented, as below, by Mr Richard Clough. The mother applied not merely for permission to appeal (which, as I have said, we gave) but also for permission to adduce fresh evidence in the form of two additional affidavits she had sworn. In relation to the first, Mr Clough having mounted no opposition, we gave permission. In relation to the second, which had been served only on the morning and which seemed to us to be of only marginal significance, we refused permission. We allowed Mr Cobb permission to refer to an email from the father sent to the mother on 15 June 2010 which although referred to had not been exhibited to the first of the two affidavits. At the end of the hearing we reserved judgment.
In accordance with the way in which the case had been presented to him by counsel, the President treated the central question as being whether the twins are habitually resident in England and Wales. He said (para [2]) that
"Under the Family Law Act 1986 I only have jurisdiction to make the orders sought by the mother if either (a) the twins are physically present in England and Wales (which plainly they are not); or (b) if they are habitually resident in England and Wales."
That no doubt reflected the way in which the arguments had been put, though it is not, as we shall see, an entirely accurate statement of the effect of the 1986 Act.
As summarised by the President in his judgment, the mother's case before him was that the twins had been wrongly removed from the jurisdiction and had accordingly never lost their habitual residence here which, it was common ground, they had had immediately before removal. The father's case was that over the period between November 2008 and May 2010 the twins had become habitually resident in Cameroon; alternatively, that even if the twins remained habitually resident here the court should, as an exercise of discretion, refuse to make an order for their return, because of the time which they had spent in Cameroon and what was described as the mother's agreement that they should go there in the first place and her "subsequent acquiescence" in their remaining there.
Having set out the background facts, the President directed himself by reference to what Lord Brandon had said in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 578–579, and continued (para [18]) that where, as here, both parents have parental responsibility:
"it is well established that one parent cannot unilaterally change the habitual residence: it requires agreement between the parents or, at the very least, the acquiescence by [one] in the altered arrangements brought about by the other."
There is, and can be, no suggestion that the President misdirected himself in law. What are under challenge are his findings of fact.
Given the way in which the issues had been framed the President appropriately turned to consider first the question of whether the removal of the twins in November 2008 had been with or without the mother's consent.
He summarised the mother's case as follows (para [8]):
"The mother's case is that the dispatch of the twins to the Cameroons was done without her consent and contrary to her wishes. She accepts that she accompanied the children to the airport and that she saw them off. She explains this by saying that she had been presented with a fait accompli and was unable to prevent the father and his mother removing the children. The mother also says that she could not travel because she did not have a British passport and that the mother was holding her Cameroons passport."
The father's case (para [9]) was:
"that the decision to send the children to the Cameroons was consensual; that his mother's house was on the point of being re-possessed; that the parties, who were both working but had lost their jobs, were not in a financial position to care for the twins, and that it was therefore expedient to send the twins abroad for a time, until their parents' financial position improved."
Having, as I have noted, heard oral evidence from both the mother and the father, the President said this (paras [20]-[21]):
"Since habitual residence itself constitutes a finding of fact, it is necessary for me to examine the decision in November 2008 to send the twins to the Cameroons. Furthermore, as this seemed to me critical to an understanding of the current situation, I heard oral evidence from each of the parties about it.
Having done so, I am quite satisfied that there was an agreement between the mother and the father to send the twins to the Cameroons in November 2008. Whilst the father may have been the originator of the scheme, I reject the mother's evidence that the children were sent to the Cameroons in the teeth of her opposition. I find as a fact that she agreed to the children going."
It followed that the removal of the twins to the Cameroons was neither unlawful nor wrongful.
The President then turned to consider next the question of what had been agreed at the time by the father and the mother. He said (paras [22]-[24]):
"I also find as a fact that the agreement between the twins' parents was far less hard edged than either now asserts. Whilst it may well have been their mutual intention that the children should return to their care after a few months – for example in the spring of 2009, their return, in my judgement, was dependent upon their parents' situation. Thus if all had been going well, and had the parents finally decided to make their future in England, then the twins would have returned.
I find, however, that there was no fixed date for the twins' return and that the arrangement was an open ended one which enabled the wider family (including the mother's family) to care for the twins until their parents were in a position to do so. Such family arrangements are by no means uncommon or inappropriate.
I am equally satisfied, and so find, that the parents themselves were uncertain about where the family would ultimately reside."
He continued by looking (paras [25]-[26]) at subsequent events:
"Both the father and his mother assert that the mother is fully aware of the children's whereabouts, and the father asserts that the mother has been in regular contact with the children. I accept that evidence. He also asserts that whilst in May 2009 he was contemplating sending for the children, his current plan is to work in the Cameroons as a sound engineer and for the children to "attend private day school in Cameroon starting in September". Once again I find that evidence credible.
In any event, these statements all confirm my view that the parents' plans for their children were inchoate following the agreed removal to the Cameroons in November 2008. I am thus satisfied that there was an agreement to send the children to the Cameroons in November 2008, and that it was open-ended."
He expressed his conclusions as follows (paras [27]-[28]):
"I am, however, entirely satisfied that on the unusual facts of this case, and due largely to the open-ended and uncertain nature of the parents' plan, the twins are currently resident in the Cameroons, and that this court has no jurisdiction over them. That is where they are living and, in my judgment, "the ordinary and natural meaning of the two words" habitual residence aptly covers the twins' situation in the Cameroons. This, of course, does not leave the mother without a remedy, but if she wishes to pursue it in relation to the twins, she must do so in the Cameroons. I reject her evidence both that it is impracticable for her to do so, and that she would not obtain a fair hearing in that jurisdiction.
For the mother it is argued...
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