Re S (A Child) (Habitual Residence and Child's Objections) (Brazil)
| Jurisdiction | England & Wales |
| Judge | Black LJ,Lewison LJ,Beatson LJ |
| Judgment Date | 13 January 2015 |
| Neutral Citation | [2015] EWCA Civ 2 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 January 2015 |
| Docket Number | Case No: B4/2014/3495 |
[2015] EWCA Civ 2
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT FAMILY DIVISION
MRS JUSTICE HOGG
PD14P00794
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Lewison
and
Lord Justice Beatson
Case No: B4/2014/3495
Mr Richard Harrison QC & Miss Jennifer Perrins (instructed by Lyons Davidson LLP) for the Appellant
Mr Henry Setright QC & Miss Katy Chokowry (instructed by TLT LLP) for the Respondent
Miss Samantha King (instructed by CAFCASS Legal) on behalf of the Children's Guardian
Hearing date: 4 th December 2014
This appeal is in relation to orders made by Hogg J in proceedings brought under the Hague Convention 1980 and the inherent jurisdiction of the High Court seeking the return of a child to Brazil. It revolves around (1) the question of the child's habitual residence and (2) whether she should be returned to Brazil notwithstanding her objections. Hogg J decided that, at the material time, the child was habitually resident in England. It followed that it was not wrongful for her not to be returned to Brazil following a holiday here this summer. Hogg J nevertheless went on to consider how she would have exercised her discretion had this been a case of wrongful retention, concluding that it would not have been appropriate to return the child in any event.
The parties and their positions in the litigation
The child concerned is G. She was born in June 2002 and is 1G has the benefit of a CAFCASS guardian, Mr Power, and her own legal representation in this court, as at first instance.
The applicant for the Hague return order was G's mother (M) who is the appellant in this court. The return was resisted by G and her father (F) who both now oppose M's appeal.
G's brother, J, is 10. He is not the subject of these proceedings but he is material to them.
The facts
I will restrict my recitation of the facts to that which is essential to deal with the issues in the appeal, although considerably more detail is contained in Hogg J's clear and sensitive judgment.
M is Brazilian. F is British. M met F in this country in the early 1990s and had her home here until 2013, although holidays were spent annually in Brazil. Until the events which I am about to describe, the children's lives were in England.
The parents' marriage ended in 2011 and in May 2012, F left the matrimonial home. He had begun a relationship with another woman in circumstances which were particularly hurtful for M and difficult for G. M wished to return to her native country with the children. In January 2013, she applied for permission to relocate there permanently with them. An independent social worker was instructed to investigate the children's situation. As Hogg J summarised it, "she reported indicating that the children were prepared to go to Brazil with their mother because partly they, G in particular, knew the mother very much wanted to go back". F was resistant to relocation but ultimately agreed to it. An order was made by consent in mid June 2013.
M and the children departed for Brazil on 1 August 2013. They took very little with them. There does not seem to have been any dispute about F's description of the house as he found it after they had gone, including the fact that it looked as though the children's rooms had hardly been touched.
M and the children went to live in an apartment owned by one of M's sisters. The children soon started at an independent fee-paying school. They had a fortnight's holiday with F in England in January 2014 during their school holidays. Following this, they were very upset for a period because they were missing their father and their home life in England.
Financial provision following the divorce was not agreed until July 2014 and the children were aware of the dispute between their parents about it. In the period before agreement was reached, F paid for the school fees and paid M a sum for the support of herself and the children. There was a financial dispute resolution hearing (FDR) in February 2014 for which M came over here. The aftermath of the failed FDR is important. M wrote an email about the finances to F at the beginning of March, unhelpfully copying it to the children. G read it. She wrote her own email to F dated 22 March 2014. One of its themes was finance and G's perception that F was not providing the money he should have been providing, with the result that she was not able to live the same sort of life as her friends. Another theme was her hurt and anger towards those involved in her parents' separation and her wish to have her "old daddy" back. It included the following passages:
"I am super happy in my school but when I found out you don't want to pay for it I felt so upset. This is the first time I feel like I belong, I have made lots of friends and everyone is inviting me to their houses, parties etc….. I never want to change school and if you don't give mummy money I don't think I want to see you in Easter [sic] as I will be too angry to see you. If I have to move school I will never see you or talk to you ever again."
"I am passing all of my tests and I am super happy in my school that I have a smile on my face all the time whether it's my friends making us laugh or if it's just that I feel so lucky that I have an aunt who bothers caring for us."
F and the paternal grandmother replied to G by email. There was then a period from the end of March until June 2014 when there was no contact between F and G. Hogg J thought that this was probably a consequence of the emails and the difficulties over finances. J kept in contact with F for a bit longer but that stopped as well at the end of April or beginning of May. F was due to come over to see the children in April but was unsure that they would be prepared to see him and cancelled the trip (see, for example, his email at D113).
When the summer holidays came, the plan was for the children to spend time with F in Europe. Hogg J described how F went to the airport not knowing for certain whether the children would arrive but they did. There was what the judge described as a "complete reunion".
There followed a holiday in France at which various reconciliations took place. During it G had time to reflect without, as Hogg J put it, "any influence" from M. She decided that she did not want to go back to Brazil and told F this on 24 July 2014. He told her to sleep on her decision. G spoke and wrote to M, who was in England for the financial proceedings, and told her that she did not want to return to Brazil.
Hogg J quoted extensively from the emails that G wrote at this time, from which she concluded that G was not saying she wanted to be with F rather than M, but that she wanted to be in England and not in Brazil. She took the view that G argued her case to M in a mature, rational way.
When M went back to Brazil, J went with her at his own choice. G did not return. On 30 July 2014, therefore very promptly, M began the Hague proceedings.
G met Mr Power of CAFCASS for discussions on three occasions during the currency of the proceedings, as well as at court. Mr Power addressed G's objections to returning to Brazil and her maturity in that context, and also, on a separate occasion, her earlier state of mind in case it might be relevant to the question of where she was habitually resident towards the end of July 2014. Hogg J had the benefit of two reports from Mr Power and he also gave oral evidence at the hearing. We have a transcript of that evidence. Both parents also gave evidence.
Habitual residence
Hogg J's reasoning for her conclusion that G was not habitually resident in Brazil can be seen from the following passages in her judgment:
"38. I have to ask myself, did she integrate into Brazil? On the surface she seems to have done so. She went to school; she is a compliant, co-operative child, she did well at school, she had friends, she had a social life but her state of mind was that of starting off with reservations, nagging doubts, thinking of home. Home not being where she sleeps but where she felt she belonged. Home was England. She has told her mother and in her own words she made it clear what her feelings were and she has remained consistent to that.
39. I have come to a clear view that she did not acquire habitual residence in Brazil. I have no doubt the mother has. In this particular case, an unusual case with this child's strong feelings and sense of being English, is such that she did not acquire integration into Brazil [sic]. Did she lose her habitual residence in England? That has been a question that I have considered and it has troubled me. In many cases people fly off to another country, emigrate and as they fly they automatically lose their habitual residence. This is a child that went because adult decisions had been made and she knew her mother wanted to go but she had reservations. Those reservations prevented her adapting, and feeling at home in Brazil. I do not think she lost her habitual residence in this country. I think she retained it, notwithstanding the mother lost hers. I think she is still habitually resident here and has always been so."
Hogg J's approach to the habitual residence question largely reflected that which emerges from recent cases and in particular from In the Matter of A (Children) [2013] UKSC 60 ( Re A) and In the matter of LC (Children) [2014] UKSC 1 ( Re LC).
She quoted from [54] of Re A which, for the sake of convenience, I will replicate here in full, italicising the passage that the...
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