Re S (Habitual Residence)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall,Lord Justice Moore-Bick |
| Judgment Date | 30 July 2009 |
| Neutral Citation | [2009] EWCA Civ 1021 |
| Docket Number | Case No: B4/2008/2163 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2009 |
[2009] EWCA Civ 1021
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY, FAMILY DIVISION
(MRS JUSTICE PARKER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall and
Lord Justice Moore-bick
Case No: B4/2008/2163
Mr J Turner QC and Mr J Robertson (instructed by Freeman Solicitors) appeared on behalf of the Appellant.
Mr H Setright QC and Mr R Harrison (instructed by Messrs Osmond Gaunt & Rose) appeared on behalf of the Respondent.
Mr James Turner QC leading Mr Robertson appeals the decision of Parker J that the child of the family with whom she was concerned was habitually resident in this jurisdiction at the time, namely end of September 2007, when the father removed the child from London to his home in Belgium without the mother's consent and at a time when he was able to gain possession of the child. The judgment below was given on 30 July 2008 and the appeal was listed in this court in December 2008. We adjourned to enable the parties to pursue the possibility of compromise with the aid of mediation. Sadly, that desirable objective escaped them and we today resume the hearing of the contested appeal.
There are in fact two appeals: the father's appeal against the finding that his daughter was habitually resident here on the date of her removal to Belgium, and a cross-appeal by the mother to the judge's findings in relation to consent and acquiescence. The judge herself granted permission to appeal on both points, and in relation to the issue of habitual residence I stress that she said this:
“My decision in respect of habitual residence is extremely finely balanced and it may be that the father will wish to appeal it, particularly in relation to his argument in respect of the centre of interest test. It may be that I am found to be wrong on that point.”
With that introduction I turn to the history of the family. The only child is Z and she is now three and a half years of age. The parties to the appeal, Z's parents, are in their late 30s or perhaps now just in their early 40s. The father was born in Belgium and is Belgian through and through. The mother was born in Australia and is Australian through and through. They met in 2003 and began a relationship in 2004 which matured into co-habitation in the autumn of that year and engagement in December of that year. The marriage was celebrated a year later on 3 December 2005 in Australia. Married life thereafter was unsettled. Plainly there was a tension between Europe and Australia and, within Europe, a tension between Belgium and England. It is not hard to see from the mother's point of view that she would as an Australian find living in London easier than in the father's home village some 40 minutes drive north of Brussels.
Another factor that introduced uncertainty was the father's career. He sought job opportunities globally but not essentially in Belgium. The majority of the family life following Z's birth in Australia on the 14 December 2005 was spent in Belgium, either with the paternal grandmother or in an adjacent property. Indeed, on 1 February 2007 the father signed a three year lease on a two bedroom flat in his home village, and most of their worldly possessions were installed there. In the following month, March 2007, the father took a job, of two to three months' duration with possible extension, in Belfast. It was the first time that the father's work had taken him away from the mother and the family. He lived the first month in a hotel but at the end of that month he was able to move into a flat provided by the employer. That enabled mother and Z to join him in Belfast. Their arrival was on 8 April. About a month later the father secured a two year work contract for a company in London. It was on 20 May 2007 that the family's sojourn in Belfast came to an end and naturally they returned to the home in the Belgium village. The London contract commenced on 10 June 2007. For the first six weeks the father developed something of a routine, returning to Belgium on the Eurostar for weekends and lodging during the working week in London in the home of a friend.
This was obviously far from ideal, and to their considerable good fortune the father received the invitation of a friend to house sit a home in Wandsworth whilst his friend was employed on a filming project in Canada. The arrangement was absolutely ideal given that the Wandsworth home was an attractive home and fully equipped for a family with a young child. Another huge advantage of the Wandsworth home was that as house sitters they were required to pay nothing but the immediate expenses of occupation. How long was this arrangement to last? It was undoubtedly of indefinite duration given that the owner was uncertain as to the duration of the Canadian project, but the anticipated duration was within the bracket three to nine months and the father's expectation was that he would enjoy the occupation of the home for the mid point in the bracket, some six months. Accordingly mother and Z joined the father in the Wandsworth home and thereafter the only journeys to Belgium were either to inspect the home in the village, or to take Z to stay with her granny. One such stay began on 1 September and Z was with her grandmother for two weeks before another visit from her parents returned her to London. Sadly for all, the Canadian project collapsed and on 14 September an e-mail was received from the owner saying that he would be returning on 29 September unless he obtained alternative work abroad.
The premature collapse of the house sit was confirmed by a second e-mail of 22 September in which it was confirmed that he would be returning on 30 September and accordingly the exit had to be achieved on or before 29 September. It seems that this unfortunate destruction of the family plan either coincided with or precipitated the breakdown of the marriage. There was no concerted attempt to overcome the setback by a search for alternative affordable accommodation. Each made unilateral plans for the future of Z that did not allow for rental cohabitation. The father made arrangements for Z's return to Belgium, well knowing that the mother was not prepared to give Belgium any further trial. The mother made independent arrangements with the aid of her brother to return with Z to Australia. These unilateral arrangements were only symbols of the discord between them. Neither as spouses nor as parents were they able to meet the misfortune by any discussion or concerted effort. The father pre-empted the situation by removing Z from the Wandsworth home on the afternoon of 28 September at a time when the mother was having a bath.
There followed a period of agitation and uncertainty during which there was some exploration of reconciliation that did not endure for long. It is unnecessary to detail the movements of the parents and Z in that interval before the issue of divorce proceedings in this jurisdiction on 19 January. The mother's petition on allegations of conduct was swiftly followed by an application for permission to relocate permanently with Z to Australia. The father's counter was the originating summons of 11 February under the Hague 1980 Abduction Convention. So Parker J records at the outset of her judgment that she was conducting the final hearing of the originating summons under the Hague Convention; alternatively an application by the father under the inherent jurisdiction of the High Court.
As Mr Setright QC who appears for the mother today leading Mr Harrison submits, an unusual feature of the case before the judge below was extensive oral evidence. He said that each of the parents gave evidence for something over a day. The judge's judgment of some 33 pages is comprehensive and careful. She reviewed the authorities on the issue of habitual residence, consent and acquiescence. In the area of habitual residence it is common ground in this court that her review of the authorities is skilful and not open to criticism; that is, the authorities as they stood in July 2008. Mr Turner had amongst his submissions pressed that the judge should decide the issue of habitual residence not on the application of the traditional tests formulated in a number of cases crossing a variety of fields of law, but should consider a centre of interest test. The judge rejected that submission, as I have already recorded. It was to enable Mr Turner to deploy that argument in this court that she granted permission. Fortunately we do not have to grapple since in the intervening six months since this case arrived in our court there has been an important decision, namely the decision of the European Court of Justice in the case of C (reference C-523/07). It is common ground that the essence of the decision of the European Court is to be found in paragraph 44 of the judgment. It is also common ground that the European Court did not favour a centre of interest test but a fact-based enquiry broadly akin to the approach of the authorities in this jurisdiction. So the scope of this appeal has been much reduced by the helpful decision of the European Court.
Mr Turner no longer can argue the centre of interest alternative, although he has pointed out that the decision in C is strictly taken on a reference that requires the construction of an application under Article 8 rather than Articles 10 and 11 of the Regulation Brussels II Revised. We also have had our attention drawn to the reported decisions in the case of Re: P-J [2009] EWCA (Civ) 588. That case was...
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