Re v (Abduction: Habitual Residence)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Family Division |
DOUGLAS BROWN, J
Child abduction – issue of habitual residence – whether parents and children habitually resident in both United Kingdom and Greece each year – relevance of use to which property in the United Kingdom was put – whether children may have alternating habitual residences – whether deceit of one parent may cause habitual residence to revert to the other parent.
A father applied for the return to Greece of two children, born on 13 June 1991 and 3 March 1994. The father, who was Greek, and the mother, who was English, met in Corfu in 1975 and the mother began to work for the father who was the general manager of a Hotel in Corfu. They began to live together in Corfu as man and wife in 1981, marrying in 1991. The older child was born in Athens and the younger in London. For at least 10 years, the parties lived in Corfu during the tourist season, returning to London for the winter. When in Corfu the parties lived in a luxurious villa adjoining the hotel. When in England they lived in a substantial house in an agreeable part of London.
The parents' pattern of life continued until March 1995 when the mother decided the marriage was at an end. The father returned to Corfu on 11 March 1995. The mother was due to follow him with the children on 17 April 1995 but, unknown to the husband, she commenced divorce proceedings. She sought ancillary relief and in Children Act proceedings had obtained an interim residence order, the father having an order for contact.
The father applied for a stay in the proceedings under the Domicile and Matrimonial Proceedings Act 1973 and also applied under the provisions of the Child Abduction and Custody Act 1985 and the Hague Convention for the return of the children to Greece.
It was the father's case that the family home and habitual residence was the villa in Corfu, and that the children, taking the habitual residence from their parents, had an habitual residence in Greece. He argued that the property in London was an investment property and not a family home. The mother argued that, as a couple, they were habitually resident in both Greece and the United Kingdom; or, alternatively, that their habitual residence was consecutive rather than concurrent, changing from season to season.
Held – refusing the father's application: It was not necessary to decide the matter on a detailed examination of the life of the parties or the evidence they had adduced: approach of Waite, J in Re B (Minors) (Hague Convention) (No 2)[1994] 1 FCR 394 followed. It was not necessary to decide who owned the property in London but to decide the use to which it was put. It was not unusual for affluent couples to have more than one home in different parts of the world. This might or might not give rise to a change in habitual
residence when there was a move from one property to another. It depended entirely on the individual circumstances of the case. In this case there was evidence that when the parties were in England the property in London was their matrimonial home, and in particular, the father had described it as the matrimonial home in two sworn affidavits. The father was a shrewd and intelligent man, fluent in English and he knew exactly what he was deposing to in the affidavits. The evidence showed that the parties had spent periods averaging between four-and-a-half and five months each year in the United Kingdom. This was, therefore, a family with two homes, with part of each year spent in the United Kingdom, and the other part of the year spent in Greece. It had been argued for the father that the mother had, by deceit, concealed her intention to retain the children and prevent them from returning to their habitual residence in Corfu. On the other hand, it was argued for the mother that the father had an habitual residence in both Corfu and London. The father had not succeeded in establishing that, when the mother failed to take the children to Greece on 17 April 1995, they were habitually resident in Greece. There was a sufficient degree of continuity in the residence in London for habitual residence on the part of the parents to arise, and the same applied to their residence in Corfu. It followed that they were resident in both London and Corfu for parts of each year. At the time when the mother was due to take the children to Greece they were habitually resident in London and the father accordingly failed to show that they were habitually resident in Greece at the relevant date. The father could not antedate the children's habitual residence to the date he left the United Kingdom.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Hague Convention on the Civil Aspects of Child Abduction, Articles 3 and 5.
Children Act 1989, s 2(1).
Domicile and Matrimonial Proceedings Act 1973.
Cases referred to in judgment:A (A Minor) (Wardship: Jurisdiction), Re [1995] 1 FLR 767.
AF (A Minor) (Abduction), Re[1992] 1 FCR 269.
B (Minors) (Hague Convention) (No 2), Re[1994] 1 FCR 394.
Cooper (Surveyor of Taxes) v Cadwallader [1904] 5 TC 101.
J (A Minor) (Abduction: Custody Rights), Re [1991] FCR 129.
Norris (ex parte Reynolds), Re [1988] 4 TLR 452.
Pittar v Richardson [1917] 87 LJKB 59.
S (Minors: Hague Convention: Wrongful Retention), Re[1994] 1 FCR 83.
V v B (Child: Abduction) [1991] FCR 451.
David Bodey, QC for the father.
Paul Coleridge, QC for the mother.
MR JUSTICE DOUGLAS BROWN.I have before me an originating summons in which the father of two children seeks their return to Greece under the provisions of the Child Abduction and Custody Act 1985 and the Hague Convention. The application is resisted by the children's mother and the matter has given rise to what is said to be a novel point in this jurisdiction, which I can best identify by summarizing the history of this family and the competing submissions of the parties.
The father is 50, and the mother is 39, and they are husband and wife. He is
Greek and lives in Corfu; she is English and now lives in London with the children. The children are two girls, the elder was born on 13 June 1991 and is 4; the younger was born on 3 March 1994 and is 1¼.
For the last 25 years the father has been associated with an hotel in Corfu. The exact ownership may fall to be decided in ancillary proceedings now pending between the parties, but it is common ground that it is a successful enterprise, recently valued by Savilles at £12 million, although the actual realisable value may be rather less. That is one of the matters which will have to be considered if the ancillary proceedings continue.
The father is the general manager of the hotel and a director of the company which owns it. He met the mother in 1975 in Corfu and she began to work for him in his business. They began to live together as if man and wife in 1981. They married in 1991 shortly before the elder girl was born in Athens. The younger girl was born in London. They last lived together in March 1995 in London.
The pattern of their lives had for 10 years or more been that during the tourist season they would live in Corfu and from 1988 that was in a luxurious villa adjoining the hotel. During the winter, they lived for the most part in London, with occasional short visits back to Greece and other parts of the world. The length of the stay in Corfu and London, and particularly the stay in London, has been disputed and I have had to consider a considerable amount of documentary evidence and I have also heard some oral evidence.
The father's principal case is that the villa in Corfu was their home and their habitual residence was Corfu and therefore the children, taking their habitual residence from the parents, have an habitual residence in Greece and the house they lived in in London was not a family home but an investment property which they and many Greek friends made use of, the friends usually paying rent or some financial contribution. It is therefore the father's case that after he had returned to Corfu in March 1995 the failure of the mother...
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