Re X (child abduction: habitual residence)
| Jurisdiction | England & Wales |
| Judge | BAKER,PHILLIPS,NUGEE LJJ |
| Judgment Date | 01 November 2022 |
| Court | Court of Appeal (Civil Division) |
Abduction – Habitual residence – Date of retention – Jurisdiction depended on whether child habitually resident at that date – Necessary degree of integration – Other defences – Whether Cafcass should have been involved.
Practice and procedure – Appeals – Requiring attendance – Personal enforcement of return order – Whether attendance necessary for purpose of hearing.
The German father and the Ugandan mother had a child together in Uganda 2014. The parents agreed that the child would have dual Ugandan and German citizenship and a German identity card. The father claimed that the plan had always been for the child to live in Uganda when he was young and then move to Germany to attend school, spending holidays with the mother in Uganda. The mother denied that she had ever agreed that the child would move to Germany to go to school.
In 2017, the child was granted a German passport. In 2018, the mother signed a letter addressed to the German immigration authorities confirming that the child could travel to Germany with the father in May 2018 and be granted a German identity card. The father then took the child to Germany for 17 days. Shortly afterwards, the mother signed a document in German stating that the child would thereafter reside ‘for the most part with his father [as] his main residence additionally with the mother as a second residence’. The father claimed that he had interpreted the document for the mother before she signed it. The mother claimed that she had only been sent the final page of the document to sign and had had no real understanding of what it said. On 24 May, the father returned the child to Uganda. The parents disagreed about how many further trips the child made to Germany, but certainly for most of 2018 and early 2019, he remained in Uganda with the mother.
On 29 April 2019, the father took the child to Germany and they both stayed there. The mother’s case was that this was intended to be only another short-term visit. In messages, the mother repeatedly asked the father to return the child. In response, the father gave a variety of reasons for not returning the child, none of which referred to the child having moved to live in Germany. This pattern of messages continued in the first part of 2020.
In January 2020, the mother travelled to England and in July claimed asylum there. Arrangements were made for the father to bring the child to visit her in England on 30 September. Following discussions, the child stayed with the mother in England while the father returned to Germany. The father claimed that it had been agreed that the child would stay until Christmas or shortly afterwards. The mother claimed that it had been agreed that he would live permanently with her. In messages exchanged during the autumn of 2020 the father stated that the child would only be staying with the mother until January, while the mother denied this. During the 2021 lockdown, the child remained living with the mother, attending school and the father did not press for his return to Germany. In May 2021, the mother applied to the English Family Court for a child arrangements order. The father attended the first two hearings in person without challenging the court’s jurisdiction, but at the third hearing, in July 2021, his legal representative informed the court that the father intended to seek the child’s summary return to Germany under the 1980 Hague Child Abduction Convention. The Children Act proceedings were then stayed.
On 18 November 2021, the father made his application under the Convention for the child’s summary return to Germany. The final hearing took place in March/April 2022. Oral evidence was given by the parents on the issues of habitual residence and the mother’s defence of consent. The father’s case was that the mother had retained the child in England in July 2021 and that the child was habitually resident in Germany. The mother’s case was that the child had been wrongfully retained in Germany and had never acquired habitual residence there; in any event, she argued, the father had consented to the child being in England; she also raised the defence of grave risk or intolerable situation, under art 13 of the Convention. The judge concluded that the child must return to Germany no later than 27 July 2022, on the basis that he had acquired German habitual residence before his arrival in England; a recital to the order identified the date of the child’s retention in England as 21 July 2021. This return order was stayed pending determination of the mother’s appeal.
With the mother’s agreement, the father had contact with the child in England at the end of August 2022, but on 28 August he took the child back with him to Germany. An English judge ordered the child’s immediate return but the father did not comply. The mother applied for an order that the father attend the appeal hearing, but this was refused. The father watched the hearing through the live stream link and was in contact with his solicitors throughout.
Held, allowing the appeal and remitting the case—
(1) The habitual residence of a child corresponded to the place which reflected some degree of integration by the child in a social and family environment. The test was essentially a factual one with the inquiry centred throughout on the circumstances of the child’s life that were most likely to illuminate his habitual residence. It was possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent. A child would usually but not necessarily have the same habitual residence as the parent(s) who cared for him or her, but it was the child’s habitual residence which was in question and, it followed, the child’s integration which was under consideration. Parental intention was relevant to the assessment, but not determinative. It was the stability of a child’s residence as opposed to its permanence which was relevant, though this was qualitative and not quantitative, in the sense that it was the integration of the child into the environment rather than a mere measurement of the time a child spent there. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely. The requisite degree of integration could, in certain circumstances, develop quite quickly (see [10], below).
(2) There was clearly power to order a party to attend an appeal hearing under CPR r 3.1(2)(c). There was relatively little authority as to the exercise of this power but a court could order a party to attend where it considered this was necessary for the purposes of the hearing, having regard to the overriding objectives in CPR r 1 (this extended to cases where the court considered that one or more points might be resolved by negotiation). However, in this case there was no obvious benefit to the conduct of the appeal to be gained by insisting on the father’s attendance. The father’s unlawful removal of the child and the fact that he was in breach of a subsequent order did not impinge on the court’s role, which was to decide, after hearing legal argument, whether the judge had been wrong to make the order for summary return. The father’s attendance would not have assisted this process. Had the father been ordered to attend, and complied, the mother would no doubt have sought to take advantage of his presence to enforce the return order, but it would not have been right to order the father’s attendance in circumstances where that attendance was unnecessary for the purposes of the appeal (see [48]–[50], below).
(3) There had been a lack of clarity about the date of retention and the child’s habitual residence as at that date by those presenting the case to the judge and the judgment had been silent as to the date of retention. The clearest statement about the date of retention had been in the return order itself. Nonetheless, this court would proceed on the basis that the judge had identified July 2021 as the date of retention, notwithstanding the fact that there was no express statement to that effect in the judgment itself (see [60]–[62], below).
(4) However, the judgment contained no analysis of the question whether the child had achieved the necessary degree of integration in a social and family environment in England at that date. The evidence had focused on the degree of integration the child had achieved in Germany by September 2020, not on the degree of integration achieved in England by July 2021. If the focus had been on the latter point, the evidence about the father’s consent to the child remaining in England would have been considered, not as a defence to the application for summary return, but rather as part of the analysis of whether the child had achieved the degree of integration necessary to acquire habitual residence in England (see [63], below).
(5) In most cases, the court could safely assume that if the parties were in agreement on an issue, as contemplated by the Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings, issued by the President on 13 March 2018, then little more needed to be said about that issue. However, habitual residence was not simply an adversarial issue on which the judge adjudicated, but was an issue that went to the heart of the court’s jurisdiction to order a child’s summary return under the Convention. Having identified the date on which the child had been retained in England, the court had needed to establish whether it had jurisdiction by examining the evidence to determine the child’s habitual residence at that date. If, as stated in the order, the court had found as a fact that the date of retention was July 2021, the court had needed to examine the evidence of the child’s integration in England...
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