IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice Strand, London, WC2A 2LL 04/04/2007
B e f o r e :
THE HON. MR JUSTICE SUMNER ____________________
____________________
Mr Mark Jarman (instructed by Ross & Craig Solicitors) for the Applicant Miss Judith Charlton (instructed by Reeves & Co. Solicitors) for the Respondent Hearing dates: 27 March 2007 ____________________
HTML VERSION OF JUDGMENT ____________________
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The Hon. Mr Justice Sumner :
Introduction
This is an application by the Plaintiff father, 33 year old W, for the summary return of his son S, now 7 years old, to the jurisdiction of the courts of the United States pursuant to the Hague Convention. This is opposed by S's mother, 43-year-old F. She claims that S was not habitually resident in the United States when he left with her on 6 September 2006. Furthermore she says the father consented to S leaving the United States. He also acquiesced in his remaining in England.
Background
The father is a United States national, the mother is a United Kingdom national. The mother stayed with the father for a short time in United States before she returned to England with him in January 1997. They married in England on 8 July 1997. S was born two years later. The parties continued to live in England until the summer of 2006.
At the end of July 2006 the father went to the United States. This was part of a plan for them to go and live in Washington State. The mother arrived with S in the United States on 26 August 2006. It is not in dispute that the relationship came to an end on 3 September 2006. The mother returned to England with S three days later.
It is agreed that the father consented to the mother leaving with S. He says that it was on the basis that the mother would return to the United States at Christmas time. She unlawfully retained him when she did not do so. The mother says that the father agreed to her leaving the United States permanently with S. She did agree to return at Christmas, but it was only for a visit.
The mother says that once she had returned to England, the father acquiesced in her remaining here with S. The father denies this. Each party relies upon subsequent e-mails between them as supporting their respective cases on consent and acquiescence. There is no dispute that at the relevant time the father had rights of custody in respect of S.
The Hague Convention
It was brought into force in England by the Child Abduction and Custody Act 1985. In brief it provides for the situation where a child, habitually resident in country A, is taken to or retained by one parent in country B in breach of rights of custody of the other parent. Where both countries are signatories to the Convention as here, the courts of country B must send the child back summarily to the jurisdiction of the courts of country A for those courts to decide where and with whom the child should live.
The child's habitual residence in country A at the time of the removal or retention is an essential pre-requisite to any breach of rights of custody. Without that the claim under the Convention fails, Article 4. If however the parent removing or retaining the child proves that the other parent either consented to or acquiesced in that action then the court has a discretion under Article 13 of the Convention whether to return the child or not.
The hearing
Both parents gave evidence before me. The father was represented by Mr Jarman, the mother by Ms Charlton. I heard submissions both on the law and the facts to which I now turn.
Habitual residence
The classic definition is to be found in the speech of Lord Brandon in Re J (A Minor) (Abduction: Custody Rights) (1990) 2 AC at 578 –
Ms Charlton realistically accepts that, though the mother was reluctant to go, nevertheless the evidence demonstrates that she had the necessary settled intention when she left England. However, she argues that a period from 26 August to 3 September is not an appreciable period of time. Mr Jarman concedes that 3 September is the relevant date being the date when the relationship came to an end. I am satisfied this is correct (see Re F (A Minor) (Child Abduction) (1992) 1 FLR 548). He submits, however, that on the facts of this case, a week is an appreciable period of time.
The evidence
I turn to the facts as I find them to be. It was the father's initiative to move to the United States. The mother was reluctant. She went to save the marriage. She had made the necessary visa application and attended a short interview at the United States Consulate before she left. Their home had been sold and their goods were in transit.
The mother felt the father to be controlling of her but he also left everything for her to do. She was cross when she arrived. She considered the father had done nothing in the month he had been in the United States. He had not found a home though he had a list of properties. They had to spend 2 nights with his parents as a result, after the first night in a hotel. She had not wanted to do this. She wanted to move into their own home immediately. They then rented a property which was on the father's list. She had had to find a school for S, though he had to be seen before he could be enrolled.
She realised that things were not going to get better. It was obvious to the father that the mother was not happy. On 3 September there was a discussion. In answer to his questions, the mother told the father that she was unhappy because he had done nothing. She did not love him, and wanted a divorce. There was no future in their marriage. She wanted to go home but only if she could take S. He said that of course she could take S as he accepts.
She was shocked when he said she could not have more children, as was the case, but he could always marry and have more children. They talked about the schools for S in England and the fees. He booked her return ticket though she paid. He took her to the airport. He knew the relationship was over when she left. It was a great shock for him. It led to him to have a form of breakdown afterwards and to take a trip to Mexico for some 4 or 5 weeks soon afterwards.
The father says he could not think straight at the time. There was going to be no decision until Christmas about whether they would continue with the marriage and no permanent decision about S. He had discussed the matter with lawyers before he went to Mexico. Wrongfully he thought the mother might face a jail sentence on her return. He tried to resolve matters with her when she was in England.
Emails, letters, and telephone conversations
Most of the communication was by email. There are some 100 pages of documents. I have read them. I quote extracts from the more relevant ones.
The father says the mother's email of 17 September supports his story that the mother was returning to discuss the marriage at Christmas. The mother says she had agreed to defer the question of a divorce until Christmas time when she had promised to visit with S. This message was about the divorce. I accept the mother's account. It is supported by the father's next message where he says he was not trying to save the marriage and his subsequent requests for details of any divorce she was obtaining. Her whole account is consistent with the father readily accepting the dates of her visit at Christmas on 16 November 2006.
There are 3 cases which are helpful in considering whether the 8 days between 26 August and 3 September are or are not a significant time. The first is In Re M (Minors) (Residence Order: Jurisdiction) (1993)1 FLR 495. It was a decision brought to my attention after I had reserved my judgment. Counsel made subsequent written submissions in relation to it.
A mother took her 2 children from their grandparent's home in Scotland where they were habitually resident on 4 July 1992 for a 2 week holiday with her in England. On 13 July she told the grandparents that she was not returning the children. She started proceedings in England on 23 July.
The English courts only had jurisdiction if the children were not habitually resident in any other part of the United Kingdom on 23 July. It was held that they were not so habitually resident as the mother's notice to the grandparents on 13 July had brought their Scottish habitual residence to an end.
The question was whether they had between 13 July and 23 July acquired habitual residence in England. Balcombe LJ, with whom Steyn LJ as he then was agreed, said –
Hoffman LJ agreed with the result. However he would have had less difficulty than Balcombe LJ in holding that on 13 July the children were habitually resident in England. He set out his reasons.
In Re F (A Minor) (Child Abduction) (1992) 1 FLR 548, a family moved to Australia from England arriving on 21 April 1991. On 21 May the father moved out of the house at the mother's suggestion. The father took the child to England on 10 July. Johnson J held that by 21 May the family were habitually resident in Australia. That finding was challenged on appeal. The case of Re M above was not referred to.
The Court of Appeal dismissed the appeal. Butler-Sloss LJ said –
Finally I would refer to the speech of Lord Slynn in Nessa v Chief Adjudication Officer (1990) 2 AC 562 where he indicated that residence for an appreciable period of time was a question of fact to be decided on the day when the determination had to be made on the circumstances of each case.
Conclusion
I accept that, when the mother arrived in the United States on 26 August 2006, she had a settled intention to remain there are with the father and S. That had evaporated within a day or two. The father knew she was unhappy. It was in all probability based on the mother's view that the father had failed to find them a home for them on their arrival. The marriage was not going to be saved.
It was however not until the 8 th day that the mother announced her intentions. It was to return to England with S provided the father agreed to her taking S. He did.
I am not satisfied that a period of seven or eight days is an appreciable period of time in this case. That is for 2 reasons. The first is that the period of time is by itself too short. I rely on Re M above. Though the views of Balcombe and Steyn LJJ were not essential for the decision, they carry much weight. The views of Hoffman LJ are dissenting.
If I am wrong about that, and it is possible for a period of 7 days to be sufficient, then I hold it is not sufficient in the circumstances of this case. The mother changed her mind about the move very shortly after arrival. She never settled in the United States. She had gone to save the marriage. It took her only a day or so to realise that, as far as she was concerned, it was not possible. Given that S's habitual residence was dependent on hers, there was a settled intention but no habitual residence.
He had, with the mother, lost his habitual residence when the mother left the UK with the settled intention of residing in the United States. He had not by 8 September acquired a new one. Mr Jarman argues that to leave a child without an habitual residence is undesirable for the purposes of the Hague Convention. I see the force of that submission but I cannot let it prevail in the circumstances of this case.
Their new residence had not become settled nor habitual. There were doubts from the beginning. Those were not resolved in favour of remaining. A longer period was needed (see Nessa's case). Quite the contrary, they led to the mother's decision to return. To hold other wise would deprive the words of their natural and commonsense meaning. I am not satisfied that, on 3 September 2006, S was habitually resident in the United States.
Consent
I go on to consider this should I be incorrect about habitual residence. Though consent can be inferred, it has to be established by clear and cogent evidence. In this case my task is made easier by the effect that there is no dispute about whether agreement was or was not given. It is accepted that agreement was given. The question is for what was the agreement given.
Findings
Both the mother and the father knew that the relationship was over when the mother left with S. It was the reason why the father's reaction was so marked. It was not his wish. He accepted however that this was how things were going to be, hence his remark that he could have more children and why he discussed schools in England. The mother was going to return with S at Christmas but it was only to be a visit. He did not question this when it was expressly spelt out to him on 15 November.
The only outstanding question was whether the mother would proceed with a divorce. At first this was going to be deferred to Christmas time. Later it became clear that the father accepted she was going to go ahead earlier. In fact she did not petition until January 2007.
I am satisfied that when the mother came to leave on 6 September it was clear to both of them that S would not be returning save for a visit. The father, in consenting to his departure, was aware of this as much as the mother and he consented. Those words were not used. But it is to be inferred when he raised no objection and booked the flight and took them to the airport knowing the mother and S were leaving for good, save for visits.
I do not see that the future discussion about custody in the messages alters the position. Custody could have been vested in the mother alone or in both parents. However what was not in doubt was that S was going to live in the future with his mother in England but visiting his father in the United States. I am satisfied the father consented to S permanently leaving the United States.
Acquiescence
In the event that this arises, I should shortly set out my conclusions. It could occur if the father had not consented to S's permanent departure. It was only to be a temporary visit to England. He expected the mother to return at Christmas.
The law is settled and clear. It is to be found in the speech of Lord Browne-Wilkinson in Re H (Abduction: Acquiescence) (1997) 1 FLR 872 . He set out the applicable principles –
I have to accept, for this analysis, that the mother left on the basis that she had agreed to return at Christmas. Has she proved that the exception applies here from the father's words and actions after their departure?
For this I have to review the extracts I have set out above. Does it show unequivocally that the father was not going to insist on his right to have S returned?
On this scenario there are only 2 elements which go to show that the father was not going to assert his right to S's summary return. They are firstly his questions about the mother having started divorce proceedings. Secondly there is his ready acceptance of the dates of a visit rather than a return.
I have not found this an easy analysis. The first part could be a mere inquiry about what if anything the mother was doing about divorce, knowing that she left the United States in an angry state about the father.
The second could equally be consistent in isolation with a wish to obtain the mother's and S's return on whatever terms the mother was offering. Once back in the United States, the father would have a better chance to say whether S would leave again or not.
In my judgment I do not find acquiescence proved. There is evidence but it is not sufficiently clear and unequivocal.
I find that S's habitual residence in the United States has not been proved. Finding also that the father consented to the mother leaving with S, I have to exercise my discretion.
In relation to that I would ordinarily balance the issue of S's welfare against the fundamental purpose of the Convention, namely his summary return to the country of their habitual residence. Here there is no habitual residence proved. I would therefore exercise my discretion in favour of S remaining here.
If I was not right about habitual residence, I would then look at the essential background. S has spent all his life in England except for less than 2 weeks in the United States. All his connections are with England. The father consented to his return. I would not exercise my discretion in favour of his return to the United States.
For the reasons I have given, this application fails. I will leave Ms Charlton to draw the order. It may include any agreement about the father's future contact with S that may have been agreed, if an order is needed.