H-K (Children)

The bare bones of this story are sad but not untypical. This couple have two children, a boy, S, of 8 and a girl, M, of 2. The family lived in Australia but decided to come to England for a year to live in a house owned by the Mother. The Father went back to Australia at the end of the year but allowed the Mother and children to stay for a further period. The Mother later announced that she would not return with the children. The Father’s case brought under the Hague Convention on the Civil Aspects of International Child Abduction, 1980, is that this amounts to a wrongful retention of the children in breach of his rights of custody. The issue which arises is whether the children were habitually resident in Australia at the time of that retention.

On 27th July 2011 Hogg J. found in favour of the Father and ordered that the children be returned on to Australia no later than 21st August 2011. The Mother appealed.

Hogg J. found the following essential facts. The Father is an Australian citizen but seems to have dual British nationality. The Mother is British with Australian rights of residence which expire in 2014. The parties met in Sydney but never married. They lived in Sydney in a rented home belonging the Father’s parents.

The relationship came under strain and in 2008 the parties came to England for a short holiday. The Mother stayed a while longer than the Father but in time did return to Australia. The relationship between them did not improve. She remained homesick.

In an attempt to overcome that, the parties agreed to come to England for a year. The Mother may have hoped that she could persuade the Father to settle here but he was adamant that he would only agree for the family to stay for one year.

So they left Sydney on 6th February 2010. They left behind many of their personal possessions as they could only bring four suitcases with them. They left the Mother’s car, many personal items, household goods and many of the children’s toys. They arranged with S’s school that a place would available for him at the start of the new academic year in Australia in February 2011.

The Mother owns a small house in the north of England which she inherited from her grandmother and there they lived. S started school locally after the spring half term. They worked as and when they could but seem largely to have depended upon social security support.

The relationship continued to deteriorate. The Father was clearly unhappy in England and did not settle at all. The Mother had her family and friends about her. In October 2010 the Mother booked the return flights to Sydney on 6th February 2011 when the validity of their return ticket was to expire. She led everyone to believe that she and the children would returning: indeed the paternal grandparents re-registered, taxed and insured her motor car for her return. At that stage, October 2010, the Mother still had some residual faith in the relationship and knew she would be going back to Australia even though she did not want to do so.

Things got worse. Towards the end of the December 2010 the Mother decided that she did not want to go back and would not go back to Australia. When she told the Father there was an ugly scene but after a day or two an uneasy calm was restored. During the course of those five weeks before the planned departure, a further agreement between the parties was struck allowing the Mother to remain here until 6th June but on her assurance to the Father that she would then return. He duly flew back to Australia on 6th February taking many of the possessions with him. He clearly anticipated the Mother’s joining him in Australia.

The reality was very different. The Mother had lulled the Father into a false belief that she would return. She sent him a Valentine’s card in loving terms. She sent an equally affectionate birthday card. She led members of his family to believe that she would be returning. In her evidence she accepted that she had “strung” the Father and his family along and had deceived him and the judge made a finding to that effect. She told him early in May that she was not going back to Australia. He began these proceedings shortly thereafter.

She began:

“16.

It has been agreed that the issue before me is that of habitual residence: where is this family habitually resident? Is it still in Australia is the prime question, or has it moved to England? I have been referred to the law, much of it has been agreed. It is accepted that habitual residence may be acquired despite the fact that a move may only have been a temporary [one] or on a trial basis. For that I refer to Al Habtoor v Fotherington [2001] 1 FLR 951.”

She then reminded herself of the seven principles I had extracted from the firmly established authorities, see paragraph 26 of my judgment in Re: P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588, [2009] 2 FLR 1051. She accepted there was no difference in the core meaning to be given to the phrases “ordinarily resident” and “habitually resident”. She was referred to Re: S (Habitual Residence) [2009] EWCA Civ 1021, [2010] 1 FLR 1146 but thought it was a different case.

She referred to the approach of the European Court of Justice in Mercredi v Chaffe Case C/947/10, [2011] 1 FLR 1293 and especially paragraph 44:

“The Regulation [Article 8] of Council Regulation (EC) No. 2201/203 of 27th November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility (Brussels II Revised) contains no definition of the concept of “habitual residence”. It merely follows from the use of the adjective “habitual” that the residence must have a certain permanence or regularity.”

She also quoted paragraph 51 of the judgment:

“… in order to distinguish habitual residence from mere temporary residence the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. But before habitual residence can be transferred to the host State it is of paramount importance that the person concerned has it in mind to establish that the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as a indicator of the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case.”

Having set out the law she directed herself that, “In this case I have to look to the facts as to whether habitual residence has been changed”. She weighed up life first in Australia and then in England, saying:

“20.

It is accepted by all that the habitual residence was certainly in Australia. There was an agreed intention to return to Australia, as I have already indicated. This was some form of extended holiday. The Father thought it was, as the Mother had put it, “to rid herself finally of her homesickness”. But it was for one year only. There were clear plans that the family would return. There would be a home for the family, a place in school for S. They had left behind their possessions, their car, their laptop and the children’s toys. There was of course the Father’s own family and family’s friends in the area.

21.

The question is of integration into this country and whether any has taken place and to what extent. This was a lengthy stay and intended to be a lengthy stay. As such school became a necessity because of the age of S. He went to school after the half term in spring and has remained in school. There was a vague plan that the parents would obtain work. It never actually happened. The Father did some work for the Mother’s step-father’s business but there was never any full-time permanent work by either parent. In fact the family existed on benefits and I am sure from some financial support from the Mother’s family. They were both entitled to receive State benefits. They needed to survive and that is what happened.”

Then she asked:

“23.

Was it a transient stay as in P-J? The plan was always for one year. It was not a settled intention to remain for an indefinite period. It was for a temporary time, the maximum of one year. Was there a regularity in their life? I do not think there was. The parents did the right thing. They put the boy into school. That is what a responsible parent would do. Of course he made friends, but he is a boy who does make friends. He had friends in Australia. He would want to play with other children. I do not think there was that regular order of life that is required to establish habitual residence in another country. The parents certainly did not agree to change their habitual residence. The Father certainly had not abandoned his intent to return and I cannot say that actually, habitual residence had changed in any manner at all. Even S says that he does not know when he will return. He is not saying he will not be returning. He just does not know. He knows he has another family there, he is not deeply embedded from his own words. The burden is on the Father to show habitual residence in Australia. Having reviewed the evidence and circumstances of this case I think he has established the burden that their habitual residence has remained in Australia.”

I do not consider the judge to have fallen into error by asking whether it was “a transient stay as in P-J”. After all she was merely contrasting life in England with life in Australia which was, as was the common ground, part of the regular order of their lives. Asking whether the stay in England was transient can be understood as a wholly acceptable way of distinguishing the regular order Australian life with the alleged lack of any settled purpose in England. She found living in England was a temporary sojourn (“for a temporary time”). So it was. But that is not enough. She had to bear in mind what she had said earlier in paragraph 16 of her judgment that “it is accepted that habitual residence may be acquired, despite the fact that a move may only have been a temporary [one] or on a trial basis.” It is as well also to bear in mind how Lord Scarman expressed it in Reg. v. Barnet L.B.C., Ex p. Shah [1983] 2 AC 309, 344B-D:

“There are two, and no more than two, respects in which the mind of the propositus is important in determining ordinary residence. The residence must be voluntarily adopted. …

And there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. This is not to say that the propositus intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”

Instead the judge asked:

“Was there a regularity in their life?”

That question may resonate more with the European approach than with Lord Scarman’s definition set out in Shah at p. 343G of a man’s abode being adopted: “for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration”. The European approach which she identified in paragraph 44 of Mercredi was that to be habitual, residence must “have a certain permanence or regularity”. I would treat that with some caution. I certainly cannot accept that permanence is necessary to establish habitual residence. “A certain permanence”, whatever that may be, can be understood as connoting the features of “settled purpose” as used in Shah, and so understood is acceptable. Strictly speaking the decisions in Mercredi and the earlier decision of the European Court of Justice. In re: A (Area of Freedom, Security and Justice) (C-523/07) [2009] 2 FLR 1051 do not apply here: those cases concern Brussels II Revised as it applied within the European Union. Here the contesting states are Australia and the United Kingdom. I have no doubt however, that, at least in the fullness of time, the European meaning of habitual residence will by osmosis shape the autonomous meaning to be given to that phrase in the International Hague Convention on Child Abduction with the stress on its international application. But I would sound another note of caution. In paragraph 51 of Mercredi, the Court of Justice of the European Union states:

“In order to distinguish habitual residence from mere temporary residence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence.”

Again it all depends on what constitutes “a certain duration” and “an adequate degree of permanence”. These words can, and in my judgment must be read in the light of and consistent with Lord Scarman’s opinion in Shah at 343G. Residence can be of short or long duration provided it is adopted “for settled purposes as part of the regular order of his life for the time being”. Note “for the time being”.

I have a second sense of unease about what is meant in the next but one sentence of paragraph 51 of Mercredi:

“Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character.”

There “permanent” cannot be taken literally but rather to indicate a stay of sufficient duration (and quality) properly to be characterised as “habitual”. The argument becomes a bit circular. Then I note the need for an accompanying “intention that it should be of a lasting character”. Of course intention is a relevant factor subject to Lord Scarman’s caveat at p 344E that the answer to the question, which is ultimately one of fact, “depends more upon the evidence of matters susceptible of objective proof then upon evidence as to the state of mind” of the propositus.

The judge found that the parties’ life in England was not the regular order of life that is required to establish habitual residence in another country. But it is notable that the reason she gave for this was “the parents certainly did not agree to change their habitual residence”. That in my judgment betrays the error in her approach. She was elevating the fact that this Father had not abandoned his intention to return to Australia to being the defining factor which tipped the balance.

Another revealing insight into the judge’s reasoning appears in paragraph 23 of her judgment where she refers to S not knowing whether or when he would be returning. It is of significance that what the judge had found in paragraph 15 of her judgment when she recorded the CAFCASS officer reporting on her discussions with S, at 8 years old still a young child was this:

“There is a little boy saying that he had a home in Australia, there was a family difficulty, they came over to see mum’s family and he does not know how long they will remain in England. It is not him saying he is living here permanently. It is just him saying that is the situation.”

Once again there is the reference to, and thus the implication of considerable weight being attached to, “living here permanently”. That is not the test.

Crucially the same thought appears more starkly in paragraph 23 when the judge asked whether the stay was transient and answered her own question as follows:

“The plan was always for one year. It was not a settled intention to remain for an indefinite period.”

There the judge lapsed into the language of domicile and that was an error. Again I cite from Shah at p. 345:

“What is important is to note that the test [the “real home” test, or its variant,] is wholly inconsistent with the natural and ordinary meaning of the words as construed by this House in the two tax cases [on which he had relied to formulate his test]. Indeed it is, I believe, an unhappy echo of "domicile", the rules for ascertaining which impose great difficulties of proof. In Dicey & Morris on The Conflict of Laws (8th edn, 1967), ch 8, p. 78 one finds the comment that ‘The notion which lies at the root of the concept of domicile is that of permanent home.’ The long and notorious existence of this difficult concept in our law, dependent upon a refined, subtle, and frequently very expensive judicial investigation of the devious twists and turns of the mind of man, must have been known to Parliament when enacting the Act of 1962. The choice of ordinary residence for determining the test of eligibility for a mandatory award suggests to my mind a legislative intention not to impose upon local education authorities who are entrusted with the duty of making mandatory awards the infinitely difficult, if not impossible, task of determining whether a student has established a permanent home in the United Kingdom. Further, the language of the regulation lays emphasis not on intention or expectation for the future which is implicit in the idea of permanence, but on immediately past events, namely the usual order of the applicant's way of life and the place where in fact he has lived during the three years preceding his projected course of further education. There are, therefore, powerful reasons for holding that by selecting ordinary residence, Parliament intended local education authorities to address their minds to a test more objective and less subjective than domicile or the concept of ‘real home’ which is a reflection of it. If the words of the regulation are allowed to have their natural and ordinary meaning, such intention will be fulfilled. By giving the words their natural and ordinary meaning one helps to prevent the growth and multiplication of refined and subtle distinctions in the law's use of common English words. Nothing is more confusing and more likely to bring statute law into disrepute than a proliferation by judicial interpretation of special meanings, when Parliament has not expressly enacted any.”

Note the words I have emphasised.

When, therefore, one looks at all the facts and circumstances objectively, the following inferences can be drawn:

Although I have not found this case to be altogether straightforward and have been loath to interfere with what is essentially a finding of fact made by an experienced judge, when the judgment is read as a whole, then, even making allowances for the permitted infelicities of expression which creep into all ex tempore judgments, I do fear that the judge has allowed her focus to move erroneously to require more permanence for their sojourn here than is necessary to establish that the habitual residence of the family became established in England if only for a temporary stay of 12 months. I would, therefore, allow the appeal and dismiss the Father’s application.

I agree.

I also agree.