J (A Child) (Finland)(Habitual Residence)

This is an appeal against the decision made on 5 January 2016, by Her Honour Judge Cushing, that the English court did not have jurisdiction in relation to proceedings which the appellant wished to bring concerning M, his five year old son. The respondent to the appeal is M’s mother.

The father is of British and Nigerian ancestry. He has lived for all of his adult life in England. The mother is a Finnish national. She lived in England between about 2002 and the end of 2014 but made trips to Finland during that time. The parties met in about 2003 and were married in Finland in 2010. They separated in early 2013 when the mother left the matrimonial home, taking M with her.

Proceedings between the parties in relation to M have been on foot for much of the period since the separation. On 14 November 2014, at the conclusion of a hearing which had taken several days, Deputy District Judge Lavelle ordered that M should live with the mother and made an order providing that the mother was “permitted to remove [M] from England and Wales on or after 29 December 2014 to live permanently in Finland.” Deputy District Judge Lavelle’s order included arrangements as to the time M was to spend with the father. Once he went to live in Finland, he was to be made available for staying contact with the father in England on a minimum of 3 occasions in each of 2015 and 2016. He was also to be made available for staying contact in Finland on a minimum of 3 occasions per year and to have Skype contact with the father.

The order included, as part of the preamble, a record of various ancillary arrangements agreed between the parties as to contact, covering matters such as who would pay the associated travel costs and where M should spend Christmas and his birthdays. This section of the order included the following provision:

“The parents shall attend a single session of extended mediation with the child’s NYAS Guardian to take place on a date to be agreed, but in any event no later than 11 December 2014.”

It was agreed that details of the 2015 contact would be discussed at the mediation. There was a delay in the provision of a sealed copy of the order which the father says he received only on 30 March 2015. He points out that there are two places in it where there is a blank which looks as if it was intended for further information. Both relate to where M would be collected and returned for the purposes of contact. The father’s case is that these details were agreed at the meeting with the Guardian and should have been included in the order.

On 29 December 2014, M and the mother went to live in Finland. The father continued to have dealings with the English court about M thereafter. I put it in this rather ambiguous way because it is not possible to establish with certainty precisely what occurred, the father having been in person throughout the relevant time, including before Judge Cushing. I will not set out all the detail of what the father has to say about his attempts to engage the court following the order of Deputy District Judge Lavelle, because ultimately the father’s case on jurisdiction was focussed upon proceedings which were begun no earlier than mid-April 2015, as I shall explain in due course. I will revert later to the precise nature of the father’s proposed proceedings, but for present purposes it is sufficient to say that they concerned “parental responsibility” in the sense used in Article 1 of Brussels IIA (Council Regulation (EC) No 2201/2003) (hereafter “Brussels IIA” or “the Regulation”) and came firmly within the scope of the Regulation. Jurisdiction therefore fell to be determined in accordance with the rules contained in Section 2 of the Regulation.

The jurisdiction provisions contained in Brussels IIA are familiar and need not be rehearsed in their entirety here. General jurisdiction is dealt with in Article 8, which provides that the courts of a Member State have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. That general provision is subject to a number of other articles. Of those, only Article 9 need be mentioned here. It provides:

Article 9

Continuing jurisdiction of the child's former habitual residence

1.

Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence.

2.

Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.

Article 15 provides for the transfer of a case from the court with jurisdiction to another court better placed to hear it.

Article 16 sets out when a court “shall be deemed seised”. Here, the relevant part of Article 16 is paragraph 1(a) which provides:

1.

A court shall be deemed to be seised:

(a)

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; …

There has been a relatively recent pronouncement by the CJEU on the subject of Article 16 (Case C-173/16 M.H. v M.H.) which I think it worth mentioning as it is potentially important for other cases, although, as it turned out, nothing in fact turned on it here.

The various jurisdiction provisions of Brussels IIA meant that Judge Cushing needed to consider where M was habitually resident at the time that the court was seised with the father’s application in relation to him. In their skeleton argument for the appeal, Mr Turner QC and Mr Laing, for the father, advanced various possibilities as to what might, in fact, be the relevant proceedings that should have been considered in Judge Cushing’s review of whether the English court had jurisdiction. Their suggestions included the possibility that the father was merely seeking to have the order of 14 November 2014 perfected and therefore, in their submission, that his application was in fact a continuation of the original proceedings which culminated in Deputy District Judge Lavelle’s order. However, as will become apparent in the following paragraphs, the father put his case quite specifically in front of Judge Cushing and Mr Turner accepted that that formulation confined the scope of the argument before us.

What the father had said in his position statement for Judge Cushing was:

“1.

Today’s hearing is in relation to my application dated 25 May 2015 and subsequent hearing on the 16 July 2015 regarding stay of the order of Deputy District Judge Lavelle of 14 November 2014….

4.

My application to stay the order was made back in April/May 2015 and jurisdiction was seised from that moment….”

These two paragraphs are not entirely consistent, but when one looks in a little more detail at what the father says had occurred between April and July 2015, I think it is possible to see what he had in mind in them.

The father’s case is that in mid-April he sent a form C100 to the county court, seeking to appeal the order of Deputy District Judge Lavelle. His recollection is that when he enquired of the county court a few days later, he was told that the form had not arrived. He recollects that he then went to the court in person, on 20 April 2015, and handed over a new C100 form, in which he sought a variation of Deputy District Judge Lavelle’s order. If that document took the form of the draft C100, dated 20 April 2015, which appears at B54 of the appeal bundle, it would have stated, under “Nature of application”, that he was asking the court for “VARIATION/ADDITION OF RECITAL TO ORDER TO PROTECT CONTACT AND CONTACT LOCATIONS AS AGREED WITH GUARDIAN”. The draft form contains a statement, by way of explanation as to why the application was being made, that the parties had reached an agreement as to the locations for contact in Finland and the mother had decided not to deliver the child to those agreed locations and had “also breached contact order which includes prohibitive steps order”. The form continues:

“I am seeking a recital to be added to the order preventing breach of agreements and security for contact. The court in England still has jurisdiction as far as I am aware.”

In the section of the form dealing with urgency, there was a statement that the order sought was a:

“recital to order securing contact outside jurisdiction”

The reasons for urgency asserted were that:

“the order is due to be transferred outside jurisdiction and the recital should be added prior to that so that it is enforceable”

According to the father, having presented himself with his form, he was told that that particular court no longer dealt with such matters and that the file would have to be transferred to the family court elsewhere. The next relevant event took place on 23 June 2015, when the father made a further telephone call to the court and the same information seems to have been reiterated. On this occasion the court said that it did not have a copy of the father’s application and he would have to provide another one. He lodged another form C100, based on the earlier C100 but now dated 25 June 2015, and with an amendment to the nature of the relief sought. In the section relating to the nature of the application, responding to the question as to what orders were being sought, the father placed ticks in the boxes for a child arrangements order and a prohibited steps order, as he had done in the draft dated 20 April 2015. However, in the box requiring him to specify the nature of the order he was seeking, the following appears:

“VARIATION/ADDITION OF RECITAL TO ORDER TO PROTECT CONTACT AND CONTACT LOCATIONS AS AGREED WITH GUARDIAN STAY ORDER OF 14 NOV 2014”

Consequential amendments were also made elsewhere in the document.

It seems to be beyond doubt that the application dated 25 June 2015 was issued, that being done on 3 July 2015. Beyond that fact, which can be treated as established, there are no findings of fact to assist as to whether the father lodged an earlier application with the court and if so, what form it took. However, the earliest date that the father himself put forward for the lodging of his application was “April/May 2015” and it seems to me that, fortunately, it makes little difference in this case whether the court was seised in April or in June/July, or whether the application concerned took the form of the April draft C100 or the July version.

In the light of all of this, the debate on appeal proceeded on the basis of an application lodged by the father at the earliest in April 2015, and at the latest in June/July 2015. The suggestion that there was jurisdiction to entertain that application because it was part and parcel of the original proceedings was not pursued before us as part of the father’s attempt to overturn Judge Cushing’s determination, the argument proceeding upon the basis that the application he had been attempting to make was a new one, of which the court was not seised until April at the earliest. I should record, however, that Mr Turner asked us, if minded to allow the appeal, to remit the question of jurisdiction for a new hearing rather than determining the matter ourselves, and amongst the reasons that he advanced as to why we should take this course was that the father should have the opportunity to argue that even if the child was not habitually resident in England in April, there was nevertheless an alternative basis on which the English court did have jurisdiction.

The father’s application came before the court for directions on 16 July 2015. It is apparent from the order made that day that the court explored matters with the father and then stayed the case for a period to allow mediation to take place. By the time the matter next returned to court, in November 2015, it was known that there was a dispute as to jurisdiction and a district judge gave directions for that to be resolved by a circuit judge. Both parties were ordered to provide “position statements” for the hearing and the mother was ordered to provide “a statement setting out the facts and matters in support of her contention that the child is habitually resident in Finland exhibiting any applications to and orders from the court in Finland”. So it was that Judge Cushing came to be furnished with the position statement from the father and also with a document from the mother which was called her “position statement”, but was intended to be both a position statement and a statement in support of her case in relation to habitual residence.

Mr Turner relied heavily upon the approach taken by the mother’s solicitor with regard to the jurisdiction question, which he complained had led Judge Cushing astray. It did not seem to me that this aspect of his argument advanced matters greatly; what mattered ultimately was the approach and reasoning of the judge. However, in considering what the judge said, I have borne in mind Mr Turner’s observation that, in his communications with the court, the mother’s solicitor had not focussed upon the time when the court was seised of the father’s proceedings, which was the relevant time for jurisdiction purposes, but had dealt with the position of the mother and child significantly later in 2015 and/or addressed the jurisdiction question by asserting that the child’s habitual residence had changed immediately the move was made to Finland pursuant to the order of Deputy District Judge Lavelle and that therefore the only possible foundation for jurisdiction was Article 9 of Brussels IIA.

The father attended the hearing before Judge Cushing in person; the mother did not attend and was not represented.

It can be taken, I think, from [4] of Judge Cushing’s judgment, that the judge was considering the question of jurisdiction in relation to an application which the father believed he had made in May 2015, and by which he was seeking a stay of Deputy District Judge Lavelle’s order. In [5], Judge Cushing set out, in the following terms, five “grounds” on which the father argued that there was jurisdiction for his application:

“The grounds on which [the father] states that the courts of England and Wales should have jurisdiction in respect of his application are these. Firstly, and I use [the father’s] own words, ‘M retains inherent jurisdiction because he was born and lived here for three years’. Secondly, ‘On balance, he has the majority of family connection, both maternal and paternal in England’. [The father] has reminded me that this includes sibling connection. Thirdly, prior to leaving for Finland, M attended a nursery here and had substantial contact with his father, the applicant, [the father], practically shared care, five nights in every two weeks with [the father] [sic]. Fourth, the language issue so that M can communicate. Fifth, contact arrangements and, in particular, the affordability of contact arrangements on both sides. It is [the father’s] case that neither he nor M’s mother can afford the current contact arrangements and [the father] asserts there is no ability for the Finnish courts to decide the issue of affordability.”

Mr Turner pointed out that the “ground” for jurisdiction asserted by the father was actually that M was habitually resident in this country at the relevant time, but he agreed that Judge Cushing accurately stated the points upon which the father relied as supporting his case as to habitual residence, as can be seen from the transcript of the father’s argument before Judge Cushing.

At [11], Judge Cushing introduced Brussels IIA as the governing regulation, summarising her understanding of the legal position in [12] as follows:

“Normally, jurisdiction in relation to children is based on the subject child’s habitual residence. There are exceptions so that the regulation permits by way of exception under certain conditions that the court having jurisdiction may transfer a case to a court of another member state if that court is better placed to hear the case. However, jurisdiction lies in the first place with the member state of the child’s habitual residence except for certain cases of a change in the child’s residence and pursuant to an agreement between the holders of parental responsibility.”

The judge’s analysis of M’s situation is set out in her [13] and [14] as follows:

“13.

M moved lawfully from England to Finland pursuant to the order of Deputy District Judge Lavelle dated 14 November 2014. The move took place on 29 December 2014. Whether [the father] made his application in May or July 2015, the child had already moved to Finland and was physically present there and living there, as [the father] concedes. At least four months had elapsed since M moved to live in Finland. Therefore, the question of continuing jurisdiction during the three month period following the move for the purpose of modifying a judgment on access rights does not apply.

14.

As a question of fact, I am satisfied that M is habitually resident in Finland. He lives there with his mother. He is lawfully present in Finland pursuant to the specific issue order made by Deputy District Judge Lavelle. He has been habitually resident in Finland since 29 December 2014, and I have evidence from an extract from the Population Information System of Finland to establish that. He is attending a nursery in Finland and has attended since the beginning of January 2015. In my judgment, M is habitually resident in Finland and has been habitually resident in Finland since 29 December 2014.”

The judge then went through the father’s five points about jurisdiction (set out in the extract from her judgment which can be found at [19] above) in turn. She rightly rejected the first point very briefly; it was untenable. As to the second point, that the majority of M’s family connections were in England, she said:

“17.

…there was a contested hearing at which a decision was made as to what was in the best interests of M, and oral evidence was heard from family members. [The father’s] assertion that M has the majority of his family connection in England is not persuasive. I do not believe that it affects the question of M’s habitual residence.”

The father’s third point related to M’s living arrangements when he was living in England (nursery attendance, substantial contact with the father). The judge said:

“18.

…arrangements that were in place prior to M leaving for Finland are irrelevant since M left England lawfully with his mother pursuant to a specific issue order made by the court. The fact that he had a nursery place in England and contact, even substantial contact, with his father in England does not alter my opinion that M is habitually resident in Finland… ”

The father’s fourth point was to do with the English language and M’s ability to communicate with both parents effectively. The point had not been particularly clearly articulated by the father to the judge but it appears to have related to his feeling that M was losing his ability to communicate with him in English. The judge said that the language issue had been considered during the hearing before Deputy District Judge Lavelle and commented that the mother’s statement said she was bilingual and speaks to M in English. She continued:

“19.

…. I do not accept [the father’s] assertion that it is necessary for the English courts to retain jurisdiction to determine the language issue, namely which language or languages M uses to communicate. I do not accept that the language issue makes England and Wales his country of habitual residence.”

The father’s fifth point had been about the contact arrangements and the judge simply said that “the affordability of contact arrangements can conveniently be dealt with by the courts which have jurisdiction based on M’s habitual residence.” She then concluded the issue of habitual residence by saying [21] that in her judgment there was “ample evidence that M has been habitually resident in Finland since 29 December 2014.”

The context for any consideration of habitual residence is the five decisions made by the Supreme Court on the subject since 2013, namely A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, sub nom Re A (Children) (Jurisdiction: Return of Child) [2014] 1 FLR 111 (“A v A”); In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2014] AC 1017, sub nom Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction) [2014] 1 FLR 772; In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038 sub nom Re LC (Children) (Abduction: Habitual Residence: State of Mind of Child) (“Re LC”); In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2016] AC 76, sub nom AR v RN (Habitual Residence) [2015] 2 FLR 503; Re B (A child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] 2 WLR 557 (“Re B [2016]”).

The message from these cases is that the European formulation of the test, to be found in Proceedings brought by A Case C-523/07, [2010] Fam 42, is the correct one and accordingly “the concept of habitual residence …. must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment”. The position can be found set out, for example, in the passage in Baroness Hale’s judgment in A v A (supra) commencing at [45], where she dealt with Proceedings brought by A and also with the additional observations made in Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22) about the relevance of the child’s age and the need for “stabilité”. What is also very clear is that the identification of a child’s habitual residence is a question of fact and that “glosses” or “sub-rules” about it should be avoided.

It may be helpful, particularly as counsel for the mother focussed upon it as an integral part of her argument, if I set out [54] of A v A here, because in it Baroness Hale drew the threads together. She said:

“54.

Drawing the threads together, therefore:

(i)

All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

(ii)

It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

(iii)

The test adopted by the European court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends on numerous factors, including the reasons for the family's stay in the country in question.

(iv)

It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

(v)

In my view, the test adopted by the European court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309 should be abandoned when deciding the habitual residence of a child.

(vi)

The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

(vii)

The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

(viii)

As the Advocate General pointed out in opinion, para 45 and the court confirmed in judgment, para 43 of Proceedings brought by A (Case C-523/07) [2010] Fam 42, it is possible that a child may have no country of habitual residence at a particular point in time.”

Nothing that I say in this case is intended in any way to deviate from these well-established principles, further explained/developed in the subsequent Supreme Court authorities, culminating most recently in Re B [2016], to which I now turn in a little more detail. In Re B [2016], the particular focus of the court was on the point at which a child loses his or her habitual residence. This was material to whether the English courts had jurisdiction to entertain an application concerning the child which had been made in this country less than two weeks after the child and her mother had left to live in Pakistan permanently. The finding of Hogg J had been that the child and her mother had lost their habitual residence here upon their departure from the country, although she considered it probable that they had not acquired habitual residence in Pakistan at that stage.

It is interesting to note Lord Wilson’s comment at [39] of Re B [2016] that habitual residence requires “not the child’s full integration in the environment of the new state but only a degree of it”, and his observation that it is clear that in certain circumstances, the requisite degree of integration can occur quickly. He particularly noted that Article 9 of Brussels IIA expressly envisages a child’s acquisition of a fresh habitual residence within three months of his lawful move to another Member State. As he said, in A v A Baroness Hale had declined to accept that it was impossible to become habitually resident in a single day. He also remarked, at [45], on the unlikelihood of a child being in limbo without a habitual residence, saying:

“45.

I conclude that the modern concept of a child’s habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child’s roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.” (emphasis in the original)

It is also worth noting that Lord Wilson said at [42], when looking at Recital 12 to Brussels IIA, that:

“if the interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former.”

This further underlines that the “default setting” (as I might loosely call it) is that a child will have a habitual residence somewhere.

At [46] Lord Wilson went on to make three “suggestions” about the point at which habitual residence might be lost and gained. He said:

“One of the well-judged submissions of Mr Tyler QC on behalf of the respondent is that, were it minded to remove any gloss from the domestic concept of habitual residence (such as, I interpolate, Lord Brandon's third preliminary point in the J case [1990] 2 AC 562 ), the court should strive not to introduce others. A gloss is a purported sub-rule which distorts application of the rule. The identification of a child's habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him: (a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; (b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.”

Mr Turner particularly relied upon [49] and [50] of Lord Wilson’s judgment in his submissions. These fall within the section where Lord Wilson scrutinised Hogg J’s conclusion that the child, B, had lost her habitual residence in England, following her departure with her mother to live in Pakistan. He set out the question that the judge should have asked herself, when considering whether habitual residence here had been lost, namely, “whether B had ….achieved the requisite degree of disengagement from her English environment”. He said, at [48], that “highly relevant to the answer will be whether she had …achieved the requisite degree of integration in the environment of Pakistan.”

Lord Wilson then set out the factors which might contribute to a conclusion that the child had achieved the requisite degree of disengagement as follows at [49]:

“(a)

B went to Pakistan with the respondent, who was her biological mother, her primary carer and the person who alone had parental responsibility for her; (b) B's removal to Pakistan was lawful; (c) B knew that she was going to live in Pakistan; (d) part of B's ethnic heritage was in Pakistan and certain members of her wider family, albeit unidentified, apparently remain living there; (e) the respondent took B to Pakistan in the genuine belief that they would have a better life there and with the intention that they would settle there; and (f) two months earlier the respondent had conducted a reconnoitre of possible arrangements for their future life in Islamabad.”

At [50] he set out the following factors which might contribute to a conclusion that B had not by that date achieved the requisite degree of disengagement from her English environment:

“(a)

B had lived in England throughout the five years of her life; (b) she had never previously set foot in Pakistan; (c) her language was English and she barely spoke Urdu; (d) she was a British subject; (e) the appellant, who was a central figure in B's life, indeed probably the second most important figure, had been left behind in England; (f) B's removal was effected without the appellant's knowledge, still less approval; (g) B was aware that her removal was to be kept secret from the appellant; (h) B retained significant emotional links with the appellant and feared that she would miss her following the move to Pakistan; (i) other important adult figures in B's life, in particular both sets of grandparents and two aunts, together with various young cousins, had also been left behind in England; (j) the home in which B had lived throughout her life had not been sold and remained available for her immediate re-occupation with the respondent; (k) by 13 February 2014 B had been present in Pakistan for only nine days; (l) at that time she and the respondent had the right to remain there for only about three months; (m) they were then staying temporarily with a friend of the respondent; (n) no independent accommodation had by then been secured by the respondent; and (o) B was not then even attending school in Pakistan nor even registered with a school there.”

Lord Wilson’s conclusion was that, taken cumulatively, the factors in [50] were stronger than those in [49] and compelled a conclusion that the child had retained her habitual residence in England.

As I have said, the central question for Judge Cushing was where the child was habitually resident when the court was seised with the father’s proceedings which, taking things at their most favourable for the father, I will assume to be the earliest of the dates upon which he focussed at the hearing before Judge Cushing, that is April 2015.

On the facts of this case, there are, theoretically, three possibilities as to M’s habitual residence at the relevant time: (1) he may still have been habitually resident in England and Wales (2) he may have become habitually resident in Finland (3) he may have been without a habitual residence, having ceased to be habitually resident in England and not yet become habitually resident in Finland. The third possibility is the sort of scenario that the Supreme Court in Re B [2016] thought unlikely and undesirable, it not being in the interests of children routinely to be left without a habitual residence. At least for the time being, therefore, I will discount this possibility and approach the case on the basis that M was either habitually resident in England or in Finland, although I will keep it in the back of my mind in case a more detailed look at the circumstances suggests that it should be given real consideration.

If M was habitually resident in England at the relevant time, then it was the English court that had jurisdiction in matters of parental responsibility, by virtue of Article 8 of Brussels IIA. If M was habitually resident in Finland at the relevant time, Article 8 would operate to give Finland jurisdiction, subject to Articles 9, 10 and 12 of the Regulation. Of these three articles, the only one that could possibly apply in this case was Article 9 (set out at [6] above), which, in certain cases, can operate to continue the jurisdiction of the child’s former habitual residence for the purpose of modifying a judgment on access rights issued before the child moved lawfully to live in a new Member State and acquired habitual residence there. However, Article 9 would not assist the father to establish jurisdiction in the English court because, by April 2015 when he lodged his application here, over three months had passed since the child moved to Finland. The case does not therefore come within Article 9, which only provides for jurisdiction to be retained for a three month period following the child’s move.

I turn now to the father’s grounds of appeal against Judge Cushing’s decision. Mr Turner’s fundamental criticism of Judge Cushing was that, in his submission, she failed to engage with the concept of habitual residence at all, failing to refer to the principles in the Supreme Court authorities or to relate such evidence as there was to those principles, and conducting only a superficial analysis. Furthermore, he said, she wrongly rejected as irrelevant the matters that the father sought to put before her, which were relevant to the child’s connections with England, and to how he had settled in Finland, and were material to her decision. In Mr Turner’s submission, she appeared to equate the physical move pursuant to the relocation order with the acquisition of habitual residence in Finland when, in fact, the two are not the same thing and a careful factual analysis is required in each case. It was very unlikely on the facts of this case, in his submission, that M became habitually resident in Finland on the very day that he moved there, and such an unusual finding by the judge required proper justification in the judgment, he said.

The judge was hindered, Mr Turner argued, by the lack of focus, in the material available to her on the question of habitual residence, proper directions not having been given in preparation for the hearing in order to focus attention on the factors affecting habitual residence at the relevant date. Mr Turner also submitted that the case had been distorted by distracting references to Article 9, in particular by the mother’s solicitor, whose contributions he criticised more generally as well.

I said earlier that Mr Turner drew particularly upon [49] and [50] of Lord Wilson’s judgment in Re B [2016] (see [34] and [35] above). He relied on these paragraphs in support of his submission that it was necessary for Judge Cushing to weigh up the degree of connection that M had with England, which was accepted to be his habitual residence until he moved to Finland in December 2014, and balance that against the degree of his integration in Finland, and that she had failed to do so. In his submission, this balancing exercise was what was important in determining habitual residence, rather than simply how long the child had been in the new country and whether or not the move was intended to be permanent. He underlined his point by reminding us that in Re LC the children’s move to live in Spain with the mother was made with the agreement of the father, yet even after living in Spain for some months (July to December), they had not become habitually resident there (see the findings of Roderic Wood J, in Re LC (Habitual Residence: Grave Risk of Harm) [2014] EWFC 8 (Fam), applying the principles set out by the Supreme Court which had remitted the case for a rehearing of the issue).

It was Mr Turner’s submission that once we set aside Judge Cushing’s determination as he invited us to do, the matter would have to be remitted for rehearing because we did not have the factual material to make our own determination on the issue of habitual residence. Indeed, I think he was inclined to say that oral evidence would be required.

Miss Fottrell QC for the mother (appearing pro bono with Ms Rushworth and Ms Cayoun as are the solicitors Bindmans) realistically accepted that Judge Cushing’s judgment was not as full or as clearly expressed as it might be and that the judge had not set out the test that she was applying in deciding on habitual residence. However, she submitted that the case was, in fact, a simple and straightforward one, not needing a more sophisticated enquiry and determination than the judge provided. The facts here allowed the matter to be dealt with relatively briefly, she argued.

She sought to demonstrate that, albeit in a rather shorthand way, the judge had applied the correct law and taken the relevant matters into consideration, analysing the factual material set before her by the parties, and arriving at a decision which was open to her on the facts.

As to the law, Ms Fottrell submitted that in the father’s position statement, which in her submission the judge appears to have read, the father had sufficiently set out the relevant test and referred to A v A.

As to the facts, she invited attention to the factors to which Judge Cushing did refer, which did support her finding. The child’s young age was relevant, as was his move with his mother, and as was attendance at nursery in Finland from the beginning of January 2015. Furthermore, the fact that the move to Finland was pursuant to an order of the court, whilst not determinative in itself, was relevant, Ms Fottrell submitted, because it speaks of planning and forethought on the part of the mother leading up to the contested hearing before Deputy District Judge Lavelle.

Ms Fottrell pointed out that the father had not said expressly in his position statement that M was not settled in Finland and that, even during the appeal hearing, no additional factors were identified on behalf of the father which the judge did not consider and which might have influenced her decision. As for the points which the father did rely upon in the hearing before her, the judge was entitled, in Ms Fottrell’s submission, to conclude that they were essentially revisiting the decision of Deputy District Judge Lavelle and were historical.

Ms Fottrell invited attention to the mother’s position statement which was before Judge Cushing. I have, of course, read that. In it, the mother said that her intention had always been to live in Finland for the rest of her life and she said that she and M had settled down very well, describing some of their living arrangements. She set out how, to help M’s settling down process, she had enrolled him in the local nursery, where he started in the middle of January 2015, enjoying it so much that, having started on three days a week, his attendance was “soon” increased to four. It is fair to say that the position statement does not confine itself to the spring and early summer of 2015, although including material about that period, but it does give an indication of the process of settling in in Finland from the mother’s point of view. She sums this up in the following sentence:

“Being granted permission to move back to Finland permanently with M means that I have finally been given a chance to start my life all over again and I have made long term commitments here for us.”

Ms Fottrell recognised that the judge had said that she found M to have become habitually resident in Finland on 29 December 2014, but she pointed out that the judge also referred, in the habitual residence context, to later matters as well, notably the child starting at nursery in January 2015. In any event, she submitted, it was not necessarily wrong of the judge to have found that habitual residence changed that quickly.

Before I consider the parties’ submissions, I need to look back to the proceedings before Deputy District Judge Lavelle. Very little reference was made to the judgment of Deputy District Judge Lavelle during the appeal hearing and it is not certain that Judge Cushing had access to it, although she did have a copy of the Deputy District Judge’s detailed order. The full judgment was before us. It was given on 14 November 2014 and is a long and thorough judgment containing a considerable number of findings, including about the parents’ relationship and about M’s circumstances up to the date of the hearing before the Deputy District Judge, no more than two months before he left to live in Finland. As these findings potentially bear on the question of habitual residence, it would be artificial to deal with the appeal without reference to the judgment, particularly as, in addressing the father’s points in her judgment, Judge Cushing referred back a number of times to the proceedings before Deputy District Judge Lavelle and the order that resulted.

I would specially note the following aspects of the judgment, all the material in the remainder of this paragraph being drawn from that source, except the query noted at the conclusion of (iv):

There is no doubt that Judge Cushing was aware of and understood the articles of Brussels IIA which were relevant to her determination, even though she did not cite them expressly. In [12] of her judgment (set out in my [20] above), she said that normally jurisdiction is based on the child’s habitual residence, accurately reflecting Article 8 of the Regulation. She referred to there being exceptions to that, first mentioning jurisdiction being transferred to a court better placed to hear the case, reflecting Article 15, to which it is probable she was also referring in (inter alia) [18] when she said that Finland was “better placed to make the decision” about M. What she said about the exception “for certain cases of a change of the child’s residence” is plainly a reference to Article 9, to which she returned in [13] when she said there was no question of continuing jurisdiction during the three month period following a lawful move. Her reference to jurisdiction pursuant to an agreement between the holders of parental responsibility is a reference to Article 12.

The judge was also aware that, in deciding upon M’s habitual residence, she was determining a question of fact (see the introductory words of her [14]). It is regrettable that she did not set out the test for habitual residence that she was applying in deciding that factual issue. It is short and simply stated and express reference to it would have reassured the reader that she was approaching matters in the correct way. However, the fact that a judge does not set out the law in his or her judgment is not necessarily a reason to impugn the judgment (as to which see, for example [22] of the judgment of the President of the Family Division, sitting in the Court of Appeal, in Re F (Children) [2016] EWCA Civ 546). What matters is whether the approach actually taken by the judge is what the law requires, so Ms Fottrell was right to focus our attention on the substance of Judge Cushing’s decision rather than the form.

The core of the judge’s decision is, I think, to be found in [13] and [14] which I set out in full at [21] above. It seems to me that in [13], the judge was dealing with Article 9 and, correctly, finding that it did not assist the father. She rightly said that the child had moved lawfully to live in Finland on 29 December 2014; that was the relevant date for Article 9 as she recognised. She took the date for the father’s application as being May or July 2015 which meant that at least four months had elapsed since the move, so the case fell outside the three month period stipulated in Article 9. As I have said earlier, the same would have been true even if the judge had taken the very earliest date at which the father might have been asserting that he lodged his application.

In [14], the judge was undoubtedly dealing with the factual issue of habitual residence. Her conclusion was that M became habitually resident in Finland on 29 December 2014, as she set out there, and in [21] where she said that there was “ample evidence” of that. The factors to which she referred expressly in [14] and upon which she appears to have relied were that:

This paragraph is a scant explanation for the judge’s finding as to habitual residence and it is not surprising that Mr Turner criticised her analysis of the question as superficial. The points made in [14] by the judge were all relevant and they could, indeed, be said to be supportive of a finding of habitual residence in Finland. As Mr Turner complained, however, the judge’s concentration was entirely on the situation as it was in Finland, [14] containing nothing about M’s circumstances in England. That this was a material flaw in the judge’s approach is clear from Re B [2016], which leaves no doubt as to the relevance of the circumstances of a child’s life in the country he has left as well as the circumstances of his life in his new country.

Still looking at Judge Cushing’s [14], it seems to me that there is also something in the father’s complaint that a finding that M became habitually resident in Finland on the day he arrived there, whilst not impossible, needed rather more justification. Having said that, however, Ms Fottrell was right to point out that although she selected 29 December 2014, the judge’s focus was not in fact entirely confined to events on and up to that date, as can be seen from her reference to M starting nursery in January 2015.

Before reaching final conclusions about the sufficiency of Judge Cushing’s reasoning on habitual residence and about whether her factual finding about it is supportable, it is necessary to look at the remainder of her judgment. Some further material in support of her decision can, perhaps, be found in [16] to [20] of the judgment, in which she engaged with the points the father had raised. These paragraphs need to be read in the light of the case that the father was advancing to the judge. The five headline points that the judge isolated with him during argument were amplified in his position statement of 4 January 2016 (“the father’s position statement”). This comprised a number of elements. It challenged the Deputy District Judge’s order, the validity of which the father said that he had never accepted (see his [5]) and which, in the concluding words of his position statement, he asked Judge Cushing to set aside. It also set out the respects in which the father considered that the arrangements with regard to M were not working following the move. In addition, it accurately set out the rudiments of the legal position as to habitual residence but, unsurprisingly given his lack of representation, it did not address the question of habitual residence in any concentrated way. Amongst the factual features mentioned in the position statement, which the father might have considered to be relevant to the issue of habitual residence, were:

From what the judge said when she set out the father’s points at [5] (see above at [19]) and later addressed them at [16] to [20], it can be seen that she was aware of some of the points about M’s situation in England which were potentially material to the habitual residence question. In [16], she recorded that M was born here and had lived here for the three years following his birth. In [18], she referred to his nursery place in England and what she accepted to be “substantial contact” with the father whilst living here. In [20], she acknowledged the existence of contact issues. In [19] she considered language issues and this is a matter on which I need to say a little more. In argument, Mr Turner sought to rely on M’s language difficulties as a factor tending to suggest that he would not have integrated in Finland. However, taking [19] together with the father’s position statement and with what was said about language in Deputy District Judge Lavelle’s judgment (see above at [52](iv)), it is clear that the language issue that was concerning the father, and which he was asking Judge Cushing to address, was not to do with M having problems speaking Finnish; the point that the father was making was that, in his view, M was losing his facility in English following the move. I do not think, therefore, that language considerations furthered the father’s case about habitual residence in any material way, or at least, not as a free-standing point, separate from the argument that difficulties in contact following the move would have been unsettling for M.

However, although Judge Cushing showed her awareness of the “English factors” which I have just picked out, I am afraid that there is still some force in Mr Turner’s complaint that she failed to put them into the melting pot when determining habitual residence. Her view about the arrangements which were in place before M left England was that they were “irrelevant” because he left lawfully pursuant to a court order following a contested hearing at which M’s best interests were considered. The English factors were not “irrelevant”, even when the child’s move took place with the sanction of the court given after a contested welfare hearing, although it was, of course, for the judge to determine what weight was to be attributed to them.

In endorsing certain of Mr Turner’s criticisms of Judge Cushing’s judgment, I do not wish to be taken as suggesting that there is only one way in which to approach the making of a finding of fact about habitual residence. Habitual residence is a question of fact and the scope of the enquiry depends entirely on the particular facts of the case. What is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child’s habitual residence. The court’s review of all of the relevant evidence about habitual residence cannot be allowed to become an unworkable obstacle course, through which the judge must pick his or her way by a prescribed route or risk being said to have made an unsustainable finding. In some cases it will be necessary to carry out quite a detailed analysis of the situation that the child has left; in other cases, less detail of that will be required and the judge will be able to explain shortly why that is and focus more on the circumstances in the new country.

It has now been said countless times that there is no room for glosses and sub-rules in the field of habitual residence. A recent reiteration of this can be found at [46] of Re B (see [32] above). Lord Wilson was careful to call the three propositions, which he there set out about the point at which habitual residence might be lost and gained, “suggestions”, stressing that they were “not sub-rules but expectations” and underlining the lack of rigidity in what he was saying by observing that they were expectations “which the fact-finder may well find to be unfulfilled in the case before him”. When he turned to the particular facts concerning B, in a section headed “Application” commencing at [48], he was even further from stating principles than he had been at [46], having turned his attention to what, as a matter of fact, should be the finding as to habitual residence in that case. He would not expect, I imagine, to find a judge’s finding as to habitual residence being impugned because the judge had failed to work, step by step, through each of the elements he examined in [49] and [50] of his judgment as if through a welfare checklist. Mr Turner’s submissions did not go quite so far as to suggest that, but they did have a flavour of it.

It seems to me that there are very good practical reasons not to complicate the issue of habitual residence. It is so often merely a preliminary issue that has to be determined as a precursor to the main litigation, and it would be thoroughly undesirable if it were to become so complex, substantively or procedurally, that it diverted the resources of the parties and the court significantly from the central issues in the case. It is perhaps particularly relevant to remember that habitual residence often falls to be determined in child abduction proceedings under the 1980 Hague Convention. Such proceedings have to be concluded extremely quickly and this may mean dealing with the issue of habitual residence in quite a summary fashion. The court needs to be provided with properly focussed written statements directed to the question of the child’s habitual residence, as Hayden J observed in In re B (A Child)(Custody Rights: Habitual Residence) [2016] EWHC 2174; [2016] 4 WLR 156, but the court’s determination might then be made on submissions, without any oral evidence.

Returning to the instant case, had Judge Cushing looked back over M’s circumstances in England up to 29 December 2014, rather than treating them as water under the bridge in the light of Deputy District Judge Lavelle’s decision, they would not, in my view, have led her to find that M was either still habitually resident in England and Wales, or without a habitual residence, at the relevant time. In my view, a full consideration of all the relevant facts here would inevitably have led Judge Cushing to the conclusion that M was habitually resident in Finland, if not by 29 December 2014, then at least by April 2015. I do not think that it is necessary for us to remit the matter for a re-hearing in order to decide that that was the position in relation to habitual residence. This is, as Ms Fottrell submitted, a relatively straightforward case and not one in which oral evidence is required, particularly given the availability of Deputy District Judge Lavelle’s up to date findings about M’s circumstances in England. As to Mr Turner’s wish to have the matter remitted so that the father could expand his argument to advance alternative possibilities as to jurisdiction which were not advanced before Judge Cushing, it seems to me that we should deal with the appeal within its own parameters. Judge Cushing had to determine whether there was jurisdiction for the proceedings that the father told her he was pursuing and the appeal is against her decision that there was no jurisdiction to entertain those proceedings.

In order to demonstrate why I have taken the view that I have just expressed about M’s habitual residence at the relevant time, I intend to review the material that touches upon the question. I remind myself, in so doing, that habitual residence requires some degree of integration by the child in a social and family environment. It is M’s habitual residence that I am considering but, particularly as he was a young child when he went to live in Finland, still under 3 ½ years old, his mother’s position is relevant. It is worth remembering also that habitual residence can be acquired even in a single day and certainly quite quickly after a move, but it all depends on the facts.

Deputy District Judge Lavelle’s order established a lawful basis for M going to live in Finland. It therefore removed the sort of insecurity which might attend an unauthorised move, and might interfere with integration in the new country. Furthermore, as I said earlier, Deputy District Judge Lavelle’s judgment provides much useful information about M’s circumstances in England. It gives substance to Ms Fottrell’s argument that the fact that the mother was permitted to leave following a contested hearing spoke of planning and forethought on the mother’s part, as it is clear from the judgment that the Deputy District Judge had scrutinised the mother’s plans and approved them as realistic. The mother’s position statement for Judge Cushing was evidence that the plans had worked out satisfactorily in practice as well and that the mother had taken up residence in Finland again with commitment, intending to stay for the rest of her life. She was, of course, well equipped to make the move because she was returning to her native country, and indeed to the home in which she had been brought up.

It is also relevant to note from the judgment that the Deputy District Judge concluded that the mother had been M’s primary carer throughout his life so, although the move to Finland involved an interference with his regular contact with his father and his contact with his step-siblings and other relatives, it was at least made with the parent in whose day to day care he was used to being. The circumstances in which M and the mother had been living in England following the separation were described by the Deputy District Judge as less than optimal, with M and the mother already having had to move on one occasion. In Finland, they went immediately to live in the maternal grandparents’ home which was very familiar to the mother. M already knew his maternal grandparents well and they were going to support him and the mother, both whilst they were living under the same roof and when the mother got her own accommodation in due course. Language was not going to be a problem for him as he was able to speak English and Finnish. He had left behind his nursery in England, but a nursery place was rapidly secured for him in Finland and he settled in so well that he soon started to go on four days a week instead of the planned three. Although M had been disrupted by his parents’ differences and their separation and had some difficulties with his behaviour, those difficulties had already resolved in England whilst living in a stable home environment with his mother alone, and his needs were now typical of a child of his age. The Deputy District Judge did not anticipate that he would suffer more than a short period of disruption on moving to Finland. It is material that, following a detailed review of the evidence about him, she considered that the impact on his contact with the father and other family members in England would be offset, at least to an extent, by contact arrangements. It is also material, in my view, that although leaving behind some relatives, M was going to be seeing more of the maternal grandparents.

It must be borne in mind that until he moved to Finland, M had spent the whole of his young life in England, much loved by his father and having quite a lot of contact with him, and that the father was not moving with him to Finland. The father and M’s other relatives were continuing links for him with England. These were amongst the features which might have slowed M’s integration in Finland. The father’s complaints about contact difficulties since that move must also be noted, as such difficulties may affect the speed at which a child settles down in a new country. However, I suspect that this case is typical of many jurisdiction wrangles following a relocation order, in that it was the father’s complaints about contact that led him to commence proceedings. Here, as in many cases, the mother has her own rather different perspective on contact. In such circumstances, there is a danger that the contact issues may end up being litigated extensively as part of the jurisdiction argument, in the guise of determining where the child’s habitual residence is. The courts will have to guard robustly against this, finding a way to take account of the contact situation without being drawn into the very battle that the proposed proceedings are intended to resolve.

In all the circumstances, having considered all the features of the case which I consider to be relevant to the question of habitual residence, I have no doubt that this young child, making a planned, court sanctioned, move back to his Finnish mother’s original family home with his mother and with the support of the Finnish grandparents would by April 2015 (and probably very considerably sooner than that) have achieved the requisite degree of integration in Finland to be classed as habitually resident there, notwithstanding the ties he had left behind in England.

I should deal expressly with Mr Turner’s reliance on Re LC. It is certainly illustrative of the fact that habitual residence does not normally only depend on whether the child’s move is intended to be permanent and how long the child has been in the new country, and nor does it depend entirely on whether the move is lawful, in the sense of being made with the agreement of the other parent or the sanction of the court. However, as habitual residence is a question of fact depending on all the circumstances of the individual case, I question the extent to which it is helpful to compare the facts of decided cases in attempting to decide on an individual child’s habitual residence. Furthermore, there are significant differences between the situation in Re LC and the situation in this case. One important difference is that some of the four children in Re LC were materially older than M, the oldest being 12 years old. The older children’s state of mind during their residence in Spain was relevant to habitual residence and, in reaching his findings about it, Wood J looked at that in some detail, together with the evidence about the circumstances in which they departed for Spain and the circumstances once in Spain.

I would therefore dismiss the father’s appeal against the determination that there was no jurisdiction to entertain his proceedings.

I agree.