Marinos v Marinos

This case raises interesting points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised).

The background can be sketched in very shortly.

The husband is Greek, the wife is English. The husband came to this country as a student in 1981. They met in this country in 1988 and married (in this country) in 1992. They have two children, both born in this country: a son L born in 1996 and another son, A, born in 2000. The husband – he is a medical doctor – moved to Greece to work in October 2002. The wife and the two children followed in December 2002. The husband accepts that the move to Greece was initially for a ‘trial’ period of one year, later extended, he says, by mutual agreement. The wife says that it was a temporary relocation, capable of termination at any time. Be that as it may, both children went to school in Greece, L starting school in January 2003 and A beginning at nursery in September 2003 and joining L at his school in September 2006. They remained there until this year. On 31 January 2007 the wife returned to this country with the two children.

The original matrimonial home had been a house in Holland Park which the husband had bought before the marriage. In 1996 that property was sold and the parties bought a house in Chiswick. In September 2000 the husband’s employment took him to Norfolk. They let the Chiswick property to tenants and bought a house in Norwich. Following the move to Greece that also was let. The tenancy agreement dated 22 November 2002 shows the husband and wife’s address as being in Greece. The property was re-let to new tenants in June 2003. The tenancy agreement dated 26 June 2003 again shows the husband and wife’s address as being in Greece. The Chiswick property was re-let to new tenants in September 2006. When the wife and children came back to this country on 31 January 2007 both properties were still tenanted, though the wife had on 3 January 2007 given the agents instructions to serve notice to quit on the tenants of the Chiswick property. The notice was given the following day (4 January 2007) in terms permitting the wife to reoccupy the property with the children from 3 March 2007.

On 1 February 2007, the day after her return to this country, the wife issued a petition for divorce in the Principal Registry. Paragraph 3 of her petition asserts that the court has jurisdiction under Article 3 on the ground that:

“[she] is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately prior to the presentation of the petition.

Throughout at [an address at Uttoxeter in Staffordshire].”

That address is in fact the address of the wife’s parents. It may be noted that in her statement of arrangements for the children, also dated 1 February 2007, the wife, although giving the Uttoxeter address as “the address at which the children now live,” said that “The children and I are living at The Premier Travel Inn … London temporarily since the children started their new schools, returning to Staffordshire at weekends.”

On 8 March 2007 the husband filed an acknowledgement of service disputing jurisdiction “on the grounds that the Petitioner & I are both domiciled & habitually resident in Greece, not the UK.” On 20 March 2007 the husband issued an application for a stay of the petition on that ground. It was this application that came on for hearing before me on 5 July 2007.

I should add that in the meantime there were also proceedings between the parties brought by the husband under the Hague Convention. That matter came before Sumner J, who by an order dated 21 June 2007 dismissed the application. A subsequent application for permission to appeal was refused by the Court of Appeal on 31 July 2007. Nothing turns on any of this except that in his judgment (Marinos v Marinos [2007] EWHC 1404 (Fam)) Sumner J recorded (at para [9]) as being common ground between the parties that the children had been habitually resident in Greece when they left in January 2007 and found (at para [14]) that the wife’s return alone to this country with the children and her remaining here with the children was with the husband’s consent.

There are also ongoing proceedings in Greece, both in relation to the children and in relation to the husband’s petition for divorce issued there on 5 April 2007.

The hearing before me lasted two days. Mr Nicholas Allen appeared for the husband and Mr Richard Castle for the wife. I heard oral evidence from both the wife and the husband. Save in point of detail the oral evidence added little to what had been said in the parties’ affidavits. The wife reiterated that she had not seen the move to Greece as permanent and that she had always considered this country to be her home. Greece was not her home, it was somewhere she was staying. All her ties were here. The only thing that attached her to Greece was the children. She reiterated that she was the children’s primary carer and described them as “the centre of my life – they are very, very important to me.” She accepted that she was in Greece slightly more than in this country and said “I would consider myself resident in both countries.” She accepted that the children had been habitually resident in Greece until 31 January 2007. The husband in his oral evidence said that his wife had had difficulty settling in Greece. He suspected that she was not happy in Greece and said he was not surprised that she did not consider Greece her home.

I reserved judgment, which I now hand down.

It is convenient to start with the law. Article 3 of the Regulation provides as follows:

“1

In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

(a)

in whose territory:

– the spouses are habitually resident, or

– the spouses were last habitually resident, insofar as one of them still resides there, or

– the respondent is habitually resident, or

– in the event of a joint application, either of the spouses is habitually resident, or

– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

– the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;

(b)

of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.

2

For the purpose of this Regulation, “domicile” shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland.”

As will be appreciated, the wife’s petition is founded on the final limb of Article 3(1)(a).

It is not disputed that the wife can satisfy the domicile requirement in the final limb of Article 3(1)(a). Her domicile of origin was in England and Wales. The husband accepts that she either never acquired a domicile of choice in Greece or that, if she did, she lost it when she left Greece on 31 January 2007, whereupon her domicile of origin revived.

So the case turns entirely on whether the wife can prove (i) that on 1 February 2007 she was “habitually resident” in England and Wales and (ii) that she had “resided” in England and Wales since at least 31 July 2006 or 1 August 2006. (On the facts of this particular case nothing really turns on which is the relevant date and I do not take up time considering how precisely the period of six months under the Regulation is calculated.)

It will be noted that the final and penultimate limbs of Article 3(1)(a) both have the same essential structure, jurisdiction being located in

“the courts of the Member State … in whose territory … the applicant is habitually resident if he or she resided there for at least [a specified period] immediately before the application was made.”

The only difference is in the specified period. In the one case, if the applicant can establish nationality or domicile (as the case may be), six months, in the other case, where the applicant cannot rely upon nationality or domicile (as the case may be), twelve months. But the wording which is critical for present purposes is the same in each limb.

The corresponding French text reads as follows:

“les juridictions de l’État membre … sur le territoire duquel se trouve … la résidence habituelle du demandeur s’il y a résidé depuis au moins [etc].”

There is, so far as I can see, no difference between the language of the English and French texts and nothing in the French text which throws any additional light on anything I have to decide.

A number of points arise on this in relation to which there is, I am told, little direct judicial authority either in this country or, so far as counsel are aware, anywhere else in the European Union.

Both Mr Allen and Mr Castle suggest that for the purposes of the Regulation “habitual residence” has an autonomous meaning, which is to be derived from the jurisprudence of the European Court of Justice and which is not necessarily the same as that familiar in our domestic or Hague Convention jurisprudence. That, in my judgment, is plainly so. As the ECJ said in Hagen v Einfuhr-und Vorratsstelle Getreide (Case 49/71) [1973] 12 CMLR 23, at para [6]:

“Terms used in Community law must be uniformly interpreted and implemented throughout the Community, except when an express or implied reference is made to national law.”

That “habitual residence” has an autonomous meaning in Community law, and that its meaning in Community law may not be the same as its meaning in our domestic law, is recognised in the authorities. Thus in Rayden & Jackson on Divorce and Family Matters, ed 18, para 2.145, it is said in connection with the Regulation, that “in European Community law it [scil, habitual residence] has a community wide meaning and will be determined by the judgments of the European Court of Justice.” And in addition to the well-known words of Thorpe LJ in Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, [2001] 2 FLR 1288, at para [31], there is the clear statement of the Deputy Judge in C v RC (Brussels II: Free-Standing Application for Parental Responsibility) [2004] 1 FLR 317 at para [98] that:

“The expression ‘habitually resident’ must be given the same meaning and effect under the laws of all the Contracting States in which Brussels II has effect.”

I respectfully agree. Similarly, in L-K v K (No 2) [2006] EWHC 3280 (Fam), Singer J referred to the autonomous meaning of the phrase in Community law and said (at para [35]) that

“There is, of course, no need for the concepts to be the same in domestic and in community law.”

Again, I respectfully agree.

I do not take up time, therefore, with such well-known authorities as R v Barnet LBC ex p Shah [1983] 2 AC 309, Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, [2001] 2 FLR 1288, and Mark v Mark [2005] UKHL 42, [2006] 1 AC 98. I go instead to the ECJ case-law.

The relevant ECJ cases are, in chronological order, Angenieux v Hakenberg (Case 13/73) [1973] ECR 935, Silvana di Paulo v Office national de l’emploi (Case 76/76) [1977] 2 CMLR 59, Rigsadvokaten v Ryborg (Case C-297/89) [1991] ECR I-1943, Doris Knoch v Bundesanstalt für Arbeit (Case C-102/91) [1992] ECR I-4341, Pedro Magdalena Fernández v Commission of the European Communities (Case C-452/93P) [1994] ECR I-4295 and Robin Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR 1-01075, [1999] 2 FLR 184.

I need not go through all of them. I go first to Silvana di Paulo v Office national de l’emploi (Case 76/76) [1977] 2 CMLR 59, where the ECJ had to consider the meaning of an exception in Article 71(1)(B)(II) of Regulation No 1408/71 giving an entitlement to social security benefit to a “worker …who is wholly unemployed and who makes himself available for work to the employment services in the territory of the Member State in which he reside.” The case involved a migrant worker, an Italian national who had last worked in the United Kingdom and then returned to her family in Belgium. The question was whether she was entitled to unemployment benefits under Belgian law. She claimed the benefit of Article 71(1)(B)(II) on the basis that she had remained resident in Belgium whilst working in the United Kingdom. At para [17] the Court said:

“The concept of ‘the Member State in which he resides’ must be limited to the State where the worker, although occupied in another Member State, continues habitually to reside and where the habitual centre of his interests is also situated.”

The Court continued at paras [18]-[22]:

“[18] In this respect, the fact that the worker has left his family in the said State constitutes evidence that he has retained his residence there, but is not of itself sufficient to allow him the benefit of the exception laid down in Article 71(1)(B)(II).

[19] In fact, whenever a worker has a stable employment in a Member State there is a presumption that he resides there, even if he has left his family in another State.

[20] Accordingly it is not only the family situation of the worker that should be taken into account, but also the reasons which have led him to move, and the nature of the work.

[21] The addition of the words ‘or who returns to that territory’ implies merely that the concept of residence, such as defined above, does not necessarily exclude non-habitual residence in another Member State.

[22] Thus for the purposes of applying Article 71(1)(B)(II) of Regulation No 1408/71, account should be taken of the length and continuity of residence before the person concerned moved, the length and purpose of his absence, the nature of the occupation found in the other Member State and the intention of the person concerned as it appears from all the circumstances.”

The same point arose in Doris Knoch v Bundesanstalt für Arbeit (Case C-102/91) [1992] ECR I-4341, where the Court at paras [20]-[23] reiterated the principles it had earlier laid down in Silvana di Paulo v Office national de l’emploi (Case 76/76) [1977] 2 CMLR 59. Relating those principles to the facts of the instant case, the Court continued at para [25]:

“Miss Knoch was employed for two academic years as a university assistant in another Member State under a programme for university exchanges; at the end of that period she became unemployed; and her attempts to find work in that State proved unsuccessful. She cannot therefore be considered to have been in stable employment.”

It should be noted (see paras [3]-[5]) that Miss Knoch had been employed in the United Kingdom from October 1982 to June 1984 – during which time she remained registered at her parents’ address in Germany – before returning to Germany in November or December 1984. So she had spent some 21 out of the previous 25 or 26 months in the United Kingdom rather than in Germany. Yet the Court did not treat this as determinative of the question whether she had nonetheless remained habitually resident in Germany. As it commented at para [26]:

“As regards the fact that she held a post for 21 months in another Member State, it should be borne in mind, as the Court has already indicated in its judgment in Case 76/76 Di Paolo, that there is no precise definition of the criterion of length of absence and that it is not an exclusive criterion.”

Pedro Magdalena Fernández v Commission of the European Communities (Case C-452/93P) [1994] ECR I-4295 involved a very different branch of Community law – the awarding of expatriation allowances to officials of the Community – but one where (see at para [21]) the criterion was habitual residence. The case was an appeal from a decision of the Court of First Instance of the European Communities. Dismissing the appeal, the ECJ said at para [22]:

“As the Court of First Instance, referring to the settled case-law of the Court of Justice, pointed out, the place of habitual residence is that in which the official concerned has established, with the intention that it should be of a lasting character, the permanent or habitual centre of his interests. However, for the purposes of determining habitual residence, all the factual circumstances which constitute such residence must be taken into account.”

The latest and fullest statement of principle by the ECJ is in Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR 1-01075, [1999] 2 FLR 184, at paras [28]-[30]:

“[28] Pursuant to Art 1(h) of Regulation No 1408/71, the term ‘residence’ for the purposes of that regulation ‘means habitual residence’ and therefore has a Community-wide meaning.

[29] The phrase ‘the Member State in which they reside’ in Art 10a of Regulation No 1408/71 refers to the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found. In that context, account should be taken in particular of the employed person’s family situation; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from all the circumstances (see, mutatis mutandis, concerning Art 71(1)(b)(ii) of Regulation No 1408/71, Case 76/76 Di Paolo [1977] ECR 315, paras (17)–(20), and Case C-102/91 Knoch [1992] ECR I-4341, paras (21) and (23)).

[30] For the purposes of that assessment, however, the length of residence in the Member State in which payment of the benefit at issue is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Art 10a of Regulation No 1408/71.”

There is as yet no decision of the ECJ directly in point as to the meaning of Article 3 of the Regulation. But the Explanatory Report on Brussels II prepared by Dr Alegría Borrás (Official Journal of the European Communities, C 221/27, 16 July 1998) is illuminating. The discussion is of Article 2 of Brussels II but is equally applicable to Article 3 of Brussels II (revised).

In para [30] it is said that:

“The grounds adopted are based on the principle of a genuine connection between the person and a Member State.”

The final two limbs of paragraph 1(a) of the Regulation are considered in para [32]:

“Both these provisions allow forum actoris in exceptional cases on the basis of habitual residence combined with other elements. That is why the fifth indent allows jurisdiction to lie with the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least a year. Since some Member States did not find the rule set out in those terms sufficient and bearing in mind the frequency with which the spouse’s new residence is in the State of nationality or of ‘domicile’, in the sense in which this term is used in the United Kingdom and Ireland, the sixth indent adds the possibility of having the matrimonial proceedings heard by the courts of the Member State in which the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made, provided that that State is the State of nationality or of domicile as defined in the United Kingdom and in Ireland. That provision was introduced as a result of the political compromise adopted in December 1997 following a formal statement by some States that acceptance of that forum was an essential prerequisite of vital importance for an overall compromise solution.

The solution takes into account the situation of the spouse who returns to his or her country but does not mean establishing a ground based solely on the forum of the applicant: on the one hand, the existence of nationality or ‘domicile’ demonstrates that there is an initial connection with that Member State; on the other hand, in order to initiate proceedings in that Member State, he or she must have resided there for at least six months immediately before the application was made.”

So much for the general background. What follows is the crucial part:

“The last requirement led to a discussion of establishment of habitual residence, taking account of the situation of the spouse who returns to the country of origin as a consequence of the breakdown of the marriage. The existence of the connection will be assessed by the court. Although the possibility of including a provision determining habitual residence similar to the one in Article 52 of the 1968 Brussels Convention was discussed, in the end it was decided not to insert any specific provision on the matter. However, although not applicable under the 1968 Brussels Convention, particular account was taken of the definition given on numerous occasions by the Court of Justice, i.e. ‘the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence’. Other proposals were therefore rejected whereby it would be sufficient for the applicant to have his or her habitual residence there for a total of at least one year in the five years immediately before the application was made, even when combined with nationality or ‘domicile’.”

It is therefore plain that the intention was that the phrase “habitual residence” in this context (Brussels II and now Brussels II (revised)) should have the meaning given to it in the case-law of the ECJ to which I have already referred.

This is indeed the view which has been adopted judicially both in France and in this country.

In Moore v McLean (a continuation in France of the litigation an earlier English phase of which is reported as Moore v Moore [2004] EWCA Civ 1243, [2005] 1 FLR 666) the Cour de Cassation, First Civil Chamber, had to consider a husband’s appeal against the ruling of the French Judge of Family Affairs in Grasse, upheld by the Court of Appeal of Provence, that the wife was not, for the purposes of Brussels II, habitually resident in France (the case was brought under the third limb of paragraph 1(a) of the Regulation). Dismissing the appeal on 14 December 2005, the Cour de Cassation said that:

“la résidence habituelle, notion autonome du droit communautaire, se définit comme le lieu ou l’intéressé a fixé, avec la volonté de lui conférer un caractère stable, le centre permanent ou habituel de ses intérêts.”

Which may be translated as:

“habitual residence, an autonomous notion of community law, is defined as the place where the party involved has fixed, with the wish to vest it with a stable character, the permanent or habitual centre of his or her interests.”

In L-K v K (No 2) [2006] EWHC 3280 (Fam), a case under Brussels II (revised) brought under the third limb of Article 3(1)(a) where the issue was whether the respondent husband was habitually resident in this country, Singer J adopted the same approach. Having referred, as I have already mentioned, to the autonomous meaning of the phrase in Community law, Singer J then referred to the Borrás report, to the decisions of the ECJ in Pedro Magdalena Fernández v Commission of the European Communities (Case C-452/93P) [1994] ECR I-4295 and Robin Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR 1-01075, [1999] 2 FLR 184, and to the decision of the Cour de Cassation in Moore v McLean, before concluding (at para [44]) that “in terms of the autonomous definition” the husband was habitually resident in this country.

At para [36] Singer J made an important observation with which I agree:

“the European authorities tend to demonstrate, in my judgment, far less, if any, emphasis on the ingredients which English law has developed that there needs to pass an appreciable time before a person can become established as an habitual resident of this country.”

He added at para [44] that:

“although length of time clearly can be a relevant factor it is not a conclusive factor. Nor is there any particular period set down as a minimum.”

Again, I agree. That approach, in my judgment, and as Singer J recognised, is borne out by what the ECJ said in Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR 1-01075, [1999] 2 FLR 184.

By way of what he called a gloss on the definition of habitual residence given in the Borrás report, Singer J commented at para [38] that:

“it does not have to be permanent. It needs to be habitual. The emphasis is on a person’s centre of interests. The verb used is “established” and all relevant factors are to be taken into account. But there is nothing beyond any degree of length of time in the words used, except as can be ascribed to the word “established”. One can establish something very quickly, or it may take time to establish. Once a situation is firm it is established.”

I respectfully agree. See further L-K v K (No 3) [2006] EWHC 3281 (Fam), where Singer J gave an autonomous meaning to the word “lodge” in Article 16 of the Regulation.

Accordingly, in my judgment, the phrase “habitually resident” in Article 3(1) has the meaning given to that phrase in the decisions of the ECJ, a meaning helpfully and accurately encapsulated by Dr Borrás in para [32] of his report:

“the place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence”

and by the Cour de Cassation in Moore v McLean:

“the place where the party involved has fixed, with the wish to vest it with a stable character, the permanent or habitual centre of his or her interests.”

There is one important point I should add. In deciding where the habitual centre of someone’s interests has been established, one has to have regard to the context. Many of the ECJ cases to which I have referred are cases where what was in issue was the entitlement of a worker to social security benefit. So the claimant’s place of work was obviously an important factor in ascertaining the location for that purpose of the habitual centre of his interests. Here, in contrast, the issue is as to the identification of the court (or courts) which have jurisdiction in relation to family matters, specifically, in the context of Article 3 of the Regulation, in relation to matters of divorce, legal separation or annulment. So the place where the matrimonial home is to be found, the place where the family lives, qua family, is equally obviously an important factor in ascertaining the location for that rather different purpose of the habitual centre of a spouse’s interests.

That habitual residence has to be ascertained “in the light of the aim and scheme of the Community legislation concerned” was a point made by the ECJ in Doris Knoch v Bundesanstalt für Arbeit (Case C-102/91) [1992] ECR I-4341. Referring at para [29] to its earlier decision in Rigsadvokaten v Ryborg (Case C-297/89) [1991] ECR I-1943, the Court said:

“As regards the argument based on the meaning of habitual residence under Article 7 of Directive 83/182, it need merely be observed that this is a definition peculiar to taxation which must be interpreted in the light of the aim and scheme of the Community legislation concerned.”

The inner significance of that observation is exemplified by the fact that in Rigsadvokaten v Ryborg (Case C-297/89) [1991] ECR I-1943 the Court had in fact treated the relevant test for the purposes of Article 7 as being (see at paras [19] and [28]) that to be found in what it called “consistent decisions of the Court in other spheres of Community law,” namely “the place where a person has established his permanent centre of interests.”

It follows from this, in my judgment, that one has to be careful in this particular context not to read too much into the observation in Silvana di Paulo v Office national de l’emploi (Case 76/76) [1977] 2 CMLR 59 at para [19], as elsewhere, that there is a presumption that a worker, even if his family is in another Member State, resides in the Member State where he has stable employment. Qua worker that no doubt is so. But where the claimant comes before the court not qua worker but rather, as here, qua spouse, the presumption carries less weight and is more easily rebutted.

So much for the meaning in the context of the Regulation of the Community law concept of habitual residence. There are two further matters of law which were canvassed before me, on both of which, it would seem, judicial authority is wholly lacking.

The first is the question of whether, for the purposes of the Regulation someone can be habitually resident in two different countries at the same time. It is clear that English domestic law recognises that one can be: see, for example, Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, [2001] 2 FLR 1288, and Armstrong v Armstrong [2003] EWHC 777 (Fam), [2003] 2 FLR 375. But the same is not necessarily true of the law laid down by the ECJ nor, specifically, for the purposes of the Regulation.

Mr Castle submits that there is no bar, when interpreting the Regulation, to concluding that a party can have two habitual residences. There is, he says, no decision of the ECJ that precludes the approach adopted by the Court of Appeal in Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, [2001] 2 FLR 1288. He says that when the ECJ has been asked to rule on the question of habitual residence it has been in circumstances where it is necessary for there to be only one habitual residence. There is, he suggests, no such necessity where the Regulation is concerned. He points out that the Borrás report envisages a multiplicity of potential jurisdictions (that is so, but only in the sense that different limbs of Article 3(1)(a) may point to different jurisdictions; there is nothing in the Borrás report which envisages more than one jurisdiction arising under any particular limb). He submits that the necessary legal certainty comes from the application of the Regulation’s lis pendens rule.

Mr Allen for his part submits that both the ECJ case-law and the Regulation itself point plainly to there being at any given time only one possible place of habitual residence. In the first place, the relevant part of the Regulation refers, as we have seen, to:

“the Member State … in whose territory … the applicant is habitually resident” (emphasis added).

That, I must say, seems perfectly clear. The Regulation refers to “the Member State”; it does not refer to “the Member State or Member States”. Moreover, he says, there is nothing in the ECJ case-law to suggest that one can at any time be habitually resident in more than one Member State. On the contrary, the entire ECJ case-law, and for that matter the Borrás report also, is framed in terms of the place or State in which someone has the centre of his interests. As Mr Allen submits, there can surely be only one such place, only one such centre. The idea that there can simultaneously be two places of habitual residence is, as he says, linguistically and conceptually inconsistent with the case-law’s notion of habitual residence being the place where an individual has fixed the centre of his interests.

I agree therefore with Mr Allen and essentially for the reasons he gives. At any given time a person can have only one habitual residence for the purposes of the Regulation. Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, [2001] 2 FLR 1288, is of course good law. But it does not apply to the Regulation.

Mr Castle points to Armstrong v Armstrong [2003] EWHC 777 (Fam), [2003] 2 FLR 375, a case under Brussels II where jurisdiction was said to be founded on the third limb of paragraph (1)(a). Dame Elizabeth Butler-Sloss P plainly proceeded on the basis (see at para [29]) that it was possible for the purposes of Brussels II to be habitually resident in more than one country at the same time. But her decision is, with all respect, frail foundation for any such assertion. From beginning to end the argument seems to have proceeded on the footing that habitual residence had the same meaning for the purposes of Brussels II as in our domestic case-law; there is no reference to the concept of an autonomous meaning in Community law, let alone any reference to either the Borrás report or any of the ECJ authorities; and no argument of any kind seems to have been addressed to her based on the language of the Regulation itself. Similar observations can be made about the dictum of the Deputy Judge in C v RC (Brussels II: Free-Standing Application for Parental Responsibility) [2004] 1 FLR 317 at para [107] upon which Mr Castle also placed some reliance.

In my judgment the language of Article 3(1)(a) of the Regulation is clear, as is the ECJ case-law. For the purposes of the Regulation one cannot be habitually resident in more than one country at the same time.

I reject, therefore, Mr Castle’s contention that I do not need to ascertain whether the wife’s habitual residence was in Greece, rather than in this country, but merely whether she has been habitually resident in this country. The two questions come to the same thing. They are merely the reverse sides of the same coin.

The other question is whether there is some distinction between what is referred to in the Regulation as being “habitually resident” and what is referred to as having “resided” in a Member State. It will be recalled that jurisdiction is vested in

“the courts of the Member State … in whose territory … the applicant is habitually resident if he or she resided there for at least [a specified period] immediately before the application was made.”

Or, as the French text puts it,

“les juridictions de l’État membre … sur le territoire duquel se trouve … la résidence habituelle du demandeur s’il y a résidé depuis au moins [etc].”

According to Mr Allen the word “resided” means habitually resided, according to Mr Castle it does not. Mere residence, he says, connotes something less than habitual residence. It is enough, he says, that there is a pattern of occupation of a base in a country.

On this point, in my judgment, Mr Castle’s submission is to be preferred to that of Mr Allen. The Regulation, as it seems to me, quite clearly distinguishes between two different concepts. If it had been intended to refer just to the one concept the Regulation could, for example, very easily (and whether in English or in the equivalent French) have used the words

“the courts of the Member State … in whose territory … the applicant is habitually resident if he or she so resided {OR habitually resided} there for at least [a specified period] immediately before the application was made”

or the words

“the courts of the Member State … in whose territory … the applicant is and has been habitually resident for at least [a specified period] immediately before the application was made.”

It did not. The Regulation carefully used the words

“the courts of the Member State … in whose territory … the applicant is habitually resident if he or she resided there for at least [a specified period] immediately before the application was made.”

And those words, as it seems to me, mean just what they say. What are required are two things: (i) habitual residence on a particular day and (ii) residence, though not necessarily habitual residence, during the relevant immediately preceding period.

There is no need to read in, as it were, any qualification to the simple and unadorned word “resided.” After all, as Mr Castle points out, it is still necessary in every case to show habitual residence on the date when the application is made.

I should add that there is nothing surprising in any of this, for as Mr Castle points out, referring for this purpose to Silvana di Paulo v Office national de l’emploi (Case 76/76) [1977] 2 CMLR 59 at para [21] and Doris Knoch v Bundesanstalt für Arbeit (Case C-102/91) [1992] ECR I-4341 at para [26], the ECJ has recognised that it is possible to be resident in more than one country at a time. So one can be habitually resident in one country at the same time as one is also resident (though not habitually resident) in another.

Mr Allen points to the statements in Dicey, Morris and Collins on The Conflict of Laws, ed 14, Vol 1, para 18-005, and in Rayden & Jackson on Divorce and Family Matters, ed 18, para 2.151, that habitual residence has to be shown throughout the relevant period. These are, of course, works of great authority, even while we rejoice in the continuing vigour of their distinguished editors, but I have to say that I do not find these statements particularly compelling. In neither case is there any analysis of the actual language used in the Regulation. And in each commentary the matter proceeds rather by way of assumption than with any indication that the editors had the present point in mind. (And neither discussion, incidentally, considers any of the ECJ case-law.) In my judgment, and despite distinguished assumption to the contrary, the Regulation means what it says. “Resided” means just that. It refers to residence; it does not connote habitual residence.

I need to go into some of the facts in a little more detail.

The wife is a flight attendant employed by British Airways, primarily on long-haul flights. At the time of the family’s move to Greece she was on leave of absence from her employment. She returned to work with BA in July 2003, working on a 33⅓% contract – that is, working three weeks out of nine. On 1 August 2006 BA confirmed by e-mail that she would temporarily change to a 50% contract – that is, working four weeks out of eight – for six months with effect from 13 September 2006. She returned to a 33⅓% contract on 24 March 2007. At all times the home base for her employment with BA has been at Heathrow. She has been paid in England, though as her payslips from March 2006 through to 28 February 2007 show (these are the only ones I have seen) she was treated by Her Majesty’s Revenue & Customs as non-resident in this country for income tax purposes.

On top of her job with BA, the wife has trained part time as a lawyer. In September 1996 she had embarked upon a part-time law degree, which she had completed successfully in July 2000, well before the family went to Greece. In September 2004 she embarked upon a part-time LPC at Birmingham which she completed successfully in July 2006. That required her attendance at Birmingham thirteen times a year.

There is no doubt that whilst the husband and children remained in Greece, the wife spent much of her time travelling to and living in England, both for the purposes of her work with BA (though in the nature of things much of the time which was taken up with her employment was spent either in the air or in countries other than Greece and England) and also studying for the LPC. While over here studying for the LPC the wife generally stayed with her parents in Uttoxeter, which was obviously convenient for Birmingham. While over here working for BA she would either live in a hotel close to Heathrow or, at least once during each three or four week period, with her parents. There was a room kept for her use in their house.

The wife and the children, sometimes accompanied by the husband, also spent holidays in this country, usually based at her parents’ house.

There is a dispute as to precisely how much time the wife spent in Greece and in this country. Partly this reflects a difficulty, at this remove, in ascertaining the primary facts. Partly it reflects differences in the methodology adopted by each party for the purpose of their calculations, for example in their treatment of days when the wife flew from Greece to this country or vice versa and of time when she was actually in the air.

In common with counsel I do not think that the determination of the wife’s habitual residence, or of her residence, requires resolution of this dispute, let alone any precise calculation of the relevant figures. As Mr Allen rightly said, the ECJ case-law shows that habitual residence involves not a purely quantitative calculation of the time spent by a person in a particular place but rather a qualitative evaluation of all the facts pertaining to an individual’s links with a place.

That said, quantitative calculations are not irrelevant. On the wife’s calculation covering the thirteen months from 1 January 2006 to 31 January 2007 she was in this country 44% of the time, in Greece 43% of the time and in other countries 7% of the time, leaving 6% uncertain. On the husband’s calculation she was in Greece 44% of the time, “probably” in Greece for a further 8% of the time, in this country 16% of the time, in other counties 9% of the time, leaving a further 23% unaccounted for. In the witness box, as we have seen, the wife accepted that she was in Greece slightly more than in this country.

What is perhaps more illuminating for present purposes is the picture revealed by the wife’s very detailed schedules showing (on a daily basis) where she was between 13 May 2006 and 11 September 2006 – the period preceding and following the crucial date of 31 July 2006 or 1 August 2006. Allowing for a few minor qualifications or queries, which for present purposes can be ignored, it can be summarised as follows:

I have already mentioned the fact that the wife was treated by Her Majesty’s Revenue & Customs as non-resident for income tax purposes, though this did not, it may be noted, disentitle her from receiving child benefit. It is not clear, however, when she told HMRC that she had returned. A letter from HMRC dated 4 April 2007 addressed to the wife in Greece acknowledges receipt of her tax return, though pointing out that the non-residents page is missing. A letter from HMRC’s Child Benefits Office dated 14 May 2007 addressed to the wife at Uttoxeter says:

“Thank you for telling [sic] that you have returned to the UK from Greece.

I can confirm that although you have been living in Greece you were still entitled to Child Benefit from the UK for the whole period you were abroad.

As you are now living back in the UK, your child benefit will continue as normal.”

A letter from HMRC dated 1 June 2007 addressed to the wife at the Chiswick address and referring to a “recent telephone conversation” records her as having:

“confirmed that you have now returned to the UK as from 1 July 2006.”

The wife tried to suggest that she had told HMRC significantly earlier, but she was unable to produce copies of any of her correspondence with HMRC. The impression one derives from all three letters from HMRC is that HMRC had been told only fairly recently of the wife’s return to this country. Certainly none of the letters suggests that HMRC had been told as long ago as the autumn of 2006. What is clear – and in all the circumstances most informative – is the fact, as we have seen, that BA was still treating her as non-resident as late as 28 February 2007. I strongly suspect that HMRC was first told what had happened sometime between the end of February 2007 and late April or early May 2007. Incidentally it is to be noted that HMRC was seemingly not told that the wife had returned on 1 July 2006, only that she had returned as from that date.

There is one further matter which it is convenient to mention at this stage. It is clear that from at least early September 2006 the wife was taking active steps – contacting schools, completing application forms and so on and so forth – in order to find school places in London for the children. Those endeavours were successful, so that the children started at school on 5 February 2007, almost immediately after their arrival in this country.

The wife summarises her case as follows:

Before addressing the wife’s case in more detail there is one fundamentally important fact that has to be acknowledged. Whatever and whenever the wife may have told HMRC, the simple fact is that, even on her own account, her practical circumstances ‘on the ground’ did not change on or shortly before 1 August 2006. The change in her working arrangements took place with effect from 13 September 2006. Until then she was working the same pattern as she had been working since July 2003. What had changed – and so far as I can see all that had changed – was that she had completed the LPC in July 2006 and been notified on 1 August 2006 that her working arrangements would be changing with effect from 13 September 2006. Her case, as put in the affidavit she swore on 18 June 2007, is that:

“When I completed my LPC in June 2006, I made a decision to return to the UK full-time in order to look for school places for the children and to apply for training contracts. [My husband] and I talked about this and agreed that I would increase my hours of work to assist with our financial position.”

I should note also Mr Castle’s frank recognition that there can be no doubt that the wife can be said to have resided in Greece, but that, as he points out, is not the same thing as a finding that she was habitually resident there. Furthermore, as he pointed out, one can be habitually resident in a Member State even if one is not physically present there. So the mere fact that the wife was not in this country on 1 August 2006 is no barrier to her having nonetheless been resident or even habitually resident here on that date.

Mr Castle’s submission that the wife has always been habitually resident in this country, that her habitual centre of interests has always been this country, can be summarised as follows:

Mr Castle submits in the alternative that even if all these matters do not suffice to demonstrate that the wife was, throughout, habitually resident in this country, they certainly establish at the very least that she was resident here both before and after 1 August 2006.

In support of the wife’s case Mr Castle points to what he says are four important features of the analysis in Silvana di Paulo v Office national de l’emploi (Case 76/76) [1977] 2 CMLR 59 and Doris Knoch v Bundesanstalt für Arbeit (Case C-102/91) [1992] ECR I-4341:

The husband’s primary case is that the wife was not habitually resident in this country on 1 February 2007. If he is correct in that submission, then her case must fail. But Mr Allen also submits that in any event she had not been resident in this country between 1 August 2006 and 1 February 2007.

Mr Allen’s submissions on behalf of the husband can be summarised as follows:

Fundamentally, Mr Allen points to the fact the wife’s “home” was in Greece. As against this, he says, the various matters on which the wife relies are insufficient, whether taken individually or collectively, for her to have been habitually resident in this country, quantitatively or qualitatively. As Mr Allen puts the point, it is inherently unlikely that the wife’s habitual residence has been throughout in this country if the children were living in, indeed habitually resident in Greece, not least given that, as she has been at pains to point out in her evidence, and as she repeated to me in the witness box, she has always been the children’s primary carer.

Mr Allen also drew attention to various inconsistencies, as he would have it, in the way in which the wife formulated her case in her affidavits and, more importantly, to some revealing answers she had given when being cross-examined before Sumner J in the Hague proceedings. Having been taken to the relevant paragraph in her divorce petition, she said:

“I got a 50% contract with British Airways just on a temporary position for six months. I was basically in the UK for a considerable amount of time for six months prior to coming to England and I also spent – I would class myself almost as dual residence … I spent so much time in the UK for the 50% working that as far as I was concerned I felt that I was basically going between the two. I was resident in both.”

Mr Castle’s response to all this is that the wife’s use of her Greek address is counter-balanced by her use of her address in this country, that one joint savings account in Greece does not significantly affect the overall picture, that non-resident tax status is determined by a mathematical calculation of nights spent in the UK and is not determinative of habitual residence and that the crucial question is not where the family “home” was located but, rather, where the wife’s centre of interests was located. Obviously, as he accepts, the location of a person’s family, and of the family home, is highly relevant, but it is not determinative of where that person is habitually resident, especially when, as here, that person is in stable employment in another Member State. So the fact that the wife relocated to this country, whether in the summer of 2006, as she would have it, or on 31 January 2007, does not detract from her case that her centre of interests remained here throughout. Relocation of the family home here is not, he says, the same as a change of habitual residence, nor is it inconsistent with there having been prior residence here. And so far as the increase in her BA contract from 33⅓% to 50% is concerned, what is important, he says, is not so much the date – 13 September 2006 – when the new arrangements came into effect but the date – 1 August 2006 – when BA signified its agreement to the change.

In the final analysis all these cases are fact sensitive. And this case is in some respects rather unusual.

In many cases, indeed in the typical case, a spouse will be habitually resident in the Member State where the matrimonial home, the family home, is located. And in many cases the mere fact that a spouse has for many years crossed the border from one Member State to another to get from his home to his place of work will make not the slightest difference. In this context at least, a husband who lives with his wife and children in Kent is surely habitually resident in this country and not in France even though he has for many years been commuting by Eurostar to his place of work with a French employer in the Pas de Calais. And would it necessarily make any difference if two or three nights a week he stayed overnight in a French pension?

Likewise many of the factors relied up in the present case by Mr Castle are, of themselves, of little significance save insofar as they form parts of a much bigger picture. Of course one has to have regard to all the relevant factors and, in particular to all the factors identified in the ECJ case-law, but in the particular circumstances of this case there are, as it seems to me, three factors of preponderant importance: on the one hand, the fact that the matrimonial home, the family home, was in Greece, where both her husband and her children were living all the time except when on holiday; on the other hand, and pulling in the other direction, the fact that the wife worked in and from this country coupled with the fact that she was educating herself in this country with a view to obtaining a qualification for future employment in this country.

These factors are very finely balanced, as reflected in the fact that, taking a sensible view of things, the wife was spending roughly equal amounts of time in this country and in Greece – if not for the whole period after her move to Greece in December 2002 then at least from September 2004 onwards, once she had resumed (in July 2003) her career with BA and embarked (in September 2004) upon her LPC.

It is the picture during that period which is particularly important, though it has to be appraised in the light not merely of what had gone before – the fact that the wife had always lived and worked in this country prior to December 2002, the fact (as is common ground) that the move to Greece in December 2002 was initially for a trial period and the fact (in many respects acknowledged by the husband) that the wife had never settled very happily in Greece – but also in the light of the wife’s plans following her successful completion of the LPC in June 2006 – her plans to return to this country with the children and, at least in the short-term to increase her working commitment with BA.

Throughout the whole of the period from (say) September 2004 (if not before) to January 2007 it can, in my judgment, sensibly and appropriately be said that the wife was resident in both countries. That is, indeed, what I find. She had a place of residence in both countries – in Greece the matrimonial home, in this country the room kept for her exclusive use in her parents’ house – and she spent roughly equal amounts of time in both countries, albeit that on balance she probably spent rather more time in Greece than in this country. The wife described herself in her evidence, both to me as previously to Sumner J, as considering herself resident in both countries. That, in the light of all the evidence, seems to me to have been an entirely realistic and objective self-appraisal.

The much more difficult question is to determine where during that period she was habitually resident. In many ways this is a case where, on the facts, the most satisfactory conclusion would be that there is comparatively so little in it that she was in fact habitually resident in both countries. That might well be the conclusion I would have come to had that option been open to me, if the law was as laid down in Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72, [2001] 2 FLR 1288. But I do not have that luxury. I am compelled to ascertain the country in which she was habitually resident.

After some hesitation, and I confess without much confidence, I have come to the conclusion that Mr Castle is right and that the wife was, at least from about September 2004, habitually resident in this country and not in Greece.

The question to be determined is the location of the habitual centre of the wife’s interests. The difficulty is presented by the fact that whereas the centre of many of her interests was indubitably this country, the centre of at least some of her interests was equally obviously Greece. On the one hand the centre of her employment and education interests was plainly in this country, the land of her birth, the country to which she retained the emotional commitment which she never had to Greece, and the country with which she retained all the other links identified by Mr Castle. As against that, the centre of her emotional, personal and family interests was equally plainly Greece, the country where her children lived – the children who not surprisingly were, in her own words, “the centre of my life.”

At the end of the day all these various factors, some pointing in one direction, some in the other, have to be balanced and evaluated with a view to identifying the habitual centre of the wife’s interests. One cannot, as it seems to me, say a priori that any one factor is of more or less intrinsic weight than another. How the balance comes to be struck must depend upon all the factors in issue in the particular case, the task for the judge being to attribute to each of those factors the weight which in his estimation attaches to it in the particular circumstances of the particular case. In one case the factor of employment may weigh more heavily than in another superficially similar case. In another case the location of the matrimonial home may carry particular weight.

Acknowledging that the factors which are in play in this case point very sharply to starkly opposing conclusions, and recognising that they are, when all is said and done, very evenly balanced, I am nonetheless persuaded that the overall balance points to this country as being the habitual centre of the wife’s interests. Evaluating all those interests together and in the round, the centre of gravity is located in this country and not in Greece. If the wife was a mother she was also a career woman, and if her children were in Greece both her current career and her planned future career were in this country.

I find therefore that the wife was both resident and habitually resident in this country at all material times from (say) September 2004 onwards. On this basis she was entitled to petition in this country when she issued her petition on 1 February 2007.

Even if I am wrong in this, there is, in my judgment, another basis upon which the wife is entitled to succeed. She was, for the reasons I have already given, resident in this country at all times from September 2004 onwards, in particular, resident in this country for at least six months before she issued her petition on 1 February 2007. But she was also, in my judgment, habitually resident in this country on 1 February 2007 even if not before then.

It is important to remember the circumstances in which the wife returned to this country on 31 January 2007. She had severed her links with Greece. She was returning to this country with her children, intending to make it her, and their, permanent home. She had arranged schools for them and taken steps to obtain early vacant possession of the Chiswick property. Moreover, and as Sumner J found, she and the children came with the husband’s consent, not merely consent to them coming over here but consent to them staying here. I can see no reason why, in these circumstances, she did not immediately acquire a habitual residence in this country upon her return here on 31 January 2007 even if, immediately prior to that, she was in fact habitually resident in Greece.

It is of course trite learning under our domestic law that although habitual residence can be lost in a day it cannot be gained in a day. There must be an appreciable period of residence before it becomes habitual, though that period need not be very long. It can certainly be measured in weeks rather than in months and in an appropriate case it can probably be measured in nothing more than days. But here, of course, we are concerned with a period of less than 24 hours, for the wife returned on 31 January 2007 and issued her petition the following day.

However, as Singer J pointed out in L-K v K (No 2) [2006] EWHC 3280 (Fam), and as I have already commented his observation is borne out by what the ECJ said in Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR 1-01075, [1999] 2 FLR 184, the approach is quite different as a matter of ECJ law. As Singer J said, and I agree, so far as concerns the Regulation one can in appropriate circumstances establish habitual residence very quickly, in my judgment very quickly indeed. As the Court said in Swaddling v Adjudication Officer (Case C-90/97) [1999] ECR 1-01075, [1999] 2 FLR 184, at para [30], the length of residence is not an intrinsic element of the concept of habitual residence in this context.

In a case such as this – where someone, as in the case of the wife here, is undertaking a planned, purposeful and permanent relocation from one country to another – there is nothing in Community law to prevent the acquisition of a new habitual residence contemporaneously or virtually contemporaneously with the loss of one’s previous habitual residence. In a situation such as that in which the wife found herself on 31 January 2007 there is nothing in Community law to prevent the conclusion that just as (on this hypothesis) she lost her habitual residence in Greece as the aircraft in which she and the children were travelling took off from Greece, in the same way she acquired a new habitual residence in this country as the aircraft touched down at Heathrow.

In my judgment, the wife was habitually resident in this country for the purposes of the Regulation on 1 February 2007 even if she had not been prior to the day before. She had been resident in this country for at least six months previously. On this basis also she was therefore entitled to petition when she did.

It follows that the English court has jurisdiction and, being the court first seised, is entitled under the Regulation to exercise that jurisdiction in priority to the Greek court.