R v A

The concept of habitual residence, (the jurisdictional trigger in most if not all international family disputes), has generated much litigation, including at appellate level. Particular difficulties are created by cases, of which this is one, of conditional or time limited move, and particularly where the parties do not agree what the terms were, or assert that the other misled them.

Three children, A, born 2000 (now 12) F, born 2005 (now 7) and M born 2010 (now 2 ¾), are the subject of Hague Convention return proceedings. The two elder children were born and lived in the USA until December 2009, then came to England until January 2012, the father says on a time limited and conditional basis, the mother says as a planned family relocation. M was born here. The mother and the three children went to the USA in January 2012. The mother says that this was on a temporary basis, and that she and the children remained habitually resident in England. The father says that the two older children remained habitually resident in the USA throughout, but that in any event all three were habitually resident in the USA on 12 August 2012 when the mother removed them, she says by agreement, he says surreptitiously and without his agreement.

If I find that the children were habitually resident in California on 28 August 2012, the mother raises defences of (i) consent (ii) alternatively acquiescence (iii) Article 13(b). If the children, or any of them, were not habitually resident as at 28 August 2012, then the father applies for a summary return, or move, to the USA, pursuant to the inherent jurisdiction of the High Court.

I did not have sufficient time to give judgment at the end of the three day hearing on 27 February 2013 so reserved my decision, which in any event I wanted to consider. I gave my decision that the children should return pursuant to the Hague Convention on 8 March 2013, and reserved judgment.

The parties have each filed their own statements, to which a very large number of documents have been exhibited. The father filed statements from his father, mother and brother, all of whom were called to give evidence by video link. The father’s mother seemed to have great difficulty in giving evidence and understanding questions, including the oath. Her statement did not bear any indication that it had been interpreted to her. I decided to abandon her evidence very shortly after it commenced. Miss Renton later submitted that the failure in understanding was contrived. In my view permitting further attempts at eliciting her evidence would not have assisted the resolution of that issue or the case. I decided that I had to rely on the evidence of the paternal grandfather and brother.

The mother filed a statement by her brother-in-law. He was not called for cross examination: he was said to be in Zimbabwe and it was said that a video link was not available. I admitted his evidence as hearsay pursuant to the Civil Evidence Act 1968 without opposition from the father: weight is of course for me.

Mr Devereux has stressed that the original documents might be the best guide to establishing the facts: authority supports this approach: I have carefully re-examined the documentation in the case whilst preparing this judgment.

In her statement the mother makes complaints of ill-treatment by the father’s family and that the father is an irresponsible provider. The father strongly disputes these. These complaints may, if well founded, explain the mother’s actions. But they are irrelevant to the issues which I have to determine, and no oral evidence on these issues was examined before me. It is specifically not the mother’s case that she at any time wanted to end the marriage or that unhappiness in the marriage was relevant to any of her actions which I shall now describe.

The family is of South Asian Muslim background. Both parents and their families originate from Zimbabwe. Their two families are interlinked by other marriages. The father and his family are now based in California, the mother’s family is now based in Leicester. The parents have known each other since they were children. Their fathers were friends and their courtship was approved and encouraged. Their marriage was preceded by a long engagement: almost 7 years (this may have been because the father needed to establish his residence status in the USA). The mother moved to California after the marriage in February 1999 and the two elder children were born there. The mother is a pharmacist qualified in England but not the USA. The father runs or ran a shoe shop in California.

By autumn of 2009 the father’s business was in difficulty. A four bedroom house in California was purchased in the mother’s sole name, with funds that were provided by her father: she says as an investment for him. The father says that it was to be their family home. The father executed a “Quit Claim Deed” in respect of the property: i.e. relinquishing any claim to the property. He says that the property was put in the mother’s sole name in order to protect it against creditors. The mother says that this property was an investment for her father. The mother says that this gave the father no rights, the father says that the moneys advanced by his father-in-law were essentially by way of mortgage and the agreement was that he would repay this to his father in law by instalments to clear the loan: and that eventually he would have an interest in the property. The parties executed at their own expense initial works: new flooring and redecoration: at a cost of between $4,000 and $5,000. The family moved into the house in October 2009, at about that time the mother became pregnant: she says unexpectedly. She learnt that she was pregnant in early November.

The mother now says that the father had given agreement to the permanent move of the whole family before the pregnancy was discovered and that her pregnancy was not the catalyst. She says that her ability to work in England and support from her family was the main reason for return, that the father would or could not provide medical insurance for the children, and that the father’s family would not assist her. She says that she had been discussing this plan with the father since October 2009. He denies that.

The mother had had two previous emergency caesarean sections after trial of labour. The father says that about 10 December 2009 the mother told him that she needed to return to England because she would need to undergo a third operative delivery. The family insurance did not cover all the cost: it would have required a top up of $3,000 to $4,000. He knew that as a British citizen, provided that she established residence in England, she would be entitled to free services under the NHS. She told him that she would return no later than a month after the baby was born. The father says that the likelihood of another operative delivery was high. He was presented with a fait accompli and although he was very reluctant he felt that given the medical realities he had to agree and also that it was reasonable in the circumstances that she should be with her mother, another reason given for the return.

On about 11 December 2009 the mother purchased single tickets for her and the children to fly to England on 14 December 2009, although she said in evidence that she had reserved them the week before. The luggage was all within her and the children’s baggage allowance: the father says only three suitcases: the mother in evidence first agreed that and then changed her evidence and said that they had taken six large suitcases.

In April 2010 the father made an application for an inter-district transfer of schools in California: he says so the children could go to better schools on their return.

The mother was operatively delivered of M in England on 3 June 2010. The birth was registered in Leicester pursuant to the Births and Deaths Registration Act 1953. The father says that after the delivery the mother told him that she needed to have reconstructive surgery and had been advised not to fly, that she was waiting for surgery and would let him know when she was fit to return. The mother denies that she said that.

The father visited his family for two to three weeks in September 2010 and again in January 2011. He says that he could not afford to travel more often nor leave his business. For the next year or so the mother continued to say that she could not travel. The father spoke to the mother and children once every couple of days.

The paternal grandfather says that he spoke frequently to the mother and she said that she had had some medical issues after the birth, that she was waiting to see a specialist, and that she had to wait and have surgery there. The father then told him that she was returning and he was going to fetch her and the children in December. He and the maternal grandmother made the house in California ready for their return.

The medical records show that the mother sought medical attention frequently after the delivery. She had a hernia and her midline abdominal muscles needed repair and at one point it was thought that she had a fibroid and/or ovarian cyst. She had to wear an abdominal support, she reported abdominal discomfort or frank pain, and she found her condition cosmetically unacceptable. She wanted surgery. It is unclear from the notes how far the doctors thought that the mother needed as opposed to wanted surgery and how far her complaints were objectively justified. She is described as very anxious. The mother says that she took holidays so it is untrue that she could not travel. When this was explored in evidence it became apparent that she had been to the Lincolnshire coast (a popular and accessible holiday destination from the East Midlands) by car. On one occasion she went to the surgery in pain after a holiday. The medical records show that surgery was postponed for various reasons and she did appear eventually to feel better. The father says that she would not let him speak to her doctors.

The father says that in September or October 2011 the mother told him that she was now able to travel and no longer needed to wear an abdominal support. They decided to wait until the end of the children’s school term in December to move the children back to the USA. The mother says that they were going to return only temporarily so that she could sell the house and the father could wind up the business.

The mother gave notice to the children’s school in Leicester in December 2011. Her evidence was that she told the children’s school that they were leaving only temporarily but that the school could not keep the places open, as she requested, for more than 21 days. In fact a letter produced at the end of the hearing after the mother had completed her evidence shows that she wrote to F’s school on 20 December 2011. She wrote that “F will not be returning to (the school) after the Christmas holidays. Her last day at the school will be Thursday 22 December 2011. The reason for this is that my husband has business commitments in the US and we have decide to make the move there as a family. We look forward to returning once his commitments have been fulfilled. We will be residing at [the house in California]… F will be attending the [H] school …F has thoroughly enjoyed her experience at [the Leicester school], and I would like to take the opportunity to thank all her teachers for the time and effort they have invested in her.” An email to the father’s solicitors from A’s school states that the mother told them that A left “to move to the USA with his family.” There is no record of a request to either school to keep the children’s places open, as the mother asserts.

On 14 December 2011 the father purchased return tickets for the family to fly to Los Angeles on 5 January 2012. The original return date was 30 September, from New York. The mother’s case is that this was to be a temporary return, so that the father could wind up his business and travel back to England to join her, and that the fact that these were return tickets supports that. The father says that he purchased the return tickets as they were cheaper, as return tickets usually were, and that the family was never going to return via New York, which is a lengthy drive or an expensive 5 hour flight from California. The mother says but the father denies that the return flight was always to be changed and that she stipulated to the father that the children would have to be back at school for the beginning of the school term in September 2012.

The father joined the mother and children in Leicester in late December. On 5 January 2012 the US consular office in London issued a certificate confirming that M, although born abroad, had acquired US citizenship at birth. On the same day the mother, father and three children travelled as a family to California. They took with them a large amount of luggage, the father says five boxes and suitcases, and A’s snooker table and skate boards, for which an excess luggage charge had to be paid. Other items such as the children’s bicycles were taken without charge. They moved back into the house in California. The father obtained medical insurance for the children effective shortly after their arrival.

The father says that the mother did not like the schools into which he had registered the two older children so they were placed in another school. They also attended a fee paying Islamic school.

The mother says that the return to California was only so that she could sort out the sale of the house and that the plan was always that she and the father could return to England with the children as a family: at the latest so that they could start the September 2012 school term in England. She denies that there were problems in the marriage at that time. The father says that the mother started behaving in a distant and argumentative way towards him and his family.

In April the mother put the house in California on the market for sale. There is a dispute as to whether this was by agreement with the father. He says that he first knew of this when he saw the “for sale” sign and could not object. He spoke to his father in law and was told that alternative accommodation was needed because the house was causing problems. The father says that he assumed that this was because he had been late with some of his payments. He voiced his objection but the mother and her father were adamant that the house must be sold. The mother says that the sale was with a view to the family moving back to England, and they had nowhere else to live. The father says that they would move into rented accommodation and if all else failed they would live with his family or other relatives. The father has produced documents showing that he was looking for rental property through a letting agent.

The house in California took some time to attract serious interest. A purchaser was found in August 2012. The mother says that they agreed that the family would soon be leaving for England. On 24 August the mother held a garage sale. The father and his family say that as far as they were concerned only redundant and duplicate items were to be sold. The mother says that she was selling off everything in preparation for the family move to England. It is common ground that the father’s parents arrived during the sale and remonstrated with the mother about the number and types of items offered for sale including some of the children’s toys. The father says that when he was told about the sale by his parents and asked the mother she told him that that she had only sold things for which there would not be room in the new place.

A’s school operated a one month on one month off system. His term at elementary school had ended in July. He was enrolled at and attended intermediate school from 8 August 2012. The mother said that this was because his education was so important, even though he would be rejoining his English school in September and would therefore miss out on a school holiday.

The mother negotiated a sale of the property which was to complete on 4 September 2012. The father says that he was not told that and did not learn of it for some weeks. A “sold” sign was placed on the property but he says that the mother told him that it was under offer only. The paternal grandfather says that she told him on 15 August 2012 that the house was being sold because her father needed his money back, and he offered to put the family up if necessary. There was no talk of a move to England.

A customer receipt shows that on 26 August 2012 the departure date on the return flight tickets was changed to 27 August, departing from Las Vegas. The mother says that she had made arrangements for the change about a week before that, and that the flights from LAX were full, but no other documentary evidence has been produced.

Also on 26 August the mother’s parents arrived in California, the father says unannounced (as his father agrees) and came to stay at the house in California. They arrived in a hired minivan. The mother says that the father was well aware that they were coming to help her pack up. The mother says that 26 August was planned to be the last night in California. She says that she packed for herself and the children that night.

The paternal grandfather says that he spent a short time with the mother’s parents. He was told by the mother’s father that they had come over for a few days to finalise the house sale. They agreed to meet the next day, after a rest from their journey.

On 27 August the father left for work at about 6.15 am leaving the mother and children in the home. He says that there was no sign of packing at that point.

The mother took her and the children’s allowance of belongings. Large items such as the children’s bicycles were not included.

Sometime on the morning of 27 August the mother and the children left the home in the hire van driven by the mother’s father and drove to Las Vegas. At some point there was a text telling them that the flight had been delayed.

That morning the mother rang A's and F’s schools and left messages on their answer phones. The mother’s mobile phone shows that the call to F’s school lasted 29 seconds. A’s school has provided notes. She said that she did not tell the schools that the children were leaving permanently because it was a private matter and she did not want to give details. The mother is recorded as saying that A would not be coming to school because he was ill. When asked in evidence to explain that she said, choosing her words very carefully, I thought, that she “did not remember” telling the school that A was ill. When pressed she accepted that she might have done so, but could not explain why this might have been. On 29 and 30 August the school telephoned the family home to find out why A was not there. The schools were not in fact given notice that the children were not returning until 5 September 2012.

The father says that on his return to the house in California on the evening of 27 August the mother and children were not there: possessions including toys and clothes were strewn on the floor, others items and documents including the children’s passports were missing, and five small suitcases had gone from the garage. He tried to find out where they were, including by calling relatives in England. Eventually he was told by a member of the family the next day that they had been seen in England. The mother denies this account.

The mother says that

The father says that that he tried to ring the mother because he needed to find out who was picking the children up from the Islamic class but could not get through, and did not speak to her at any time.

The mother’s phone shows an incoming call from the father of 42 seconds at 16:35. The mother then called him back on five occasions: the calls lasted between 9 and 51 seconds. The father says that they never spoke. The father called again at 17:27 pm: the call lasted 56 seconds, and there were four more short incoming missed calls from him in the few minutes following. The maternal grandmother made an incoming call which was missed at 19:17 and it was returned and lasted one minute. The grandmother does not deal with phone calls in her statement. The father says that his understanding is that his mother did not manage to speak to the mother.

No attempts were made to contact the father the next day, 28 August, even though the flight did not leave until 11:00am. The mother says that there was insufficient time. The phone records show three short calls to the paternal grandfather.

On 28 August 2012 at about midnight the mother’s parents returned to the house in California. The father says that they refused to talk about where the children were.

On 30 August when the father, who felt that his continued occupation of the property was untenable, was packing to leave the property to go to his parents, the maternal grandparents for the first time told him that the mother and the children had gone to the UK. The maternal grandfather handed the father a note from A given to them at the airport requesting a number of things which he wanted

There was later an altercation when the father attended at the house with his parents with a van to collect his things. The police were waiting for them. It is asserted that they were there because the paternal grandfather threatened the maternal grandfather. I have not heard from the maternal grandmother or maternal grandfather and it would not be right and nor is it necessary to make a finding as to whether there is any foundation for this assertion. There was a stand off on the drive. The father, his father, and his brother, say that the maternal grandmother said to them several times “bye- bye, we've won, we’ve got your kids”, and the father also says that she said, once, “you won’t see them again”. The father accepts that he did not complain to the police that the children were missing.

The mother and the children returned to her parents’ home in Leicester. She had not made any attempts to arrange for school places for the children in England before her return. Only after an appeal was launched did she obtain places. A did not start school until October 2012 and F until November 2012. According to the mother, “within a few weeks” of arrival they started at Islamic school in England.

On 31 August 2012 the father registered a lis pendens or lien claiming an interest in the house in California property and seeking to prevent its sale. This obstructed the sale of the property and the purchasers pulled out. The father accepted in evidence that he thought that it was very debatable that he had an interest in the property in spite of the fact that it had been agreed that he would have an entitlement after repayment of his father-in-law but that he wanted to put pressure on the mother by whatever means to ensure that she returned. The lis pendens was eventually removed, the court stating that there were no grounds. The mother asserts that the notice was improper, and had not been signed by a judge. It may well be that there were serious defects in this process. The mother reported the father to the Fraud Office who commented in writing that the application was “frivolous”. I do not regard this as a finding that the father had been fraudulent in the sense of dishonest as the mother asserts as opposed to this being a misfounded or defective claim. The property was eventually sold earlier this year.

The father emailed the mother. The family mediated. I declined to allow evidence to be given of what was said in mediation. The father sent the mother a number of angry emails. He says that she would not speak to him. He asked for the children to be returned. He referred to them having been “kidnapped”. He said that he was divorcing her by talaq. The mother asserted in her oral evidence that the father was saying something different to her over the telephone than what appeared in his emails: she says that he insisted that the children should be put into school and that she construed this as an agreement that they should stay. At one point she also seemed to be saying that he had said something else or more indicating that he was in agreement with the children staying but her evidence was not clear or consistent.

In December 2012 the father approached the Central Authority and these proceedings were instituted.

In January 2013 the father obtained a location order and there was a directions hearing before a deputy judge when directions were given for trial and setting down.

The father says that he was not allowed to speak to the children for 10 days after their departure, and that since then telephone contact has been reluctantly given and that Skype contact ceased in January. The first direct contact took place on the Saturday before the hearing commenced before me. It lasted for only an hour, and the children were allowed to “decide” whether to see him again on the Sunday: and no contact took place. I ordered weekend staying contact (the mother objected) over the weekend and other visiting contact (to which she agreed), and told the parents that the children must not be given any choice.

The father’s brother corroborates the father’s and paternal grandfather’s account that there were no discussions about or to their knowledge any plan to move to England at any time and that the mother herself presented the move in December 2009 as being for medical reasons and temporary only.

The mother’s brother in law asserts in his statement that the father talked to him on many occasions about moving to England and running a business there. The father denies what he says.

I accept the father’s evidence and that of his witnesses which was given coherently, consistently and convincingly.

Both parents are intelligent and speak absolutely fluent and idiomatic English. The father was thoughtful, moderate and controlled even when obviously distressed about the absence of his children. The mother says that he is volatile, changeable and erratic: there was no sign of that in his evidence. I thought that the mother has a quick mind, and she had obviously tried to think through some of the implications of her previous evidence and address them in the witness box. Her emotions as expressed were incongruous with what she described: there were points when she was flippant. She maintained a bright and detached air throughout her evidence.

The mother’s account was not consistent and at times when confronted with documents and why no notice had been given to the school she just seemed to be making things up as she went along. She backtracked and changed the emphasis of her evidence in a number of respects depending on what interpretation of the evidence she was asked to address.

I consider that the mother has not told me the truth. These frank untruths colour my assessment of her account generally, which in any event I find to be self serving and at times frankly incredible.

I accept that from the mother’s perspective she was unhappy in her marriage by the summer of 2009. There were financial difficulties, the mother had a perception, rightly or wrongly, and probably shared by her family, that the father was irresponsible and a poor provider. There may truly have been problems between her and his family: I do not know. There is evidence in the medical records that she was unhappy and in her first statement she relied on asserted maltreatment obviously intended to support her case as to non-return. In her oral evidence she attempted to distance herself from this and to present the marriage as perfectly happy and functioning: only when confronted with the medical notes did she eventually accept that there had been some problems although she attempted to minimise them. It was obvious to me that she changed her case because she wanted to avoid the interpretation that she had wanted to end the marriage.

I do not accept that she and the father discussed moving as a family to England from October 2009 onwards (or indeed at any time). I accept that the move was presented to the father as being necessary for medical reasons, and that he accepted, reluctantly, that she should go with the elder children for that purpose only.

Specifically

I conclude that the father’s original agreement for physical relocation was given for a temporary period and for a limited purpose, and was conditional on return. This was then periodically extended because of real or presented medical problems. It is argued on behalf of the mother that if this were to be my finding that this does not necessarily preclude the children being or becoming habitually resident in England during that period, and I shall deal with this later.

I reject the mother’s account about the basis of the return to the USA in January 2012. I am satisfied that she certainly presented herself as returning the children permanently in January 2012, whether this was genuinely her intention or not:

In the light of my findings about the history, based significantly on the documents, and my findings of the mother’s evidence, I can place no weight on her brother in law’s account unsupported by his attendance as a witness.

This was a planned, surreptitious, deceptive removal, in which the grandparents assisted.

I do not need to make a finding about whether the mother always planned to remove the children again. She may have gone back hoping that she could make it work: but I think that she had escape plans in mind, with or without the encouragement of her parents.

I accept the father’s highly credible explanation that he imposed the lis pendens to put pressure on the mother to return the children after their abduction.

I do not accept that the father accepted or gave the impression that he accepted the removal. He regarded the children as having been “kidnapped” and said so. I do not accept that he changed his mind about permanent relocation.

The mother’s case is that for no reason whatsoever he suddenly decided to divorce her by way of talaq. She seemed wholly undisturbed by this and indeed somewhat insouciant both in contemporaneous correspondence and in her oral evidence. It is simply not credible that he would have so jeopardised his relationship with her and the children by unilaterally divorcing her once she was on home territory. She can point to no reason why he should have done so. It is simply not credible that she, or her family, would have accepted an unexplained and unilateral decision to divorce without at least protest.

I accept that the father protested against the children’s removal to England and made it clear that he wanted them returned.

The mother’s case is that even if I reject her case as to the father’s agreement to the children’s permanent relocation with her in December 2009, by the time the children returned (and M moved) to the USA in January 2012 the two older children had become habitually resident in England because they had been living in a settled family environment in England with the father’s agreement: M had been habitually resident in England from birth. She says that the temporary nature of the move to the USA was such that they neither lost their English habitual residence in England or became habitually resident in the USA during the 8 and a half months that they were there.

If I do not find that he actually agreed, she says that I should regard his lack of action in seeking their return as acquiescence, applying the same test as in Article 13; or that he impliedly or tacitly agreed to their remaining. She also submits that in any event, whatever the reason for the children remaining in England, and whether the father agreed by implication or not, that the passage of time inevitably means that after over two years the children must be regarded as habitually resident in England.

I am of course bound by the decision of the Court of Appeal in ZA & Anor v NA [2012] EWCA Civ 1396 (‘ZA v NA’) that a child born abroad cannot be habitually resident in a country where he has never resided: thus M was habitually resident in England at least until the point at which she, with her mother and siblings (and accompanied by the father) travelled to the USA in January 2012.

But more complicated considerations arise in respect of the two older children.

I have not specifically been referred to Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 3 WLR 492, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 (‘Re J’), Akbarali v Brent London Borough Council; Abdullah v Shropshire County Council: Shabpar v Barnet London Borough Council; Jitendra Shah v Barnet London Borough Council; Barnet London Borough Council v Nilish Shah [1983] 2 AC 309, [1983] 2 WLR 16 (‘Shah’), Mercredi v Chaffe (case C-497/10 )[2011] 1 FLR 129, CJEU (‘Mercredi v Chaffe’); Re A (Area of Freedom, Security and Justice) (Case C-523/07) (‘Re A’): all of which are cited extensively in the authorities referred to below which I have carefully read and considered.

I adopt the test applied by Holman J in FVS v MGS [2012] 1 FLR 1191 as encapsulating the jurisprudence, drawing on Shah, Re J, Re P- J (Abduction: Habitual Residence: Consent [2009] 2 FLR 1051, (‘Re P-J’), Re A; Mercredi v Chaffe; and In Re H-K (Habitual Residence) [2011] EWCA Civ 1100, [2012] 1 FLR 436.

He said

“[44] the expression “habitual residence” is not to be treated as a term of art, but is to be understood according to the ordinary and natural meaning of the two words. These cases are all fact specific and are to be decided by reference to all the relevant circumstances of a particular case, although the answer may depend more upon evidence of matters susceptible of objective truth than upon evidence of state of mind.

[45] for present purposes, what Lord Scarman said in Shah applies as well to habitual residence and is, therefore in point. Habitual residence refers to:

(i)

a person’s abode in a particular country which

(ii)

he has adopted voluntarily and

(ii)

for settled purposes as

(iv)

part of the regular order of his life

(v)

for the time being, whether of short or long duration.

There is a significant difference between ceasing to be habitually resident in one country, A, and becoming habitually resident in another, country B. An appreciable period and a settled intention is required before becoming so resident in country B. But the period of time, although “appreciable”, may (and indeed does) vary from case to case from a relatively few weeks or even days to a much longer period, or, indeed, never.”

I would add that the test is not “Where is the real home” (Re P-J), or “Was there a regularity in their life?” (Re H-K).

The Courts have recently considered whether Mercredi v Chaffe has affected the approach which should be taken in Hague cases and whether a degree of permanence not previously required in the English approach to Hague habitual residence disputes must now be established.

In ZA v NA the Court of Appeal declined to enter into a debate as to whether the right test had been adopted: since it did not matter. The three elder children had been habitually resident in England on any test: they had never lived anywhere else before their enforced retention in Pakistan: the point had not been run at first instance. I am prepared to accept (as did the Court of Appeal in Re H-K), that the decision in Mercredi v Chaffe applies to Hague as well as to BII R decisions.

In Re H-K Ward LJ treated with “some caution” the formulation in Mercredi v Chaffe that to be habitual, residence must “have a certain permanence or regularity.” He said at [17]:

“… I certainly cannot accept that permanence is necessary to establish habitual residence. “A certain permanence”, whatever that may be, can be understood as connoting the features of “settled purpose” as used in Shah, and so understood as acceptable. Strictly speaking the decision in Mercredi v Chaffe and the earlier decision of the European Court of Justice, Re A (Area of Freedom, Security and Justice) (Case C-523/07), [2009] 2 FLR 1 do not apply here: those cases concern Brussels II Revised as it applied within the European Union. Here the contesting states are Australia and the United Kingdom. I have no doubt however, that, at least in the fullness of time, the European meaning of habitual residence will by osmosis shape the autonomous meaning to be given to that phrase in the International Hague Convention on Child Abduction with the stress on its international application. But I would sound another note of caution. In para 51 of Mercredi v Chaffe, the Court of Justice of the European Union states:

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

Again it all depends on what constitutes ‘a certain duration’ and ‘an adequate degree of permanence’. These words can, and in my judgment must, be read in the light of and be consistent with Lord Scarman’s opinion in Shah at 343 and 26 respectively. Residence can be of short or long duration provided it is adopted, “for settled purposes as part of the regular order of his life for the time being.” Note for the time being.

“[18] I have a second sense of unease about what is meant in the next but one sentence of para 51 of Mercredi v Chaffe:

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

There “permanent” cannot be taken literally but rather to indicate a stay of sufficient duration (and quality) properly to be characterised as “habitual.” The argument becomes a bit circular. Then I note the need for an accompanying “intention that it should be of a lasting character.” Of course intention is a relevant factor subject to Lord Scarman’s caveat at 344 and 27 respectively, that the answer to the question, which is ultimately one of fact, “depends more upon the evidence of matters susceptible of objective proof than upon evidence as to the state of mind of the propositus.”

In FVS v MGS [2012] 1 FLR 1197 Holman J said at [46] that “permanence” in Mercredi v Chaffe is not used in the sense of “forever” or even necessarily “indefinite.”

In DL v EL (Hague Abduction Convention-Effect of Reversal of Return Order on Appeal) [2012] EWHC 49 (Fam) Sir Peter Singer carefully contrasted the French original and the English language translation of the judgment in Mercredi v Chaffe. He said that language of the phrases “certain permanence and regularity”, “settle permanently”, “a certain duration which reflects an adequate degree of permanence”, and “to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly the duration of the stay can serve only as an indicator in the assessment of the permanence of the residence…” was in marked contrast to the official French language version, pointing out that the word “permanence” had been used, rather than “stability” (stabilité). He points out that rather different language was also used: “such residence corresponds to the place which reflects some degree of integration by the court in a social and family environment” and that the court must consider “first the duration, regularity, conditions and reasons for the stay in that member territory and for the mother’s move to that Member state and, second, with particular reference to the child’s age, the mother’s geographic and family origins and the family and social connections which the mother and child have with that Member State”… taking into account “all the circumstances of fact specific to each individual case”.

I agree with Sir Peter that his analysis is “a very sound basis for downplaying (if not indeed eliminating) the implications of permanence as an ingredient of habitual residence.”

That brings me to the tricky question of what is meant by “parental consent to habitual residence”, and whether this phrase is shorthand for a more nuanced approach where a child moves abroad on a conditional or short-term basis with one parent but the other remains behind.

In Re J Lord Brandon said that

“where a child is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers”

In Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 Balcombe LJ said:

“I do not regard Lord Brandon’s words as intending to suggest that the habitual residence of the child is that same as that of the parent who alone has parental responsibility, notwithstanding that the child may have been living apart from that parent for a period which may have lasted for several years. That would be inconsistent with the second point that habitual residence is a question for fact. All he was saying was that where a young child is in the physical care of a mother who alone has parental responsibility for a child, then normally the child’s habitual residence will be the same as hers, since it is her will that determines the element of volition involved in the concept of habitual residence”.

And Millett LJ said that

“where both parents have parental responsibility, neither of them can unilaterally change the habitual residence of the child wrongfully and in breach of the other party’s rights: Re J at 572 and 449 respectively per lord Donaldson, MR”.

In Re F [2007] 1 FLR 627, approved by the Court of Appeal in SH v HH [2011] EWCA Civ. 796, Hedley J disagreed with any possible formulation that a baby takes the habitual residence of his parents as a matter of law, and I agree with him, and said so in ZA v NA at first instance.

In ZA v NA Patten LJ said at [52]

“… Whether one treats both parents or only the mother as having the care and control of the children, it is well established that the habitual residence of the children cannot be changed by the unilateral action of one parent which is not consented to or acquiesced in by the other. This would be a charter for abduction. The forced retention of the children in Pakistan cannot therefore found the basis of a claim that by passage of time and their inevitable involvement in family life and education in Pakistan the older children have ceased to be habitually resident in England.”

The Court of Appeal upheld the decision that the three elder children remained habitually resident in England. Patten LJ said at [55]

“...there is nothing here which would support a finding of an abandonment or change in the habitual residence of the older children where the mother, who on the judge’s findings, had their day-to-day control and was responsible for their care, found herself and the children detained against her will. An examination of the reasons for the change in the children’s place of habitual residence disclosed circumstances which cannot be justified in term of the welfare of the children and the degree of their integration into a social and family life in Pakistan has to be considered and assessed in that context. This is not a case (unlike Mercredi v Chaffe) where a young infant was taken to live abroad by the parent with whom the child lived and by whom he was cared for.”

The Court of Appeal did not comment one way or the other on what I had said at first instance in ZA v NA:

“[62] I accept unreservedly the statement of principle that a child’s habitual residence does not change unless both of the parents create a change; for instance that they arrange for the child to live in settled circumstances abroad (such as at boarding school or placed with family); or themselves both move to a foreign jurisdiction for a settled purpose; and, most importantly in the context of this case, voluntarily. It is very important, as the Court of Appeal has subsequently stressed, not to elevate this test into a domicile or quasi domicile test because habitual residence is a question of fact.

[63] In my view the reason why the consent, agreement, acquiescence, acceptance (however one may put it) of each of the parents is crucial is because of the requirement that the residence must be “voluntary” to be habitual. Also, I suppose, if it is not voluntary then it cannot be said to be settled.”

In ZA v NA Patten LJ said at [59]

“… the courts have established a number of principles of general application which do not detract from the need to decide the child’s place of residence as a question of fact, but nonetheless respect the nature of the jurisdictional concept which is in operation.”

Habitual residence is to be assessed objectively, although intention, as objectively assessed, may be relevant. But in my view the question is not whether a parent has “consented” to the change of “habitual residence” as a concept: as a quasi-status. The jurisdictional consequences of a child being habitually resident in a particular country are likely to be known by few: probably confined to lawyers, those who have researched the point, and those who have been legally advised. I have never known a case where it is asserted that a parent has said “I agree to a change in habitual residence” save in a court order compromising a return application, where the lawyers are likely to draft it into an order whereby the child is permitted to remain.

I regard the proper question as:- has a parent voluntarily agreed to the child being in a particular country for a stay of sufficient duration (and quality) properly to be regarded as habitual. Also in my view if the parent has agreed on one basis then that parent cannot be regarded as having assented to, concurred in or accepted another different purpose.

In Re K (Abduction: Consent: Forum Conveniens) [1995] 2 FLR 211 the Court of Appeal held that the father’s agreement to the removal of a child to England by the mother irrespective of whether it contained an element of permanence or whether it was a consent to a temporary shift of base, was sufficient in the circumstances to constitute consent by the father to a loss by the boy of his habitual residence in Texas, and therefore to preclude a claim of wrongful retention under Article 3 of the Hague Convention. The judge had found that: “The father’s consent to this arrangement although given reluctantly in the hope that it would have only a temporary effect was not at that stage qualified by any express condition or time limit.”

I note that in DL v EL Sir Peter Singer said at [67]

“I have taken into account the reasoning and outcome in the Court of Appeal decision in Re K (Abduction: Consent: Forum Conveniens) [1995] 2 FLR 211…But…each case turns on its own facts and Re K is merely illustrative of the approach of that court to the facts of that case in those days”.

In Re N (Abduction: Habitual Residence) [2000] 2 FLR 899 both parents were living together in Spain in circumstances held to be a conditional trial move on the part of the mother. Black J (as she then was) held that one of two parents with joint parental responsibility could not change the habitual residence of their child unilaterally since the habitual residence of the children could only change if the parents had a common intention to change their residence, and there was no such common intention. She said at 905(g) to 906(b):

“In my view, it is important to recognise that what the father seeks to establish is that the children's place of habitual residence has changed. I have concluded that this cannot happen where he alone of the parents with whom they are living has lost the habitual residence that he shared with the mother and the children and become habitually resident elsewhere.”

Patten LJ in ZA v NA at [55] (cited above) referred to “evidence which would support a finding of an abandonment or change in the habitual residence of the older children.”

In my view Re K is not inconsistent with the general line of authority and Patten LJ’s and Black J’s formulation: has the father agreed, consented to, or acquiesced in, a state of affairs whereby the child’s habitual residence changed. I adhere to my view, expressed in an earlier, unreported (and unappealed) decision:

“[46] … that where there has been an agreement - I will not call it a consent – for the mother and the child to move for a certain period of time, the court, as it did in Re K (Abduction: Consent: Forum Conveniens), is entitled to look at the question of whether or not mother and, more importantly, the children have acquired a new habitual residence.”

This must depend on what the left behind parent has in fact agreed to.

In FVS v MGS Holman J at [75] observed that he had not been able to find any authority in which the decision actually turned on tacit consent to a change in habitual residence. “It thus appears to be a somewhat open question whether, and if so what, consent or short of express or clearly implicit consent by one parent is sufficient for a change by the other parent of a young child’s habitual residence.”

In ZA v NA at [52] Patten LJ referred to an “action” being “consented to or acquiesced in” by the other parent: in the context of a retention after a holiday. That supports the view that active consent does not have to be shown. Patten LJ may not have been using the word acquiescence in the Article 13 (a) sense Article 13 (a) only serves to substitute a discretion for the obligation to return if the application is brought within one year: consent or acquiescence is separate from the question of habitual residence: see Re P (Abduction: Consent) [2004] EWCA Civ 971, [2004] 2 FLR 1057.

Ms Renton has referred me to recent decisions of Peter Jackson J: both under appeal: Re J (Habitual Residence) [2012] EWHC 3364 (Fam) and in Re I (Habitual Residence [2012] EWHC 3363 (Fam). Re J concerned a removal by grandparents with parental responsibility to the USA to join the mother, who also had parental responsibility. That case concerned the effect of s 13 Children Act 2012: since there was in existence a court order which prevented removals for more than a month without the agreement. Crucial also was the finding that the child had not lost habitual residence in the few days between removal and the granting of a parental responsibility order to his father. Re I concerned a removal without consent by the parents from the care of relatives without parental responsibility. Peter Jackson J stated (almost certainly obiter) that “there may be circumstances in which habitual residence can be lost following an unlawful removal (for example, with the passage of time). …” If (and he may not have been) Peter Jackson J was stating that simply with the passage of time children can become habitually resident in a new jurisdiction, I respectfully disagree: that formulation is incompatible with the decision of the Court of Appeal in ZA v NA (where the children had been in Pakistan for 2 years and five months between their arrival there and the mother’s institution of proceedings). He may have been alluding to the possibility that mere inaction may lead to the conclusion that habitual residence has been lost in the original jurisdiction. I accept that he found that the fact that the parents had the legal right to remove did not necessarily lead to the child losing his habitual residence (which I understand it, is to be decided on Re J principles). (Footnote: ¹) That is a wholly different proposition from saying, as Ms Renton seeks to argue, that I can disregard lack of parental agreement where a change in habitual residence is asserted.

I agree with Holman J that it would require clear evidence of agreement express or implied for the court to be satisfied that the other parent agreed to a “stay of sufficient duration or quality properly to be regarded as habitual” ... “that the stay should be of a lasting character” as the court put it in Re H-K. But in my view the circumstances would have to be very clear in order for consent to be implied. Where there had been any degree of deception, I would be doubtful whether anything short of actual clear agreement with full knowledge of the deception would suffice. And where there was evidence that consent had been given for a purpose which had then changed, there would have in my view to be clear evidence that the parent agreed to the change on that basis.

I do not need decide whether complete inaction might, in a particular set of circumstances, lead to the conclusion that the left behind parent has agreed to the child remaining for such a purpose. I suggest that it is possible that different considerations may apply if the case is one of wrongful removal, as opposed to a failure to pursue a return after an agreement to a temporary stay. In any event a case that consent could be implied through inactivity might be easily rebutted.

I accept that the fact that a parent remains behind and that the children move without him or her does not necessarily prevent them becoming habitually resident in a new country. In a case where a father agrees to the children’s permanent relocation with the mother and without him, then it would plainly be open to the Court to find that the children had become habitually resident in that jurisdiction, and, probably, whether or not he was going to join them. A withdrawn return application would certainly lead the children to become habitually resident in this jurisdiction, and probably with or without a recital to that effect in the court order.

In this case I have found that the father agreed to an expressly time limited and conditional move, and periodic extensions of the period, which I accept was forced on him by circumstances outside his party’s control. Adopting the approach of Patten LJ in ZA v NA at [55] I consider that I have to assess the degree of integration of the children into their family and environment against that lack of agreement to the children becoming so integrated.

Applying the Mercredi v Chaffe approach: this was, ostensibly at least, a united family, and although the mother was the main carer, I accept that the father played a full fatherly role in the children’s life when they were with him in the USA, and on his visits to England to join the family. The mother’s family connections were with England, but she had lived in the USA for many years, and the father and his family in the USA. The family was here for an expressly limited, temporary and expedient purpose, originally for only six or seven months. They did not have a home of their own in England. The stay in England was not part of the regular order of the parties’ lives with the children, and the father did not intend it to be part of the regular order of their lives.

Did the passage of time after M’s birth lead the children to become habitually resident in England? I do not consider that it did. The father did not agree to the children being in England anything other temporarily and was expecting them to be returned. He pressed to know when they would be returned throughout this period. I accept that the father had no choice in the matter. He was faced with a position where the mother said that she would not yet return: and there were successive postponements.

The basis of the father’s agreement, and his continuing habitual residence in the USA, in my view crucially distinguish this case from cases of temporary/trial move of the whole family such as Re H-K and Al Habtoor v Fotheringham.

Thus I do not consider that the two older children had ceased to be habitually resident in the USA at any time after 14 December 2009.

But if I am wrong about that, and in my analysis of the situation prior to 5 January 2012; applying the same principles A and F were habitually resident in the USA as at 28 August 2012;

M must be regarded as habitually resident in England until January 2012. I am quite convinced that the father had absolutely no idea of that consequence and the jurisdictional consequences when he agreed to M being born in England.

But I find that M was also habitually resident in the USA and not habitually resident in the UK as at 28 August 2012. All the features set out above are relevant to M who had always lived with her brother, sister and mother and had lived with both her parents and her siblings for almost 8 months in the family home in their regular way of life.

I have found that the father did not consent to the removal or retention of the children on 28 August 2012.

Per Re H (Abduction: Acquiescence) [1997] 1 FLR 872,

Nothing that the father did could have clearly and unequivocally led the mother to believe that he was not asserting or going to assert his right to the summary return of the child and nothing he did was inconsistent with return.

I agree with Mr Devereux that acquiescence is a complete non-starter in this case. In any event in the light of my findings about the mother, even if there were acquiescence I would exercise my discretion to order return.

After the hearing and before the order the father offered a raft of conventional undertakings: and his original offer was increased shortly before the 8 March 2013 hearing. At that hearing I rejected a submission that I should rule on the question of precisely where in the Los Angeles area the mother should rent.

The undertakings are

The mother has not established that there is a grave risk to any of the children of exposure to physical or psychological harm/intolerable situation if returned. The father has given undertakings to address the mother’s financial concerns.

On the basis of those undertakings there is nothing in the Article 13 defence: Ms Renton relied exclusively on the lack of financial support.

Ms Renton concedes that if I were to have found that M was not habitually resident in the USA but that the two older children are and that I should return them, it is permissible to return M to the USA pursuant to the inherent jurisdiction since it is inconceivable that M should not return with them.

Ms Renton submits that such different principles arise in inherent jurisdiction as opposed to Hague return applications that I should not even attempt to grapple with what I would have determined had I not found that all three were as at 28 August 2012 and are now habitually resident in the USA. She submits that I would have at the very least to order a Cafcass report.

I have not yet heard full argument on the inherent jurisdiction. In the light of my findings it is not appropriate or necessary to do so. I do observe however that the Court of Appeal has recently said that findings as to conduct and the Article 3 defence engaged no separate considerations under the inherent jurisdiction.

The children are to be returned pursuant to the Hague Convention.

If I had not found that M was habitually resident in the USA I would have returned her pursuant to the inherent jurisdiction.

I do not require submissions otherwise on the inherent jurisdiction.