L (Habitual Residence: Domestic Abuse), Re

By application dated 7 March 2016, Rotherham Metropolitan Borough Council (hereafter “the local authority”) applies for a care order under Part IV of the Children Act 1989 in respect of a child, L, who was born in October 2014, and was, at the date of the application, therefore 17 months old. L’s mother is J, a Ukrainian national now aged 30 (“the mother”). L’s father is K, a British national, aged 49 (“the father”). L’s parents are married and each have parental responsibility for her.

The proceedings have been transferred to the High Court from the Family Court sitting in Sheffield for determination of the issue of jurisdiction. I case-managed the application (10 June) to a hearing which I conducted on 5 July, at which I considered:

The local authority and L’s Guardian contend that L was habitually resident in England as at 5 March 2016. The mother and father contend that L was not habitually resident in England on that date, and that she was habitually resident in Ukraine. The Ukrainian Central Authority contends that L’s habitual residence was, and is, in Ukraine, and argues that L should in the circumstances be returned to Ukraine. I have been assisted in resolving this dispute by counsel for all the key parties. Additionally, Mr. Volodymyr Kovalenko, the Ukrainian Consul, has attended the hearings before me, and has offered (and given) material assistance to the Court.

The mother, as I say, is a Ukrainian national; her family live in Kharkiv, North East Ukraine. She is a graduate from the University of Kharkiv, having obtained there the equivalent of a BA in English. She worked in Ukraine as an English teacher prior to the birth of L. The father is from Leeds. The parents met via an internet dating site in 2013, and married in Ukraine later in that year. The father works in the IT industry, and derives other income from rental property. During the parents’ relationship and early marriage, the father was, it is agreed, a regular visitor to Ukraine (he spent overall about 14 weeks there in 2½ years).

In early 2014, the mother fell pregnant. Later that year, the mother applied for a visa to enter the UK. In October 2014, L was born. In these early stages of the parents’ relationship it appears that the couple spoke of the mother coming to live in the UK, particularly when L was born (“I thought I could offer a better life to [L]”, according to the mother); the mother understandably wished for a successful marriage and to have “common interests” with her husband.

In November 2015, the mother travelled to England with L. Much attention was given at the hearing before me as to the intentions of the mother (and to a lesser extent the father) at the point at which the mother and child arrived here. The mother’s 2014 visa application revealed that she intended to live with her ‘sponsor’ (the father) “permanently”; although non-specific as to where she would live with him, by inference this would have been in England, as the father had business interests here, no business connections with Ukraine, and the balance of the information provided in the form otherwise suggested this. She further declared that she intended “potentially” to “do some translation work” and/or teach English to Eastern European foreign students once legally able to do so. She also indicated an intention to help her husband with a new business venture. In her oral evidence to me, the mother said that she came to England “to try to live here, to see how it goes. We did not have any exact plans; I was going to see if I liked it here”. The father’s evidence was that the couple had no long-term plans either way; he believed that the maternal grandparents were contemplating that the mother and L would return to Ukraine.

The mother and L have visitor’s visas which are time-limited, and expire in June 2017. The mother’s is marked ‘no access to public funds’.

The parents lived, and continue to live, together in a home owned by the father; when the mother arrived, the house was undergoing significant renovations (initiated by the father before her arrival), and was in a state of significant disrepair. The parents took preliminary steps towards registering L with a general practitioner, but did not in fact do so; L remained registered with a medical practitioner in Ukraine. L was not seen by health visiting services here, nor was she enrolled in any nursery or mother and toddler group.

There is little real dispute that once the mother travelled to England, the parents’ relationship became difficult; the mother contended that the father was emotionally abusive to her. She describes the first argument taking place on the very day after her arrival, the father’s birthday. On 31 January 2016, the mother wrote an e-mail to a pastor in Ukraine describing “problems” in the relationship with the father in the following terms:

“[the father] turns against me, humiliates me and dominates me. I am sorry for saying that, but it is true.… God has saved me from his attacks several times now, but now he is really dead set against me… he wants me to leave and [to] take my child from me… Out of England and out of the house.”

Two weeks later (14 February 2016), the mother corresponded with a friend in Ukraine in the following terms:

“I have decided that the next time when he is going to talk about divorce, and he does it very often, I will give him this opportunity, and he will be the guilty one, because he wants the divorce. It’s impossible to live with him, it is like hell on earth, he is always displeased, he insults and humiliates me every day, it is just impossible. I have decided he can rent an apartment for us in Ukraine and we will leave him alone, as he wants, as he tells me all the time, I will get money or sell the house and get rid of you, and I will try to take the child from you through the court, but he will not take her, no matter how hard he tries. When I was pregnant he made my life a void, do you remember because of stress I nearly lost my child, he tormented me every day, he is very good at pretending, especially when he talks to the pastor and people from church. At home he is a real tyrant, immoral tyrant at that. He suffers from his stupidity… It is impossible to live with him. If he was working, it would be much easier, I would not see him all day long, he hasn’t worked for almost 3 months, I am bored and lonely with him, he does not take me anywhere, he used to, but very rarely, he never suggests going anywhere. If something bad happens, he blames me…”

In her evidence, the mother drew attention to a note which she had written (in Ukrainian) which she had placed on the mantelpiece at the home; the police found it during their search of the property when conducting the joint investigation following the events described below. The mother states that she wrote the note and had it available as a reference point “because it helps me to cope with the abuse”. The note reads (in translation):

“For the sake of [L]

1.

Do not react to shouting;

2.

Remain calm despite everything;

3.

Appeal to God when [the father] rise (sic.) up against me;

4.

Pray for [L] and to God so that He will protect me and defend me.”

The mother told me that the couple attended church, but it was “quite complicated to understand English; I could not understand it fluently … they had to speak slowly.” In her witness statement of 29 March 2016, she said this:

“living with [the father] was an unbearable atmosphere (sic.). He was controlling me and was always saying that he would tell people at the church how bad I am. I have not done anything bad. He wanted to blame me because [L] was crying. In the Ukraine, she was a good and happy child.”

On 29 February, the father telephoned the NSPCC and reported that the mother had shaken L “like a rag doll” on more than one occasion. The NSPCC made a child protection referral to the local authority, who undertook a joint investigation; in the investigation, the mother denied shaking L, but reported emotional and physical abuse from the father, and said that she was scared of him. Both parents acknowledged that during a recent argument between them, L’s nose began to bleed because of her excessive and vigorous crying. L was examined at hospital on 3 March, and no injuries were identified. She was described as a “happy healthy little girl with no concerning marks or injuries… No cause for concern”. When asked for an account by the treating clinicians of what he had seen the mother do to L, the father gave a qualified version (“it was not ill-treatment, more an act of frustration”), and conceded that he may have exaggerated the original account to the NSPCC. The mother denied shaking L, and denied being frustrated with her. The father has now almost completely retracted the allegation, and maintains that no incident occurred involving shaking of L. The father says that he was motivated to make a false allegation by anger towards the mother.

The local authority sought an emergency protection order on 5 March, which was granted and L was removed into foster care. They then sought an interim care order. The application for the interim care order was listed for a contested hearing before Her Honour Judge Pemberton on 9 March. Judge Pemberton heard evidence from the mother and the father; she granted the interim care order, confirming L’s placement in foster care. Material to the issues under consideration now are the following observations, and/or interim findings, of the judge about the period of 13 weeks in which the mother was living in England with L prior to the instigation of protective measures:

On 29 March, the mother filed a statement in which, consistent with the findings and comments above:

On the same day (29 March 2016), the father wrote e-mails to the mother encouraging her to co-operate with the Ukrainian authorities in securing the return of L to Ukraine. The e-mails, and the specific instructions to the mother, reveal a degree of manipulation on the part of the father to achieve that outcome; it is nonetheless revealing that the father refers more than once in the emails to Ukraine as “home” to L and the mother. The e-mails further contain pleas for forgiveness, and he promises that “things will be better between me and you … I know where I went wrong” – adding some validity to the mother’s complaints about his abusive behaviour towards her.

On 5 July, the mother filed a further statement. In this statement, she retracts to a limited extent her earlier complaints of abuse; her description in this later statement of her husband giving her “a lot of freedom” while living in England rings hollow.

The standard form C110A application for a Part IV order contains a question about jurisdiction, designed to alert the gatekeeping and allocation judges to this possible (and fundamental) issue. On the form launching these proceedings, the local authority declared that there was no “reason to believe that there may be an issue as to jurisdiction in this case”. Given the known facts, and specifically that the subject child was a Ukrainian national, born to a Ukrainian mother, who had lived for the first 13 months of her life in Ukraine, and had only been in this country for a few weeks, this is an astonishing, and frankly misleading declaration. Macdonald J had cause recently to censure lawyers for the parties in private law proceedings for completing a form in a similarly misleading way in R v R (Jurisdiction and Acquiescence) [2016] EWHC 1339 (Fam). Lawyers in public and private law proceedings are not helping themselves, the other parties to litigation, or the court in avoiding, or failing to recognise, jurisdiction questions at the earliest stage; the completion of the form with the correct information is the first, basic, expectation of the court and must be complied with conscientiously.

After the contested interim hearing on 9 March (see [14] above), the proceedings were then listed on 8 April before His Honour Judge Jones in Sheffield for directions, and for a determination of the issue of jurisdiction; for that hearing, the father’s lawyers filed a position statement in which they challenged the jurisdiction of the court to make orders in respect of L. The court heard no oral evidence on that day nor did counsel present oral arguments to the judge. At that hearing, the judge offered to share with counsel his provisional view on the issue of habitual residence. Counsel accepted the judge’s invitation without apparent hesitation. The Judge’s provisional view was that L was habitually resident in England as at 5 March 2016 (the date of the emergency protection order); counsel for the father expressed himself unsurprised by that indication. The judge was then clear in affording the advocates the opportunity to present the arguments fully if so instructed. They chose not to do so, and the jurisdiction issue was formally conceded by the lawyers on behalf of their clients; recitals to that effect appear on the order:

“Upon the Respondent parents indicating that following the views expressed by the court, that habitual residence has been acquired by [L] in the United Kingdom (sic.), they do not seek to formally challenge such position.

AND Upon the Court finding that [L] is habitually resident in the United Kingdom.”

At that hearing, the mother was not assisted by an interpreter; no specific point was taken about that at the time, but I was concerned – on learning of this on 10 June (when she was so assisted) – that the mother, even though she has qualifications in English and apparently speaks English well, may not have fully understood the implications of acceding to the Judge’s provisional view on jurisdiction. It was this factor, more than any other, which materially influenced my decision to re-investigate the jurisdiction question.

The parents dismissed their legal teams. At a subsequent hearing before HHJ Jones (25 May 2016), newly instructed counsel asked the Judge to re-consider the jurisdiction question. He declined to do so, and gave a short judgement in which he set out the reasons for his earlier expressed provisional view. He was much influenced by the information contained in the visa application form which tended to show that the mother was planning to leave Ukraine with the intention of living in the United Kingdom as a family with her husband, the father of her child, for the foreseeable future.

When the case was then transferred to me, counsel for the parents argued that the concession had been wrongly made on 8 April 2016, and they were minded to appeal the subsequent decision of HHJ Jones not to re-open the question (25 May). As (a) the judge had only ever offered a provisional view (the judgment of 25 May had done no more than to explain that view), and (b) the concession had been offered at a time when the mother was not assisted at court by an interpreter (and was therefore inherently vulnerable to challenge), I offered to re-consider – or perhaps more accurately substantively consider for the first time – the habitual residence issue. This had the advantage of avoiding the delays involved in any possible appeal, particularly given that, if successful, there was a real prospect that the Court of Appeal would simply remit the case for (re-)hearing. All parties (the local authority reluctantly) accepted that this would be the most pragmatic course, achieving a swifter result in a more proportionate way, and affording an opportunity to me to examine the facts carefully.

The Ukrainian authorities have filed and served a number of documents in these proceedings, many of them channelled through the International Child Abduction and Contact Unit (ICACU), to which I have had regard, including:-

The Supreme Court and the Court of Justice of the European Union (CJEU) have seized opportunities in recent years to clarify the law in relation to habitual residence. In considering the question in this case, I have had regard to a number of the decisions including Proceedings brought by A [2010] Fam 42 (esp. [34]-[41]), Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22, [47], and the Supreme Court’s decisions in In the matter of A, A v A [2013] UKSC 60, andRe B [2016] UKSC 4, [2016] 2 WLR 557. I do not propose to rehearse at length the relevant law, but extract the following principles of direct application on these facts:

L spent the first 13 months of her life in Ukraine with her mother, and prior to November 2015 her habitual residence was unquestionably in Ukraine. The child and the mother’s integration in Ukraine in that period ran deep; it was the country of their nationality, it was their home, where they were surrounded by family, where the mother had been raised and educated, where the mother had friends. The essential question is whether that changed in the weeks after their arrival in the UK. So all-encompassing and profound was the extent of the mother’s integration in Ukraine that a shift or tilt (reference Lord Wilson’s ‘see-saw’ at [23(vi)] above) of habitual residence would not be likely to happen quickly; this was particularly so given that the maternal grandparents, maternal aunt and cousin, with whom L and her mother had lived prior to travelling here, remained in Ukraine, and all remained in daily contact – thus preserving a strong “continuing link with the old state” (Re B at [46(c)]).

At 17 months of age, L takes her habitual residence primarily from her mother as the parent on whom she is most dependent, and – in accordance with the guidance which I have set out above – the court considers a range of factors relevant to the issue, including the degree of the mother’s integration in life here.

The mother’s intentions on her arrival in this country are among the relevant factors, but they are by no means decisive. There is evidence that in 2014 (i.e. a year or more before her travels), the mother had formed a reasonably firm intention to travel to England permanently. In her written evidence before the court, she stated that before she came to England she believed that L would have a “better life” here, and she wanted to create a “good family” with the father. The mother told me in oral evidence that she further wished to escape the crisis in Ukraine. However, by the time she actually arrived in this country, in my judgment, her views had modified somewhat (see [6] above). She had a more open mind about whether this would be either a positive or indeed a permanent move. I find that the optimistic views about life in England which she held when she had completed her visa application some 18 months before travelling, had given way to considerable doubts. This was largely attributable, in my view, to the fact that in the months which had followed the submission of the paperwork the father had “made [her] life a void, … he tormented me every day” (see email of February 2016 at [10] above); by the time of her journey here, she was prepared merely to “see how it goes” (see [6] above). Her visit had no true sense of permanence about it.

The e-mails to friends in Ukraine in January and February 2016 (see [9] and [10] above) were prepared outwith the sphere or contemplation of litigation, and the contents provide, in the circumstances, reasonably reliable markers as to the state of the mother’s mind and the parents’ relationship at the time; they make for disturbing reading. The mother’s first witness statement is consistent with these e-mails, and is corroborated in some degree by the social work evidence. The note on the mantelpiece (see [11] above) is unlikely to have been contrived to paint a misleading picture for the investigating authorities, and also, therefore, indicates the true state of affairs in the relevant period – a young mother struggling in the face of hostility from her partner.

Within a short time of her arrival in the UK in November 2015, I find that the mother’s fading optimism about life here all but evaporated altogether. The parental relationship, which had shown earlier signs of being an abusive one quickly became actually so; I am satisfied that from an early point after her arrival in the UK the mother became deeply unhappy, and felt (and indeed actually was) isolated. The father is significantly older than the mother; their relationship had been forged by web-based dating, and there are no obvious signs that they shared much in common culturally, linguistically, or socially. On Judge Pemberton’s interim findings, the father controlled her. It seems to me that he effectively quarantined the mother in his own home. The relationship was volatile; it was characterised by a “very high level of acrimony” which was “stressful” for the mother. The mother complained of the father humiliating and dominating her (see [9] above), causing her to feel that she lived a ‘hell on earth’ (see [10] above). From early on in her stay here, there was apparently much talk of divorce (see [10]). The father was estranged from his own family. The mother gives a compelling account of being lonely and friendless in England, yearning for family and friends whom she had given up to join her husband. All the while, the mother remained dependent on benefits from Ukraine, and her only bank account was in that country (into which her benefits were paid). The support network of the maternal family had remained in Ukraine, and the mother had no support here.

There is no evidence that the mother or L became involved in community life here in England in any meaningful sense; the mother attended church weekly, but only with her husband, and she told me that she found conversing with other members of the congregation difficult. The home she occupied belonged to her husband; it was a building site, unsafe for their toddler daughter. This was not a home in which she chose to live, or in which she made any financial or emotional investment. She rarely left the home.

When I look, therefore, at the issue of ‘integration’ in England, there is very little evidence which indicates that the mother and child had achieved this to any appreciable degree (or indeed at all) in the weeks between 25 November 2015 and 5 March 2016. Such limited exposure as there was to the environment to which the mother and L had moved was insufficient to displace their profound connections with Ukraine, many of which (including family support, financial support and contact with friends) had in any event endured in spite of their physical separation.

Much of the narrative about life for the mother here in the crucial period is self-reported, and therefore requires critical scrutiny. I cannot place much reliance on the father’s accounts, given that he is, after all, a self-confessed liar. The mother’s compelling account of abusive family life has now in some small measure been retracted; I believe that she has, to some extent, recrafted her account now to minimise the picture of harm to L, anxious about the repercussions of local authority involvement. Possibly she has done so because she feels she needs the father’s support to achieve the objective of a return to Ukraine. It is of course just as likely that she has changed her account out of fear of the father, and/or in panic at the intervention of a public authority in a foreign state. I am satisfied that she is plainly desperately worried about the risk of losing her daughter. Whatever the reason for her retraction, it is not convincing. The mother’s original account of abuse is of course strongly evidenced by contemporaneously generated emails (see [9] and [10] above) in which she gives a compelling narrative of ill-treatment by the father. The note on the mantelpiece and the father’s emails, seeking forgiveness, are all of the same piece.

Quite apart from the considerations identified above, investigations by social workers and the Children’s Guardian lend some objective support to the mother’s original account of abuse; the social worker has observed the parents’ relationship to be volatile, and describes the father as having been hostile and “passive-aggressive” when attempts have been made to assess him. The mother reported to the social worker being “pulled from the bed” by the father – an allegation which she did not deny, when later asked about it.

It is well-known for victims of domestic abuse to experience erosion of their self-esteem, loss of autonomy, and inability for clear and independent thinking. Isolation from friends and family, and associated dependence on the abuser, are common features of the lives of the abused victim. There is sufficient evidence before me on which to conclude, on balance, that this was indeed the experience of the mother, and the environment in which she and L were living in the weeks following their arrival here; the mother, I am satisfied, felt trapped by the father, and I accept that she was frightened by his threats. Such a stressful environment is not one in which this mother (or indeed any other person) would be able genuinely and authentically, let alone easily or quickly, to integrate into a new life in a new country; the factors in play here would, conversely, operate as formidable barriers to integration.

For all these reasons, I find that the critical point when the protective measures were initiated neither the mother nor L had integrated to any measurable extent in England, and accordingly neither had acquired habitual residence here. I am satisfied that they both remained habitually resident in Ukraine at the relevant time.

I am conscious that I am diverging from the view expressed by HHJ Jones, but note that his view was explicitly only provisional, based on a reading of the papers and was perhaps understandably influenced by the production of the visa application form which, on further examination, pre-dated the journey here by more than one year. Significantly, the view he expressed was formed without the benefit of (a) full argument from the advocates, (b) the additional written evidence available to me and (c) the oral evidence of the mother.

Urgent attention now needs to be given to the way forward. I am satisfied that the judicial or administrative authorities of Ukraine have jurisdiction in relation to L pursuant to article 5 of the 1996 Convention. Arrangements need to be made, through the ICACU, for the Ukrainian authorities to assume that jurisdiction; ICACU has helpfully been in regular liaison with its counterpart in Ukraine since March 2016. The transition plan involving the physical move of L needs to be carefully orchestrated between the social care agencies in the respective countries; the Ukrainian authorities have already helpfully indicated that “the local children welfare services may be entrusted to evaluate the security level (sic) of the child aswell as to check health and medical conditions…to take all necessary measures to protect the child”. It is open to me to take any necessary “measures of protection” under article 11 of the 1996 Convention, which would be enforceable in Ukraine under article 23; I will invite submissions on the need for this.

Directions already given in the substantive Part IV proceedings here need to be revisited and, where appropriate, suspended or discharged.

That is my judgment.