N (Hague Convention: Habitual Residence), Re

This is an application dated 18 October 2016, brought under the Child Abduction and Custody Act 1985 incorporating the Convention on the Civil Aspects of International Child Abduction 1980 (“the 1980 Hague Convention”), and under the Council Regulation 2201/2003 (“BIIA”), by a mother (M), in relation to her daughter N, who is now rising 3 years of age. The mother seeks the return of N to Canada, from where it is alleged N has been wrongfully retained. The Respondent to the application is N’s father (F); he opposes the application.

The hearing of this application took place on 19 & 20 December 2016, and on 19 January 2017. For the purposes of determining this application, I read evidence filed by and on behalf of both parties, together with a number of exhibits. I heard brief oral evidence from M (by video-link from Canada), from F, and from the maternal grandmother of the child. I received oral submissions from Mr. Edwards and from F in person. I also had available to me reports from the Canadian social services in relation to N’s baby brother, E, who was born to the parents since N and F left Canada. By the conclusion of submissions in December 2016, it was apparent that some further evidence/information was required, including:

In spite of the fact that there is a heavy obligation on the court to complete a case such as this in 6 weeks unless “exceptional” circumstances “make this impossible” (see para.2.14 PD12F FPR 2010) I felt it necessary to adjourn the case to collate this final information before deliberating on the decision and delivering judgment. Further documentary evidence available in January 2017 provided the necessary information. A short letter was available from M’s general practitioner, together with limited evidence about F’s visa entitlement and the parents’ eligibility for state benefits in Canada. The mother had filed a short statement setting out her offer of financial support, limited to a $500 one-off payment, and an offer to forward any child benefit payments to F; as it happens (though it is of no consequence to my decision), I concluded on the material that neither M nor F would be entitled to claim child benefit for N in Canada in the event of her return in the care of F.

The mother is 24 years old; she has dual Canadian/British nationality. Her own mother (Canadian) lives in England, and has done so for some time. The father is 32, and is English. The parties met in 2013; they never married, and it appears to me (though this is not an agreed fact) that they endured a fairly consistently volatile and unstable relationship. The father maintains that they separated and reconciled many times. In April 2014 their daughter N was born in England; F acquired parental responsibility for N by virtue of being registered on her birth certificate as the father. It appears to me from what I have read that M did not take easily to parenthood, and preferred being out of the home working; she worked long hours, sometimes seven days per week, in unskilled jobs. The parental relationship suffered. In September 2015, the parents separated again. In the following month, they decided to see if they could make their relationship work by moving to Canada and having a ‘fresh start’; they were struggling to make ends meet in England. Issue arises as to the precise terms on which they made the move. I return to this below.

Thus it was that in October 2015, they travelled to Saskatchewan, Canada, where the mother’s father and step-mother, and her grandparents, live. F and N entered the country on six-month holiday visas. The couple, with N, moved in initially with the mother’s grandparents. They had not been there long before the parents’ relationship ran into difficulties and they separated once again; the mother left that home in November 2015 following arguments over her fidelity (see below), and moved in with her step-mother’s cousin. The parents reconciled over Christmas, before separating again (and finally) in February 2016. The domestic situation for the whole six months remained uncertain and unsatisfactory for all of them. In April 2016, the father and N returned to this country. M travelled to the airport with them to see them off. An ‘agreement to travel’ document was prepared and signed by the mother and her family, but not the father; it provided for F to remove N from Canada on the basis that he would return with her on or before 16 August 2016. The parents do not agree as to the circumstances/terms on which the father and N left Canada. N has been in this country ever since.

After F’s return to England, the parents communicated through social media and by phone. I was referred to the following Facebook messages to F from M as follows:

Further, F says that after a month or so of his return to the UK, in a phone call, the mother confirmed that N could stay permanently in England but then withdrew her offer; the mother confirmed that she recalls telling the father that N could stay here but maintains that she later retracted her offer. She told me that she thought it possible that she had said at one time that he could stay forever but was not sure.

In July 2016, M moved from Saskatchewan to Alberta to live close to or with her new partner (‘X’).

On 4 August 2016, the parties’ second child, a little boy, E, was born in Alberta, Canada. Within a short time, E fell under the scrutiny of Canadian social services, and in late October 2016 he was removed from his mother’s care and placed in state care. He has been with foster parents in Alberta ever since. Neither N nor F have met E. The social work records in the documents before me contain this profoundly worrying description of the local authority’s intervention with M and her boyfriend [X]:

“Began working with this family September 16, 2016. Per community report, baby at high risk for exposure to domestic violence, neglect and possible physical abuse by [X] mum’s new boyfriend of approximately three months. Mum not taking meds and concerns around her mental health. … September 20, 2016: [M] punched [X] in the face and [X] put his hands around her neck… [X] is open and has described how he feels violent and gets off on this… [X] has spoken of being violent to anyone who enters their home … [X] stated that part of his brain was damaged when his mum gave birth to him and he has tried all different kinds of anger management.”

“[M] was honest about her mental health concerns… She stated she had struggled with mental health since she was 13 years old; she has had suicidal ideation and had plans to take her life…[M] stated in April 2016 she cut just to feel, not to end her life. [M] then disclosed that the voices in her head had gotten out of the box.”

In July or August, F took steps to block all contact from M, following an undoubted barrage of deeply offensive and threatening messages (I have seen some of them) from M and X, her boyfriend in Canada. M maintains that F’s blocking of contact was deliberately designed to exclude her from her daughter’s life.

In late-July 2016, F made an application (without notice to the mother) in the Family Court in his home town for child arrangements orders under the Children Act 1989; the District Judge made a number of section 8 orders, declaring (though it is not of significance to my own independent evaluation) that the child was at that point habitually resident in this jurisdiction.

In October 2016, M made application under the 1980Hague Convention seeking the return of N to Canada. Directions for trial were given by Parker J on 21 October 2016. F indicated his opposition to the application, a stance which he maintains. He originally submitted at the hearing in December 2016 that if N is ordered to be returned to Canada he would accompany her, but would travel to, and stay in, Ottawa (2000 miles from M) where he has an aunt. On sight of the new material at the adjourned hearing in January 2017, he advised me that he would not be able to afford to travel to Canada, or to live there, and that his immigration status and work opportunities would on the material supplied be far too uncertain. In the circumstances, he indicated that in the event of a return order, N would have to travel to Canada without F. F further told me at the adjourned hearing in January 2017 that he had recently been in contact with the social services department in Alberta; they had advised him that E is still in foster care, and that if N was to return to Alberta without F, N would be the subject of safeguarding proceedings, and an application would be made for her to be removed in to state care, with her brother. Mr. Edwards did not require this information to be tested under oath.

The mother contends that N acquired habitual residence in Canada after the move in October 2015, and that she agreed to F removing N to England in April 2016 for a limited period only (until 16 August 2016). She says that she did not consent to any longer period. Accordingly, she maintains that the father has unlawfully retained N in this jurisdiction from 16 August 2016. She accepts that if N returns to Canada she should remain in the actual care of F (in Ottawa) if he returns with her until the Canadian Court can make a judgment on interim arrangements. If N returns on her own, M acknowledges that the social services may remove her into care, but – so Mr. Edwards argues – this does not create an ‘intolerable situation’ nor would it otherwise create a grave risk that this would expose N to psychological harm.

The father contends that:

My starting point is Article 3 of the Hague Convention, which specifies that:

“The removal or the retention of a child is to be considered wrongful where  –

(a)

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b)

at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

In this case both parents have rights of custody. The issue of habitual residence is discussed more fully below. Article 12 provides that:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith”.

If this position is reached, I then go on to consider whether the case falls within one of the recognised exceptions under Article 13; those which are relevant in this case are:

If any of these exceptions are made out, this opens the gateway for me to exercise discretion to order or not order a return.

I must consider the following questions:

Where was N habitually resident immediately before or at the point of the alleged unlawful retention (16 August 2016)? England or Canada? Habitual residence is a question of fact; it is not a legal concept like domicile. The test should focus on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. For a distillation of the relevant law, I start by repeating the summary which I set out in in Re L (Habitual Residence: Domestic Abuse) [2016] EWHC 1844 (Fam) at [23]:

“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, and Re 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:

i)

The 'habitual residence' of a child must be established on the basis of all the circumstances specific to each individual case (see [37] in Proceedings brought by A);

ii)

In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment (see [38] in Proceedings brought by A);

iii)

It is a degree of integration which is required, not full integration (Re B at [39]); as a general rule, presence will need to be of a certain duration to reflect an adequate degree of permanence (Mercredi at [51]) but "[i]t is clear that in certain circumstances the requisite degree of integration can occur quickly": Re B at [39];

iv)

In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration (see [39] Proceedings brought by A);

v)

Purchasing a property, leasing a property, or lodging an application for social housing with the relevant services of that State may be indicators of an intention permanently to settle (see [40] Proceedings brought by A);

vi)

The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. "Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it" (see Lord Wilson in Re B at [45]); "the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state" (see [46((a)] Re B) and "were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it" ([46(c)] Re B);

vii)

The test adopted by the CJEU brings focus to the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors (A v A [54](v));

viii)

An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard, issues such as the reasons for the move by the child's mother to another Member State, the languages known to the mother or again her geographic and family origins may become relevant (Mercredi v Chaffe [55], and A v A [54](vi))).

This is not intended to be an exhaustive list of all of the key principles operating in this field, rather, only those which are germane to this case. I am conscious, for instance, that in the case of an older/adolescent child, the viewpoint of that young person may well be informative as to their habitual residence (see Re LC [2014] UKSC 1) – a point which obviously does not arise on the facts of this case.”

In relation to the point at [20](vii) (above), parental intent is a relevant factor, not in relation to habitual residence as a legal concept, but in relation to the reasons for a child's leaving one country and going to stay in another (Re KL (A Child) (Custody: Habitual Residence)(Reunite: International Child Abduction Centre Intervening) [2013] UKSC 75, [2014] AC 1017 at [23]).

It is important for the court to consider the stability of the arrangements; in Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1, Baroness Hale said this at [59]:

“The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so”. (emphasis added).

And this at [87]:

“The relevant reality is that of the child, not the parents. This approach accords with our increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents' decisions.”

And discussed again in AR v RN (Scotland) [2015] UKSC 35, in which it was said (per Lord Reed) at [16]:

“It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely” (again, emphasis added).

There is no doubt that N was habitually resident in England prior to 27 October 2015; I have had to examine with care whether N acquired habitual residence in Canada in the period from 27 October 2015 to 24 April 2016. There are pointers in the evidence both ways.

Prior to their departure for Canada, I find that the parents had different expectations or “intentions” about the venture. M was, I find, planning a permanent move; indeed, F told me in oral evidence that she had always wanted to live in Canada. F was more circumspect; he embarked on the venture believing it to be exploratory, a reconnaissance to see if he and M could indeed repair their relationship in a different country, and in particular to see if M could be faithful to him.

That said, they disposed of all of their household items from their rented home in England; they gave away those items which they could not sell; they packaged up 3 boxes of items which had sentimental value, together with N’s toys, and arranged for their shipment to Canada. They packed all of their clothes into suitcases which they transported with them. M says that they gave notice on the tenancy; F says that the tenancy was coming to an end and was not renewed; either way it was relinquished. M gave up her claims to benefits in England, and she effectively left little trace of her life in England. Significantly, perhaps, F did not relinquish his benefits.

The parties discussed their plans with the maternal grandmother and her husband in England before they left; it is agreed by all that the parents acknowledged before they travelled that if things did not work out for them in Canada, F would return to England, with N. There is a dispute as to whether this would be a temporary or a permanent return; F believed it would be a permanent arrangement, M believed it would temporary, although she conceded that “it might sound strange” that F and N should be permitted to come back only for a short time. The fact that these discussions took place with the grandmother at all strongly implies the considerable uncertainty in both parents’ minds which underlay the venture. The maternal grandmother gave evidence on this aspect of the case, though she was vague as to the detail of the conversation. She thought that the parties had told her that F would return permanently but she recognised that she may not accurately have remembered precisely what was said. She told me that she suffers from fibromyalgia, which affects her memory. In my finding, on the evidence, the period for which F and N would return was undefined.

The parents and N travelled out to Canada, on a return air-ticket; the return portion was dated 26 April 2016.

Once in Canada, the couple stayed with various members of M’s family. M applied for and obtained Canadian citizenship for N. M and N were registered with a doctor, though N did not at any time while in Canada actually receive medical treatment. F explored what would be required for him to become a Canadian citizen. Mr. Edwards contends that the application for citizenship for N and her registration with a doctor point towards a degree of integration of N in Canada. I accept that contention to a degree; these formal steps do not, however, represent real social and family integration.

As to the factors pointing the other way, having arrived in Canada the couple did not acquire their own home, rented or otherwise. They lived effectively out of suitcases, staying with one set of the mother’s relatives or another. The father (it is agreed between the parties) had a tense relationship with the mother’s grandparents, their first hosts; he describes the relationship with them as “intolerable”, and they soon fell out. This undoubtedly difficult situation was compounded within a short time of their arrival in Canada (i.e. within a matter of a few weeks) when M was caught by F to be texting other men, with sexually charged messages, including the man with whom she is now in a relationship. She left F and moved out of the grandparents’ home, leaving F and N there. After a short separation, M returned to F and they then together moved out with N, relocating to the home of M’s father and step-mother. There they occupied a basement room, and initially were all sleeping in the same bed. The father told me that N’s relationship with her great-grandparents and with her grandfather was “iffy”, by which I infer that it was not strong. When M was caught again texting other men in February 2016, the parents separated for the final time. M moved out, this time to stay with her step-mother’s cousin where she remained until after F and N had moved back to England. During this period, M made several suicide attempts; on at least one of the occasions it was F who took her to hospital. In the period from February to April 2016, M chose to see N merely once per week.

The parental relationship was – as is evident from what I have said – extremely unstable in the period in which they lived in Canada; they had separated for a period of about 10 days in late-November/December and then permanently in February 2016. M told me in evidence that she accepted that the environment was not a very suitable one for N as the parents were “constantly bickering”. M worked long hours out of the home throughout the relevant period; there was limited family life as such. F did not work. There is no evidence that F integrated into Canadian life at all; he had no friends or social life. N did not join a playgroup or nursery, though M told me that she had looked for one. N was primarily dependent on her father. Text messages passing between the couple in this period (which have been reproduced and filed) suggest that M was indifferent to caring for the unborn baby, and indifferent to F and N leaving Canada permanently (“she’s better off not knowing me”; “I don’t care” what happens when the baby is born; F could raise the baby “if you really want to”; “I can’t be a mum, I can’t be a wife… I am just a huge waste of space”; “I don’t care about this unborn baby”). These text messages, sent I accept when the mother was depressed, provide a useful insight into the climate in which N lived in Canada.

That is the evidence on which I base my evaluation of habitual residence.

Taking the picture as a whole, I discern little (if anything) which demonstrates that N integrated into a social or family life in Canada in the six months in which she stayed there. The living arrangements while she was in Canada were far from stable, with no settled home, moving from guestroom to guestroom, and exposed to the ‘constant bickering’ of her parents who were at times together and at times apart. She remained throughout this period in the primary (indeed for extended periods the sole) care of her father; he was a foreign national in Canada, an awkward and uncomfortable guest in various homes of M’s relatives, without work, and (on my finding) only in the country on a reconnaissance. For significant periods, N had limited contact with her own mother, and at best rather superficial relationships with the mother’s relatives. There is no evidence whatsoever that N integrated socially or otherwise, to any degree at all, outside of the home – there was no nursery, no playgroup, indeed no evidence of any life at all.

I recognise that both of N’s parents (“the central members of the child's life”) had moved with her to Canada (a factor which might tip the see-saw in favour of N having established habitual residence in Canada), but it is apparent that the mother was physically absent from L’s life there for extended periods, and when she was with her daughter she appears (from the descriptions of the parental relationship and the mother’s health) to have been mentally and emotionally somewhat unavailable to her. I acknowledge that N was in Canada for six months; but the duration of the visit is less important than the quality of it. I recognise that the parents had left none of their belongings in England when they left, but this was a pragmatic step at a time when their futures were at best uncertain.

N had established roots in England; she had been born here, and raised here. Her paternal relatives and maternal grandmother continue to live here; her enduring link with this country was preserved after October 2015 by the pre-trip parental agreement that if things did not work out in Canada, F would return to this country with N, even if for an undefined period. N had indeed returned in April 2016, on the return ticket, and had settled back comfortably into her life here when the application under the 1980 Convention was issued.

For all these reasons, I find that N’s short experience of life in Canada was not of a quality as to qualify as ‘integration’ to any degree into life there. The ‘see-saw’ (Re B [2016] UKSC 4, [2016] 2 WLR 557 at [45]) had not on these facts tipped materially in the direction of Canada, and was in my judgment still fairly firmly positioned in or over England, where I find that she retained her established family links, and remained habitually resident. It follows that she was not habitually resident in Canada immediately before or at the time of the alleged wrongful retention but was habitually resident in England. In light of this finding the mother’s claim fails.

In light of the conclusion reached in the foregoing paragraph it is unnecessary for me to consider the legal or factual issues further.

That said, I considered carefully all the arguments as the case unfolded, and in the period of the adjournment. I was particularly interested in the father’s case that a return of N to Canada on her own would present a grave risk of psychological harm/intolerability (article 13(b)). I was satisfied that F would not realistically have been able to accompany N on any return to Canada – financial, immigration and practical obstacles were significant (quite apart from the fact that had he travelled to Canada it would only have been practical for him to be in Ontario where he has an aunt – some 2000 miles from M). Therefore, the consequence of M’s case would have been for me to separate N from F who has been her primary carer for much of her life, to relocate her some 4,500 miles from F, whereupon on her arrival in Alberta (a State to which she has never in fact been), she would probably (and this is not challenged by M) have been placed in foster care with her brother, whom she has never met. The only geographically proximate parent would be M, with whom N has had, it seems to me, a rather detached relationship over the last three years, by virtue of M’s work commitments, her social priorities, her mental ill-health and the last ten months of physical separation; M would be unlikely to offer little by way of emotional support or comfort for N. M remains of course in a relationship with a man (X) who is not known to N and whose conduct to M has been a significant factor in the institution of safeguarding proceedings in relation to E, and his removal from M’s care.

I was addressed by Mr. Edwards on this aspect of the case (particularly the prospect of foster care for N) by reference to the decision of MacDonald J in AT v SS [2015] EWHC 2703 (Fam). At [63] MacDonald J said this:

“… in my judgment it cannot be said that the separation of S from his mother and his placement in foster care consequent upon an order returning him to Holland in order that the Dutch court can determine the long term welfare of S will expose him to a grave risk of physical or psychological harm or otherwise place him in an intolerable situation for the purposes of Art 13(b). I of course accept that S will be caused a degree of psychological distress and emotional upset by being separated from his mother and placed in foster care. However, having regard to the protective measures that can be put in place by the Dutch authorities, I am not satisfied that that level of distress and upset will be such as to meet the narrow exception to the obligation to return constituted by Art 13(b). In such circumstances, there being no other basis for making out a defence in this case, I am required to make a return order.”

I heard no detailed legal argument from F (who appeared in person) on this aspect of the case, and indeed it is not necessary for me to provide a fully reasoned opinion in this judgment on the application of this decision on these facts, but it may be of interest to the parties to know my provisional view: that, specifically for the combined reasons outlined in [37] above, a return of N to Canada would have exposed her to the grave risk of psychological harm and/or otherwise placed her in an intolerable situation. I considered that this case would be distinguishable from AT v SS on the facts. That these cases are fact-specific was specifically and rightly recognised by MacDonald J [34] (ibid). Such a conclusion on article 13(b) would have opened the gateway for the discretionary exercise on the issue of return. For all the reasons set out in [37], I would have been likely to exercise that discretion in favour of F.

At the conclusion of the hearing on 19 January 2017, I announced my decision, and subsequently approved an order, which reflected the dismissal of the claim, lifted the stay on the Family Court proceedings in this jurisdiction, and provided for some indirect contact between M and N. This judgment explains that decision.

That is my judgment.