AB v CD

In this matter, I am concerned with a toddler, A. His father, the applicant in these proceedings, I shall call F and his mother is the respondent, I shall call M.

F brought this application for the summary of return of A from Spain to this jurisdiction on 20 February 2018. He asserted, as he continues to assert today, that M wrongfully retained A in Spain as from 6 January 2018. The matter came before Roberts J on a without notice basis on 21 February 2018, when she made orders for the return of A to this jurisdiction. That did not occur. Most latterly, it came before me on 22 March, when I repeated the order for the return of A to this jurisdiction. I was subsequently invited to sign and complete an article 42.1 of BIIa certificate which I did. I am told that the Spanish court made an order to enforce the order made here but, upon learning of this hearing on the question of jurisdiction, the enforcement order has been stayed.

M opposes F’s application for the return of A to this jurisdiction. She asserts that she has not wrongfully retained A in Spain and she asserts that this court has no jurisdiction to make an order for the return of the child, nor indeed any jurisdiction under BIIa in family proceedings. She asserts that A was, and remains, habitually resident in Spain.

I am pleased to note that there is no issue between Mr Kirk QC, who appears on behalf of F, and Mr Laing, who appears on behalf of M, as to the principal authorities and law that I must apply. I am referred to A v A [2013] UKSC 60, to Re L [2013] UKSC 75, In Re L-C [2014] AC 1017, Re R [2016] AC 76 and In Re B (A Child) [2016] AC 606.

Mr Kirk has helpfully summarised and distilled those decisions, as follows and makes the following contentions, which are accepted by Mr Laing.

“(i) Habitual residence is essentially a question of fact. (‘The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce’ – per Baroness Hale in A v A, para 54(vii)). ‘A gloss is a purported sub-rule which distorts application of the rule’ – per Lord Wilson in Re B [para 46].

(ii)  Habitual residence requires ‘not the child’s full integration in the environment of the new state but only a degree of it’ – Lord Wilson, Re B, para 39.

(iii)  It is just about conceivable for a child’s habitual residence to be changed unilaterally, even where both parents share parental responsibility and one of them does not agree to the change (the supposed ‘rule’ against this in the older authorities is, seemingly, no longer good law).

(iv)  Parental intention is a relevant factor, but is not wholly determinative.

(v)  A (young) child will most usually have the same habitual residence as their carer; this is all the more so when the child is still an infant.

(vi)  The concept is ‘child-centred’ – it is the child’s integration which is being assessed. Thus while the environment of an infant or young child will usually be determined by their main carer(s), this is not necessarily the case with a school-age child, still less an adolescent.

(vii)  There is no minimum time required before a new habitual residence can be established; it depends on the facts of the particular case, but it may be acquired in as little as one day.

(viii) It will only be in very unusual cases that a child has no habitual residence - usually there will be a seamless ‘transfer’. In Re B, the analogy of a see-saw was used to illustrate this process. It was suggested there that the deeper a child’s integration in the old state, ‘probably the less fast his achievement of the requisite degree of integration in the new state’ [para 46] – but Lord Wilson went on to say that if there has been a great degree of pre-planning, and if all the ‘central members’ of a family have moved together with a child, then probably the sufficient degree of integration could take place faster. In Re B itself, Lord Wilson said that the question the judge ought to have asked herself at first instance, when considering whether English habitual residence had been lost, was ‘whether B had achieved the necessary degree of disengagement from her English environment’; and conversely, ‘whether she had achieved the requisite degree of integration in the environment of Pakistan’– paras 48-50.

I was further referred by both counsel to a decision of Hayden J in Re B [2016],

“[18] If there is one clear message emerging both from the European case law and from the Supreme Court, it is that the child is at the centre of the exercise when evaluating his or her habitual residence. This will involve a real and detailed consideration of (inter alia): the child’s day to day life and experiences; family environment; interests and hobbies; friends etc and an appreciation of which adults are most important to the child. The approach must always be child driven. I emphasise this because all too frequently and this case is no exception, the statements filed focus predominantly on the adult parties. It is all too common for the court to have to drill deep for information about the child’s life and routine. This should have been mined to the surface in the preparation of the case and regarded as the primary objective of the statements. I am bound to say that if the lawyers follow this approach more assiduously, I consider that the very discipline of the preparation is most likely to clarify where the child is habitually resident. I must also say that this exercise, if properly engaged with, should lead to a reduction in these inquiries in the courtroom. Habitual residence is essentially a factual issue, it ought therefore, in the overwhelming majority of cases, to be readily capable of identification by the parties.”

Once again, I note happily that the principal features of the background are agreed between the parties.

F was born abroad, but has lived in this country for a considerable period of time. M is Spanish. She is one of four children and her siblings and her parents live in Spain. She moved to this country to obtain work in 2004. M and F met and began a relationship and, in May 2006, they were married. They owned a property and F ran a business in this country. M worked as well.

In 2015, M learnt that she was pregnant with the parents’ first child. In July 2016, M and F, M by this stage being some 6 months pregnant, travelled overland to Spain. There they stayed for a considerable period of time. F eventually returned to this jurisdiction; M remained in Spain.

A was born in 2016. He remained living in Spain, with M, who, as is agreed, is his primary carer, until 27 June 2017. F would, from time to time, travel to Spain to visit M and A. As is a consistent feature of this case, the parents differ in their accounts of what was intended in the various moves they made between this jurisdiction and Spain. Thus, M asserts that, when the family travelled to Spain in mid-2016, it was a permanent relocation. F disagrees and asserts that, for a period of time, M would go to live in Spain and have the benefit of the support of her family whilst A born. The parties differ what their intentions were when M and A arrived in this country on 27 June last year. F asserts that it was for the family to be reunited and to live in this country; M asserts that she and A were merely visiting F in this country because he was missing them and the commitments of his business meant he was less able to travel to Spain than he would have wished.

Be that as it may, some five weeks after arriving here, on 3 August M, F and A travelled to Spain. That is characterised by Mr Kirk QC as their normal summer holiday in Spain, staying at a flat they had purchased some four years previously. F was only able to stay for part of August. M returned to this jurisdiction with A on 30 August. They then embarked upon a two-week holiday in F’s home country to visit F’s parents and family. They returned to this jurisdiction on or about 14 September. Some four weeks later, M left this jurisdiction to visit her family in Spain with A and returned on or about 19 October. Shortly after her return to this jurisdiction, she discovered that F had committed adultery. She found a video recording of F having sexual intercourse with an Albanian woman, which was recorded at some point in November 2016. Initially, F denied that it was him, but then accepted that it was, apologised and explained that he had been drunk.

On 30 November 2017, M, F and A fly to Spain. F asserts that this was simply a pre-Christmas visit and that return flights had been booked for all three of them for 12 December 2017. M does not accept that it was simply a pre-Christmas visit. She says that F may well have booked return tickets, but that was effectively without consultation with her. F returned to this country and then went back to Spain for the Christmas period on 24 December. F returned to this country on 6 January 2018. M refused to return with him and refused to return A to this country.

Prior thereto, M had consulted solicitors in Spain in relation to the matrimonial difficulties between herself and F.

It is conceded by Mr Kirk on behalf of F that, prior to 27 June 2017, A had been habitually resident in Spain and had never come to this country. It is submitted by Mr Kirk that, on the day that A arrived in this country on 27 June 2017, or very shortly thereafter, he acquired habitual residence here. It follows that it is asserted that he lost his habitual residence in Spain on or about the same date.

Mr Laing, on behalf of M, submits that there is no evidence of A, on 27 June or thereabouts, having acquired habitual residence in this jurisdiction, still less had he lost his habitual residence in Spain. He submits that, if the court is not with him on that submission, a secondary submission is that, as from 30 November 2017, when M returned to Spain from A, he resumed his habitual residence in Spain and has not subsequently lost it. Thus, at the time at which this court was first seised for F’s application for a summary return, this court did not have jurisdiction because A was not habitually resident in this jurisdiction.

Both parties, in their substantive statements, rely upon various features of the evidence in support of their case. Whether that be, on the part of F, having booked return flight tickets for November visit to Spain, or the purchase of expensive nursery equipment at their home in England. Or, on behalf of M, contending that when they left this country in June 2016, they did so on the basis of permanent relocation, by virtue of the amount of luggage and personal items that they took with them to Spain. I do not find it necessary to resolve that conflict in the evidence between the parents, because I do not find that those features of this case assist me in determining the question of A’s habitual residence.

Following the judgment of Hayden J, I propose to focus on the child.

It is conceded and accepted that M was and is A’s primary carer. A spent the first nine months or so of his life living with M, occasionally joined by F, in Spain, where A was brought up amongst his maternal family: his maternal grandparents, his aunt and uncles, and cousins. He had very substantial connections and roots to his family in Spain and had plainly, prior to coming to this jurisdiction, acquired a degree of social integration in Spain thus that he was habitually resident there.

It would appear that M and F had and have different views about what was intended when M and A came to this jurisdiction on 27 June. As I have indicated, F asserting that it was a permanent relocation, M asserting it was but a short visit. I am not satisfied that M had a settled intention permanently to relocate with A to live in this jurisdiction. I am also not satisfied that between 27 June 2017 and 3 August 2017, when the family left, for whatever reason, to spend time in Spain, that A had acquired habitual residence in this country. Moreover, I am entirely satisfied that there is no evidence whatsoever that A had lost his habitual residence in Spain. Applying the analogy of the see-saw, as used by Lord Wilson in Re B, A retained and had very, very substantial connections with Spain, and with all of the members of his maternal family.

I am similarly satisfied that there is no evidence that, on the return from F’s home country on or about 14 September, A subsequently acquired habitual residence in this jurisdiction. F’s adultery undoubtedly had a substantial adverse impact on M. It may well be that she sought to keep the marriage alive, if for no other reason than for the benefit of their child. But I am entirely satisfied that there came a point where she decided that the marriage was at an end and she was to make her home with A in Spain. Whether that occurred just prior to her returning to Spain in November, or shortly thereafter, I do not know, but for the purposes of this judgment it matters not.

In those circumstances, even if I am wrong in finding that A had not acquired habitual residence on or shortly after 27 June 2017, I am entirely satisfied that he re-acquired his habitual residence in Spain on or shortly after 30 November 2017. It follows from those conclusions that there was no wrongful retention of A in Spain on or after 6 January 2018 and that this court does not have jurisdiction in relation to any issue concerning A or his upbringing. Accordingly, I propose to dismiss this application. I shall discharge the return order previously made and the discharge the certificate that was sent to the Spanish courts.

F, after making this application, made an application in the Family Court local to him for a child arrangements order. That application was stayed pending the resolution of these proceedings. I propose to dismiss that application because, for similar reasons, this court has no jurisdiction in relation to that application.