AB v XY (Rev 1)

This is a prepared oral judgment. I shall be correcting the transcript of this judgment in due course and shallcorrect any infelicitous language and may add or amend to my reasoning although my decision is clear and will, of course, remain the same. [I received the transcript on 4 September 2019 and have amended it and added my decision on costs.]

The application before me was issued on 24 January 2019 and is for the summary return of a child Z, to

The defence is raised that the child was not habitually resident in Malta at the material time and/or underArticle 13(b) of the Convention. This of course is a summary process but I have allowed limited oral evidence from the parents on the factual issue of the child's habitual residence. Both counsel, Miss Renton for the father and Mr Gration for the mother, claimed that the documents spoke for themselves and that they entirely support their respective and opposite cases. Obviously, I needed to hear from the parents to provide the much needed context of those documents and I have been greatly assisted by it. Indeed, in many respects it has been key to my decision.

I am concerned with a little girl aged just 21 months old, Z, who was born on [a date in] 2017. She is thebeloved daughter of her parents, AB, the applicant father and XY, the respondent mother. The father hails from Malta, the mother from England. They met on an Internet matching site in August 2015 in England and married in England via civil ceremony on [a date in] 2017, 13 days before Z was born. By November 2018, they had effectively separated and the mother had started English divorce proceedings, issued on 2 November 2018 and served on the father in Thailand on 24 November 2018. By anyone's reckoning, this has been a relatively short whirlwind romance. The reality for young Z is that she will grow up with her parents not living together. I sincerely hope and expect that she will be spending a great deal of time in each of her parent's care during her childhood.

I caution myself at the outset, Z is very young; to say that she has integrated because of an appointment hereor there, for example dentist in Malta, when she only had one tooth, a paediatrician's appointment in Malta, when she was six months old (the paediatrician advising the parents that she should then start to socialise), to my mind would be placing, from her perspective, too much weight on factors which would have had a far more important bearing on my thinking had she been older. It is the overall picture of her integration with which I am concerned.

On 21 October 2018, the mother came to London with Z from Sicily, on a one-way flight which she hadbooked on 27 May 2018, with the father's knowledge. She has remained here since, now around about six months. The father arrived on 27 October in England but then left from London on a pre-booked family trip to Thailand on 4 November, which was due to return on 24 February 2019. The mother and child were booked on that flight but did not go. No further flight to Malta from London had been booked to take place, but it is the father's case that Z was a habitually resident in Malta at the time and that the mother retained the child in England and then declared her decision not to go on with the relationship by issuing English proceedings for divorce on 2 November 2018.

This is a case where the child travelled a great deal during the time when she was in the joint overall care ofher parents. The following chronology of her movements is worthy of repetition:

L has therefore taken seven flights in her young life and travelled by car (which is a Maserati the fatherbought in England by procuring loans in Malta) through the year on a number of occasions. She has also lived in Italy for a number of weeks and after her initial five months in England, she has spent an appreciable time in Malta, England and in total, over two months in Italy. The majority of her life, up to October 2018 was in England but this is not really an arithmetical exercise. It's the quality of her time in Malta and England that I need to look at.

The law on habitual residence is agreed and can be summarised thus: as Black LJ, as she then was, stated inJ (A Child) (Finland) (Habitual Residence) [2017] EWCA Civ 80:

It is accepted by all concerned that Z was habitually resident from birth in England until she arrived inMalta, via a seven-week road trip with her parents through Europe. Pursuant to the decision of UD v XB, C393/18 PPU, she could not be habitually resident anywhere else. Paragraph 52 of that judgment says as follows:

The central question for me to decide, therefore, is whether drawing together all the strands of evidenceas I find them, and having been guided by the dictum I have just quoted and considered carefully during my deliberations, Z lost her lost her habitual residence in the weeks after she left England on 4 October 2017 and gained Maltese habitual residence after she arrived there on 17 December 2017, which was reinforced by further periods of time in Malta, whenever she went back to England or elsewhere.

The mother's case is that Z has always been habitually resident in England, despite her trips abroad. Thefather's case is that in view of the mother's decision in 2016, to rent out her home in Hungerford, to give up her job in England and to spend time in Malta with the father and other factors, these illustrate a move to Malta. He asserts that this in turn resulted in Z, after she was born and when she moved in October 2017, becoming habitually resident in Malta by the end of the following year in 2017 and certainly by the time that she was attending the First Steps Nursery in Malta in January/February. If there is any doubt about that, he would say that by the time Z came back to Malta in June 2018 and again in August 2018, for a month each time, she gained her Maltese habitual residence then, even if she had lost it before then, which he does not accept.

The oral evidence of the father was something that I obviously considered very carefully, as well as that ofthe mother. He was educated in England in his latter school years and he was understandably still emotional about the last of his nuclear family. I found him on occasions to be very frank in his description of how matters developed from his perspective but as I shall explain later, I found his approach to be quite egocentric or self-centred. He said in his oral evidence that his life had changed in a way, in the autumn of 2013 when he ended a seven-year relationship because his then partner did not want any children and wanted marriage and his focus had always been to have a child and so consequently he recalibrated his work environment and started working remotely. He confirmed that he was a Maltese taxpayer and that his net income was approximately €4,700 a month and he pays approximately 36.5% tax. He met the mother, as I have said earlier on, using a dating website and he listed his location as being available to meet in Malta or London. He had spent days and weeks in England in 2014 and in 2015, he spent six consecutive weeks in

I pause there in saying that this shows how insecure that move was. It is not usual, when one is relocating, inmy experience, to be presented with a cash sum to enable one to leave immediately or thereafter because the whole aim of a relocation is a settled intention to move.

C-179 in the bundle is a letter, which I feel I must quote. The mother wrote it in August 2018, during one ofher stays in Malta, that was during the last time that she was in Malta, she was in Malta from 2 August until 3 September 2018 with Z and the father,:

The father's case is that there is only one explanation for this letter, which is that it illustrates entirely thatthe mother moved to Malta and integrated in Malta and at her new habitual residence in Malta and of course the authorities I mentioned earlier have been cited to assist me in concluding that even an insecure move can result in a change in residence. However, I did not see the letter as supportive of the move, when I read it in full and knowing about the €1,000, which came up in oral evidence from the father, as I did. The fact is that the couple were having difficulties in the summer of 2018 in Malta, after a 10-week stay in England and a further week in England in late July and of course, their then further six-week stay in Italy.

Before I turn back to the father's evidence, it is clear that the father owns a delightful property in Malta andthat was a place where the mother, and eventually mother and child, were staying in when they came to Malta and that is the father's property. However, the mother, in her oral evidence, confirmed that she had not moved any furniture from her garage in England to that property and there are questions that come up when one is looking at relocation, if this was a planned relocation which resulted in a new habitual residence in Malta, one has to ask oneself: why was this couple flitting about all the time, as I have set out in the chronology of L's young life, up until October 2018, the burden of proof, of course, to establish Maltese habitual residence is on the applicant within these Hague proceedings. That is, of course, the father.

Going back to the father's evidence, it was no doubt exciting for them for the mother to discover she waspregnant, and that they were having such an enjoyable time travelling extensively. They were a young couple and they were travelling near and far. Page C53 is an email that her mother wrote to her then tenant about August 26, 2016, where she says as follows, this is the tenant in her property in England:

The father confirmed that there was a short-term let and due to return back to Hungerford on 22 October. Hetalked of skiing trips, trips to Portugal, Christmas of 2015 in England, ideas of going to the Far East and then pausing those plans. He said, 'Caroline understood where I was to be based. It was her decision that she wanted Maltese citizenship but she had the means to return at a moment's notice'. As far as he was concerned, in his oral evidence, all the antenatal care being in England was merely a low key administrative decision. He said in his oral evidence that there is just a good public funded health care system in Malta and that in between January to March 2017, the couple stopped considering Malta as a venue for the birth, simply because the weather was a bit too hot plus the maternal grandmother would not be there and plus a civil marriage would still be in England. However, he says they always intended to return to his home in Malta.

I pause there and observe that those factors, that antenatal care and postnatal care was carried out withregards to Z, in England and that the mother's case is that this was a planned birth, the father's case is that actually they did not plan to have a baby but they were not surprised when Mother became pregnant and the decision to have a child in England was as I said, a low key administrative decision. I have to say I consider the mother's case to be more likely: that it was a planned pregnancy and that it was planned that this child would be born and cared for in England. The antenatal care having been conducted here and the postnatal care having been conducted here.

The immunisations that Z had after she was born, C-126, took place on 27 July 2018 in England, as indeeddid all her inoculations. By comparison, Z saw a paediatrician only once in Malta. She saw a dentist when she had one tooth in Malta and I find these negligible in comparison to the medical care that she has had in this country.

The father, in his oral evidence, confirmed to me that that there is a Maltese agreement that has been signedby the parents and he confirmed in his evidence that there was no discussion about registering young Z for school in England but that actually the First Steps was arranged on the advice of the paediatrician in Malta and it was around that time, Z was six months old, for her to start socialising with other children and to give her mother and father a bit of a break.

Understandably, he became quite emotional when he started talking about members of his family andeveryone being delighted about L's arrival in Malta. Well, on further clarification, it became apparent that obviously for whatever reason, there were certain members, key members of L's paternal family, such as her grandfather, that she has never met. The real person – the main person who she's met from her parent's family is her paternal Aunt E and her immediate family but the mother's evidence was that she saw them every two weeks or so when she was in Malta. The picture, conversely, that the mother painted of her time when she is with Z in England, was of being or getting hands on assistance from the maternal grandmother and indeed her two sisters, L's maternal Aunts, who have their own children.

The father painted a very sad picture of being surrounded by clothes and toiletries and the mother's hairdryerand radio, in Malta, after she left Sicily to come to England in October 2018 and he said that there was quite a deal of clothes in the wardrobes, left behind. This probably is a man who is bereft at the loss of, as once he said, of his nuclear family. He confirmed that the plan was to take not much stuff to Thailand. The property is as I said earlier on, in Malta, a delightful property, 2000 square feet, two bedrooms, plus a third one which they use as a dressing room and he confirmed that for the mother to gain Maltese residence, which she had applied for, she had to confirm that she had a Maltese home and she took down the address, the father's address, whereas the father, when he applied for English residence, which he has applied for and been granted, conversely, he said he put down his hotel in London, his family hotel. The father hails from a family based business. His family has a business based in Malta and the most successful strand of that was, as he put it, hotel and mixed used developments, and international hotels, which is why he is able to avail himself of preferential rates to stay at those family hotels, not only in England but elsewhere in the world.

The father said, in his evidence that the mother came and visited on a number of occasions in Malta and hehad seen her in England and that, as far as he was concerned, she then made a decision to move to Malta in 2016 in June. I find that strange, bearing in mind the mother, who is in her 30s, who has worked and lived in England for a decade, would make that final decision after three or four short trips to Malta, long weekends, to Malta and the father agreed to that proposition in cross-examination. In fact, even if I do accept that she relocated there, which is contrary to my findings, especially bearing in mind the email that I just read out to her tenant where she said she is coming back and she is not renting the place out long term, the whole thing would have changed when she discovered that she was about to become a mother.

Going back to the movements of the parents, before they discovered that they were going to be parents, I cansay that it was obviously a peripatetic international romance that they were involved in and to a certain extent that carried on after Z was born because they were still travelling a great deal. At C-134, the father's evidence at paragraph 9, refers to him deciding; obviously this was before Z was born in March 2016, to return to live in Malta because of the 'social exclusion' that he was facing. In other words, he was having difficulties with the mother's family. He said in evidence, it was not a difficulty he was having with them, it was a difficulty they were having with him, which I am afraid illustrates, as I say, his self-centred approach.

However, despite his decision, the couple then obviously lived in the house in England in Hungerford.

The former again is useful evidence - the mother wanted to give birth in England because the mother and herfamily were there but the father has not accepted the strong connection that the mother has in England. It is relevant because obviously when one is looking at habitual residence, one needs to consider how deep the emotional and practical 'roots' are. If one uses the well-known 'seesaw analogy' of Lord Wilson - the longer and deeper the roots, the more difficult is to say that that they are being uprooted easily over a short period of time.

One has to bear in mind what the mother says, at paragraph 2.36, in her statement, which having heard fromthe father, and having read all the documents, I accept:

Of course, I bear in mind that in the aftermath of Mother moving to England in October 2018 with Z andFather not liking that decision. The father still did not return to Malta, rather he went to Thailand for a number of months, albeit came back to Malta for a few weeks and then went back to Thailand via England.

The father confirmed that between 30 April 2017 and 4 October 2017, he was in England for the longestcontinual period on his life, living at the mother's property in Hungerford. I may have those dates wrong but it was a long period that was spent there. C-56, he accepted that he had put down the Hungerford property, that is to say 42 Ramsbury Drive, Hungerford, RG17 OSG, as the property that he was staying at when he was looking at buying a a skiing chalet in the Alps. That was in 2016. He was obviously putting out the fact that that was his permanent residence at that stage and his evidence to me of deciding in March 2016 to move back to Malta shows me that he was really not considering himself even at that stage to be living full time in Malta. Yes, 23 October 2016 through to 4 October 2017, is only a 'snapshot' in time and I was cautioned rightly, by Miss Renton. Actually, what I am focussing on, as I remind myself and the parties, is the habitual residence of Z and what she herself experienced during her early months and years and obviously that is linked to her carers, because of her young age. What the parents themselves were doing about their own habitual residence in the months and years leading up to L's arrival in their lives is relevant context for her own habitual residence.

The father confirmed that every four or five weeks he would go back to Malta, two or three days, but he saidthat he was located in the UK, 'without a doubt always Malta will be my base'. I could understand him saying that. However, as I have said I have to concern myself with L's habitual residence. I can easily see that in the same way that the father is saying Malta is his base, the mother would say that England was hers. Yes, she had rented her property in Hungerford to pay, she said, the mortgage and she gave up her job, she said, to have the freedom of travel with her new partner, which I entirely accept, having seen the type of travelling that they have done, she could not hold down a job at the same time. However her own mother's property, which is where she is now staying, and which is the address that she put down on the divorce petition, has always been available to her and she did not buy a property later, she did not get a job in Malta. Therefore, these issues really shed a limited amount of light on the habitual residence as far as she is concerned.

L was born in [a date in], obviously 2017, into the Hungerford home. She was living there. The maternal auntshowed her how to bathe and feed Z and that shows me, obviously because of physical presence there because of the assistance the mother and father gained, there was a supportive social and familial environment there and Z was obviously habitual resident there. The as I have said, earlier on question is did

By comparison to L's maternal family bonds, the father said, very clearly in his oral evidence: 'My father and I are estranged'. He has never met her – the step-mother – 'we do not communicate at all. I don't believe my older brother has seen Z but maybe in passing in Prague. He was not in the right place to deal with that at that stage, emotionally, meaning he was getting divorced'. The main person, as I said, the only person that really comes to mind as having seen Z whilst in Malta, of the family is the father's sister and on the mother's evidence it was every two weeks or so. Conversely, by comparison, the familial environment in England from L's perspective is greater and deeper and more involved. As the father said, I touched on earlier on, 'I didn't have issues with the mother's family. They have issues with me'. I do not know whether one can read into that, an inability for the father to accept other people's perspectives and to understand what this particular young lady that he married was thinking, when she decided to give birth in England. It was obviously not simply a low-key administrative decision but rather something that she had thought carefully through and she wanted to be surrounded by her nearest and dearest.

Going back to the chronology that I set out at the beginning of this judgment, every time that they went toMalta, (because these trips originated from England, I say 'went to Malta'), the trips were always punctuated by trips to England and indeed trips to places like Italy but Mother is always returned back to see her family, no doubt for succour and support with a very young child.

The father confirmed that the email to Chiswick House School, which is dated 11 December 2017, was sentwith his knowledge. This I found was quite a key document. It is C-17. It reads as follows: it was sent by the mother to Chiswick House School and St Martin's College, which is based in Malta, as I said, the father accepted it was jointly written by him, but sent by the mother. It says as follows:

A month later on 18 January 2018, the parents from the father spent €120 registering the child at Nicky'sNursery to start in October 2019. I find this was really a low cost reservation for a place but not an indication that there is habitual residence at that time, that is to say, January/February 2018 that was necessarily Maltese. Yes, she had attended, Mr Gration calculated around about 18 or so sessions at the First Steps Nursery but looking at the receipts from that which are at C-160 and 161, one can see that these are again low cost €200, €230 after a registration fee of €150, low costs payments for effectively day care for a six month old, while no doubt the mother has the respite and the ability to do other things, such as in the father's case the mother to the polo ground nearby and try and learn the sport

L at that age could hardly have been expected to have integrated socially or otherwise in the environment,due to the short period of time. Initially there followed a 10-week period in England, where the parents live in the Cotswolds, where Mother went back to her parent's place and Z came to Malta on occasion, where she was then christened and when the parents had a blessing of their marriage, no doubt with Mother's family and friends attending and I noticed that Mother's evidence which is not gainsaid was that the grandmother assisted in the organisation of the blessing of the wedding.

The longest period of time that Z was in Malta was between 17 December 2017 and 17 February 2018 andshe attended those drop in nursery sessions at First Steps during that time because then she went back to England for a period of time. When she came back on 22 February, even though it had been paid for, she did

The father's lifestyle is something that one has to bear in mind, as described by the mother in her writtenevidence, which I have quoted. The mother obviously in her letter states: 'Thailand is amazing but again very different for me and I am trying to adjust'. It reflects the reality of the situation that the father's aims were just carry on his previous lifestyle and he went to Thailand twice after Z came to England with her mother to in October 2018.

The mother in her oral evidence of course confirmed that she was going to have difficulties flying with Z toThailand and there are emails that show that the father was giving an ultimatum: saying I am in Thailand and you are going to have to come out to see me. For example in C-91, a long email, the father sent, through an intermediary on 8 November 2018, to the mother:

The father was very honest in explaining and accepting that actually the day-to-day care of Z was conductedby her mother and that actually he had only really spent a maximum of four hours or so looking after her by himself to allow Mother to do something else. She is the primary carer but I ask myself, what does that mean, when one looks at habitual residence? I am guided, of course, by the cases that I mentioned earlier on. Surely a first-time mother who has availed herself of antenatal and postnatal care in England and lives close to her own mother, these all provide the building blocks for the child's habitual residence being in England and integrated in this environment, and if that is to be uprooted, using the seesaw analogy, then there has to be something very similar to be in place in Malta, and I find it was not.

Every time the seesaw starts to pivot towards Malta, because the couple was in Malta with Z, it goes back,tips back, the mother comes back here for an appreciable period of time with the father or goes elsewhere with the child. A six-week trip to Italy, right at the end shows that really there was no integration in Malta at any stage really, to the extent that one can be satisfied to say the child became a habitual resident in Malta and lost her English habitual residence that she had gained in her first few months of her life. In many respects the father's honesty on those factual points such as well, 'Mum is the main carer', has assisted me greatly in this finding of habitual residence decision and the jurisdiction decision.

I have heard very eloquently from Father's counsel and in closing submissions, Miss Renton mentioned thepaucity, lack of the nursery arrangement in England in comparison to a nursery place being in Malta. There are two points I have to say about that. One is that how does a low-cost arrangement in October 2018 reflect on the situation in Malta in January 2018, when the family then went back to England for an appreciable period of time? Secondly, of course, it speaks volumes that the mother's social and familial environment, in England, in which she did not need to reserve any nursery place. She does not need one in England, she has two sisters, she has a mother and she has the ability to no doubt have that extra care without needing to resort to nurseries.

The medical treatment, the meeting with the paediatrician in Malta, the dental registration, I see these asnominal in comparison to the family funded immunisations that took place here at C-16, we have the inoculations of the child and the check-ups of the child which were on 21 August 2017, 18 September 2017,

When the father was asked about Z seeing his family and he referred to the fact that he has 25 immediatecousins in Malta but he then referred to Z seeing his cousin Paul in France and his sister in England and in Malta, as the mother said that the paternal aunt was only seen in Malta, every couple of weeks or so. This is an international family. The father does so it is very difficult, it is almost like an conjurer's 'shell game' going on where one stops and says, 'Where is the shell?': Where is the habitual residence? Well, in L's case it never changed it is always in England because the child kept moving too much for her to be integrated anywhere else.

C-76, is what I had mentioned earlier on, indicators from the father and contemporaneous messages at thetime from the father where he is saying as follows:

In an un usual move for an applicant in a 1980 Hague case, the father then blocked communicationbetween himself and the mother, as is apparent from an email dated 1 November from a gentleman whose initials are NT, who is a mutual friend, 'a friend of ours', dated 1 November 2018, and it says as follows to the mother:

The father is 50 years old. The mother is 36. His excommunication of the mother when she had his then 16month-old child speaks volumes of his ultimatum approach to their relationship and his unilateral approach to his own travel plans. He would say to me, 'Well, the mother left me in Sicily', but he followed to England soon after and then took a longer flight to a third country without even trying to see Z or communicate directly with the mother. These are the actions of a parent not seeking the return of a child to her home country but actually acknowledging that she is already safe in her home country, a country where she is most integrated, England. Even though he came back to England, from Thailand in December, in transit to Malta and the mother's address was on the divorce petition, her current address (her mother's address, which he no doubt knew well). He did not go and see her there or try and see Z but went to Malta and filled in the paperwork for this application and as I said, went back to Thailand (via London) until the end of February.

There is a letter dated 19 December 2018 from the solicitors that are dealing with the divorce, the father'ssolicitors and that is at C-104, and I have read that and reread that carefully. They were not instructed, , to say, 'Return Z to Malta for the father would like to see L'; the only time that Z is mentioned is, 'Furthermore, we also put you on notice that should your client seek to raise the same allegations … … in respect for the parties' daughter L… they will be vigorously defended'. This is talking about the particulars in the petition.

As I said, these are not corroborative of a parent seeking in the summary return of his child to the country ofhis or her habitual residence.

Moving on to the mother's evidence, if it is not already obvious, I found her a more compelling witness thanthe father and she confirmed that she has been receiving child benefit for Z since 2017 and it has been continuous throughout and she had not applied for it anywhere else. She confirmed, as I have just read there that her communication with the father was practically blocked from late October to early November 2018 onwards. There is a key email from the father which is dated 11 November, C-93, which I think is worthy of repetition within this judgment which says as follows: By this time the mother had issued her divorce proceedings with the father did not know because they had not been signed at that stage but he was still saying as follows:

Obviously, again, this is highly emotionally charged but one has to extrapolate from that that, as the mothersaid, as far as she could see that he was hoping that she would go to Thailand and carry on the relationship and then this is conduct which is not corroborative of her habitual residence in Malta and immediate summary return to Malta.

As far as the mother was concerned reading the subsequent emails, where the father on 13 November simplysaid to the intermediary, 'Kindly stop all forwarding all further communication received from C and are intended for me' and the intermediary says, 'Good afternoon', to the father, 'Good afternoon, D. Just received this from [the mother] from what it's worth, I think you should come back to England as soon as possible and deal with this maturely and properly. N'. Those actions led the mother to believe, as she said, 'I figured the father wanted me to stay in England. He asked us to go to Thailand. My parents paid for the flight and of course he was in England on 28 October and then returned to Thailand on 4 January'. There are previous messages from the father, where he says, this is all in July where he says things like this, C-72:

Then at C-44: 'I am telling you now to stay there as I don't care to continue to spend time living in this kindof misplaced way and lack of appreciation'. [Inaudible] in England by saying it is understandable with no communications that I have been [taken to between?] the parents from October onwards save the affidavit, the father's affidavit, [inaudible] that the mother, but the mother was right in thinking, 'Well, I was thinking that we can simply stay in England', which is exactly what he did because he never went to Thailand, it is understandable.

The mother that I have had oral evidence from and read evidence from does not strike me as somebody whowould have moved, especially moved with a very young child in December 2017, without there being a fanfare, a lock-stock-and-barrel move and possibly members of her family coming out initially to meet her or go out with her to help her with the baby or to visit in the first few weeks. This shows to me that the arrival on 17 December 2017 with Z until they went back to England on 17 February was a trip as part of the peripatetic lifestyle that the mother more latterly had enjoyed and one should not read into it any more than that. She confirmed in her oral evidence that she has always been very close to her family and I accept that and as a mother of a young child, he is not the main carer of the child, I can imagine and I have read and I have heard that she has had support from her family especially her mother. That leads one into the English habitual residence having not been disturbed, in which her English habitual residence not having being disturbed. She confirmed she is in England from L's perspective, she has got her grandparents there, her two maternal aunts and her mother has lots of friends and that she spends a lot of time with these people.

There was an argument between the parents, in the summer of last year about buying property in England,there are messages about promises being broken. The mother said during her oral evidence that she wanted to settle down. I find that obviously the parents were arguing about buying a property and if that is accepted by both of them, the question is, if the mother had moved finally to Malta in 2016 and all that was clear, why on earth would they be arguing two years later about buying a property in England. The reason is probably because they were coming at it from two completely different angles, Father thinking he was based in Malta, Mother believing that she is based in England. From L's perspective, her habitual residence is in England because of the factors I have already mentioned in the legal approach that has to be adopted in this case.

This is one of those rare cases when none of the contemporaneous correspondence between the parentsillustrates the wish of an applicant in The Hague, for the child to return to the originating country.

The father has failed to discharge the burden of proof on him and establish the child having Maltese habitualresidence at the relevant period of time or really at any juncture in her young life and any proceedings concerning her, if there are any proceedings, will have to be in England probably in a the Family Court that is local to her maternal grandparent's home in Wiltshire.

In due course, with the correct safeguards in place, I am sure that Z will spend a great deal of time inMalta visiting her father and probably be there for as long for as he would have been in Malta with her, all things being equal, had the couple stayed together.