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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> F v F  EWHC 3971 (Fam) (07 November 2014)
Cite as:  EWHC 3971 (Fam)
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Royal Courts of Justice
B e f o r e :
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MR. T GUPTA QC (instructed by Stewarts Law LLP) appeared on behalf of the Respondent.
Crown Copyright ©
MR. JUSTICE PETER JACKSON:
"The decision for the children and I to move permanently to England was finally resolved upon by the father and I sometime in early June 2014. It was a joint decision, and it was also a final decision in the sense that it was an unconditional decision: the only things outstanding were details of the move".
The father says that there were discussions, plans and actions, but no agreement.
"Looking into the near future, we decided that [the mother] and the children will be moving to London and have had an offer accepted on a house in Balham. [The children] have places at [schools]. I plan to spend as much time as possible in London based out of [the jointly owned flat]. I think it is the best for everyone, especially for the kids getting a good education early on within a stable environment, not losing their friends every year, and it is important for [the mother] to be physically close to all of you".
"The new permanent residence of the children and wife will be in London after the divorce, provided that it is filed in Hungary before 30th September 2014. Failing this deadline, the husband does not agree for the wife and children to leave Budapest".
"In plane now, will call tonight again, I am so happy with the house, well selected, we can do this, love you".
However, on the same day, at what time I do not know, the mother instructed her current English solicitors to issue her divorce petition, relying upon the fact that:
"The petitioner is domiciled and habitually resident in England and Wales, and has resided there for at least six months immediately prior to the date of the issue of the capital petition".
She also filed her Form A seeking a financial remedy in this court.
"From then on, the children will stay in Budapest until you have signed the divorce papers. If we find ourselves in a locked situation, it will be your responsibility to explain to our children why they cannot see their father for weeks, and why they are not moving to London. The house I bought in London is mine, and you have no rights to move in there because the home of our kids is and remains in Budapest".
"I will not be returning to sign the agreement in Budapest. I have been clear from the outset that I am uncomfortable with signing it and with the pressure you have put me under to do so. Therefore, after much deliberation, on careful consideration and some legal advice, I have commenced divorce proceedings in England".
"I know that this may come as a disappointment to you. However, now that camp is over, we would really like to see you in London".
"I trusted [the mother] on our agreement how to separate and went ahead to sign up the kids for school, buy the house etc. before signing the divorce papers, and now I am being back stabbed!"
"Where a child has been wrongfully removed or retained in terms of Article 3, the authority concerned shall order the return of the child forthwith".
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention".
"(1) Consent to the removal of the child must be clear and unequivocal.
(5) Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely in the context of the realities of the disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract.
(6) Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.
(7) The burden of proving the consent rests on the person who asserts it.
(8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.
(9) The ultimate question is a simple one, even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?"
"(iii) The test adopted by the European Court is 'The place which reflects some degree of integration by the child in a social and family environment', in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.
(vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned".
(viii) As the Advocate General pointed out in paragraph AG45 and the court confirmed in paragraph 43 of Re A (Area of Freedom, Security and Justice), it is possible that a child may have no country of habitual residence at a particular point of time".
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms".
That Article is not, as I understand it, formally incorporated into our law, but its significance is obliquely achieved by means of the Human Rights Act.
"The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another".
I note the reference to the departure from a home country in ambiguous circumstances.