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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (Children), Re [2012] EWCA Civ 1082 (05 July 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/1082.html Cite as: [2012] EWCA Civ 1082 |
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2012] EWCA Civ 1082 | ||
B4/2012/0445B |
CIVIL
DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR NICHOLAS FRANCIS QC)
Strand, London, WC2A 2LL |
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2012 |
B
e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE PATTEN
____________________
IN THE MATTER OF B ( Children) |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
by
Manches LLP) appeared on
behalf
of the Applicant Mother.
Mr T Scott QC (instructed
by
Mishcon De Reya) appeared on
behalf
of the Respondent Father.
____________________
Crown Copyright ©
Lord Justice Thorpe:
but
one issue, namely whether, on 11 August 2011, the applicant mother, making the application under Schedule 1 of the
Children
Act 1989 for maintenance of her two
children,
was habitually resident within this jurisdiction. Obviously if she was not habitually within this jurisdiction then the application that she had issued on 11 August would fall. If habitually resident here on that date at least the application would go forward to meet further challenges
beyond
the fundamental challenge to jurisdiction.
born
in this country to a
British
father and a German mother. However, she has lived her life, and certainly her adult life, in Germany. She too has qualified as a lawyer in that jurisdiction. The parties married in 2001. The two
boys
were
born
there and they lived as a family until April 2009 when the mother and
children
moved out of the final matrimonial home. The mother issued proceedings in Germany on 31 August 2009 seeking an order for sole custody of the two
children.
The grant of sole custody within the German family justice system has profound consequences. It is a relatively unusual order for it empowers the parent who receives that responsibility to take more or less all decisions as to the care and upbringing of the
children.
Most significantly, it gives the recipient the freedom to decide where the
children
shall live, within which jurisdiction they shall live. So the mother's case is that she sought this unusual order effectively as in this jurisdiction she would have sought permission to relocate.
beginning
of July she moved here, living in the Hammersmith area either with her sister, or with a friend, or at a hotel until 17 July when she commenced a short-term tenancy in Hammersmith which matured into a twelve-month shorthold tenancy some time later.
before
the deputy judge was one that rested on what she presented as the long held plan for the future of herself and the
children
following the
breakdown
of the marriage. She emphasised that until 6 June 2011 she could make no move or take no steps to realise that objective. Her case was that once she got the green light from the German court she had acted consistently and expeditiously to
bring
about the relocation and the change of habitual residence.
broadly
and expensively in
both
jurisdictions. Accordingly, Mr Tim Amos QC, who appeared for the father
below,
sought the judge's permission to cross-examine her. The judge permitted that and Mr Amos cross-examined the mother at length. The important issues explored in cross-examination were: (1) the mother's relationship with a man described as her new partner; (2) her withdrawal of various German proceedings; (3) two emails that she had written in April 2009; (4) change of address notification; and (5) German proceedings. In respect of all those issues the deputy judge said:
"I am sorry to have to say that, in almost every respect in which the Mother was challenged on her evidence in cross-examination, I found her answers unconvincing, often untruthful, and I find that she was prepared to give whatever answers she thought wouldbest
suit her case."
"Even if she was keeping her options open in at least some of the German proceedings, only withdrawing them when it was pointed out to herby
the Father that her position was apparently inconsistent, this is not of itself determinative of the habitual residence point."
back
in 2009 and had maintained the position consistently through the German court process up to and including the decision of 6 June. The judge accepted that she could not move to England prior thereto. He accepted that she moved possessions to England as and when she could thereafter and that she enrolled the
children
in English schools. He then posed the essential question:
"I have to ask myself whether, as at 8th August, the Mother had established, on a fixedbasis,
her permanent or habitual centre of interest in England. I remind myself that a person can, for these purposes, have just one centre of interests. This means that, if I do not accept that the Mother had established her centre of interest in England, they must have remained in Germany."
"In the light of the information referred to in the foregoing paragraph, I am driven to the conclusion that the Mother had, as she asserts, moved her centre of interest to Englandby
11th August. I accept that she moved to London at the first opportunity after the 6th June decision and that moving is not just an overnight process. The established facts do not in my judgment support a finding that the Mother's centre of interests remained in Germany."
Then he made a point about the continuing medical treatment and dental treatment in Germany.
be
hard to say that the judge misdirected himself in law in that there was no dispute
between
Mr Amos and Mr Timothy Scott QC in the court
below.
They
both
agreed that the judge should direct himself
by
reference to the decision of Peter Jackson J in the case of V v V [2011] 2 FLR 778.
By
way of footnote I would question whether that agreement was well-founded, although I can see its practical attraction. It is in my view important to
bear
in mind that the judge ultimately was considering a question under a European Regulation. The foundation of habitual residence for jurisdiction in European and indeed global international family justice has
become
increasingly important and increasingly universal. So it is really the foundation of jurisdiction in all European child-focussed regulations. It is particularly important in establishing the
basis
of jurisdiction in matters of parental responsibility in Article 8 and continuing Articles of
Brussels
II Revised and it forms the
basis
of jurisdiction in the Maintenance Regulation, which provides for jurisdiction in Article 3. It is self-evident that the wife's invocation of the jurisdiction of this court depended upon Article 3(
b)
of the Regulation which requires her habitual residence in the jurisdiction at the date of issue.
be
a difference of approach where the court considers habitual residence as the foundation for jurisdiction under Article 3, namely an application for divorce. He suggests that at the
Bar
there is a tendency to cite the decision of Munby J in Marinos [2007] EWHC 2047 (Fam) as the foundation for a line of authority which terminates with the decision of Peter Jackson J in V v V.
Brussels
II Regulation, alternatively under Article 3 of the Maintenance Regulation and in my judgment a judge approaching a question of fact in a contested case should have regard to the judgments of the Court of Justice of the European Union first and foremost. For we are not dealing with the interpretation of the concept under domestic law, we are considering the autonomous law of the European Union. The decision in Re A (Area of Freedom, Security and Justice) [2009] 2 FLR 1 and the later case of Mercredi v Chaffe [2011] 1 FLR 1293 should, in my view, have
been
the source of the judge's direction as to the law and as to the interpretation and application of Article 3(
b).
It is unnecessary for the purposes of this judgment to cite in any detail the helpful review of the Court of Justice from paragraph 46 through to paragraph 57. However, it is noteworthy that the approach of the Court of Justice to what is often the crucial point, namely the duration of the stay relied upon post removal, is
by
no means on all fours with the approach of the courts of this jurisdiction as exemplified in the decision of the House of Lords in J v J and the case of Nessa v Chief Adjudication Officer [1999] 4 All ER 677. Therefore the Court of Justice in European can say:
"Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment mustbe
carried out in the light of all the circumstances of fact specific to the individual case."
battle and that it was contrived and that there was no real foundation for jurisdiction. However, despite the unsatisfactory nature of her evidence he founded himself on the hard core of what she had done in pursuing an exit from Germany and how she had implemented that decision once the door was open via the decision of 6 June. Despite all Mr Amos's efforts to persuade the court that the judge was plainly wrong, I an unconvinced. I am in no doubt that he reached a permissible reason which he sufficiently explained and he did not, in arriving at that conclusion, misdirect himself in law and accordingly I would refuse permission in this case.
Lord Justice Rimer:
Lord Justice Patten:
Order: Application refused