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IN THE COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
HHJ WALLWORK
FD19P00499
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
25/08/ 2020 |
B e f o r e :
LORD JUSTICE
MOYLAN
LADY
JUSTICE SIMLER
and
SIR STEPHEN RICHARDS
____________________
____________________
Mr
J Turner QC and
Miss
K Chokowry (instructed by The International Family Law Group LLP) for the Appellant
mother
Mr
H Setright QC and
Mr
M
Gration (instructed by Sills and Betteridge LLP) for the
Respondent
Father
Hearing date: 16th June
2020
____________________
HTML VERSION OF JUDGMENT APPROVED
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down
remotely
by circulation to the parties'
representatives
by email,
release
to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am 25th August
2020.
Lord Justice
Moylan:
- The
mother
appeals from a
return
order
made
under the
1980
Hague
Child
Convention
("the
1980
Convention")
on 21 February
2020
by His Honour Judge Wallwork, sitting as a Deputy High Court Judge. She contends, principally, that the judge was: (a) wrong to decide that the
children
were
habitually
resident
in Germany at the date of their wrongful
retention
by the
mother
in England at the end of July 2019 and should have decided that they were
habitually
resident
in England at that date; and (b) wrong to decide that the
mother
had not established the exception under Article 13(b).
Background
- In this section, quotations are from HHJ Wallwork's judgment.
- The
children
who are the subject of the application are aged 6 and 8. They and their parents were all born in Germany. One of the
children
(who, for the purposes of anonymisation, I will call T) has significant additional care
requirements.
The parents
married
in 2014 and separated in 2017. The father has always lived and continues to live in Germany. For ease of
reference
I will call the place in which he lives, Stadt. The
mother
and the
children
remained
living in Germany until July 2018 when they
moved
to live in England. The judge described the
mother
as having been the
children's
"primary carer throughout their lives".
- In July 2018 the
mother
wanted to
move
with the
children
to England and sought the father's agreement to this. This was "envisaged to be for 12
months
or so". The
mother
"was in a serious
relationship
and … intended to live, together with [the
children],
at the home of her then boyfriend". The
mother
had obtained a contract "to work on a particular project" in the same town where her partner lived. They have since
married
and have a child born in
2020.
- The parents
mediated
and signed a "letter of intent". It was agreed that the
children
would come to live in England with the
mother
and her partner. It was also agreed that they would stay in England "until approximately 2019" and that, in December 2018, the parents would "evaluate the situation
regarding
the rotation between [the
mother's
home] and [the father's home] and will adjust the current situation and implement improvements". The
children
were to spend "nearly equal" time with each parent. In addition, the letter said, baldly, that the "
children's
home will
remain
in [Stadt]".
- The
children
began attending school in England in September and, as set out in the judgment below, "settled quickly". They had "previously stayed there on holiday and loved" the local environment. T
received
additional support at school. The
children
were also
registered
at a local GP practice and the
mother
ensured that T's
medical
needs were
met
through a local paediatrician and other
medical
services as
required.
- The parents did not agree about the amount of time the
children
spent with the father in Germany after they
moved
here in July 2018. The father produced a table which suggested that, over a 12
month
period (I assume from July 2018) they had spent 111 days with him in Germany. The
mother
produced a table which suggested that, over the same period, they had spent 96/97 days with the father. The judge was not in a position to
resolve
this difference but, in either event, it is clear that the
children
were predominantly living in England between July 2018 and July 2019.
- In December 2018 the parents, as had been agreed,
reviewed
the situation through
mediation.
The judge
records
that they disagreed what precisely had been agreed but "the
main
thrust" was that the
children
would
return
to Germany with the
mother
at "some point in the summer" of 2019. The judge
rejected
the father's case that the
mother
had been disingenuous at that time and had not intended to abide by this agreement. He was not persuaded that the
mother
"had been acting in bad faith".
- In July 2019, the
mother
found out that she was pregnant. This led her to "consider the arrangements that the parents had
made"
and to decide that she would not
return
to Germany. She sent an email to the father saying that "she intended to
remain
with the [
children]
in England".
Judgment
- The judge found that the
mother
had
retained
the
children,
in breach of the agreement between the parents, at the end of July 2019. The father had contended, alternatively, that the wrongful
retention
had occurred in September 2018 but this was
rejected
by the judge.
- The principal issues the judge had to decide were: (i) where were the
children
habitually
resident
at the end of July 2019, for the purposes of determining whether their
retention
was or was not wrongful; and (ii) had the
mother
established the Article 13(b) exception. He decided that the
children
had not "lost" their
habitual
residence
in Germany by July 2019 so
remained
habitually
resident
there. He also decided that it would not be intolerable for the
children
to
return
to Germany. Accordingly, he
made
an order that the
children
should be
returned
to Germany on a date in April
2020.
- On the issue of
habitual
residence,
the judge correctly identified the, non-contentious, starting point that before the
children
came to England in July 2018 they were
habitually
resident
in Germany. The judge also
referred
to the fact that they had always lived in Germany and that
members
of their extended family were in Germany.
- The judge's focus, in that part of his judgment in which he dealt with the issue of
habitual
residence,
was significantly on the
children's
continuing connections with Germany. This was because, as
referred
to below, he considered that the question he had to answer, when determining where the
children
were
habitually
resident,
was "have they lost their German
habitual
residence".
He identified that they "were spending
regular
periods of time in Germany with" the father and went through the dates on which they were in Germany. They had attended kindergarten in Germany for "part of the time they were there". This was part of the "overall network" which included staying with their paternal grandparents and which "one has to consider when considering the position of the
children
and the extent to which they
may
or
may
not be integrated in a particular society".
- The judge
referred
to parental intention as being "
relevant
… but not determinative". In that
respect,
he noted, and clearly placed significant weight on, the fact that the
mother
had still been intending to
return
to Germany until she changed her
mind
in July 2019.
- There is a key section in the judgment which, in
my
view, shows the approach taken by the judge when determining the issue of
habitual
residence.
It starts with the following paragraphs:
"[39] The degree of connection which a child has with a particular environment is clearly something that has to be weighed. In
relation
to that, in para.viii of the summary, [in
Re
B (A Child: Custody Rights,
Habitual
Residence)
[2016] EWHC 2174 (Fam) and [2016] 4 WLR 156] Hayden J
records:
'In assessing whether a child has lost a pre-existing
habitual
residence
and gained a new one, the court
must
weigh up the degree of connection which the child had with the state in which he
resided
before the
move.'
[40] In
relation
to that
matter
- and I will come to Lord Wilson's very visual and vivid description of the see-saw - there cannot be two
habitual
residences.
If
habitual
residence
is gained in one location, it will be lost in another, and the question in this particular case, which is of considerable
relevance
- and it is perhaps unusual and not something that one sees in
many
cases - is that it is undoubtedly the case that the
children
were developing
relationships
in this country, they were learning the language, they were having a life here, but had those factors displaced the fact that they had the connection with Germany, the
relationship
with their family there, the life that they had in that jurisdiction, and so on?
[41] What one sometimes sees is there is a complete severance of the
relationship
that a child has in one location and an adoption of a completely new life. To take a rather extreme example: if a child is
removed,
for example, from here to Australia, then there is rarely the opportunity to keep alive the life that one had at such a distance. In this case, what we have is a situation where the
children
have one life, the life that they had always had in Germany, and a new life which is developing elsewhere, and the difficult task for this court is to evaluate whether they had lost that connection with Germany as they gained the position in the United Kingdom, and as I say, if it is a question of intention, the application before this court came hard on the heels of the email from the
mother
in which she said at that point that she did not intend to abide by the original agreement. In short, until the end of July – if I accept the
mother's
evidence - it was the position that she was adhering to the agreement but that at the end of July, that position had changed."
- The judge then again
referred
to the fact that, until July 2019, the parents' intention had been that the
children
would
return
to Germany. Adding that, "in any event … they had spent time in Germany … so their links in Germany were still being kept alive" and were still "very
much
ongoing".
- The judge continued his assessment of
habitual
residence
in the following paragraphs:
"[43] The degree of connection, as I have indicated, is another
matter
for the court to consider, but the degree of connection with Germany was ongoing and whilst the shared arrangement between the parents - one speaks of qualitative and quantitative differences - the quantity is not as significant as the quality, and if there was a good quality time spent with their father in Germany then the question of whether they had lost their
habitual
residence
with the father arises. It is the stability of a child's
residence,
as opposed to its permanence, which is
relevant,
and as I have just said, it is qualitative, not quantitative, in the sense that it is the integration of the child into the environment rather than a
mere
measurement
of the time the child spends there.
[44] It is said that the
relevant
question is whether a child has achieved some degree of integration in social and family life. It is not necessary for the child to be fully integrated before becoming
habitually
resident.
This has been a particularly difficult case for this court to determine. There is little doubt that the boys have clearly developed a new aspect to their life, that they seem to have become very popular in their school, and I accept what I have
read
in the
mother's
statement that they were popular within the school, they were having sleepovers. She feels that [T] was accepted in the school, which was one that is particularly suited to his needs, and which had not been the case previously, and that the boys were clearly very happy there. They are living in an environment where there is perhaps
more
fresh air than in [Stadt], that they go out, they go bird-watching, they love the beach. In
many
ways the description of their life here is one that is
most
attractive and one where I am satisfied that what the
mother
has to say is that they are happy, but, as I have indicated, although there is a degree of integration, certainly something that is happening for them, the question is have they lost their German
habitual
residence?
That is where one has to consider the see-saw with which Lord Wilson so graphically illustrated the question which the court has to determine. As the
children
lose their connection with the place of origin and their initial
habitual
residence,
that will happen as they gain
habitual
residence
elsewhere, and so the see-saw tips, the balance tips in one direction and as it tips towards their new location, they lose the connection with the other location." (
my
emphasis)
- The judge concluded, "with some degree of sadness", that the
children's
habitual
residence
had "not shifted to England" but
remained
in Germany. He
referred
to that fact that "in June, that intention [that the
children
would
return
to Germany] was still being expressed as the intention of both parents". He then, at [46], summarised his conclusion as follows: "given that those intentions were still alive in June 2019, given that [the
children]
were still spending time with family in Germany in July [and] that they still had a life there … I have concluded that the
habitual
residence
has not shifted to England"; "The position in Germany having kept alive throughout that period, they have therefore not lost that, and in those circumstances they had not gained
habitual
residence
in this country".
- The judge's
regret
at having to
reach
this conclusion can be seen from his observation that the
children
"
remained
habitually
resident
in Germany despite the obvious time that they were spending in England and the very
many
benefits that were accruing to them" here. He
returned
to the latter point later in his judgment when he said, at [52], that he "was impressed with what the
mother
had to say about the way in which [the
children]
related
to friends at school; [and] the
matters
that have been raised in terms of their life here".
- However, despite his
regret
the judge clearly felt compelled to decide that the
children's
habitual
residence
had not "shifted" to England because, I
repeat,
the "position in Germany having been kept alive throughout that period, they have therefore not lost that, and in those circumstances they had not gained
habitual
residence
in this country" (
my
emphasis). The judge's approach to this issue can also be seen from his subsequent observation that, if the
children
"had had no contact with their father during the intervening period, then it
may
be that a change in terms of their integration and their
habitual
residence
would have been found by this court, I cannot say".
- It is clear from the above that the judge's key focus was on whether the
children
had lost their
habitual
residence
in Germany. This can be seen, for example, from his saying, at [42], that the question arose of "whether they had lost their
habitual
residence
with the father"; and, at [44], that "although there is a degree of integration [in England] …, the question is have they lost their German
habitual
residence".
This led him, in turn, to focus on the extent to which the
children
had lost or
maintained
their connections with Germany and whether those connections had been "displaced". The judge's perspective was clearly driven by, or based on, his understanding of the need to apply Lord Wilson's "see-saw" analogy from the case of In
re
B (A Child) (
Reunite
International Child Abduction Centre and others intervening) [2016] AC 606, at [45].
- The judge also decided that Article 13(b) was not established. He accepted that
returning
to Germany would "create very considerable difficulties for the
mother"
especially as she was about to give birth and also because she had no accommodation there. He also had "no doubt that there will be considerable disruption for the"
children.
He concluded as follows: "In terms of the position, however, as to whether it would be intolerable for the boys, I bear in
mind
that the boys spend
regular
periods in Germany with their father and that although the position
may
be that they will be there for longer than is usual, nonetheless, going to their father is not something that is strange or unusual for them, and so I cannot see that that in itself is something that would be intolerable".
Submissions
- On behalf of the
mother,
Mr
Turner QC and
Ms
Chokowry
made
three broad submissions: (a) that the judge failed properly to analyse the issue of
habitual
residence
and, if he had, he would have concluded that the
children
were
habitually
resident
in England at the end of July 2019; (b) that the judge was wrong to find that
returning
the
children
to Germany would not place them in an intolerable situation; and (c) that, if neither (a) nor (b) succeeded, then, exceptionally, the implementation of the
return
order should be postponed to enable the
mother
to
make
a
relocation
application in Germany.
Mr
Turner started his submissions by pointing to the fact that, as
referred
to in the judgment, the
mother
has been the
children's
primary carer throughout their lives. He also
reflected
on the unhappy consequences of the proceedings in that, prior to their commencement, the
children
had been having extensive contact with the father but that, since then, contact has been far
more
limited with significantly less direct contact.
- (a) In
respect
of
habitual
residence,
Mr
Turner submitted that the judge's approach was legally flawed in that he did not apply the approach approved in A v A and another (
Children:
Habitual
Residence)
(
Reunite
International Child Abduction Centre and others intervening) [2014] AC 1. This was because the judge appeared to have been
misled
by Lord Wilson's see-saw analogy from In
re
B into taking the key question as being whether the
children
had lost their
habitual
residence
in Germany. He submitted that the latter decision had not changed the principles applicable to the determination of
habitual
residence
in that Lord Wilson was not saying, as the judge seemed to consider, that continuing links on the part of a child with the "old" country would prevent that child from acquiring
habitual
residence
in the "new" country, even if an appropriate degree of integration and stability of life in the new country had been acquired.
Mr
Turner also submitted that the judge's approach was not consistent with the important policy objective of the
1980
Convention.
The
Convention
is designed to achieve the prompt "
reinstatement
of the status quo ante" for
children
because it is presumed to be in their best interests to be
returned
to the state where they are
habitually
resident.
In the present case, a
return
would not effect a rapid "
reinstatement"
because,
Mr
Turner submitted, the
children
were integrated in England by July 2019.
- The judge's apparent
misunderstanding
of In
re
B led him to focus on whether the
children
had lost their
habitual
residence
in Germany, based on their continuing links with Germany, rather than on the
relevant
question of whether their
residence
in England had acquired the
requisite
degree of integration and stability. This had also
meant
that the judge had given inadequate consideration to whether, and the extent to which, the
children
were integrated in England. There was,
Mr
Turner submitted, little analysis of this highly
relevant
factor.
Mr
Turner pointed to passages in the judgment which supported his submission that the judge had failed properly to apply the approach set out in A v A. He emphasised that, as set out in the authorities, all that is
required
for the purposes of
habitual
residence
is "some" degree of integration in the new state. He also
referred
to Lord Hughes' observation, at [12], in In
re
C and another (
Children)
(International Centre for Family Law, Policy and Practice Intervening) [2019] AC 1, when
reflecting
on whether a child
might
have become
habitually
resident
in the "destination State" by the date of the wrongful
removal
or
retention:
"It is perhaps improbable in the case of
removal,
but it is not in the case of
retention.
It
may
particularly happen if the stay in the destination State is
more
than just a holiday and lasts long enough for the child to become integrated into the destination State."
Mr
Turner also submitted that the judge's approach to the parents' intentions was flawed. The judge
referred
on a number of occasions to the parties' initial agreement and their continuing intention that the
children
and the
mother
would
return
to Germany. Intention is a
relevant
factor but the judge, he submitted, also elevated this above the
more
important factor of the
children's
integration in England.
- If the judge had asked whether the
children,
who were not just visiting but were living in England with their primary carer, had achieved the
requisite
degree of integration in England to be
habitually
resident
here, he would have inevitably have determined that they had and, as a
result,
it would also inevitably follow that they had lost their
habitual
residence
in Germany.
- (b) As to Article 13(b),
Mr
Turner submitted that, as set out in the Grounds of Appeal, the judge's
reasoning
was flawed and/or his analysis was unduly superficial. He had failed to consider, in particular, the complex needs of T and the likely effect on him of
moving
to live in Germany with the inevitable disruption to his healthcare and to his education. Nor, he submitted, had the judge considered the extent to which the
children
and the
mother
were settled in England and, as a
result,
the likely detrimental impact on them of being
required
to
move
to Germany. In addition, he submitted that the judge had failed to look at the
mother's
and the
children's
situation at the date of the hearing. He pointed to the judge
referring,
again, to the fact that in June 2019 the
mother
had said that she intended to
return
to Germany.
- (c) As very
much
a fall-back position,
Mr
Turner submitted that, having
regard
to the length of time the
children
have been living in England, to the extent to which they are settled here and to the likely disruptive effect of a
return
to Germany, the implementation of any
return
order should be delayed to enable the
mother
to
make
an application to the German courts for permission to
remain
in England.
- In
response,
Mr
Setright QC and
Mr
Gration submitted that the judge directed himself correctly as to the
relevant
law and had
reached
a decision that was open to him both as to the
children's
habitual
residence
and as to Article 13(b).
- (a) In
respect
of
habitual
residence,
Mr
Setright submitted that there is no basis for this court interfering with the judge's decision. He
relied
on Lord
Reed's
observation as to the "limited function of an appellate court in
relation
to a lower court's finding as to
habitual
residence",
at [18], in In
re
R (
Children)
(
Reunite
International Child Abduction Centre and others intervening) [2016] AC 76.
- The judge in the present case had not fallen into error as suggested by
Mr
Turner but had applied the correct legal principles. He had been correct to focus on Lord Wilson's judgment in In
re
B in part because both counsel had invited him to treat that decision as being of particular
relevance
to this case and in part because the question the judge had to decide was whether the
children
had lost their
habitual
residence
in Germany and acquired one in England.
- The task for the judge was to consider the integration that the
children
had in Germany against the integration that they had begun to acquire in England and determine whether, and if so when, the balance had tipped so that their integration in England outweighed their integration in Germany. This,
Mr
Setright submitted, was the effect of Lord Wilson's see-saw analogy which
requires
a comparative analysis as
referred
to in
Re
G-E (
Children)
(
Hague
Convention
1980:
Repudiatory
Retention
and
Habitual
Residence)
[2019] 2 FLR 17, at [59].
Mr
Setright submitted that the court's determination as to whether there has been a transfer of
habitual
residence
will depend on the following: (a) the extent of the roots put down in the country of physical presence; (b) in the context of the time spent there; (c) also in the context of the stability of the arrangements and the intention of those who have
made
them including the parent or parents with care of the child; (d) the extent of the continuing roots in the country of
habitual
residence
before the physical
move;
(e) the extent to which those roots have been sustained; (f) a comparative/balancing exercise determining whether the roots in the latter country are sufficiently displaced by the acquisition of roots in the other country. The degree of integration in the new country has to be sufficient - to a "
requisite
degree" - to displace the previous
habitual
residence.
In his submission, the judge had sufficiently analysed these factors and had undertaken a sufficient balancing exercise to support his conclusion that the
children
were
habitually
resident
in Germany.
Mr
Setright specifically addressed the judge's comment, at [44], that "although there is a degree of integration [in England] … the question is have they lost their German
Habitual
residence?".
In his submission, what the judge
meant
by this was whether the degree of integration in England was sufficient in comparative terms. The judge accepted that there was integration in England but determined that this was not sufficient, or not to the
requisite
degree, to displace their integration in Germany
- Accordingly,
Mr
Setright submitted that the judge had balanced the factors which demonstrated the
children's
continuing connection with Germany with those demonstrating their integration in England. The fact that the
children
returned
to Germany "frequently and for long periods" was of "great significance" in the balancing exercise. The judge was also,
Mr
Setright submitted, entitled to treat as a significant factor the joint parental intention that the
children
would
return
to Germany in July/August 2019. The judge had taken into account the
children's
integration in England and, he submitted, had not "underplayed" their lives in England. Based on this assessment, the judge had
reached
the decision that the see-saw had not tipped and that, as a
result,
the
children
remained
habitually
resident
in Germany.
- (b) As for Article 13(b),
Mr
Setright submitted that the judge was plainly entitled to decide that this exception had not been established. It was
relevant
that the
mother
was still intending to
return
in June 2019 because, even at that late stage, she
must
have considered that any disruption for her and the
children
was
manageable.
Mr
Setright also
referred
to the fact that T had continued to
receive
some of his
medical
care in Germany and that arrangements had been
made
for the
children's
return
in terms of schooling.
- (c) In
respect
of the submission that the implementation of any
return
order should be stayed,
Mr
Setright accepted that there were "a very limited number" of first instance authorities which supported the existence of such a power, it was a power which should only be exercised in exceptional circumstances, which did not exist in this case.
Law
Habitual
residence
has been debated in a number of cases, including five, or perhaps
more,
in the Supreme Court. In some
respects
this is surprising given that it is an issue of fact and one which it has been said "should not be glossed with legal concepts which would produce a different
result
from that which the factual inquiry would produce": Lady Hale, at [54], in A v A. This probably
reflects
the importance of the concept not only because it is "the
main
connecting factor in all the
modern
Hague
Children's
Conventions"
(Note on
Habitual
Residence
and the Scope of the 1993
Hague
Convention
on Protection of
Children
and Co-operation in
respect
of Intercountry Adoption, 2018, The
Hague
Conference on Private International Law, Permanent Bureau, at [5]); but also because: "A child's
habitual
residence
in a state is the internationally
recognised
threshold to the vesting in the courts of that state of jurisdiction to determine issues in
relation
to him (or her)", Lord Wilson, at [27], In
re
B.
- However, there is clearly a risk that the number of decisions available to be deployed by parties
might
by itself distract the court from the essential factual enquiry. It
must
also be
remembered
that the situations being considered by the court will vary enormously so that general observations
made
in these decisions have to be applied with care. They have to be applied with care to ensure that, as Lady Hale said (and I
repeat),
legal concepts or glosses do not lead the court to
make
a different decision to that which the "factual enquiry" would have produced.
- Bearing these preliminary observations in
mind,
I do not want to add to the existing jurisprudence because, in
my
view, there is no need further to elaborate on what
habitual
residence
means.
However, in order to address the central submission advanced on behalf of the
mother,
namely that the judge did not undertake the
required
factual enquiry and that, if he had, he would necessarily have concluded that the
children
were
habitually
resident
in England at the end of July 2019, I
must
deal with the law in some detail in part to put Lord Wilson's see-saw analogy in In
re
B, which it appears the judge sought to apply, in context.
- It has been established for some time that the correct approach to the issue of
habitual
residence
is the same as that adopted by the Court of Justice of the European Union ("CJEU"). Accordingly, in A v A, at [48], Lady Hale quoted from the operative part of the CJEU's judgment in Proceedings brought by A [2010] Fam 42, at p.69:
"2. The concept of '
habitual
residence'
under article 8(1) of Council
Regulation
(EC) No 2201/2003
must
be interpreted as
meaning
that it corresponds to the place which
reflects
some degree of integration by the child in a social and family environment. To that end, 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. It is for the national court to establish the
habitual
residence
of the child, taking account of all the circumstances specific to each individual case."
- It is also
relevant
to note that the factors listed in paragraph 2 (quoted above) were taken verbatim from the judgment, at [39]. Their purpose or objective appears from the preceding paragraph:
"[38] 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."
The need for some degree of integration (as again
referred
to in A v A, drawing on Sir Peter Singer's analysis of the CJEU's decision in
Mercredi
v Chaffe (Case C-497/10 PPU) [2012] Fam 22) is, therefore, to distinguish
habitual
residence
from temporary or intermittent presence. It is for the purposes of assessing what Lord Wilson described in In
re
LC (
Children)
(
Reunite
International Child Abduction Centre intervening) [2014] AC 1038 at [1] as, "the nature and quality of that
residence".
Another expression used, again derived from the European authorities, is the "stability" of the
residence.
- Accordingly, as summarised by Lord Wilson in In
re
LC, at [1], "it is clear that the test for determining whether a child was
habitually
resident
in a place is whether there was some degree of integration by her (or him) in a social and family environment".
- What is
meant
by "some degree" of integration? As Lord Wilson said in In
re
B, at [39], there does not have to be "full integration in the environment of the new state … only a degree of it". He also said: "It is clear that in certain circumstances the
requisite
degree of integration can occur quickly". In In
re
LC, Lady Hale, at [60],
referred
to the "essential question" as being "whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her
residence
there to be termed '
habitual'".
- As
referred
to above, another
relevant
factor when analysing the nature and quality of the
residence
is its "stability". This can be seen from In
re
R in which Lord
Reed
referred
to both the degree of integration and the stability of the
residence.
In that case the
mother
(who was Scottish) and the
children,
with the father's agreement, had
moved
from their home in France (the father was French) to live in Scotland for a year. The issue was whether, having arrived in Scotland in July 2013, the
children
were
habitually
resident
in France or Scotland in November 2013. At first instance they were found still to be
habitually
resident
in France. On appeal, this decision was overturned and they were found to be
habitually
resident
in Scotland.
- As explained by Lord
Reed,
at [9], an Extra Division of the Inner House of the Court of Session had overturned the lower court's determination because the judge had treated "a shared parental intention to
move
permanently to Scotland as an essential element" when considering whether the
children
were
habitually
resident
in Scotland. This decision was upheld by the Supreme Court because, applying A v A, it was "the stability of the
residence
that is important, not whether it is of a permanent character", at [16]. There was "no
requirement
that the child should have been
resident
in the country in question for a particular period of time" nor was there any
requirement
"that there should be an intention on the part of one or both parents to
reside
there permanently or indefinitely".
- Lord
Reed
summarised, at [17], what Lady Hale had said in A v A, at [54], emphasising that: (i)
habitual
residence
is a question of fact which
requires
an evaluation of all
relevant
circumstances; (ii) the focus is on the child's situation with the "purposes and intentions of the parents being
merely
among the
relevant
factors"; (iii) "it is necessary to assess the degree of integration of the child into a social and family environment in the country in question"; (iv) the younger the child, the
more
their social and family environment will be shared with those on whom the child is dependent, giving increased significance to the degree of integration of that person or persons.
- Later in his judgment, at [21], again applying A v A, Lord
Reed
referred
to the important question as being "whether the
residence
has the necessary quality of stability, not whether it is necessarily intended to be permanent". The judge at first instance, by focusing on the parents' intentions, had failed "to consider in his judgment the abundant evidence
relating
to the stability of the
mother's
and the
children's
lives in Scotland, and their integration into their social and family environment there".
- It is also interesting to note the way in which Lord
Reed
rejected
the father's case, at [22], that the Extra Division "had erroneously focused only on the
children's
circumstances in Scotland, and had left out of account the agreement between their parents as to the limited duration of the stay in Scotland, and their parents' intentions". He said:
"[23] I do not find that submission persuasive. The Extra Division … proceeded on the basis that the stay in Scotland was originally intended to be for the 12
months'
maternity
leave, that
much
being uncontroversial. They therefore assumed, in the father's favour, that the stay in Scotland was originally intended to be of limited duration. Their
remark
that the
real
issue was whether there was a need for a longer period than four
months
in Scotland, before it could be held that the
children's
habitual
residence
had changed, followed immediately on their statement, at para 14:
'If the salient facts of the present case are approached in accordance with the guidance summarised earlier, the key finding of the Lord Ordinary is that the
children
came to live in Scotland.'
"In other words, following the
children's
move
with their
mother
to Scotland, that was where they lived, albeit for what was intended to be a period of 12
months.
Their life there had the necessary quality of stability. For the time being, their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on, the
more
deeply integrated they had become into their environment in Scotland. In that context, the question the Extra Division asked themselves did not indicate any error of approach."
- I now turn to consider In
re
B. In that case one parent had clandestinely
removed
the child from England to Pakistan on 3 February 2014. The court had to determine whether the child
remained
habitually
resident
in England on 13 February 2014, being the date on which the other parent had commenced proceedings under the
Children
Act 1989. Hogg J found that the child had lost her
habitual
residence
in England although she had probably not become
habitually
resident
in Pakistan. This decision was upheld by the Court of Appeal but overturned by the Supreme Court which decided, by a
majority,
that the child
remained
habitually
resident
in England on 13 February 2014.
- As described by Lord Wilson, who gave the
majority
judgment, at [32], the central issue in the case concerned "a third aspect of the concept of
habitual
residence,
namely the circumstances in which [a child] loses" his or her
habitual
residence
and, in particular, "whether the longstanding domestic analysis of those circumstances, yet again heavily dependent on parental intention, is consonant with the
modern
international concept". This analysis derived from Lord Brandon's speech in In
re
J (A
Minor)
(Abduction: Custody Rights) [1990] 2 AC 562 in which he
made
a third preliminary point, at p 578H, namely that "there is a significant difference between a person ceasing to be
habitually
resident
in country A and his subsequently becoming
habitually
resident
in country B". For
reasons
set out in his judgment, Lord Wilson concluded, at [47], that this point "should no longer be
regarded
as correct".
- In arriving at this conclusion, Lord Wilson
made
clear, at [32], that "the interpretation of
habitual
residence
should be consonant with its international interpretation". He set out, what is now, the established approach to the determination of
habitual
residence
derived from Proceedings brought by A,
Mercredi
v Chaffe and A v A. He summarised the effect of A v A as being, at [38], that:
"… this court held that the criterion articulated in the two European authorities ("some degree of integration by the child in a social and family environment"), together with the non-exhaustive identification of considerations there held to be
relevant
to it, governed the concept of
habitual
residence
in the law of England and Wales: para 54(iii)(v) of Baroness Hale of Richmond DPSC's judgment, with which all the
members
of the court (including Lord Hughes JSC, at para 81) agreed. Baroness Hale DPSC said at para 54(v) that the European approach was preferable to the earlier English approach because it was "focussed on the situation of the child, with the purposes and intentions of the parents being
merely
one of the
relevant
factors".
"
He then added (part of which I have quoted above):
"[39] It is worthwhile to note that the new criterion
requires
not the child's full integration in the environment of the new state but only a degree of it. It is clear that in certain circumstances the
requisite
degree of integration can occur quickly. For example, article 9 of
Regulation
B2R, the detail of which is irrelevant, expressly envisages a child's acquisition of a fresh
habitual
residence
within three
months
of his
move.
In the J case, cited above, Lord Brandon suggested that the passage of an "appreciable" period of the time was
required
before a fresh
habitual
residence
could be acquired. In
Marinos
v
Marinos
[2007] 1 FLR 1018, para 31,
Munby
J doubted whether Lord Brandon's suggestion was consonant with the
modern
European law; and it
must
now be
regarded
as too absolute. In A v A, cited above, at para 44, Baroness Hale DPSC declined to accept that it was impossible to become
habitually
resident
in a single day."
- The above summary of the current approach to
habitual
residence
provided the foundation for Lord Wilson's consideration, at [40], of "the object of central
relevance
to this appeal, namely the point at which
habitual
residence
is lost". Although this was of central
relevance
in that case, it is clear from his judgment that he did not intend to change or
replace
the clear guidance given in A v A and other cases as to the approach the court should take to the determination of
habitual
residence.
- Further, it is also clear that Lord Wilson's analogy and his other observations were directed simply to the expectation that the acquisition of a new
habitual
residence
would be likely to coincide with the loss of the previous
habitual
residence.
He did not intend to alter the key question which, in every case, is: where is the child
habitually
resident?
Even though the acquisition of a new
habitual
residence
can be expected to coincide with the loss of the previous one, hence the see-saw analogy, this issue is not determined by asking simply the question whether a child has lost their
habitual
residence.
In addition to the passages I have quoted above, this is clear from his observation, at [46], that "the identification of a child's
habitual
residence
is overarchingly a question of fact" and from the balancing exercise he undertook, at [49] and [50].
- Lord Wilson's conclusions were, in full, as follows:
"[45] I conclude that the
modern
concept of a child's
habitual
residence
operates in such a way as to
make
it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. 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.
[46] One of the well-judged submissions of
Mr
Tyler QC on behalf of the
respondent
is that, were it
minded
to
remove
any gloss from the domestic concept of
habitual
residence
(such as, I interpolate, Lord Brandon's third preliminary point in the J case [1990] 2 AC 562), the court should strive not to introduce others. A gloss is a purported sub-rule which distorts application of the rule. The identification of a child's
habitual
residence
is overarchingly a question of fact. In
making
the following three suggestions about the point at which
habitual
residence
might
be lost and gained, I offer not sub-rules but expectations which the fact-finder
may
well find to be unfulfilled in the case before him: (a) 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; (b) the greater the amount of adult pre-planning of the
move,
including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that
requisite
degree; and (c) 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."
In summary, the "expectations"
referred
to by Lord Wilson were clearly just that and were expressly not intended to alter the established approach to the determination of the issue of
habitual
residence.
He
made
clear that they were not glosses on the concept of
habitual
residence
nor, as
Mr
Turner submitted, did they
represent
an alternative approach to that set out in A v A. They were, at
most,
suggestions of what the "fact-finder
may
well find" at the conclusion of his factual enquiry and were not the objective of the factual enquiry.
- Finally, we were
referred
to
Re
G-E in which I noted, at [59], both the global analysis
required
and the comparative nature of the exercise which
may
be
required
when there are two states in which a child
may
be
habitually
resident.
The latter was demonstrated by the exercise Lord Wilson undertook in In
re
B when he analysed, at [49] and [50], the factors which pointed to the child having "achieved the
requisite
degree of disengagement from her English environment" and those which pointed to the child having "achieved the
requisite
degree of integration in the environment in Pakistan".
- In conclusion on this issue, while Lord Wilson's see-saw analogy can assist the court when deciding the question of
habitual
residence,
it does not
replace
the core guidance given in A v A and other cases to the approach which should be taken to the determination of the
habitual
residence.
This
requires
an analysis of the child's situation in and connections with the state or states in which he or she is said to be
habitually
resident
for the purpose of determining in which state he or she has the
requisite
degree of integration to
mean
that their
residence
there is
habitual.
- Further, the analogy needs to be used with caution because if it is applied as though it is the test for
habitual
residence
it can, as in
my
view is demonstrated by the present case,
result
in the court's focus being disproportionately on the extent of a child's continuing roots or connections with and/or on an historical analysis of their previous roots or connections rather than focusing, as is
required,
on the child's current situation (at the
relevant
date). This is not to say continuing or historical connections are not
relevant
but they are part of, not the primary focus of, the court's analysis when deciding the critical question which is where is the child
habitually
resident
and not, simply, when was a previous
habitual
residence
lost.
- In
many
cases, as in the present case, the parties and the court have used the summary of the law set in by Hayden J in
Re
B, at [17]. I agree that this is a helpful summary save that, for the same
reasons
given above, what is set out in sub-paragraph (viii) (which I quote below)
might
distract the court from the essential task of analysing "the situation of the child" at the date
relevant
for the purposes of establishing jurisdiction or, as in the present case, whether a
retention
was wrongful. Accordingly, in future I would suggest that, if Hayden J's summary is being considered, this sub-paragraph should be omitted so that the court is not diverted from applying a keen focus on the child's situation at the
relevant
date:
"(viii) In assessing whether a child has lost a pre-existing
habitual
residence
and gained a new one, the court
must
weigh up the degree of connection which the child had with the state in which he
resided
before the
move
(In
re
B - see in particular the guidance at para 46)."
- The law on Article 13(b) was not in dispute in this case and I do not need to set out the cases which establish that it has a high threshold because of the need for the risk to be "grave" and for the circumstances for a child to be "intolerable".
- I also do not propose to deal with the law
relating
to
Mr
Turner's third point (c), namely deferring the implementation of a
return
order because, for the
reasons
set out below, it does not arise in this case.
Determination
- It is clear, as submitted by
Mr
Turner, that the judge considered the question he had to answer was whether the
children
had lost their
habitual
residence
in Germany. I suppose, in some
respects,
it
may
not
matter
how a judge phrases the question he has to ask provided it is clear that he has correctly approached the issue as being, to adopt what Lord Wilson said in In
re
B, the "identification of a child's
habitual
residence".
What is important is whether the way in which the question has been phrased leads to the judge failing to apply the proper approach and, again to adopt what Lord Wilson said, applying a "gloss", namely an approach which "distorts [the] application of" the proper approach to the determination of a child's
habitual
residence.
- In
my
view, to adopt, alternatively, what Lady Hale said in A v A, the judge in this case was led to
make
a different decision to that which a "factual enquiry" would have produced by his focus on the question of whether the
children
had lost their
habitual
residence
in Germany. It does not
matter
what led the judge to take this path but it seems likely that it was, what appears to have been, his understanding of some of Lord Wilson's comments in In
re
B and, in particular, the see-saw analogy.
- As set out above, Lord Wilson's see-saw analogy was not intended to deflect the court from applying the established approach.
Habitual
residence
is, I
repeat,
a question of fact which
requires
a global analysis of all the
relevant
circumstances in order to identify the child's
habitual
residence
at the
relevant
date, namely the date of the wrongful abduction or the wrongful
retention.
In
my
view, the judge
reached
a different decision to that which a factual enquiry would have produced as a
result
of asking, not where the
children
were
habitually
resident
as at the end of July 2019 but whether they had by then lost their German
habitual
residence.
This
resulted
in the judge's analysis having the wrong focus.
- This can be seen from the following. At [41], the judge identified as the "difficult task" for him as being "to evaluate whether [the
children]
had lost [their] connection with Germany as they gained the position in" England. As
Mr
Turner submitted, this gives the impression that the judge considered that the
children
had to have lost their connection with Germany before they could become
habitually
resident
in England. This can also be seen from the judge's later observation, at [52], that if there had been "no contact with the father … then it
may
be that a change in terms of their integration and their
habitual
residence
would have been found".
- In addition, the judge,
more
than once, phrased the key question he had to answer as being whether the
children
"had lost their German
habitual
residence".
As
Mr
Turner acknowledged, the judge had
recognised,
at [44], that the "
relevant
question is whether a child has achieved some degree of integration" and did not need to be "fully integrated". However, although the judge did then briefly address some aspects of the
children's
lives in England, he went back to the same key question: "as I have indicated, although there is a degree of integration, certainly something that is happening for them, the question is have they lost their German
habitual
residence".
- I have taken the whole judgment into account, but in
my
view the judge's approach to the issue of
habitual
residence
is encapsulated in his summary of the key factors, at [46], as being: that the parents' intentions in June 2019 continued to be that the
mother
and the
children
would be
returning
to Germany; and that the
children
were "still spending time with family in Germany in July and … still had a life there". There is no
reference
to the fact that they had, at least, some degree of integration in England and whether, as a
result,
they were
habitually
resident
here.
- If the judge had asked himself the "essential question" as
referred
to by Lady Hale in In
re
LC, at [60], namely whether the
children,
as at the end of July 2019, had achieved a sufficient degree of integration into a social and family environment in England such that their
residence
here was
habitual,
I have no doubt that he would have concluded that they had.
- The
children
had
moved
here with their primary carer in July 2018. They established their home here with her. They intended to stay for "12
months
or so". They went to school in England. They "settled quickly" in part because they were familiar with the place to which they had
moved
and "loved" the local environment. They spent significantly
more
of the year up to July 2019 in England than they did in Germany. They clearly became integrated not to "some degree" but to a very substantial degree in a social and family environment in this country.
- In
my
view, there would have to be some powerful countervailing factors to lead to the conclusion that the
children
were not
habitually
resident
here by July 2019. The factors
relied
on by the judge were, in summary, the parents' intentions and the time the
children
were spending with their father and other family
members
in Germany thereby
maintaining
their connections with Germany. These are important factors but, in
my
view, they do not counterbalance the degree of integration that the
children
had established in England. I would want to emphasise that this is not to diminish the importance for the
children
of their continuing connections with Germany. Rather, it is that they are not sufficient to
mean
that the
children
were not
habitually
resident
in England because of the powerful factors demonstrating the extent of their integration and the stability of their life with their
mother
in England.
- Accordingly, in
my
view, the appeal
must
be allowed. Further, because it is clear to
me
that, on any proper application of the appropriate test, the
children
were
habitually
in England at the date of their
retention,
the father's application under the
1980
Convention
must
be dismissed.
- It is not, therefore, necessary for
me
to address the other issues raised on behalf of the
mother.
I would simply say that there is some force in
Mr
Turner's submission that the judge did not sufficiently consider the likely effect on the
children
of
returning to Germany. However, it is not necessary to decide whether this would have been sufficient to overturn the judge's conclusion that Article 13(b) was not established, although I doubt whether it would have been.
Lady Justice Simler:
- I agree.
Sir Stephen Richards:
- I also agree.
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