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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (Children : Habitual Residence : 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 (25 August 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1105.html Cite as: [2021] 1 FCR 155, [2020] WLR(D) 481, [2020] 4 WLR 137, [2020] EWCA Civ 1105, [2021] 2 All ER 1227, [2021] 2 FLR 69 |
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CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
HHJ WALLWORK
FD19P00499
Strand, London, WC2A 2LL |
||
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B e f o r e :
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
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed downremotely
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:
Background
Judgment
"[39] The degree of connection which a child has with a particular environment is clearly something that has to be weighed. Inrelation
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-existinghabitual
![]()
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] Inrelation
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 therelationship
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."
"[43] The degree of connection, as I have indicated, is anothermatter
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 therelevant
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)
Submissions
"It is perhaps improbable in the case ofremoval,
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."
Law
"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."
"[38] In addition to the physical presence of the child in amember
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.
"[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 12months'
![]()
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 thechildren
came to live in Scotland.'
"In other words, following thechildren'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."
"… 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 berelevant
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 criterionrequires
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."
"[45] I conclude that themodern
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 ofMr
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.
"(viii) In assessing whether a child has lost a pre-existinghabitual
![]()
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)."
Determination
Lady Justice Simler:
Sir Stephen Richards: