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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Re: R (A Child) v (Transcript of the Handed Down Judgment Of  EWCA Civ 674 (02 July 2015)
Cite as:  WLR(D) 295,  EWCA Civ 674
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ON APPEAL FROM HIGH COURT, FAMILY DIVISION
Mr Justice Hayden
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE FLOYD
|Re: R (A child)|
Mr Henry Setright QC and Miss Sally Bradley (instructed by Freemans Solicitors) for the Respondent
Mr Edward Devereux (instructed by Duncan Lewis) for the Children's Guardian
Mrs Finola Moore (instructed by the London Borough of Hackney) for the Local Authority
Hearing date : 5th June 2015
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Lord Justice McFarlane:
"She was educated here to post-graduate level at highly respected universities. She won an internship with the BBC. She presents in evidence as a highly articulate and intelligent woman. She evidently flourished at college. I suspect that her success there did something to boost her self-confidence and at least effect some repair to the damage of her childhood. Fragile though they may be, she put down roots in England in this period and there, in my assessment of her evidence, they remain."
The judge's decision
"(a) The test for the determination of habitual residence applies equally in intra-European cases as in Hague Convention proceedings involving non-European member states [A v A and another ( Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening)  AC 1; In re L ( A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening )  AC 1017;].
(b) The test for habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce [ A v A].
(c) The concept corresponds to "the place which reflects some degree of integration by the child in a social and family environment. This depends on numerous factors, including the reasons for the family's stay in the country in question." [A v A]
(d) There is no legal rule that a child automatically takes the habitual residence of his parents. [A v A; re L].
(e) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. [A v A]
(f) It is possible that a child may have no country of habitual residence at a particular point in time [A v A]
(g) the following factors must be taken into consideration in the factual enquiry into a child's habitual residence:
'2. The concept of "habitual residence" under article 8(1) …. 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.' [A v A]."
"Whilst I have referred to the nature of this inquiry as 'factual', I intend by that only to convey that it has required oral evidence to investigate it. It is too easy, particularly where a child has changed countries regularly, to be deflected by concrete facts, such as where the child was born or by how long a child was in a particular place, as if that were somehow determinative. Sometimes these aspects of the evidence can be misleading, as I sought to illustrate in MB v SB  EWHC 3719 (Fam). 'Integration' as a concept involves a fusion of both the factual and the emotional, it is where a child feels settled, secure, happy and where the focus of his interests and attachments lie. It is not merely geographical, identifying habitual residence requires much greater nuance than that, drawing inferences from facts, the parents' conduct, the feelings a child communicates and what the child may say. Lord Wilson encapsulated the point in Re LC (supra) at para 37 emphasising that integration encompasses more than the 'surface features' of a child's life."
"It is clear that in what has been a peripatetic existence for her in recent years, the UK is undoubtedly where she regards as home. This, to my mind, is why she wished her daughter to be born here and to gain entitlement to British citizenship. By contrast, during her time in Morocco the mother learnt next to no Arabic and did not improve her 'risible' French (her phrase). I have no sense of her integrating into life in Morocco at all, indeed she appears to have spent much of her time on social media on the internet. This I find was also a source of conflict in the parent's relationship and something the father took great objection to for both personal and cultural reasons. He told me that he did not like the mother communicating with other men. This plainly applied to all conversations however innocuous and superficial they might be."
"She told me in evidence that she felt that for the time being there was no option open to her or S other than a return to Morocco. On an intellectual level the mother, I believe, would wish for S to have some real relationship with her father. This resolve is, in part, powered by her sense that such opportunity was denied to her during the course of her own childhood. However, the gulf between her capacity to understand the importance of such a relationship for her daughter and the reality of knowing how to achieve it is a wide one for this mother to bridge."
"Mr Feehan (counsel for father) alights on this period as one which he contends establishes S's habitual residence in Morocco. Superficially that might appear attractive if I could identify any sense of either S or her mother being settled or integrated in any way into the life of or the community in Chefchaouen. During this period the grandmother LV visited. She plainly regarded the parents relationship as being in trouble. I have to say that this period, though crucial to the father's claim that it established habitual residence in Morocco, still remains obscure. The father deals with it in eight lines only in his statement. Essentially he says:
"our relationship was generally good during this time, it did have its ups and downs, but for the main part we managed to work things through""
"46. I am satisfied that it is likely that the mother did not always cope well with day to day life in Morocco. I consider it probable that she was, for the reasons already discussed above, at times overwhelmed. It is also the case that the mother was physically incapacitated for six months in consequence of a broken leg. She was, I find, the victim of domestic violence. There were protracted periods of parental separation. It is obvious that the mother was unhappy. She had returned to Morocco, as she explained, with reluctance having exhausted her options and to some extent her energy. Her return was, I find, nothing more than a quest for temporary harbour. For all her difficulties this mother is a fiercely independent minded young woman. It is difficult to see how the circumstances she describes in Morocco were ever going to be conducive to her settling there. This unhappiness must, inevitably, have communicated itself to S and, even at her tender age, adversely impacted on her own capacity to settle."
"47. I have already observed that I find neither mother nor father to be reliable chroniclers of the truth. That, in part, explains why pieces of the evidence are contradictory. More than that, contradictory feelings are intrinsic to the human condition particularly in times of stress or unhappiness. Added to this in the mother's case are mental health issues. Ultimately, the court can only evaluate the witnesses and the key points of the evidence against the established framework of the law. In A v A (supra) Baroness Hale emphasised that the test derived from R v Barnet London Borough Council, Ex p Nilish Shah  2 AC 309 should be abandoned when determining the habitual residence of a child: thus the 'purposes' and 'intentions' of the parents are one of a range of relevant factors and not determinative. The Supreme Court identified the social and family environment of an infant or young child as being shared with those (whether parents or others) on whom the child is dependant (Hayden J's emphasis). Logically therefore, as Baroness Hale emphasised, it is necessary to assess the integration of that person (i.e. on whom the child is dependant) in the social environment of the country concerned. Here I am quite satisfied that, despite her sometimes disillusioned statements to the contrary, this mother has only really, for much of her adult life, integrated into the UK. It is to the United Kingdom that she has regularly returned. To achieve British citizenship for her daughter she was prepared to jeopardise her own good character. S's sense of well being, her security whilst an infant in Morocco, was inevitably and inextricably linked to her mother. For most of the time S's mother has been her entire social and family environment; as such I find that her own habitual residence is and has been throughout her life, like that of her mother, the United Kingdom."
1. The judge's finding that the mother and child were, and had at all times been, habitually residence in the UK was manifestly contrary to the weight of the evidence and "perverse".
2. The judge's finding as to habitual residence was contrary to any recognised authority.
3. The judge, in his summary of the case, misstated the position of the mother and of the Children's Guardian.
"It is one thing to say that a child's integration in the place where he is at present depends upon the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been."
Discussion and Conclusion
'… this mother has only really, for much of her adult life, integrated in the UK. It is to the United Kingdom that she has regularly returned. To achieve British citizenship for her daughter she was prepared to jeopardise her good character.'
In terms of the period prior to the extended stay in Morocco from November 2011, that conclusion is, in my view, unassailable and, indeed, Mr Feehan does not seek to challenge it in terms. Given the mother's return to live full time in the UK in March 2013 then, if the conclusion that she was still habitually residence in the UK in November 2011 stands, the key question was whether the mother lost her habitual residence in UK during her extended stay in Morocco between those two dates. Again, in the context of an appeal, the question for this court is whether the judge's finding that she did not lose her habitual residence in the UK during that period is wrong or otherwise unsustainable.
a) Integration encompasses (per Lord Wilson in Re LC) more than the 'surface features' of a child's life and includes consideration of where an individual feels settled, secure and happy and where the focus of his or her interests and attachments lie (judgment paragraph 28, set out at paragraph 11 above);
b) During her time in Morocco the mother learned next to no Arabic and did not improve her 'risible' French;
c) The judge had 'no sense of her integrating into life in Morocco at all, indeed she seems to have spent much of her time on social media on the internet' (paragraph 35);
d) The judge could not 'identify any sense of either S or her mother being settled or integrated in any way into the life of or the community in Chefchaouen' (paragraph 37);
e) She went to Morocco in November 2011 because there was no other option open to her;
f) The period in Morocco, though crucial to the father's case, 'still remains obscure' and was dealt with in only eight lines of evidence from the father;
g) The father's inability to create a picture of S's life in Morocco was likely to be due to the father playing an inconsistent part in it;
h) The parents lived apart for significant periods of time and the father was at times violent to the mother;
i) There was a source of conflict in the parents relationship which arose if the mother had any conversation, however innocuous or superficial, with any other man;
j) The mother was unhappy, incapacitated for 6 months and at times overwhelmed during this period;
k) The mother's return to Morocco was 'nothing more than a quest for temporary harbour'.
Lord Justice Kitchin:
Lord Justice Floyd: