Monday, October 10, 2011

H-K (Children): Habitual residence does not require permanence

At first blush the decision in H-K (Children) [2011] EWCA Civ 1100, handed down today, may seem a little contrary: a family come to England clearly intending only to stay for a year, and yet the Court of Appeal held that they were habitually resident in this country.

The Facts: The Father is an Australian citizen but appears to have dual British nationality. The Mother is British with Australian rights of residence which expire in 2014. The parties met in Sydney but never married. The couple have two children, a boy, S, of 8 and a girl, M, of 2. The family lived in Australia but decided to come to England for a year to live in a house owned by the Mother.

They left Sydney in February 2010, leaving behind many of their personal possessions. They arranged with S's school that a place would available for him at the start of the new academic year in Australia in February 2011. In England, S was placed at a local school, and the couple worked when they could, otherwise relying on benefits.

In December 2010 the Mother decided that she would not go back to Australia, and told the father. The parties then agreed that the father would return to Australia in February but that the mother could remain in England with the children until June, when she would return to Australia.

The mother did not intend to keep to this agreement, but 'strung along' the father, until she told him in May that she would not, in fact, be returning to Australia.

The father then commenced proceedings under the Hague Convention, his case being that the mother's refusal to return to Australia amounted to a wrongful retention of the children in breach of his rights of custody. Mrs Justice Hogg found in his favour, and made an order that the children be returned to Australia. The mother appealed.

Held: Lord Justice Ward gave the leading judgment. He said that the issue which arose was whether the children were habitually resident in Australia at the time of their retention by the mother, as Mrs Justice Hogg had found.

Lord Justice Ward considered Mrs Justice Hogg's decision and found that she had "allowed her focus to move erroneously to require more permanence for [the family's] sojourn here than is necessary to establish that the habitual residence of the family became established in England" (paragraph 23). The correct approach, he said, was that used by Lord Scarman in Reg. v. Barnet L.B.C., Ex p. Shah [1983] 2 AC 309, in which he (Lord Scarman) said (when considering the term 'ordinary residence') that the emphasis should be "not on intention or expectation for the future which is implicit in the idea of permanence, but on immediately past events, namely the usual order of the applicant's way of life and the place where in fact he has lived".

Accordingly, Lord Justice Ward drew the following inferences from the facts (paragraph 22):
" (1) The family came here voluntarily.

(2) They came to live in England for one year. In substance they packed up their home in Australia (albeit temporarily) and established a new abode in England.

(3) There were all the indicia of integration into a social and family environment in England. They lived in a house the Mother owned. Her family was nearby and supportive. The parties worked when they could find work. They then sought and obtained social security benefit. S was established in school. It was, for the time being, a settled way of life.

(4) Their intended stay and their actual stay was of a sufficient duration not to be transient, or to adopt the Court of Justice's phrase in Re: A, "peripatetic" in the sense of their passing through England as a stopping spot on the journey back to Australia.

(5) The purpose of their sojourn was settled: it was to see if the Mother could overcome her homesickness and so save the relationship. This involved their adopting a new way of life in a new country for a long enough period to achieve that objective.

(6) If stopped in the high street and asked once they had settled in their new home in the north of England, "Where do you ordinarily live" they would be bound to have answered, "We ordinarily live in that property over there although our real home is in Australia." Their real home does not, however, provide the answer to the question whether they were still habitually resident in Australia.

(7) The Mother's continuing deceit of the Father from December onwards cannot alter the essential character, as a matter of fact, of the way of life they had already adopted in England."
In these circumstances he allowed the appeal, and dismissed the father's application.

Lord Justice Longmore and Lord Justice Sullivan gave consenting judgments.

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