Family Law Hub

GM v DB [2015] EWHC 2656 (Fam)

Father's application for summary return of the child to Italy failed as the judge found that the child had no habitual residence which meant that there was no habitual residence in Italy.

  • Neutral Citation Number: [2015] EWHC 2656 (Fam)

    Case No. FD15P00122

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    DateL Wednesday, 22nd July 2015

    Before:

    MRS. JUSTICE HOGG

    __________

    B E T W E E N :

    GM (Applicant)

    - and -

    DB (Respondent)

    __________

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    __________

    MR. M. EDWARDS (of counsel) appeared on behalf of the Applicant.

    MS. V. GREEN (of counsel) appeared on behalf of the Respondent.

    MS. A. NORTHCUTT appeared on behalf of CAFCASS.

    __________

    J U D G M E N T MRS. JUSTICE HOGG:

    1 The matter before me is brought under the Hague Convention and is a father’s application for summary return to Italy. He issued the application on

    19th March 2015 and it is in respect of a little boy, A, who was born on 19th July 2011. He is just four. The father is Italian. The mother is Romanian. A has dual-nationality. He is both Romanian and Italian. He was born in Romania.

    2 The parents never married. The father lives and works in Italy and his family live nearby including his parents, or at least his mother. The mother spent time in Italy and when she was working there she met the father and a relationship developed. The relationship had difficulties, but two children were born. For a time the mother wanted the relationship to work. She was fond of the father and, particularly latterly, she wanted it to work because there were two small children involved. B is the second child. He was born on 27th December 2012 in Romania. In April 2013 he left Romania with the mother and A and the father and the paternal grandmother, who had travelled to Romania, and they all travelled back to Italy. B has remained in Italy ever since and there he is cared for by his father and other paternal family members.

    3 The mother has three older children, half-siblings to A and B: S is nineteen; T is seventeen; and W is nine. Until August 2014 they all lived in Romania in the maternal grandmother’s home and were cared for by the maternal grandmother and the mother when she was there. S came to this country in April 2014 and I understand he has been working in this country since about then. He also, unlike his two other siblings, briefly came to Italy in December 2013 and remained there until the middle of January 2014. T and W remained at that time in Romania.

    4 During the parental relationship the parents discussed the possibility of the mother’s children coming to live in Italy with them and A and B. No agreement or decision was ever made and they remained in Romania. The mother and the older half-siblings and A have been in England since August 2014. The father is aware of that fact and has been aware since shortly after the move.

    5 The very basic facts are that on 15th January 2014 A and the mother left Italy. Whether she had consent to do so from the father either for fifteen days or permanently is in dispute. She and A travelled to Romania where A remained until August 2014. B remained and has always remained in Italy with the father. In Romania during February 2014 the mother instituted proceedings regarding A and B. They never proceeded very far partly because the mediation set up did not take place. In July 2014 the father made a request to the Central Authority in Italy that was transmitted to Romania for the return of A under the Hague Convention. In September 2014 a letter from the Central Authority in Romania was received by the mother. She had returned for the purposes of the court proceedings in Romania. In that letter the Central Authority invited her to return A to Italy. She did not return A to Italy, but took herself back to England and did nothing about the letter. No Hague proceedings were actually instituted in Romania. By November 2014 the Romanian proceedings seemed to have ground to a halt because the mother and A were in this country.

    6 The father alleges that A had acquired habitual residence in Italy by the time he finally left on 15th January 2014. He says that initially he told the mother that if she wished to go back to Romania she could go, but that the boys should stay with him. By 15th January 2014 he agrees that he had agreed that A could go to Romania with the mother, but for two weeks as the mother wished to go to support her mother (the maternal grandmother) while she underwent an operation. In reply the mother says that there was no habitual residence in Italy; that there had been a row between her and the father as a result of which she felt that the relationship was finally over and she wished to return to Romania with both the boys, but, as B was awaiting an operation in Italy in connection with the cleft palate with which he was born, she agreed B could stay and would collect him later and that the father agreed that A could go to Romania permanently. She asserts that, at the time, rather than having habitual residence in Italy, A had habitual residence in Romania.

    7 Under Article 12 of the Convention the mother says that if there was a wrongful removal or retention, as alleged by the father, it occurred by the end of January 2014 and that, by March 2015, when the father had issued his proceedings in this country, A had settled in this jurisdiction. Further, notwithstanding his presence here for only seven months at that stage, I should not order his return to Italy, a jurisdiction he had left some fourteen months before when he was only two and a half years old.

    8 Under Article 13(b) the mother says that to order A to return to Italy would put him at grave risk of physical and psychological harm and otherwise place him in an intolerable situation. She alleges that the father has threatened to cause her harm and kill her should she return. This is, I may add, denied by the father, and as a result she does not feel she could safely return to Italy and will not do so. Therefore, A would be separated from his mother and his half-siblings. She also has no home, no support, in Italy. Therefore, she says, A would be at risk partly because of the separation and also he would be at risk in the father’s care because he has been violent towards her, which, again, he denies, but to some extent this has allegedly been witnessed by S and this became apparent in his discussions with the CAFCASS officer. She says simply that separation from his mother would put A into an intolerable situation. He is very close to her and to his half-siblings, has never lived away from her and she fears for his health if he is separated from her.

    9 Before I can deal with the issues of Article 12 and Article 13(a) and (b), I have to deal with the fundamental issue of whether A was habitually resident in Italy at the time he left on 15th January 2014 with his mother en route to Romania. If there was no habitual residence in Italy then the father’s case fails at the first hurdle. If there was habitual residence then I have to go on and deal with the other matters raised by the mother. What has become apparent and is agreed by both parties is that A has spent considerable periods of time in Romania and Italy to such an extent that each party claims habitual residence in his or her home jurisdiction. The chronology is also agreed. A was born on 19th July 2011 in Romania. In October 2011 he and his mother travelled to Italy where they stayed until January 2012 when they returned to Romania. Between January 2012 and May 2012 A and his mother were in Romania. From May 2012 they were in Italy until July 2012. In July 2012 the mother was aware she was pregnant and she and A travelled to Romania where they awaited B’s birth. He was born prematurely in December 2012 and required medical assistance immediately after his birth. A and his mother remained in Romania until April 2013 when the father and the paternal grandmother travelled to Romania, and they all travelled to Italy where the mother and A remained until September 2013. In September 2013 the mother had to go to Romania to arrange her son T’s schooling and to sort out her child benefit payments. On 3rd December 2013 she, A and S travelled to Italy. She alleges that S came as a chaperone to protect her from the unwanted advances of the paternal step-grandfather. The father denies that there were unwanted advances. Thus by January 2014, when the child was little more than thirty months old, he had spent about eighteen months altogether in Romania and about eleven months, give or take, in Italy. It is accepted that A, aged thirty months, left Italy for the last time on 15th January 2014.

    10 The father asserts that it was for a two week trip to Romania and he expected A to return on 30th January 2014. The mother asserts that the consent given to her by the father was for a permanent removal to Romania. In either event neither party asserts the consent extended to England. I have already pointed out to the mother in the course of her evidence and in the course of submissions that she should have sought the father’s consent to remove A from Romania to this country. Thus at about thirty months of age A had made the trip to Romania, Italy and back to Romania ten times and had spent, as I say, a total of about eighteen months in Romania and eleven months in Italy. Whenever he was in Romania he lived with his mother in the maternal grandparent’s home with his half-siblings and was treated as a full member of the family. The family had been settled in their home town in Romania for some time. To that extent and in that context A was integrated into their environment, social and home life. He was registered with a GP and had a baptism there. He heard Romanian spoken around him and became familiar with the family members and their lifestyle. The mother tells me that she has retained her habitual residence in Romania, even though she has spent lengthy periods of time in Italy and had originally gone there for financial reasons to find employment to support her children in Romania. She met the father while there and a relationship developed during the course of it. She lived with him in his home, in his village, near his family and worked there; but, throughout, in her mind, her home and life was based in Romania where her older children lived.

    11 After his birth and while he was in Italy, A lived with both his parents and later B in his father’s home where he met with his paternal family and came to experience their environment and heard Italian spoken around him. In that context he was also integrated into their world and lifestyle. He was registered with a GP, vaccinated there when appropriate and had another baptism there. He carries his father’s surname as his father acknowledged his paternity and he generally experienced the Italian lifestyle of his family. Mr. Edwards, on behalf of the father, asserts that A had habitual residence in Italy in January 2014. He accepts that by April 2013 A may have acquired habitual residence in Romania by reason of the various periods of time he stayed there, and by the lengthy stay of nine months between July 2012 and April 2013. He says that if A had acquired habitual residence in Romania by April 2013, he lost it and acquired habitual residence in Italy by the time he went to Romania in September 2013. The mother had brought B with her in April 2013 and she and the father and the two boys had lived as a family unit for five months. He had settled easily into the Italian lifestyle, had been able to build on the previous experiences of his periods in Italy. At the time he was between twenty-one and twenty-six months old. He was hearing Italian, he was part of an Italian family. Given his age and greater awareness than when he was younger, Mr. Edwards says he was more able to feel and perceive himself as part of a family and its environment in Italy. Mr. Edwards says I have to look at the mother’s intentions. She wanted the relationship to work. She wanted A and B to have a relationship with their father and with each other. She admitted she had earlier considered marriage and discussed relocating her own children. She had obtained a job in the summer of 2013 as a waitress. She had made friends and she spoke Italian well. She only returned to Romania to settle T’s schooling and to sort out her child benefits, but that return was for three months. But, Mr. Edwards says, she returned with A and with S despite the allegations against the paternal step-grandfather and despite the alleged poor relationship with the father. The mother told me in answer to that that throughout she regarded Romania as her home and that what was where her habitual residence was. She wanted a relationship with the father and she hoped that things would work out, but the relationship with the father was difficult. Each time she returned to Italy she hoped it would improve, but it did not it deteriorated. A, when he finally left Italy, was two and a half (thirty months old). He was very young. He had never left the care of the mother and had always travelled with her and been with her. She was his primary carer. For him she was the person who gave him stability and security. Where she was, so was he. This is not, of course, a case of an adolescent child who might have a mind of his own, but of a very young child. Even now he is only just four.

    12 The Supreme Court has considered the issue of habitual residence on a number of occasions recently and I will refer to them. In the case of A v. A [2013] UKSC 60 it was held that the test that I should apply was that the place which reflects some degree of integration by the child in a social and family environment and quoted the case of Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22 and particularly para.54:

    “As a general rule, the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.

    That is even more true where the child concerned is an infant. An infant necessarily shares the social and family environment of the circle of people on whom he is dependent.”

    In the case of Re LC [2014] 1 FLR 1486 at para.59, Baroness Hale of Richmond says:

    “The first principle is that habitual residence is a question of fact: has the residence of a particular person in a particular place acquired the necessary degree of stability…It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so.”

    So I must obviously look to the question of stability when considering the issue of habitual residence of this child. At paragraph 62, she went on:

    “The environment of an infant or very young child is a family environment and so determined by reference to the person with whom he lives.”

    Then she went on:

    “But once a child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. Furthermore, where parents are separated, there may well be two possible homes in which the children can live and the children will be well aware of this. This may well affect the degree of their integration in a new environment.”

    She says at para.63:

    “The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire 0a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another.”

    In other words, the possibility that a person may not have habitual residence anywhere.

    13 In this case both parents assert habitual residence in their own country. A is a dual-national. The mother was the primary carer, even though he knew his father and his paternal family and had stayed in his home for lengthy periods. It is clear to me he was a frequent traveller; “the shuttle effect” as we discussed during submissions. The longest time he was in Romania was nine months. The longest time he was in Italy was five months. The result being that he was familiar with both parental countries, with both parents, both homes, both environments and both languages. He was a child with two homes and integrated as a member of both families. Was that stability in either home habitual by way of habitual residence? I look at it from A’s point of view. The mother was his primary carer, although he knew his father as a significant other person if I can put it that way. The mother was moving from one place to another and spending lengthy periods in each home. If he had habitual residence in Romania, the father says he lost it during the summer of 2013 and acquired it in Italy because A was able to build on his past experiences of periods in Italy and that gave him the ability to settle and to settle into Italy and to acquire habitual residence there. Then he went back to Romania for three months and the old “building blocks” and past experience of being in Romania were there. The mother says this reinforced his past and gave him habitual residence in that country even if he had acquired it in the meanwhile in Italy. Then in December he went back to Italy for six weeks.

    14 I look at it in a realistic approach. In reality it was a disruptive life. There were frequent moves, periods of different lengths in the respective homes. There were therefore changes of home, changes of language, changes of people, changes of lifestyle, changes of environment. He was a very young child. He was not at nursery. He did not have a social life of his own in that he was able to go to school and make friends. His social life was that of his family. He was dependent upon the adults, his mother and his father. He was familiar and, as far as I know, comfortable with both environments and was integrated into both families. My view is simple. It was a disrupted confusing life with little long term stability in either because no sooner had he begun to settle in one environment, he was uprooted again to the other environment. This is an unusual case because, in my view, he had no habitual residence. He fell between the two family home bases. He had two homes and he was well integrated into both of those.

    15 If he had no habitual residence it means that there was no habitual residence in Italy and thus the father’s case fails. Thus I do not need to consider the mother’s cases under Article 12 or Articles 13(a) and (b).

    16 I look, sadly, to the future. I have already criticised the mother to her face about not involving the father in making big decisions as to where A should live in that she did not ask him whether he could come here. She did not even consult him about which school or nursery he should attend. I hope in the future that the parents together can resolve their difficulties about where the two boys should be. Each boy that they have created is living away from one parent and they are each living away from their own full sibling. It is a very regrettable situation. Both boys need a relationship with both parents and with each other and of course the half-siblings. I do not have jurisdiction. I have made my decision on habitual residence, but I hope the mother who is present and the father who may come to hear of this will be able to resolve their differences so that the two boys together can enjoy a fuller life knowing each other, having a relationship with each other and seeing the other parent. Maybe the situation will continue as it is, one in one country and one in the other - but it is important that if one is in one country, he should be able travel to the other country and the other way round. So that they both know both parents and they know each other. It is not a welfare case. It is a Hague Convention case and my comments are really to assist the parents looking forward rather than out of the judgment, but of course it will be recorded in my judgment. I have to dismiss the father’s application.


Judgment, published: 19/10/2015

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Published: 19/10/2015

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