Family Law Hub

DB v CB [2017] EWHC 3559 (Fam)

Father's application to return child to Switzerland, following alleged wrongful abduction. Dismissed on grounds that the child was habitually resident in the UK.

  • No. FD17P00529

    Neutral Citation Number: [2017] EWHC 3559 (Fam)



    Royal Courts of Justice

    Monday, 6th November 2017



    (In Private)

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    B E T W E E N :

    DB (Applicant)

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    CB (Respondent)

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    Transcribed by Opus 2 International Ltd.

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    **This transcript is subject to Judge's approval*

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    MR P HEPHER (instructed by Oliver Fisher Solicitors) appeared on behalf of the Applicant.

    MS J RENTON (instructed by Penningtons Manches LLP) appeared on behalf of the Respondent.

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    J U D G M E N T

    If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

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    1 This is an application made on 22nd September 2017 brought under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention on the Civil Aspects of International Child Abduction 1980), known as the '1980 Hague Convention', by the father DB in relation to his son, AMB (AB), born on 10th October 2015. The father seeks AB's return to Switzerland from where it is alleged AB was wrongfully abducted. The respondent to the application is AB's mother, CB, and she vehemently opposes this application.

    2 The hearing of this application took place on 30th and 31st October 2017. In order to determine it, I read evidence filed by both parties and I note that this material entirely filled two lever arch files and amounted to over 1,000 pages of statements and supporting exhibits. Having read what the parties asked me to read prior to conducting the hearing proper, I refused an application by the mother to adjourn the proceedings and an application by the father that the court should hear oral evidence in order to ascertain where AB was habitually resident. I gave brief reasons for refusing both applications which I do not repeat here.

    3 I heard extensive oral submissions from Ms Jacqueline Renton of counsel on behalf of the mother, and from Mr Alistair Perkins of counsel on behalf of father. I am very grateful to both advocates for their assistance. Both could have said no more in support of their respective cases.

    4 It is clear that there is a very significant factual dispute between the parties about almost every aspect of AB's short life and the volume of material for this court to consider was substantial. In consequence, I felt it necessary to adjourn these proceedings for a few days so that I could consider matters carefully and give judgment.


    5 The father was born on 6th September 1982 in Moscow, Russia. He holds both Russian and Swiss passports. The mother was born on 3rd October 1987 in Redhill, England. She is a British National. It is clear that since childhood, the father has lived in a variety of European locations before moving to Switzerland aged about 10 years. He later obtained Swiss nationality on 28th April 2004. He moved to London in 2012 where he worked for a company called Glencore. By occupation, the father is an oil trader and travels extensively abroad for his work. The mother moved from England with her family to Switzerland aged 8 years. She spent a year living in Germany at the age of 10, but was otherwise resident in Switzerland until 2006 when she began her studies in London. She then took up employment in Switzerland in 2011 and was working there for the World Economic Forum when she met the father.

    6 The parties met in London in March 2014. The father lost his job in May 2014 and returned to live at a property in France in Collonges-sous-Salève, which I was told by Mr Perkins was owned by the father's family. This property formed part of a collection of properties in continental Europe owned and used by the father's family.

    7 The mother and father got married on 2nd May 2015 in Scotland and the father's address on the marriage certificate was that in Collonges-sous-Salève. The mother's address was noted to be Chavannes-des-Bois in Switzerland. That was a property owned and lived in by the mother's parents, the mother's father being a senior executive with an airline software company. It is close to Geneva. Thereafter, the parties are in disagreement about both where they resided and about much of their life together. That disagreement extends to where AB spent most of his time.

    8 After the marriage, the mother returned to work and said that she lived with the father at the property in Collonges. She did not alter her address, however, from that at her parents' home as she was, by then, pregnant and wanted to take advantage of Swiss health insurance. The father says that following the marriage, the mother spent the majority of her time at her parents' home in Chevannes.

    9 AB was born on 10th October 2015 at Chenes-Bougeries in the Canton of Geneva, Switzerland. He has dual Swiss and British nationality and has both a Swiss and a British passport. Following AB's birth, the mother returned to the house in Collonges. The father was travelling extensively for his work and the mother, for emotional and physical support, stayed with AB at her parents' home in Chavannes-des-Bois.

    10 By summer 2016, the parties' marriage was under some strain with the mother complaining of drug and alcohol abuse by the father. In that context, WhatsApp messages between the mother and father contain an admission from the father on 8th November 2016 that he used weed and possibly other substances (E106).

    11 In the summer of 2016, the mother and father sought a fresh start to their relationship and decided to relocate to London. By 8th August 2016, the parties had secured rental accommodation at Kensington Mansions, Trebovir Road, SW5. The tenancy commenced on 12th September 2016 for a two-year period. There was a break clause in the tenancy agreement after a period of eight months. The mother said that this was in order to allow the parties to purchase and move to a property of their own.

    12 The tenancy agreement records the mother and father's address as that of the maternal grandparents at Chavannes-des-Bois. The couple, together with AB, moved to London in mid-September 2016. Both disagree about whether relocating to London was intended to be a permanent move. The mother says it was. The father says that it was not.

    13 The problems in the marriage continued, in part, because of the father's extensive foreign travel and on 19th October 2016, the mother's then solicitors in England emailed the father to inform him of her wish for a trial separation for a period of six months (C146). The father responded to that email on 26th October 2016 stating that he and the mother had agreed to see a marriage counsellor weekly and that he would try his best not to travel any longer over weekends.

    14 Despite the contents of that email, the parties' relationship continued to be rocky and on 12th February 2017, the police were called by the mother to the London address where she and the father had rowed. The father agreed to leave the flat for a fortnight after that row.

    15 On 1st May 2017, the father emailed the landlord of the London flat giving notice of termination due to construction works at the premises and therefore invoking the break clause. In response to a query by the landlord's agent, the father emailed him in reply confirming that both he and the mother wished to terminate that tenancy on 30th June 2017 and I note that the mother was copied into the father's reply at C273.

    16 The father says that whilst on holiday in the Maldives in April 2017, both he and the mother had decided to relocate to Switzerland in one last attempt to make their marriage work and that it was for this reason that he terminated the tenancy on the London flat. In stark contrast, the mother says there was no joint intention to return to Switzerland and that, in fact, she and the father continued their search for properties in London to purchase.

    17 On 18th June 2017, the mother and AB flew to Geneva on a one-way ticket and on 24th June 2017, AB and both his parents flew from Geneva to London. All three returned to Geneva on 30th June 2017 with five cases of luggage. The father asserts that by the end of June 2017, the parties and AB had relocated to Switzerland and that the trip to London on 24th June was to collect their personal possessions before vacating the London flat. The mother denies that this was the case and said that the couple, together with AB, planned to return to London in September 2017 after a number of booked holidays during the summer.

    18 During July 2017, AB and his mother were in London from 8th July until 14th July and from 26th July until 30th July. During this time, they stayed at a flat in Windsor owned by the maternal grandparents. In August 2017, AB was in Switzerland at the home of his maternal grandparents in Chavannes-des-Bois. The father continued to travel abroad extensively and so far as I am able to tell, by August he was seeing little of the mother and of AB.

    19 By 27th August 2017, the mother said that the father had become aggressive in his communications with her and started copying her lawyer into their email exchanges. He asked to see AB on 28th August but the mother said this was not possible and suggested that he see AB on 29th and 30th August instead.

    20 On 29th August 2017, the father made an ex parte application to the Court of Geneva with respect to AB asking: (a) that the mother be prevented from travelling with AB outside Switzerland; and (b) that AB be placed with him whilst the mother travelled to Capri at the end of August 2017 to attend a friend's wedding. However, the father failed to persuade the court that the orders sought were necessary. The mother did not become aware of these proceedings until 4th September 2017.

    21 I observe that by the time of the court proceedings on 29th August, it appears that the marriage had definitively broken down and, incidentally, the date the parties stopped communicating on WhatsApp, which in the past they had done extensively, was on 27th August 2017.

    22 On 31st August 2017, the mother and AB were driven to England by the maternal grandparents. The father says that this trip constituted the wrongful removal of AB from Switzerland. He emailed the mother on 4th September asking where AB was. She replied a day later confirming that AB was with her in England and had started nursery the previous day, as planned.

    23 On 6th September, the first instance court in Geneva once more failed to make orders relating to AB at the request of the father. The court's decision recorded that:

    "At this stage of the proceedings, the court is not in a position to determine with certainty the domicile of the child AB. In fact, it appears from the documents filed that such domicile could be in Canton Vaud, Geneva, or Great Britain." (C343).

    24 On 14th September 2017, the father made an application to ICACU, via the Swiss Central Authority, for the return of AB to Switzerland. On 20th September, the mother's English solicitors and the mother were notified by email of the father's application at the Royal Courts of Justice on 22nd September. It was subsequently asserted by the father on 21st September that AB's whereabouts were not known and that a location order would be sought. The mother's solicitors responded on 21st September complaining about the ex parte application and later that day sending correspondence to the father and his Swiss/New York lawyer which referred to the mother residing at the maternal grandparents' property in Windsor, and to AB's attendance at the Maggie & Rose Nursery in Kensington, London.

    25 On 22nd September, Mr Justice Francis adjourned the father's application and attached a penal notice to that order requiring the mother to attend a hearing on 29th September. One of the recitals to that order confirmed that the mother's solicitors had, that morning, provided AB's postal address in Windsor to the court. The mother was neither present nor represented at that hearing.

    26 Case management directions were given by Mr Justice Cohen on 2nd October, the hearing listed for 29th September having been vacated. I note that there is a hearing before the court of first instance in Geneva on 27th November to consider: (a) protective measures of the conjugal union; (b) emergency interim measures; and (c) children matters.

    Relevant legal principles

    27 Article 3 of the Hague Convention specifies that:

    "The removal or the retention of a child is to be considered wrongful where-

    (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

    (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention..."

    In this case, it is not in dispute that both parents have rights of custody. I will consider the issue of habitual residence more fully below.

    28 Article 12 provides as follows:

    "Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith..."

    29 If Art.12 is in play, I must then consider whether the case falls within one of the recognised exceptions under Art.13. Those relevant to this case are (a) whether the father had consented to AB's removal to England no later than 26th July 2016 on the mother's case, and (b) whether there is a grave risk that AB's return would expose him to physical or psychological harm, or otherwise place him in an intolerable situation. If any of these exceptions are made out, this opens the gateway for me to exercise my discretion whether to order a return or not order a return to the state where AB was habitually resident prior to his wrongful removal.

    Summary of the parties' positions

    30 The father asserts that:

    (a) Prior to the parties' relocation to London in September 2016, AB was habitually resident in Switzerland given that he spent most of his time at the home of the maternal grandparents;

    (b) The parties moved to London in September 2016 but they were far from settled, with rows and reconciliations regularly occurring during their time in London;

    (c) The family's flight from Geneva to London on 24th June 2017, on return tickets, had the hallmarks of a tacit recognition that the London chapter of the family's life was over. The flat was finally vacated, household goods were put into store, and the family returned to Geneva on 30th June 2017 with significant extra baggage;

    (d) Thereafter, AB, with the exception of time spent on holiday with his parents, was resident at the maternal grandparents' home in Switzerland. His maternal grandmother texted the father on 27th August 2017 stating, "You are right, she [the mother] and AB do live here with us" (C458); and

    (e) Finally, that AB was habitually resident in Switzerland on 31st August 2017 when he left that jurisdiction with his mother at a time when the relationship between the parents was acrimonious and lawyers for each party had intervened.

    31 The mother, by contrast, asserts that:

    (a) The family home, prior to September 2016, was in France, at Collonges and thus AB was habitually resident in France and not in Switzerland;

    (b) Both parties agreed to the relocation to London in September 2016 and thus AB became habitually resident in England and Wales shortly after the move;

    (c) AB remained habitually resident in England throughout the summer of 2017 and was so at the date of the alleged wrongful removal. He was on holiday with his mother at the maternal grandparents' home in August 2017 and had returned with his mother to England on two occasions from holidays abroad in July 2017. Those returns made little or no sense if the parties had relocated to Switzerland at the end of June 2017; and

    (d) His return to England on 31st August 2017 was to pick up the established pattern of his life in England, attending nursery, Gymboree and swimming classes.

    Determination of the issues

    32 I must determine the following issues:

    (a) Where was AB habitually resident prior to his relocation to England in September 2016?

    (b) Did AB become habitually resident in England and Wales and, if so, was this brought to an end by 30th June 2017 when he returned to Geneva with his parents?

    (c) Did AB continue to be habitually resident in England and Wales on 31st August 2017?

    If the answer to (b) is 'no' and the answer to (c) is 'yes', the father's application fails.

    Habitual residence - case law

    33 In the judgment of Mr Justice Hayden in Re B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam), he reviewed five successive Supreme Court judgments on habitual residence and distilled 13 principles set out in para.17 of his judgment:

    "i) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A and Another (Children: Habitual Residence (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] 1 AC ["A v A"], adopting the European test);

    ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (A v A; In Re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2014] AC 1017 ["In re L"] ;

    iii) In common with the other rules of jurisdiction in Brussels IIR its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned': A v A (para 80(ii)); Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4, [2016] AC 606 ["In re B"] (para 42) applying Mercredi v Chaffe (Case C-497/10PPU) EU:C:2010:829, [2012] Fam 22 at para 46);

    iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent: In re R (Children) (Reunite International Child Abduction Centre intervening) [2015] UKSC 35, [2016] AC 76 ("In re R");

    v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1, [2014] AC 1038 ("In re LC"). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration;

    vi) Parental intention is relevant to the assessment, but not determinative (In re L, In re R and In re B);

    vii) It will be highly unusual for a child to have no habitual residence. Usually a child loses a pre-existing habitual residence at the same time as gaining a new one (In re B); (emphasis added);

    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);

    ix) It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there In re R and earlier in In re L and Mercredi);

    x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (In re R) (emphasis added);

    xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (Art 9 of BIIR envisages within 3 months). It is possible to acquire a new habitual residence in a single day (A v A; In re B). In the latter case Lord Wilson referred (para 45) those 'first roots' which represent the requisite degree of integration and which a child will 'probably' put down 'quite quickly' following a move;

    xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (In re R).

    xiii) The structure of Brussels IIa, and particularly Recital 12 to the Regulation, demonstrates that it is in a child's best interests to have a habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; as such, 'if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has a habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the court should adopt the former' (In re B supra)."

    34 I have borne in mind the clear message identified by Mr Justice Hayden in para.18 of his judgment that based on both the European case law and that of the Supreme Court, the child is at the centre of the exercise when evaluating his or her habitual residence. The court's approach must always be child-driven.

    35 Mr Perkins referred me to the speech of Lord Wilson, agreed by the majority of the Supreme Court in Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2015] EWCA Civ 886, [2016] UKSC 4 in which, in para.37, he noted that:

    "The CJEU carefully followed its [previous rulings in that]... the analysis of the social and family environment of a pre-school child would differ from that of a school-age child and would include consideration of the geographic and family origins of the parent who had effected the move and of the family and social connections of that parent and the child with the state to which they had moved."

    I have borne this advice in mind in reaching my conclusions.

    36 Ms Renton submitted that I should consider the mother's case within the parameters of Art.3 rather than as an attempt to establish an Art.13A consent defence, namely that the father had consented to the relocation to London in September 2016 and AB had remained habitually resident in England and Wales throughout the periods of time I was asked to consider.

    37 It seems to me that the distinction in the way the mother puts her case as opposed to that advanced by Mr Perkins was more apparent than real. I have to consider habitual residence as a preliminary issue as it is the father's case that AB was habitually resident in Switzerland at the end of August when he was taken by the mother to London. It is, of course, by contrast the mother's case that AB was habitually resident in England and Wales throughout. If she is right about those facts, Art.3 would operate to strike out the father's application. If she is wrong, then as I have already indicated, I would need to consider whether any of the Art.13A or13 B defences are engaged by the circumstances of this case.

    Preliminary observations

    38 There was a significant factual dispute between the parents about much of what took place in AB's life. This has made the determination of where he was habitually resident less than straightforward. To echo the words of Mr Justice Hayden in para.16 of Re B, AB's habitual residence does not reveal itself instantly. Furthermore, as in that case, the statements filed focus predominantly on the adults and their disputes rather than on AB's life and routine. As the Court of Appeal observed in Re K (1980 Hague Convention) (Lithuania) [2015] EWCA Civ 720, a judge trying a Hague Convention case has a difficult job deciding what to do about factual issues given the summary nature of the proceedings (para.45). I have endeavoured in my analysis of the copious material to explain my reasoning at each stage and to find only such facts that are relevant to resolving the question of habitual residence.

    39 Ms Renton launched an attack against the father's credibility by suggesting he manipulated his domicile for tax and other purposes. The father denied this vigorously. I have found it unnecessary to come to a view as to whether these allegations are correct. Indeed, it would have been unwise of me to do so without a great deal more evidence about the father's tax and financial affairs. It was unnecessary for me to reach conclusions on this issue as the material before me allowed me to reach conclusions about AB's habitual residence without the need to embark upon a poorly evidentially founded analysis of the father's credibility in relation to matters of domicile and tax.

    40 Finally, I have also borne in mind that this was, as Mr Perkins put it, an international family. This does not mean, however, that they were only habitually resident in the domicile in which they were taxed, for example.

    AB's habitual residence prior to September 2016

    41 AB's birth took place in Switzerland and the address registered for his mother on his birth certificate was the home of the maternal grandparents in Chavannes-des-Bois (C43E). He obtained a Swiss passport on 17th November 2015 (C51). It is plain to me that following his birth and until September 2016, AB spent a great deal, if not the majority of time, at his maternal grandparents' home. The mother's own statement makes clear that the father was travelling extensively and was drinking heavily and smoking marijuana:

    "I was left alone in France with a new-born infant and felt that our marriage was in difficulties. Therefore, for both emotional and physical support, I stayed with my parents in Geneva from time to time. By July 2016, I saw very little of [the father]." (C190)

    42 Leaving aside whether the father's alcohol or drug problems were as extensive as the mother asserts, I formed the clear impression that AB and his mother were largely living in Chavannes-des-Bois in Switzerland for much of this period as the marriage of his parents came under increasing strain.

    43 Ms Renton referred me to a number of invoices for purchases many of which related to AB. These orders were delivered to the address in Collonges and the invoices cover dates in July 2015 to December 2015. They are found at C210 to C217 of the bundle. She submitted these invoices showed that the couple, including AB, were resident in France. I was shown no invoices for deliveries to Collonges after 12th December 2015.

    44 In my view, these invoices, together with the absence of any after December 2015 are not inconsistent with AB and his mother residing initially at the house in Collonges before things deteriorated between his parents. Thereafter, the mother and AB spent much of their time in Chavannes-des-Bois. That address was, tellingly, the one used by both parents when they signed the tenancy agreement for Kensington Mansions.

    45 Finally, I note what the mother herself says about her parents' home at C195 of her statement, para.31:

    "My parents' home is much more suitable for AB than our home in France. It is a large house with a garden, swimming pool, and dogs for AB to play with. It is a lovely place for a little boy to spend the summer with family."

    46 Though the mother made those comments about AB's time in Chavannes in August 2017, they are apposite with respect to the period of time prior to September 2016. The maternal grandparents' home in Chavannes was, I find, a place of refuge for the mother and AB and somewhere to which AB had established a connection. I have little if any sense that he had established a connection to Collonges. In that context, I note that AB's healthcare was delivered to him via Swiss medical insurance and that the clinic where he went for regular weight checks and vaccinations from 10th November 2015 to 11th July 2016 was in Chenes-Bougeries, the place he was born in Switzerland (C360 to C361).

    47 I have come to the conclusion that AB had established a degree of integration in the social and family environment centred on the home of his maternal grandparents in Switzerland. He was habitually resident in Switzerland prior to the move to London in September 2016.

    Where was AB habitually resident after September 2016?

    48 One of the few factual matters about which I can be certain is that the mother, the father, and AB moved to London in September 2016 and took up residence at Kensington Mansions. AB apparently attended Maggie & Rose Nursery in Kensington from about November 2016 and was registered with a GP, Dr McAndrew, at her Kensington practice with effect from 8th November 2016 (C362). It is also clear that AB attended toddler activities with his mother from the autumn of 2016.

    49 Though Mr Perkins suggested that AB continued to make regular trips to see his GP in Switzerland on the basis of matters set out at page C428 by SWICA, the Swiss health insurance organisation, I am not persuaded by these submissions. First, I prefer Ms Renton's submission that the dates set out in the SWICA document refer to dates of invoices rather than the dates of consultations. Second, on one date, namely 15th March 2017, when AB was said by Mr Perkins to have seen his paediatrician in Switzerland, an entry in his doodle book from Maggie & Rose Nursery was dated that same day and suggested that he was at nursery in London on that date (C378).

    50 The parents disagree about whether the move to London was intended to permanent. I have come to the conclusion that, irrespective of how they saw their relationship or their long-term future as a family, they intended to remain in the United Kingdom for a significant period of time. That is evidenced by the tenancy agreement of two years' duration, the efforts made by the mother to integrate AB into nursery and social life in London, and by the parties' search for properties in which they might live.

    51 It is also clear of course, from time to time, that AB went with his mother back to Switzerland. For example, one such trip was on 18th October 2016 and that he also went with his parents on holiday, for example, to the Maldives in April 2017. Nevertheless, he gradually, over this period of time, I find, became integrated into life in England and established a degree of stability there. He and his mother attended the family members club at Maggie & Rose Nursery from about November 2016 and also attended pre-nursery three times a week. His mother seems to have made an effort to bring AB into contact with other children. Messy play classes were booked between 11th October and 9th December 2016 (C354) and classes with the Gymboree club were paid for from 22nd February 2017 to 21st June 2017. Swimming lessons were also organised for mother and child from 18th April to 18th July 2017.

    52 Whilst no records of actual attendance have been produced for all of these activities, the information from nursery records appears to show a child making progress and regularly attending and I infer from this that AB also attended the other activities arranged for him by his mother on a reasonably regular basis.

    53 I have come to the conclusion that looking at AB's situation rather than what his parents' intentions might have been, AB was integrated into the social and family environment in London being largely cared for his mother in that place and that he was habitually resident in London prior to mid to late June 2017.

    54 I have come to my conclusions about AB's habitual residence having had regard to his connection to Switzerland prior to September 2016, but the stability of his residence in the United Kingdom tells against the continuation of his habitual residence in Switzerland by that time.

    Did the family relocate to Switzerland in June 2017 as the father suggests?

    55 There is, I find, evidence pointing in both directions. First, the family surrendered the tenancy for Kensington Mansions on 30th June 2017, the father having given notice on 1st May. Thereafter, they had nowhere to live save for a property belonging to the mother's parents in Windsor. Their property, excluding personal possessions, was placed in storage at the end of June 2017 and when they flew back to Geneva on 30th June 2017, they returned with extra baggage which the father said contained their personal possessions. Mr Perkins reminded me that when the family moved to London in 2016, they had not arrived with possessions in a removal van and suggested that, in fact, they left in much the same manner.

    56 Thereafter, the father points to AB spending most of the summer either in his maternal grandparents' home or on holiday with his parents. There is evidence that the ties with London had been severed or, indeed, that AB was taking up ties already in existence prior to September 2016. He pointed to the mother looking at a nursery in Switzerland on 16th August 2017, and to the maternal grandmother's text on 27th August 2017 to which I have already made reference. He says AB was able put down roots quickly in Swiss soil, as Mr Perkins submitted, because it was a place in which prior to September 2016 he had been socially and familially integrated as I have so found. However, there is also evidence which points in the opposite direction.

    57 First, unlike the summer of 2016 when the mother and father exchanged many messages planning and looking forward to their relocation to London, the WhatsApp account contains no discussion at all about a plan to permanently relocate to Switzerland at the end of June 2017. There is no suggestion from Mr Perkins that such discussions only took place by telephone. That would have marked a radical change in the way that this couple communicated with each other. I find the absence of any discussion about the move back to Switzerland striking and significant.

    58 Secondly, the couple continued to look for properties to purchase in London. In that context, it is important to note that in October 2016, the father asked the mother to find a property with a maximum value of £2.5 million:

    "It's, I think, the max for us without having to worry too much. Anyway, just wanted to let you know that I want a house too." (E87)

    59 Property searching was evident in WhatsApp communications on 1st November 2016, 2nd January 2017, 4th January 2017, and again after 1st May 2017. On 6th May 2017, the parties were discussing renting a property in Richmond until the place they wanted to purchase had been built (E248). The WhatsApp messages showed, in fact, that the mother went to look at the area in which they hoped to purchase that very same day.

    60 On 11th May 2017, they put down a deposit on a new build in Isleworth but continued to look at other properties. On or about 12th June, the parties made a verbal offer of £2.4 million on a property in Kensington which was rejected, and as late as 16th August 2017, the father was sending the mother UK property searches. Mr Perkins, on behalf of the father, said that these searches after May 2017 were for the purpose of purchasing an investment property. I am afraid I find that unlikely. The mother's email to the estate agent on 3rd June 2017 at C283 of the bundle is written in terms of someone looking for a property in which they can make their home:

    "Flat 1 Lexham Gardens - we would have to fully renovate. 2 Logan Mews - not really interested in mews houses. Ceilings too low."

    61 In WhatsApp conversations on 9th August 2017 about a property to rent, both parents enthused about its facilities (a tennis court and a pool) (E261). That exchange did not strike me, on behalf of the father, as made by a man solely interested in the purchase of investment properties. He and his wife at that stage gave every appearance of looking to try and make a life together in London in a property for rent.

    62 Thirdly, if the family had relocated to Switzerland at the end of June 2017, Ms Renton asked what was the purpose of the mother returning with AB to London on 8th July 2017 and again on 26th July 2017. They stayed at the maternal grandparents' flat in Windsor which was available to them during those visits. I heard nothing from Mr Perkins which might suggest why that was other than that the mother might have found it easier to fly to London rather than Geneva on 8th July when she left their family holiday in Greece following a row with the father. I am afraid that simply does not explain, in my view, why the parents would be discussing on 22nd July 2017 the father coming to London in late July to visit the mother and AB (C304).

    63 As far as AB was concerned, the evidence points to a planned continuation of his educational and social arrangements in England after the summer holiday. A deposit for another term of pre-nursery was paid on 12th June 2017 and the final payment for that term was made on 31st August 2017. The mother says of her enquiry of the nursery in Switzerland raised by the father that she thought his might be useful for AB over the summer whilst he was on holiday with her parents, but she failed to make any such booking as the minimum booking for the nursery was for the duration of a month until mid-September 2017. That would have conflicted with the booking for the nursery in the United Kingdom.

    64 Standing back and looking at the evidence in the round, I have concluded that the family did not relocate to Switzerland at the end of June 2017 as the father suggested. The evidence points more strongly towards a plan for the couple to live in London after the end of June and of mother and AB spending some time there in July 2017 between holidays. This is, I find, inconsistent with a relocation to Switzerland.

    Where was AB habitually resident on 31st August 2017?

    65 Given my earlier conclusions, it follows that I find that AB remained habitually resident in England after the end of June. His time away from London in July 2017 was for planned family holidays and he returned there for short periods of time, as I have already mentioned. His time in Switzerland in August 2017 meant he was in a place already well known to him but his stay at his maternal grandparents' home was not part of any relocation to Switzerland when one considers the ongoing discussions between his parents about living in London and the absence of any discussion between them about a permanent relocation to Switzerland. AB was not putting down roots in Switzerland during that time. He was on holiday there and due to return in the care of his mother to England and to the Maggie & Rose Nursery School in September 2017 where he was booked to attend.

    66 It follows that on 31st August 2017, the date he returned to England and the date his father said constituted the wrongful removal that, AB was habitually resident in England.

    67 What is abundantly clear to me is that at the end of August 2017, the parents' relationship had foundered. Lawyers were being copied into emails and the father stopped using WhatsApp to speak to the mother on 27th August. Whatever the cause or causes for that final breakdown, they did not, of themselves, operate so as to alter immediately AB's place of habitual residence at that end stage of the parents' marriage. The maternal grandmother's message at C458 needs to be read in the context of the breakdown of the parents' relationship, but I am not sure that, considered alongside all the other matters to which I have referred, it can constitute a definitive statement as to where AB's home was on 27th August 2017 and, more importantly, where he was habitually resident. Had it been in his mother's mind as his main carer to stay permanently in Switzerland, I consider it likely that the nursery in Mies would have been secured and that Maggie & Rose Nursery would have been told that AB would not be returning there in September 2017.

    68 I have concluded that AB did not become habitually resident in Switzerland during August 2017 or at any time before. He remained habitually resident in England and Wales throughout this time.

    69 In the light of the conclusions I have reached, the father's application for relief pursuant to the Hague Convention fails and is hereby dismissed. It is unnecessary for me, given those findings, to consider the existence of the Art.13 defences relied upon by the mother.

    70 That is my decision.

Judgment, published: 15/02/2018


Published: 15/02/2018


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