UK – RE A – 1995

Re A and Others (Minors) (Abduction; Habitual Residence)[1996] 1 All E.R 24
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Family Division
Cazalet, J.

7, 31 Jul 1995

<* page 24> Minors – Abduction – Habitual residence –
Father a US serviceman stationed in Iceland – US court
restraining mother from removing children from Iceland –
Mother removing children to Wales without consent of US
court – Father applying for order that children be returned
to United States – Iceland not signatory to Hague Convention
– Meaning of ‘habitual residence’- Whether children
habitually resident in Iceland or United States for purpose
of convention – Whether court should order children’s return
– Child Abduction and Custody Act 1985, Sch 1, art 4.

In 1989 the mother, who was a United Kingdom citizen,
married the father, a United States citizen serving in the
US Navy, who was based in the United Kingdom on a five-year
posting. Their first two children were born in the United
Kingdom and were registered as US citizens. In January 1993
the father was assigned to the US naval base at Keflavik,
Iceland and the family left the United Kingdom to travel to
the United States, where they stayed with the father’s
parents in Michigan. The father went to Keflavik almost
immediately and was joined by the mother and the children
three months later. In August 1994 a third child was born in
Keflavik and was registered as a US citizen. Following the
breakdown of the marriage in December 1994 the father moved
into barracks and the mother remained in US naval family
accommodation. In January 1995 the father filed a divorce
suit in the Michigan Circuit Court and obtained orders
against the mother prohibiting the removal of the children
to the United Kingdom, and from the US naval base at
Keflavik. On 3 April 1995 the mother removed the children
from Iceland, brought them to the United Kingdom and
subsequently issued divorce proceedings in England against
the father. Thereafter the father commenced proceedings in
England for the immediate return of the children to Michigan
under the Hague Convention on the Civil Aspects of
International Child Abduction (which was incorporated into
English law by s 1(2) of the Child Abduction and Custody Act
1985 and was set out in Sch 1 to that Act). At the hearing
the father contended that immediately prior to the mother’s
wrongful removal of the three children to the United Kingdom
the children were habitually resident in the United States,
which was a contracting party to the Hague Convention. The
mother, although not disputing that her removal of the
children was wrongful, contended that the children were at
that time habitually resident in Iceland, a non-convention
country, and that therefore the court had no Jurisdiction to
make any orders under the convention.

Held –

(1) For the purposes of art 41 of the Hague Convention,
which provided that the convention applied to any child who
was habitually resident in a contracting state immediately
before any breach of custody or access rights, the words
‘habitual residence’ required a physical presence in the
place or country in <* page 25> question immediately prior
to the wrongful removal which was both voluntary and for
settled purposes. It followed that the habitual residence of
the children of a serviceman who had been posted overseas in
the course of his service career was in the country to which
the father had been posted and where the family lived
voluntarily and with the required degree of continuity, and
that residence on a military base overseas was not a
continuation of residence in the country which he served,
however much the way of life there resembled ordinary life
in his native country. The children were therefore
habitually resident in Iceland for the purposes of the
convention immediately prior to the mother’s removal of them
from that country on 3 April 1995. Since Iceland was a
non-convention country, it was not open to the court to make
any order under the convention (see p 28 h to p 29 b j to p
30 b, p 31 e, p 32 d to g and p 33 c to it, post); dictum of
Lord Brandon in C v S (minor: abduction: illegitimate child)
[1990] 2 All ER 961 at 965 applied.

(2) Although the court would apply the general principles of
the Hague Convention in an appropriate non-convention case,
the welfare of the child in such circumstances remained the
paramount consideration and the application of the welfare
test normally required that decisions regarding the care of
the child be decided in the jurisdiction in which the child
had hitherto been habitually resident. Applying that test,
it would not be in the best interests of the children to
make an order returning them to the State of Michigan and to
the novel surroundings of a country in which they had not
been habitually resident. The court would therefore decline
to make any order to that effect and would accordingly
refuse the father’s application (see p 35 g to p 36 bf,
post); dictum of Waite LJ in Re M (abduction: non-convention
country) [1995] I FLR 89 at 98 applied; D v D (child
abduction: non-convention country) [1994] 1 FLR 137
followed.

Notes

For the return of children wrongfully removed, see 5(2)
Halsbury’s Laws (4th edn reissue) pares 981-994.
For the Child Abduction and Custody Act 1985, s 1, Sch I,
art 4, see 6 Halsbury’s Statutes (4th edn) (1992 reissue)
2g6, 310.

Cases referred to in judgment

B (minors: abduction), Re (No 2) [1993] I FLR 993.

C v S (minor: abduction: illegitimate child) [1990] 2 All ER
961, sub nom Re J (a minor) (abduction: custody rights)
[1990] 2 AC 562, [1990] 3 WLR 492, HL.

D v D (child abduction: non-convention country) [ 1994] I
FLR 137, CA.

F (a minor) (child abduction), Re [1992] 1 FLR 548, CA.

Ladd v Marshall [1954] 3 All ER 745, [1954] I WLR 1489, CA.

M (abduction: non-convention country), Re [1995] I FLR 89,
CA.

Shah v Barnet London BC[I983l I All ER226, 11983] 2AC 309,
[1983]2WLR 16, HL.

V v B (a minor) (abduction) I ] 991 1 I FLR 266.

Cases also cited or referred to in skeleton arguments

C v C (minor: child abduction: rights of custody abroad)
[1989] 2 All ER 465, [1989] 1 WLR 654, CA.

Cruickshanks v Cruickshanks [1957] 1 All ER 889, [19571] WLR
564.

Cruse v Chittum (formerly Cruse) [1974] 2 All ER 940.

M (minors) (residence order: jurisdiction), Re [1993] I FLR
495, CA.

P (G E) (an infant), Re, [1964] 3 All ER 977, [1965] Ch 568,
CA.

W v W (child abduction: acquiescence) [1992] FCR 502.

<* page 26> Application

The father of three children applied under the Child
Abduction and Custody Act 1985 for an order that the
children of the parties be returned to the jurisdiction of
the State of Michigan, United States of America, on the
grounds that the removal of the children by the mother from
the US naval base at Keflavik, Iceland had been unlawful
within the meaning of the Hague Convention on the Civil
Aspects of International Child Abduction and in breach of
joint rights of custody and orders of the Wayne County
Circuit Court, Michigan. The application was heard and
judgment given in chambers. The case is reported by
permission of Cazalet J. The facts are set out in the
judgment.

Henry Setright (instructed by Haring Ross Gagrat & Gardi)
for the father.

John Mitchell (instructed by Eaton-Evans & Morris) for the
mother.

Cur adv volt

31 July 1995. The following judgment was delivered.

CAZALET J.

These proceedings, which are brought under the Child
Abduction and Custody Act 1985, concern three children: R S.
who is now aged six years; L A, who is now aged five years;
and K R. who is now aged one year.

The plaintiff in the proceedings is the father of the three
children. The defendant in the proceedings is the mother of
the three children. The children are currently living with
their mother in this country. The father seeks, pursuant to
the Hague Convention on the Civil Aspects of International
Child Abduction (which is set out in Sch 1 to the 1985 Act),
an order for the immediate return of the children to the
State of Michigan, United States of America. The mother
opposes this application.

Two main issues are joined between the parties. The father
maintains that immediately prior to the mother’s wrongful
removal of the three children to this country on 3 April
1995 (which is not disputed) the children were habitually
resident in the State of Michigan, United States of America,
a contracting party to the Hague Convention. The mother
disputes this and, whilst accepting that she acted in breach
of the parties’ joint rights over custody in bringing the
children to this country, she maintains that at that time
the children were habitually resident in Iceland, which is
not a contracting party to the convention. In those
circumstances the mother contends that this is not a
convention case. However, I have been told that if this
court decides that this is a convention case, and the
children are to return to Michigan, then counsel consider
that suitable undertakings can be worked out between them to
enable the mother to travel and remain with them in Michigan
pending any proceedings in that state being completed. The
father contends that if, contrary to his contention, this is
not a convention case, then nevertheless the court should
exercise its wider inherent jurisdiction and return the
children to Michigan to enable their future to be determined
by the courts of that state. The mother opposes this, saying
that such a course would be wholly inappropriate in the
circumstances.

Background history

I start by summarising the somewhat unusual background
circumstances giving rise to these competing claims. The
father is a United States citizen, now aged 27, who has been
serving in the US Navy in its Air Force limb for seven years
or more. <* page 27> The mother is a United Kingdom
national, now aged 24 years, who was born and brought up in
this country.

In January 1988 the father, under a US service posting, came
to be based in this country at RAF Brawdy, Haverfordwest,
this being a US military base. It is not in dispute that the
father’s sole reason for coming to this country was under
his US service posting.

In about April 1988 the mother and father met, and in about
September 1988 they started living together. The mother
became pregnant. On 23 June 1989 they were married at the
Haverfordwest Registry Office and thereafter they moved into
service accommodation. In 1989 and 1990 R and L were born in
this country, and the parties continued to live here until
January 1993. At this time the father was assigned from this
country to the US naval base at Keflavik, Iceland. It
appears that the father was granted a period of leave before
taking up his new position.

The family, in January 1993, then left the United Kingdom
and traveled to Michigan, where they stayed with the
father’s parents. It is not in dispute that at all times the
family envisaged moving on shortly to Keflavik, but in fact
in February 1993 the father traveled from Michigan to
Keflavik to take up his posting there, and the mother and
children remained in Michigan through until March before
joining the father. No doubt he was making arrangements for
suitable married quarters to be made available for them. In
March 1993 the mother and children traveled to the naval
base at Keflavik to join the father. In August 1994 K was
born in Keflavik.

In about December 1994 – the father puts it in January 1995
Ä the relationship between the parties broke down and they
separated. The father moved into barracks and the mother
remained with the children in US naval family accommodation.
The father continued to see his children and help with their
care. At this time the mother, on her case, formed a
relationship with another man and, as of mid January 1995,
became pregnant. I am told her expected date of delivery is
30 September 1995. Subsequently she ended her relationship
with the man concerned.

On 28 January 1995 the father filed a divorce suit in the
Michigan Circuit Court. On 8 March 1995 the Wayne County
Circuit Court, Michigan, made an order against the mother
prohibiting removal of the children to the United Kingdom.

It is not in dispute that there were discussions in March
1995 between the parties and their lawyers in Keflavik with
a view to them reaching terms arising from the breakdown of
the marriage and, in particular, as to with whom the
children should make their home. In fact no written
agreement was signed. I return to this later.

On 28 March 1995 the Wayne County Circuit Court made a
further order against the mother prohibiting her from
removing the children from the US naval base at Keflavik. At
this time it is apparent that the father was genuinely
fearful that the mother might abduct the children.

On 1 April 1995 the father made a complaint to the US Navy
Security at Keflavik when he found that the family home had
been vacated.

On 3 April 1995 the mother flew with the children from
Iceland to England. She took them to a caravan next to her
mother and her stepfather’s caravan which is situated by a
property which they are building.

The mother maintains that she was not served with any of the
US court orders no evidence by way of proof of any such
service has been put before the court. The mother said that
had she been so served she would not have left Iceland. She
further says that she had been told, but she did not
believe, either that the father had started these
proceedings or that he had obtained an injunction against
her. <* page 28> She maintains that in any event it was
obvious that she was going to the United Kingdom and that
the father would have known about this. The father maintains
that mother wrongfully removed the children without his
prior knowledge or consent.

On 9 May 1995 the mother left R and L in the United Kingdom
and traveled by air to Iceland with K She says that she had
to go to make arrangements about the house contents and
family belongings. She took K with her because, as she put
it, K would have been upset to have been separated from her.
In fact the parties were then in touch. The father accepted
that he was unable to prevent any further wrongful removal
by the mother of K, and made it clear to the mother that he
did not agree to her further removal from Iceland and that
he would pursue his legal remedies.

On 18 May 1995 the mother issued divorce proceedings. On 24
May 1995 the Lord Chancellor’s Department, on the father’s
request, instructed agents to seek the return of the
children pursuant to the Hague Convention. On 8 June 1995
the originating summons in child abduction was issued. There
followed what can be described as the usual applications to
the court in regard to surrender of passports by the mother
and children, and undertakings by the mother to ensure that
she remained with the children at her present address. Those
orders having been made, the substantive matter now comes
before me.

Is this a convention case?

Article 4 of the convention provides:

“The Convention shall apply to any child
who was habitually resident in a
contracting State immediately before any
breach of custody or access rights. The
Convention shall cease to apply when the
child attains the age of 16 years.”

It is agreed between the parties that the mother’s removal
of the children from Keflavik on 3 April 1995 was wrongful
and in breach of the father’s custody rights. In those
circumstances the question which I have to decide is where
the children were habitually resident immediately before
their wrongful removal.

It is Mr Setright’s case on behalf of the father that at all
material times the children were habitually resident in the
United States and in particular in the State of Michigan. It
is accepted on both sides that the children do not have nor
have had an habitual residence independent of that of their
parents, a child’s habitual residence being necessarily the
same as that of its parents (see Re B (minors: abduction)
(No 2) [1993] 1 FLR 993 at 995 per Waite J).

The classic meaning of habitual residence appears in the
speech of Lord Brandon in C v S (minor: abduction:
illegitimate child) [1990] 2 All ER 961 at 965, [1990] 2 AC
562 at 578 to 579, when he said:

“The first point is that the expression
“habitually resident”, as used in art 3 of
the convention, is nowhere defined. It
follows, I think, that the expression is
not to be treated as a term of art with
some special meaning, but is rather to be
understood according to the ordinary and
natural meaning of the two words which it
contains. The second point is that the
question of whether a person is or is not
habitually resident in a specified country
is a question of fact to be decided by
reference to all the circumstances of any
particular case. The third point is that
there is a significant difference between
a person ceasing to be habitually resident
in country A, and his subsequently
becoming resident <* page 29> in country
B. A person may cease to be habitually
resident in country A in a single day if
he or she leaves it with a settled
intention not to return to it but to take
up long-term residence in country B
instead. Such a person cannot, however,
become habitually resident in country B in
a single day. An appreciable period of
time and a settled intention will be
necessary to enable him or her to become
so. During that appreciable period of time
the person will have ceased to be
habitually resident in country A but not
yet have become habitually resident in
country B. The fourth point is that, where
a child of J’s age is in the sole lawful
custody of the mother, his situation with
regard to habitual residence will
necessarily be the same as hers.”

Mr Setright submits that it follows from this that at the
material time of the ether’s wrongful removal of the
children from Keflavik the court should hold at the
children’s habitual residence at that time was in Michigan.
He contends at the father never lost his original habitual
residence in Michigan and that this then attached to his
wife and children. Alternatively, Mr Setright submits that
if the court is against him on this primary submission, then
the father, mother and children acquired habitual residence
in Michigan arising from the period when they stayed there
for two to three months in early 1993, and that in the
circumstances in which they had been physically present in
Iceland through until April 1995, that habitual residence in
Michigan was never lost.

In support of his primary contention, Mr Setright submits
that the father’s essence both in this country and in
Iceland resulted solely from the direction posed on him by
his service in the US armed forces. He asserts that the sole
reason for his presence in the two countries in question
arose through his posting which his employers had the power
to impose upon him and indeed had imposed eon him. He also
made the point that even though these two postings may have
lasted for some years, they were temporary and that his
employers always had the right to require him to return to
his home country or move elsewhere.

Following the marriage, Mr Setright contends that the
mother’s presence in this Country and thereafter in Iceland
was dependent upon the father’s presence. He relies on the
fact that the father is a US citizen with his only permanent
roots in Michigan. Mr Setright further relies upon the legal
opinion of a Mr Ben Pearson, qualified lawyer of the State
of Michigan. This opinion is dated 21 July 1995 . It states
that under Michigan law the father is and has been deemed to
be a resident of the State of Michigan throughout the period
of his armed service. Furthermore, Mr Pearson says that in
the circumstances, Michigan is regarded as the children’s
“home state” WMH FN2 with jurisdiction to deal with them.
Mr Setright says that I should also take into account the
fact that the Michigan court has assumed jurisdiction over
the parties’ marriage and prohibited the removal of the
three children, who are registered US citizens and who have
no connection with Iceland whatsoever other than following
their father’s service requirements. He urges on me that the
US base at Keflavik is to be regarded as a self-contained
community with its own US legal service to which the parties
themselves had recourse, as well as its own housing in which
the children were accommodated, and no doubt its own shops,
schools or nursery schools attended by the two eldest
children, with its own social welfare system and the like.
There was no suggestion, he pointed out, that either party
had had any recourse to Icelandic law or other Icelandic
services whilst in hat country. WMH FN3

As I have already indicated, the speech of Lord Brandon in C
v S (minor: abduction: illegitimate child) [1990] 2 All ER
961 at 965, [1990] 2 AC 562 at 578 to 579 <* page 30> makes
clear that the expression ‘habitual residence’ is not to be
treated as a term of art with some special meaning, but
rather is to be understood according to the ordinary and
natural meaning of the two words it contains. There is, as
Lord Brandon indicated, no definition of the words ‘habitual
residence’ appearing within the convention; in order to
determine their meaning I must look at all the circumstances
of this particular case. Nevertheless in so doing it is, I
think, of some assistance to look at certain other cases and
consider the approach which the court then adopted.
In Re B (minors: abduction) (No 2) [1993] 1 FLR 993 at 995
Waite J said:

‘1. The habitual residence of the young
children of parents who are living
together is the same as the habitual
residence of the parents themselves and
neither parent can change that without the
express or tacit consent of the other or
an order of the court. 2. Habitual
residence is a term referring, when it is
applied in the context of married parents
living together, to their abode in a
particular place or country which they
have adopted voluntarily and for settled
purposes as part of the regular order of
their life for the time being, whether of
short or of long duration. All that the
law requires for a “settled purpose” is
that the parents’ shared intentions in
living where they do should have a
sufficient degree of continuity about them
to be properly described as settled. 3.
Although habitual residence can be lost in
a single day, for example upon departure
from the initial abode with no intention
of returning, the assumption of habitual
residence requires an appreciable period
of time and a settled intention. The House
of Lords in [C v S] refrained, no doubt
advisedly, from giving any indication as
to what an “appreciable period” would be.
Logic would suggest chat provided the
purpose was settled, the period of
habitation need not be long. Indeed, in
[Re F (a minor) (child abduction) [1992] 1
FLR 548] the Court of Appeal approved a
judicial finding that a family had
acquired a fresh habitual residence only
one month after arrival in a new country.’

In Shah v Barnet London BC [1983] 1 All ER 226, [1983] 2 AC
309, a case which concerned grants to overseas students
living in this country, the question arose as to the meaning
of ‘ordinary residence’ in the United Kingdom, pursuant to
the Education Acts 1962 and 1980. In the course of his
speech Lord Scarman said ([1983] 1 ALL ER 226 at 235, [1983]
2 AC 309 at 343):

‘Unless, Therefore, it can be shown that
the statutory framework or the legal
context in which the words are used
requires a different meaning, I
unhesitatingly subscribe to the view chat
“ordinarily resident” refers to a man’s
abode in a particular place or country
which he has adopted voluntarily and for
settled purposes as part of the regular
order of his life for the time being,
whether of short or long duration. There
is, of course, one exception. If a man’s
presence in a particular place or country
is unlawful, e.g. in breach of the
Immigration Laws, he cannot rely on his
unlawful residence as constituting
ordinary residence (even though in a tax
case the Crown may be able to do so)
…WMH FN4’

Lord Scarman continued ([1983] 1 ALL ER 226 at 235, [1983] 2
AC 309 at 344):

‘There are two, and no more than two,
respects in which the mind of the
propositus is important in determining
ordinary residence. The residence must be
voluntarily adopted. Enforced presence by
reason of kidnapping or <* page 31>
imprisonment, or a Robinson Crusoe
existence on a desert island with no
opportunity of escape, WMH FN5 may be so
overwhelming a factor as to negative will
to be where one is. And there must be a
degree of settled purpose. The purpose may
be one or there may be several. It may be
specific or general. All that the law
requires is that there is a settled
purpose. This is not to say that the
propositus intends to stay where he is
indefinitely; indeed his purpose, while
settled, may be for a limited period.
Education, business or profession,
employment, health, family, or merely love
of the place spring to mind as common
reasons for a choice of regular abode. And
there may well be others. All that is
necessary is that the purpose of living
where one does has a sufficient degree of
continuity to be properly described as
settled.’

In V v B (a minor) (abduction) [1991] 1 FLR 266 it was held
that for the purpose of the Hague Convention the words
‘habitual residence’ which appear in art 3 are to be equated
with ‘ordinary residence’.

In developing his first submission that the father had at
all times been habitually resident in Michigan, Mr Setright
relies in particular upon the passage in the judgment of
Waite J in Re B (minors: abduction) (No 2) [1993] 1 FLR 993
at 995 to which I have already made reference. He submits
that the father and consequently his family, never adopted
the place or country in which they for the time had been
living. The essence of his submission is based on the
compulsive element of the father’s posting by the US armed
service; this also being recognised by the State of Michigan
in holding that the father, throughout his service career,
was to be regarded as resident in that state.

For my part I think that this is too simplistic an approach.
It should, I consider, be borne in mind that when the father
elected to join the US forces such embraced the fact that he
would, no doubt from time to time, be required to move to
different countries following the Stars and Stripes. On any
view this was a voluntary election, with, in my view, no
material distinction between that of the business employee
who knows when he joins a particular firm that he may well
be required by his employer to work in different parts of
the world. Of course it would be different in this case had
the father been posted, for example, on active service, or
to a bivouac in Bosnia; but that is not this case. The
father’s initial posting was for some five years to the
United Kingdom; then, after a short period of leave in
Michigan whilst he and his family were waiting for the move
to Iceland, they together set up home in Iceland, in March
1993 for a further anticipated period, so it appears, of at
least three years. For these appreciable periods of time he
made his sole family home in each of the two countries.
Furthermore, given that a career in the armed services was
the way of life that he had chosen to adopt, it has become
apparent that, as he is now a veteran, he is able to leave
the services if he so wishes. This has come to light because
he has recently decided to take this course and in about
September of this year he will be leaving the services and
returning as a civilian to Michigan.

Whilst I am not bound by the law of the State of Michigan as
to the father’s residence at the material time I of course
bear in mind and take into account the position under
Michigan law. Mr Mitchell on behalf of the mother urged me
to discount the significance of this by looking at the
complaints for divorce filed by the father in the State of
Michigan, where reference is made to the minor children
‘residing’ during the last five years with their parents at
the naval facility, Keflavik and at their address in the
United Kingdom. WMH FN6 However, whilst on the face of it
there may be some inconsistency between this wording and an
established <* page 32> residence recognised under the law
of Michigan, I do not think that there is any substance in
the point since a distinction can be made between physical
presence and habitual residence.

I do however think that there is force in what Mr Mitchell
submits is the somewhat ludicrous situation which could have
arisen if the father were to be deemed to have been
habitually resident, from at least the date of his marriage,
in Michigan. For example, he submits that if in 1992 the
father had wrongfully removed the children from the United
Kingdom before his posting here was at an end, the mother
would in those circumstances have had no redress under the
convention since on Mr Setright’s argument the children
would not have been deemed to have been habitually resident
in the United Kingdom immediately before the wrongful
removal. I think this helps to throw some light on the
proper construction of the convention, pointing to the
children having been habitually resident in the United
Kingdom through until early January 1993. It indicates the
danger, in my view, of an alternative or artificial
approach.

In the circumstances, and in the context in which Waite J
was using the word ‘voluntarily’ in Re B (minors: abduction)
[1993] 1 FLR 993 (above cited), I consider that the father
lived with the mother in both the United Kingdom and then
Iceland voluntarily with the required degree of continuity
and for the settled purpose as part of the regular order of
their lives for the time being, which for either period was
in any event appreciable, and cannot in either case be said
to have been one which was in its context short.

I emphasise that whilst the father was in the United Kingdom
for the five-year posting he married the mother, they set up
and made their only home here, albeit at the US services
base, with their two eldest children having been born here.
Likewise upon the transfer to Keflavik, the family moved
into married quarters and made their only home there with
their daughter being born there. They had no home base of
their own elsewhere.

Furthermore, as to Mr Setright’s additional point that,
whatever the position before, the father and consequently
the family became habitually resident in Michigan as a
result of their stay there in 1993, it is apparent from the
papers before me that when the family moved to Michigan for
the two to three month period in 1993 they were, so to
speak, in transit, waiting for the move to Iceland.
Nonetheless, they must be regarded as having terminated
their habitual residence in the United Kingdom upon their
departure from this country.

After a few weeks break in Michigan the father went on ahead
to Iceland to make the arrangements for the family to
follow; once arrangements had been put in place the mother
and children followed. Whether they were staying with his
parents in Michigan on holiday and/or in transit may not
matter, although I think it would be difficult to find that
they stayed in Michigan at that time with the required
settled purpose of continuity such that they then became
habitually resident in the State of Michigan. WMH FN7
However for present purposes, it is unnecessary to resolve
this question because I am fully satisfied that habitual
residence was established by the father and the family in
Keflavik from March 1993 onwards.

A further point arises in regard to the parties’ attempts to
reach a compromise following the marriage breakdown. The
mother contends that as part of negotiations carried on
between the parties’ legal advisers in March 1995, the
father agreed that the children should live with her. On
this basis she maintains that at that time, at the latest,
the children’s habitual residence followed hers, and that in
such circumstances it is not open to the father to maintain
that the children were thereafter otherwise than habitually
resident with her wherever she might <* page 33> be. I do
not think that there is any substance in this argument since
although the mother exhibits to her affidavit of the terms
discussed Ä one of which appears to indicate that agreement
was reached that custody of the children was to be vested in
her Ä it is apparent that other matters were not agreed and
that no overall agreement was reached; furthermore there was
no term that the mother was to be able to bring the children
to the United Kingdom to live with her and no written
agreement was ever signed. I accordingly attach no
significance to this contention.

As an alternative way of putting his case, Mr Setright
submits that I should regard the US base at Keflavik as part
of the United States for present purposes. In support of
this submission he repeats the point that the lifestyle of
this family in the fullest sense must then have been
American. He submits that in effect this was a ‘little
America’ situated outside the United States but none the
less America in the context of this case and the convention.

I bear in mind that the words of art 4 require that the
child in question must have been habitually resident in the
contracting state immediately prior to the wrongful removal.
It is not suggested that there was some overall local law
immunity, as might attach to an embassy, in relation to the
American camp in question. No doubt American Federal law may
to some extent have applied, but there is no evidence before
me which indicates that in some way Icelandic law was
excluded. In any event I am firmly of the view that this
argument cannot succeed. In ties case the state within which
the US base was to be found was Iceland. Whilst I appreciate
that the way of life led by this family may well have been
closer to an American lifestyle than that of those who go
overseas for the purposes of education, business or a
career, nevertheless ‘habitual residence’ requires a
physical presence in the place or country in question. In my
view that physical presence was in Iceland at the material
time and given its nature and duration cannot be deemed to
have been an habitual residence in a State of America.

For the reasons which I have given I consider that the
father was habitually resident in the United Kingdom through
to early January 1993, with his family adopting and
following him in that habitual residence. Upon the father
being posted to Keflavik and the family leaving this
country, his connection and base in this country terminated
and habitual residence here came to an end. However, shortly
thereafter the family in my view then established an
habitual residence in Iceland.

Accordingly and notwithstanding the succinct and persuasive
arguments of Mr Setright I am satisfied that these children
were habitually resident in Iceland for the purposes of the
convention immediately prior to the mother’s removal of them
from that country on 3 April 1995. Because Iceland is a
non-convention country, it is not open to me to make any
order, therefore, under the convention.

The wardship question

Mr Setright develops his case further. He has told the court
that although the solicitors who brief him are only
instructed by the appropriate authority to make an
application pursuant to the convention, he does have
instructions from them which would enable him to give an
undertaking on their behalf to file an originating summons
in wardship, making the three children wards of court if the
court under its inherent jurisdiction were to be minded to
order at this hearing the immediate return of the children
to Michigan. He draws the court’s attention to the
established law that even when exercising its inherent
jurisdiction the court will normally apply the principles of
the convention in determining whether to <* page 34> make a
peremptory order returning the children to another country.
He submits that although the father is not currently present
in this country there is adequate evidence before the court
to enable it to take this course. He referred me to the
Court of Appeal decision in D v D (child abduction:
non-convention country) [1994] 1 FLR 137. In that case the
Court of Appeal held:

‘1. It was proper to apply the general
principles of the Convention in a
non-Convention case to the extent that it
was in the interests of the children that
parents or others should not abduct them
from one jurisdiction to another, but that
any decision relating to the custody of
the children was best decided in the
jurisdiction in which they had hitherto
been normally resident, always bearing in
mind that in the wardship jurisdiction the
court retained the discretion to consider
the wider aspects of the welfare of the
wards. The judge had been right to apply
the general principles of child abduction
to the case, and, as his findings based on
the provisions of the Convention could not
be criticised, his decision at the time
that it was made to order the children’s
return had been fully justified.’

In that case a child had been abducted from Greece where the
Hague Convention had not yet been ratified. The mother was
held to have removed the children wrongfully from their
country of habitual residence. The judge hearing the
contested wardship applications in respect of the children
applied the principles of the convention and ordered the
return of the children. In those circumstances the Court of
Appeal held that the general principles applied.

In inviting the court under its inherent jurisdiction to
make a peremptory order today returning the children to
Michigan Mr Setright does not suggest that the mother should
immediately be separated from the children. He relies on the
fact that had I decided that this was a convention case and
been minded to order that the children should be sent
forthwith to Michigan, there could have been put in place
undertakings upon which the father and mother were already
broadly agreed, and which would have enabled the mother to
travel with the three children to Michigan and be supported
there pending a hearing before the Michigan State Court
which the father would then pursue.

Mr Mitchell told me that whilst, in that context, the mother
may have been prepared to accept undertakings, these were
against a background of problems inevitably raised by her
advanced state of pregnancy. She is due to give birth on 30
September 1995. She has been medically advised that she will
not be able to travel by aeroplane during the month prior to
her expected date of delivery. In those circumstances it
would be possible for her to travel during the month of
August out to Michigan. The proposal is that the family
should stay there either in hotel accommodation or with the
father’s parents.

Against that background and in the absence of any ground
being raised analogous to those available under the
convention, and under art 13 in particular, this is a
situation, submits Mr Setright, in which the general
convention principles should be followed

In Re M (abduction: non-convention country) [1995] 1 FLR 89
the Court of Appeal restated the principles upon which the
courts act in non-convention cases. It was held as follows
(at 89-90):

‘Per curiam: the principles upon which the
courts acted in non-Convention cases could
be summarised thus: (1) Normally, the best
interests of children were best secured by
having their future determined in the
jurisdiction of <* page 35> their
habitual residence. (2) The court, in
determining a non-Convention case, would
take account of those matters which it
would be relevant to consider under Art 13
of the Convention. (3) The essence of the
jurisdiction to grant a peremptory return
order was that the judge should act
urgently. Accordingly, where on appeal a
party sought to introduce fresh evidence,
there was some relaxation of the
principles in Ladd v Marshall ([1954] 3
All ER 745, [1954] 1 WLR 1489). (4) It was
assumed, particularly where member States
of the European Union were concerned, that
facilities such as rights of
representation would be secured as well
within one State’s jurisdiction as within
another …’

Waite LJ said (at 98):

‘The paramountcy of the welfare of the
child in these cases arises at every stage
from the first preliminary to the last
adjudication. The fact that there is
jurisdiction to grant a peremptory return
order in child abduction cases where the
Convention does not apply, is itself based
upon nothing else but an appreciation of
the general demands of the best interests
of all children. It assumes that in the
absence of special circumstances, it will
best serve the immediate welfare of the
abducted child to have its long-term
interests judged in the land from which it
was abducted. When that principle is taken
with the general principle of comity which
applies between civilised countries, and
especially between partners in the
European Union, an element of trust is
bound to become involved. Judges in one
country are entitled, and bound, to assume
that the courts and welfare services of
the other country will all take the same
serious view of a failure to honour
undertakings given to a court (of any
jurisdiction), failure to maintain
financially, failure to afford contact,
and so on. It is to be assumed that the
courts in every country will not hesitate
to intervene to enforce whatever orders,
or to direct whatever inquiries, are
called for in the children’s best
interests. In that process every judge is
bound to take into full and careful
account what his or her colleague has
already ordered in antecedent proceedings
in another jurisdiction.’ WMH FN8

The major distinction between this case and the usual
convention case is that if a peremptory order is made here
for the Michigan courts to decide the issues between the
parties the children will not be returning to their former
status quo. They will be returning to Michigan, to a place
which they have only visited shortly, to a new home, to new
schools, to new faces and to surroundings which will be
wholly novel to them. They would not be returning to where
they had been settled and they would not be going back to
their former status quo in any physical sense. Inevitably
this would be a major upheaval for them, quite different to
the usual concept of a return to the warmth of a well-known
home, friends and a general way of life. Furthermore, the
advantages of returning to a jurisdiction where there would
be available outside the family those who had first hand .
knowledge of the children immediately prior to their being
brought to this country in April 1995 would not arise.

Following the dicta in D v D [1994] 1 FLR 137 at 137 and Re
M [1995] 1 FLR 89 at 98 I am satisfied that one of the
essential grounds for returning a child peremptorily to its
former habitual residence is that it will best serve the
immediate welfare of the abducted child to have its long
term interests judged ‘in the land from which it was
abducted’, as Waite LJ put it in Re M. I am not asked <* page 36> to return these children to Iceland, the country
from which they were abducted, but to Michigan, a state
which in essence is wholly strange to them.

Furthermore, these children have been in this country since
3 April 1995 and over that nearly three-month period I am
told that the eldest two have been either in school or in
nursery school. I am told that all three children have
seethed well and that the maternal grandparents have played
a full part in helping to look after them. WMH FN9

If a move to the United States for the purposes of a hearing
is to be made the mother will in those circumstances almost
certainly have to give birth to her expected child there.
There could be complications. She has been the principle
carer for these children all their lives. Because she and
the father have become estranged in really quite bitter
circumstances, it cannot be predicated that she and her
in-laws will be able to cope well together. Alternatively if
she has to live in a hotel, as counsel has suggested, this
might be wholly unsatisfactory for these children at a time
when their mother is about to give birth or has just given
birth to her expected baby, yet, at the same time, feels
that she must maintain her full commitment to her three
eldest children.

I would add that there has been no criticisms made by the
father of the mother as a mother and no suggestion that the
children should be separated. There must be also a prospect
that the children may ultimately make their home with their
mother in this country and, in these circumstances, a double
move could ultimately prove to be highly disruptive for
them.

In making my order in this case I of course take into
account the two court orders made by the Michigan State
Court in March 1993. I also bear in mind that these three
children, being children of an American father, would, if
the marriage had survived, ultimately have expected to have
been brought up in America.

Bearing in mind that under the inherent jurisdiction I,
whilst applying the principles of the convention, am
entitled to and indeed must look at the wider concepts of
the welfare of the children in the context of the Children
Act 1989, I do not consider that, having regard in
particular to the fact that these children would not be
returning to their former status quo, it would best serve
their interests or be proper to order at this stage in any
wardship proceedings a return of the children to Michigan. I
accordingly decline to make any order to that effect.

In declining at this stage to make the orders sought I wish
to make it fully dear that this court is not seeking in any
way to prejudge the final resolution of this case, which can
only properly be achieved when there is full and detailed
evidence before the court, including evidence from each
party as to his and her long term proposals, with both
parents being available to come to court to give evidence.
In those circumstances this application is refused.

Application refused.

Carolyn Toulmin Barrister.

——————–
1. Article 4 is set out at p 28c, post.

2. It is extremely doubtful that Michigan could, under
these facts, qualify as the “home state” of the
children within the meaning of 9 Uniform Laws Annotated
(ULA) 2(5): “‘home state’ means the state in which the
child immediately preceding the time involved lived
with his parents, a parent, or a person acting as
parent, for at least 6 consecutive months, and in the
case of a child less than 6 months old the state in
which the child lived from birth with any of the
persons mentioned. Periods of temporary absence of any
of the named persons are counted as part of the 6-month
or other period;”. While the children may have been
legally “domiciled” in Michigan, this does not make
Michigan the “home state”. Jackson v Jackson (Fla.App.
1 Dist. 1980) 390 So.2d 787, 790; Brenner v Cavin
(Ga.App. 1982) 295 S.E.2d 135, 136-137; In re Marriage
of Fox (Cal.App. 2 Dist. 6 Div. 1986) 180 Cal.App.3d
862, 872 (Service man’s domicile does not cause child
to have that domicile as a “home state”.

3. Foreign military bases are not U.S. Possessions. Dare
v Secretary of Air Force (D.C.Del. 1985) 608 F.Supp.
1077, 1080; Affirmed: 787 F.2d 581, certiorari denied
479 U.S. 846 [107 S.Ct. 614; 93 L.Ed.2d 611]

4. See, however, In re Marriage of Dick (Cal.App. 2 Dist 4
Div 1993) 15 Cal.App.4th 144 and Bashir and Bashir
(Fam.Ct.Aus. 1994) No. 9435 for a contra view.

5. Query: Would this include being without funds to pay
for transport?

6. This is pursuant to 9 ULA 9: Information Under Oath to
be Submitted to the Court.

7. It may also be said that since only the father had the
“intent” to make Michigan the children’s habitual
residence, it should also fail on that ground since,
barring exceptions no hereto relevant, it is common
ground that one cannot unilaterally establish a new
habitual residence.

8. See, e.g., Archambault v Archambault (1990) 555 N.E.2d
201, 207-208; Matter of R.L.S. (Okl.App. 4 Div 1994)
879 P.2d 1258, 1263 and Delk v Gonzalez (Mass. 1995)
658 N.E.2d 681, 683-684 for similar remarks. See also
No 34 of the Perez-Vera Report.

9. With the greatest respect to the Court, this is boot
strapping and should not even be suggested. One may
not and should not consider events that have occured
after the act complained of.