UK – RE V – 1995 (Return denied) GREEK FATHER v ENGLISH MOTHER. The father and mother both shared two residences, one in London, England and the other in Corfu, Greece. Both parents went to London for the winter and Corfu in the tourist season. The father went back to Corfu and the mother, unknown to the father did not follow, but rather stayed in London and started divorce proceedings. The father filed for return. The court ruled that the parents had in fact two habitual residences, London and Corfu. The court ruled that “concurrent habitual residence was a concept that could not fit in with the aims of the Convention”. The court ruled that at the time of the alleged retention, the children were habitual residences of England.
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Re V (Abduction: Habitual Residence)[1995] 2 FLR 992
7 International Abduction [UK 1995]
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[1995] 2 FLR 992
RE V (ABDUCTION: HABITUAL RESIDENCE) Family Division
Douglas Brown J
28 June 1995
CATCHWORDS
001 Child abduction – Habitual residence – Greek father
and English mother living with children in London in winter
and in Corfu during tourist season – Mother retaining
children in England and starting divorce proceedings –
Father instituting proceedings under Hague Convention –
Whether children habitually resident in London and/or Corfu
– Whether habitual residence concurrent or consecutive –
Whether retention of children wrongful under Hague
Convention, Art 3
HEADNOTE
002 The parents, a Greek father and an English mother,
began to live together in 1981 and were married in 1991.
They had two children aged 4 and 1. Under Greek law the
parents had joint custody of the children. The father was
general manager of a successful hotel in Corfu and a
director of the company which owned it. The couple lived in
a luxurious villa adjoining the hotel during the tourist
season, and in a house in London in winter. That pattern of
life continued until March 1995 when, after the father had
returned on 11 March 1995 to Corfu, the mother unknown to
him started divorce proceedings. She had been due to fly
with the children to Corfu on 17 April 1995 and went to
considerable lengths to conceal from the father her
intention not to do so. She applied for ancillary relief
under the Children Act 1989. The father applied for a stay
of the proceedings and brought an originating summons
seeking the return of the children to Greece under the
provisions of the Child Abduction and Custody Act 1985 and
the Hague Convention. The father contended that the
habitual residence of the family was Corfu and the house in
London was not a family home but an investment property used
by them and many Greek friends, and accordingly that the
failure of the mother to follow him to Corfu with the
children on 17 April 1995 amounted to wrongful retention
within Art 3 of the Convention. Alternatively, assuming
that there had been habitual residence in England in the
winter, the father’s consent to the mother and children not
accompanying him on 11 March 1995 had been vitiated by her
deceit, so that the habitual residence of the family should
be taken as reverting to Corfu with the father on that date.
The mother’s case was that the parents and children were
habitually resident in both Corfu and England concurrently,
a situation that could not fit into the framework of the
Convention, or alternatively that their habitual residence
was consecutive, changing as the family moved from one
country to the other according to the season, and had been
England on the relevant date.
003 Held – refusing the application – a broad view of the
evidence, as required in Convention proceedings, established
that the family had two homes, part of the year being spent
in one country and part in another. There had been a
sufficient degree of continuity in the residence in London
for habitual residence to arise, and an equally sufficient
degree of continuity in the residence in Corfu for the same
result. Therefore for part of the year the parents and
children were habitually resident in London and for the
remainder of the year were habitually resident in Corfu.
There could not in those circumstances be habitual residence
in more than one place at the same time, and, furthermore,
concurrent habitual residence was a concept that could not
fit in with the aims of the Convention. The period of
habitual residence in London ended on 17 April 1995
irrespective of the mother’s deceit, so that the children
were habitually resident in England at the moment the mother
failed to return them. Accordingly, the father had failed
to show that the children were habitually resident in Corfu
on the relevant date and his application under the
Convention failed.
<* page 993>
Statutory provisions considered
Children Act 1989, s 2(1)
Hague Convention on the Civil Aspects of International Child
Abduction 1980, Arts 3, 5, as enacted by the Child Abduction
and Custody Act 1985, Sch 1
CITATIONS
Cases referred to in judgment
A (Wardship: Jurisdiction), Re [1995] 1 FLR 767, FD
B (Minors) (Abduction) (No 2), Re [1993] 1 FLR 993, FD
Cooper (Surveyor of Taxes) v Cadwallader [1904] 5 TC 101, 42
ScLR 117
J (A Minor) (Abduction: Custody Rights), Re [1990] 2 AC 562,
[1990] 3 WLR 492, sub nom C v S (A Minor) (Abduction) [1990]
2 FLR 442, [1990] 2 All ER 961, HL
Norris (ex parte Reynolds), Re (1888) 4 TLR 452
Pittar v Richardson (1917) 87 LJKB 59
S (Minors) (Child Abduction: Wrongful Retention), Re [1994]
Fam 70, [1994] 1 FLR 82, [1994] 2 WLR 228, [1994] 1 All ER
237, FD
V v B (A Minor) (Abduction) [1991] 1 FLR 266, FD
COUNSEL
David Bodey QC and Andrew Tidbury for the father
Paul Coleridge QC and Jennifer Roberts for the mother
JUDGMENT
DOUGLAS BROWN J:
004 I have before me an originating summons in which the
father of two children seeks their return to Greece under
the provisions of the Child Abduction and Custody Act 1985
and the Hague Convention. The application is resisted by
the children’s mother and the matter has given rise to what
is said to be a novel point in this jurisdiction, which I
can best identify by summarising the history of this family
and the competing submissions of the parties.
005 The father is 50, and the mother is 39, and they are
husband and wife. He is Greek and lives in Corfu; she is
English and now lives in London with the children. The
children are H, born on 13 June 1991, who is 4, and A, born
on 3 March 1994, who is 1.
006 For the last 25 years the father has been associated
with an hotel in Corfu. The exact ownership may fall to be
decided in ancillary proceedings now pending between the
parties, but it is common ground that it is a successful
enterprise, recently valued by Savilles at œ12m, although
the actual realisable value may be rather less. That is one
of the matters which will have to be considered if the
ancillary proceedings continue. The father is the general
manager of the hotel and a director of the company which
owns it. He met the mother in 1975 in Corfu and she began
to work for him in his business. They began to live
together as if man and wife in 1981. They married in 1991
shortly before H was born in Athens. A was born in London.
They last lived together in March 1995 in London. The
pattern of their lives had for 10 years or more been that
during the tourist season they would live in Corfu and from
1988 that was in a luxurious villa adjoining the hotel.
During the winter, they lived for the most part in London,
with occasional short visits back to Greece and other parts
of the world. The length of the stay in Corfu and London,
and particularly the stay in London, has been disputed and I
have had to consider a considerable amount of documentary
evidence and I have also heard some oral evidence.
007 The father’s principal case is that the villa in Corfu
was their home and <* page 994> their habitual residence was
Corfu and therefore the children, taking their habitual
residence from the parents, have an habitual residence in
Greece and the house they lived in in London was not a
family home but an investment property which they and many
Greek friends made use of, the friends usually paying rent
or some financial contribution. It is therefore the
father’s case that after he had returned to Corfu in March
1995 the failure of the mother to adhere to the agreed plan
and follow with the children on 17 April 1995 amounted to
wrongful retention of the children in the UK in breach of
the father’s rights of custody under the Hague Convention.
008 It is convenient before summarising the mother’s case
if I refer to Art 3 of the Hague Convention on the Civil
Aspects of International Child Abduction 1980. This in its
relevant part reads:
`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.’
Article 5 provides in its material part:
`For the purposes of this Convention –
(a) “rights of custody” shall include rights
relating to the care of the person of the child
and, in particular, the right to determine the
child’s place of residence; …’
009 It is common ground that under Greek law each parent
has joint custody of the children. If the father is right
and if the children were habitually resident in Greece when
the mother failed to travel to Corfu with them in April
1995, the children were without doubt wrongfully retained
and should be returned to Greece without delay. It is for
the father, in the circumstances, to establish these grounds
and in particular that the children were habitually resident
in Greece.
010 It is the mother’s case that they were a couple who
were habitually resident in both Greece and in the UK
concurrently, that the pattern of their lives for many years
had been for them to live in two family homes: one from the
spring until the autumn in Corfu and the other in London
from about October until April. The alternative submission
put forward is not that the habitual residence was
concurrent but that it was consecutive: changing as the
parties changed from one country to another according to the
season. That is a subsidiary submission which Mr Coleridge
QC for the mother has not given great weight to, impressing
upon me his first submission that there was here concurrent
or simultaneous habitual residence in both countries.
011 This pattern of life continued until March 1995 when
the mother decided that the marriage was at an end. The
mother, as I have said, was due to fly to Corfu on 17 April
1995 with the children and she in fact saw solicitors on <*
page 995> 1 March 1995 about a divorce and the petition
based on adultery and unreasonable behaviour is dated 5
April 1995. The intention was that that petition would be
served personally on the father on or before 17 April 1995,
in other words, before or on the date when she was actually
due to travel.
012 The mother went – she does not hide this – to
considerable lengths to conceal from the father her
intentions and in the course of that, for example, she led
the au pair that they employed in London to believe up to
the last moment she was in fact going to Corfu.
Unfortunately, service was not effected until the following
day, by which time the father knew that the mother was not
returning to Corfu with the children and considerable
animosity has arisen as a result.
013 In the meantime, the mother had obtained ex parte from
Hale J a worldwide Mareva order and a non-molestation order.
I need only mention briefly the present state of the
proceedings in England and in Greece. The mother has
applied for ancillary relief and she has in Children Act
proceedings obtained an interim residence order with the
father having an order in his favour for contact now at
alternate weekends at a nearby house supervised by an au
pair and there is also telephone contact.
014 The father has applied for a stay of these proceedings
under the Domicile and Matrimonial Proceedings Act 1973.
The father has also brought proceedings in Corfu for the
return of the children. Those were heard recently at an
inter partes hearing and judgment from the Greek court is
awaited.
015 I will return to the parties’ submissions and how the
case is put for each of them when I have considered and,
insofar as I have to, decided the factual issues.
016 Although, as I have said, I have had available a
considerable body of evidence sworn in these and in other
proceedings and have had the benefit of hearing the father
and mother carefully cross-examined by leading counsel, I
will follow the practice of judges of this Division and will
not decide this matter on a detailed examination of the life
of this couple or the evidence that they have adduced in the
various sets of proceedings. I will gratefully emulate the
approach of Waite J in Re B (Minors) (Abduction) (No 2)
[1993] 1 FLR 993 where, amongst other reasons for not
following counsel down a path of minute investigation, Waite
J (as he then was) said this at p 998G:
`Hague Convention proceedings are, by their
nature, summary. High priority is accorded to
their urgent hearing in the Family Division.
Human nature assures, unfortunately, that there
will never be any shortage of Convention cases
coming forward for disposal. If they are all to
be dealt with fairly and expeditiously, there
must be an element of peremptoriness in the
court’s approach to their hearing. Time does
not allow for more than a quick impression
gained on a panoramic view of the evidence.’
017 Although both leading counsel cross-examined they did
so economically and, if I may say so, skilfully and the oral
evidence did not assume a disproportionate level in this
case. Both of them invited me to approach the decision in
the broad way suggested by Waite J.
018 There are issues between the parties about which I
have heard evidence <* page 996> and which will more
conveniently fall to be decided in the ancillary
proceedings. There are, of course, even in these matters
questions of some relevance to the matter which I have to
decide, but they are not essential. For example, the precise
ownership of the properties in London where successively the
parties lived. It seems to me not to matter so much as to
who owned the properties as the use to which they were put.
I make no finding, therefore, whether the father
beneficially owned the flat in London W8 from 1972 to 1987
or whether it was his father or whether it was an off-shore
company.
019 After the mother and father began to cohabit, this
flat was used in the winter months by them as their home.
During the summer, for various periods, the flat was rented
out, usually for short periods, but under a formal tenancy
agreement. In 1986 the father bought in addition to this
flat a flat in London W2, purely, it is accepted, for
investment purposes. The couple did, however, live there for
a few weeks in the interval between the sale of the London
W8 flat and the purchase of a five-bedroomed house in
south-west London in 1987. This house was bought originally
by a Panamanian company, said by the father to be owned by
his father. I again make no concluded finding as to whether
that is correct and in the circumstances of what I have to
decide it does not matter.
020 In 1993 the property became the joint property of the
mother and father, subject to a substantial mortgage to the
Royal Bank of Scotland. The father says that that property
was bought purely for investment purposes and was not
intended as a family home. There may well have been an
investment element in the decision to buy the house. The
flat in London W8 had produced a spectacular profit in the
14 or 15 years or so it was owned by whoever owned it. The
flat in London W2 was sold at a profit and the property
market was still buoyant in 1987 and 1988. However, I
accept the mother’s evidence that this was the home of this
couple in London and the family home in London after H’s
birth. It is not unusual for affluent couples to have more
than one home in different parts of the world. That may or
may not give rise to a change of individual residence when
they move from one property to another: it depends entirely
upon the individual circumstances of the individual case.
021 A Corfu villa adjoined the hotel. The hotel, it is
common ground, is the family’s principal source of income.
The villa, which is well illustrated in photographs in the
documents, is clearly a substantial and attractive property.
But the UK house is a substantial house in an agreeable part
of London and the family moved into that house for the
winter months. It is agreed that the mother and father kept
their clothing and personal effects there and travelled
light when they came from Corfu to London.
022 When H was 2 she was entered at a London nursery
school, and she attended there from 24 November 1993
regularly until 30 March 1994, shortly before returning to
Corfu. Then after the summer in Corfu, from 31 October 1994
she rejoined the school and she is still there.
023 There has been some controversy as to the extent of
education or schooling that H has had in Corfu. I am
certainly prepared to assume that she has had some tuition
in Greek in the summer of 1993 and 1994, although the mother
vehemently and with reasoned argument denies that she was
taught by a lady who is the wife of the water-ski franchise
holder of the hotel. The vehemence of that denial prevents
me from making a concluded <* page 997> view on exactly what
happened. I would have to hear further oral evidence, which
is not possible or, I think, necessary. If, as I accept,
the child had two homes, it would not be surprising at her
age if she had some schooling whilst at each home, if only
nursery schooling or elementary Greek lessons.
024 For the father, it is stressed that the villa is a
beautiful and comfortable home which had, for example,
attracted the attention of President Yeltsin and the prime
minister of Greece, both of whom want to rent it as a summer
retreat. This is mentioned by the father as being some
indication of the regard which he has for the villa as a
family home, that he refused, even for a substantial
remuneration, to give up the villa to either of these
gentlemen.
025 In these circumstances, says the father, a terraced
house in London is a poor substitute and could not be
regarded as the family’s home. In addition, the father says
that large numbers of Greek nationals use the premises on
payment. There were 25 separate sets of keys, including 25
alarm keys. This is not, it is said, the occupancy expected
of a family home. Here I think the father is exaggerating
and overstating the position. There were, without doubt,
two young Greeks, children of family friends, who lodged
there whilst attending college. I am also prepared to
accept that for a time a substantial number of friends
stayed for short or sometimes long periods, often when the
mother and father were in residence. They would be given
keys for obvious reasons of convenience. I accept the
mother’s evidence that there were no more than six sets of
keys. The provision of 25 alarm keys would be most unusual.
026 The mother took a large number of photographs over
last weekend of the outside and many of the inside of the
house and they have been before me in evidence. They show
the house and contents, largely as they would have been in
March 1995 when the father left. I need not refer to them
in detail; they show, however, a typical family home in a
typical family state. It is clearly a very well-equipped
and furnished house and full of the everyday clutter of
family life. There are a considerable number of family
photographs on display and those remained there when the
family was back in Corfu, where there was an equally, if not
more extensive, collection of photographs on display. A car
was always available, garaged locally, for when the family
were in London. One minor detail is that the parties had
headed stationery printed with the address of the house upon
it.
027 When I come to look for evidence pointing the other
way, the father is entitled to say that some of the
documentary evidence supports his contention. The mother
has declared herself to banks as being non-resident for
taxation purposes. She has obtained export cars free of
duty by similar representations. This she accepts. It
certainly does not redound to her credit. She says this was
done on her husband’s instructions.
028 The father also relies on an affidavit from the
paternal grandfather exhibiting a schedule of meetings of
the hotel company, which he says the mother attended and
signed the minutes. This purported to show that the mother
attended meetings in Corfu, for example, in October,
November, December 1993 and January 1994 and again regularly
throughout the summer. The mother’s answer is that she
would, as a matter of general practice, sign minutes in
batches at different times, but she was not in Corfu in the
winter on the days that are shown on the schedule. Again
this is not an easy matter to resolve without having heard
the grandfather, but I have heard the father and I accept
the mother’s evidence on this: I thought she <* page 998>
was a far more satisfactory witness than he was. He sought
to persuade me that most of the dates shown were not in fact
dates of the meetings but dates when the father wrote up the
minutes. I thought his evidence on this was particularly
unsatisfactory, but I go no further than that.
029 The mother, on the other hand, is entitled to rely on
two recent affidavits of the father. In one, sworn on 26
April 1995, he said in a paragraph which was dealing with
his views about reconciliation: `On Saturday, 22 April 1995
I slept overnight at the matrimonial home’. By that he
meant the London house. When cross-examined about that he
said that that was a mistake on the part of his solicitors.
030 On 12 May 1995, the day he began his Hague Convention
application, the very same experienced solicitors, also
acting in the Hague Convention proceedings, made exactly the
same mistake in an affidavit sworn in answer to the Mareva
application: `I have an interest in the following assets:
(a) the former matrimonial home, [the London house]’. I do
not think this was a mistake by these knowledgeable
solicitors. I have not been told that they have recognised
that this was a drafting blunder by them, which I would have
expected to happen if it was a mistake by them. In both
affidavits the father was recognising, in my view, the
reality, namely, that the London home was indeed the
matrimonial home in the UK and not just a holiday stopover
accommodation. He is a shrewd and intelligent man and
fluent in English and knew exactly what he was deposing to
in these affidavits.
031 On the whole, although I do not embark upon a general
or even a detailed assessment of issues of credibility, I
was not impressed with the father and on any issue to do
with residence I prefer the evidence of the mother.
032 In his originating application, repeated in an
affidavit later, he said for a 3-month period during the
winter of each year the parties resided in London, where
they own a property in joint names. The evidence of the
mother, based on her recollection and for a number of years
on stamps in her passport up to 1988, when the stamps were
no longer put in, is that for the most part they lived from
October to April in London, an average of 5 months. The
father may well have gone back in March to open the hotel
up, but she would stay in London until April. The pattern,
particularly after the children were born, was for her to
leave in April when direct flights on charter planes became
available, avoiding the difficulty with young children of
changing planes at Athens.
033 I accept her evidence and find that they spent in fact
the longer period that she says they did in the UK. I do
not think that it matters greatly for the purposes of this
case whether it is 3 months or 4 months or 5 months that
they lived in London but as I have heard the evidence and I
have considered the dispute between the parties that is my
finding.
034 I have little doubt that the father relied on a
3-month period with a careful eye on the English Inland
Revenue, who prescribe a 90-day period after which visitors
may be liable for tax. The father claimed when
cross-examined that he was unaware of any such tax rule.
This is shown to be untrue when contrasted with his first
affidavit, where he remembered a conversation with the
mother: `At which we discussed the length of time we could
remain in the UK without being subject to tax’. The father,
understandably, relied on the affidavits and oral evidence
of a former woman friend of his, who has from time to time
been his business associate, particularly in relation to the
sale of horses. She also lives in the same street <* page
999> as the London house and as both mother and father were
friendly with her the proximity of her house was a factor in
the choice of the London house.
035 In her affidavit and in her evidence she said that she
had the clear impression that for both mother and father the
time in London was a holiday and that their real home was in
Corfu. The mother had told her that it was their intention
that the children should be educated in Greece. The
mother’s evidence denied that she had given that impression
and could not recall any conversation about schooling. She
had, in fact, seen very little of the father’s woman friend
in the last year or two.
036 I do not think that the father’s woman friend has come
to this court to tell deliberate untruths. She is, I have
to say, uniquely beholden to the father. She and her
current man friend and business partner, she says, have
borrowed œ20,000 from the father. The father denied that he
would have lent any money at all to a man he does not know
well and says the loan was purely to her, but be that as it
may it is said to be an interest-free loan with no terms for
repayment. But, as I have said, I do not think that she has
come deliberately to tell untruths to advance the father’s
case. I do, however, prefer the mother’s evidence to hers.
I think that the father’s woman friend is mistaken and I
think it is likely that she is remembering conversations she
may have had at some time over the last 10 years with the
father but not with the mother.
037 If I do not mention other evidence and the contentions
relied upon by the parties, it is not because I have not
considered them; in particular, although I need not read
them out, I have paid particular attention to the factual
arguments in Mr Bodey’s second skeleton argument. I have
considered them. However, the broad view of the material
that I have taken establishes to my satisfaction that this
family had two homes: part of the year spent in one country
and part of the year in another.
038 Mr Bodey QC for the father submits in these
circumstances I should still find that there was one place
of habitual residence and that was Corfu for the detailed
reasons that he has advanced. In summary (this was the main
argument), the parties have a strong Greek connection. If,
on the other hand, I was against him on that and found that
there were alternating habitual residences on the facts of
this case, changing twice a year on the move of the family
back to Corfu and back to London then he submitted the
father was still entitled to say the children were wrongly
retained by the mother in April 1995. The argument runs in
this way. Assuming, contrary to his case, habitual
residence in England in the winter, the father returned to
Corfu on 11 March 1995 in ignorance of the fact that the
mother had already decided that the marriage was at an end,
that she had instructed her solicitors to start divorce
proceedings and had decided not to bring the children to
Corfu in April 1995. In those circumstances, the father
gave his consent to the mother and the children staying in
London after he left in ignorance of the real facts. His
consent to the mother and children not accompanying him on
11 March 1995 was vitiated and habitual residence of the
family should be taken as reverting to Greece with the
father on 11 March 1995. Her retention of the children on
17 April 1995, the date when they should have travelled
together, was in breach of the father’s joint rights of
custody in Greece because, by s 2(1) of the Children Act
1989 both these married parents had parental rights and the
mother was under a duty not to act unilaterally. He
referred me to a judgment of Hale J in Re A (Wardship:
Jurisdiction) [1995] <* page 1000> 1 FLR 767. It is not
necessary to refer to the circumstances in that case. The
passage that he relied upon was at p 771E and it was a
passage where the judge accepted a series of propositions
which had been put forward on behalf of the Official
Solicitor:
`First, if the parents are together the habitual
residence of the child is that of the parents
unless there is a settled agreement between them
to the contrary. It seems to me that that
proposition must be right. It flows logically
from the parents’ shared parental responsibility
which entitles them to determine where the child
lives. Habitual residence cannot, for this
purpose, be identical to domicile, which is
still dependent upon the father (although it is
by no means impossible that the law on that
point will be changed in the not too distant
future). Of course, normally, where both
parents have parental responsibility each can
act alone without the agreement of the other,
but in a matter such as this, although one
parent would be able to send the child abroad, I
would not agree that one parent could
unilaterally change the child’s habitual
residence without the agreement of the other
unless circumstances arose which, quite
independently, would point to a change in the
child’s habitual residence. I draw that
proposition, albeit in a case where parents were
in different countries, from a decision of Wall
J in the case of Re S (Minors) (Child Abduction:
Wrongful Retention) [1994] Fam 70, [1994] 1 FLR
82. This approach has been quite frequently
adopted in the context of Hague Convention
cases. It stands to reason that that Convention
could not operate were one parent to be able,
unilaterally, to change the habitual residence
of the child because the whole purpose of the
Convention is to stop parents doing just that.’
039 In other words, Mr Bodey says, by deceit the mother
has concealed her intention to retain the children and
prevented the children from reverting to their habitual
residence in Corfu. So that the Hague Convention is not
frustrated, children are deemed to have their habitual
residence with the father from a date in this case before
the planned flight to Corfu in April 1995.
040 Mr Coleridge, for the mother, put the matter in this
way. There are old authorities from taxation and other
fields which show that a man can have ordinary residence in
more than one country at the same time, and he referred to
Cooper (Surveyor of Taxes) v Cadwallader [1904] 5 TC 101; Re
Norris (ex parte Reynolds) (1888) 4 TLR 452; and Pittar v
Richardson (1917) 87 LJKB 59. Further, he submits that the
case of V v B (A Minor) (Abduction) [1991] 1 FLR 266, a
decision of the President, is authority for the proposition
that habitual residence equates to ordinary residence.
Therefore, says Mr Coleridge, the periods spent at the two
family homes give rise to concurrent habitual residence in
both the UK and in Greece. It is not possible to fit these
circumstances into the framework of the Hague Convention.
And Mr Coleridge submitted that in a case where a family has
dual residence and maintains houses in more than one country
there can never be wrongful removal or retention for the
purposes of the 1985 Act, provided that at the material time
the child or children are present in one or other of the
`home’ jurisdictions. In such cases the Hague Convention
procedure is inappropriate and misconceived and the
appropriate occasion to <* page 1001> decide where the
children’s future should be decided is in the forum
conveniens hearing already underway. Alternatively, there
should be a hearing in England with welfare considerations
to decide whether the children should live in Greece with
the father or in England with the mother.
041 If habitual residence was, in this case, consecutive
rather than concurrent, Mr Coleridge said this about the
father’s alternative argument. He said it was based on a
fallacy: the essential ingredient missing from the father’s
argument was that the marriage had in fact broken down and
once that had happened then the original parental agreement
as to where the children should live in the summer no longer
existed. The children were habitually resident in the UK at
the moment the mother failed to return them.
042 Those, in summary, are the competing arguments. It is
for the father to establish that at 17 April 1995 when the
mother did not take the children to Corfu they were
habitually resident in Greece. In my judgment, he has
failed to establish this. The principles as to habitual
residence derive from the leading authorities, including Re
J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, sub
nom C v S (A Minor) (Abduction) [1990] 2 FLR 442, are
conveniently summarised by Waite J in Re B [1993] 1 FLR 993
to which I have already referred. At the top of p 995, the
judge said this:
`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
it 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 Re J, sub nom
C v S (above) refrained, no doubt advisedly,
from giving any indication as to what an
“appreciable period” would be. Logic would
suggest that provided the purpose was settled,
the period of habitation need not be long.
Certainly 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.’
043 It is possible (and this was accepted by Mr Bodey) for
habitual residence to change periodically if that is the
intended regular order of life for the parents and the
children. There obviously would not in those circumstances
be habitual residence in more than one place at the same
time. I have considered the older cases cited and the dicta
of the President in V v B (above) and, of course, there are
strong similarities between the concept of habitual
residence and that of ordinary residence. However,
concurrent <* page 1002> habitual residence does not fit
easily into the aims of the Convention. The preamble to the
Convention begins:
`Desiring to protect children internationally
from the harmful effects of their wrongful
removal or retention and to establish procedures
to ensure their prompt return to the State of
their habitual residence
…’
044 In my view there is, to use the phrase found in many
of the habitual residence cases, a sufficient degree of
continuity in the residence in London for habitual residence
on the part of the parents to arise and an equally
sufficient degree of continuity in their residence in Corfu
for the same result to arise. Therefore for part of the
year the parents and the children were habitually resident
in London and for the remainder of the year habitually
resident in Greece. At the time when the mother was due to
take the children to Greece they were habitually resident in
London and had been since the previous November 1994.
Accordingly, the father has failed to show that they were
habitually resident in Greece at the relevant date.
045 The father’s ingenious argument based on the deception
of the father fails for the reasons canvassed by Mr
Coleridge. Another fallacy is that there never was any
intention of the parties that the children would go with the
father on 11 March 1995. The deception, for such it
undoubtedly was (because she concealed her plans), did not
persuade him to travel without the children on 11 March
1995: there was no question of them travelling on that date.
They were planning to go when direct flights were available
in April 1995 and not before.
046 Further the father cannot, by a process akin to
relation back, antedate the children’s habitual residence to
the day he left. They remained in London until 17 April
1995 as planned. The mother could have changed her mind;
the father could have discovered what was happening earlier
and come back to England. But all of these events and other
speculative events which might be thought of are a fragile
case on which to hang habitual residence. The plain fact is
that the children resided with the mother up to 17 April
1995 and were not habitually resident in Greece at that
stage: they were habitually resident in London.
047 In the circumstances, the application is refused.
ORDER
048 No order as to costs save legal aid taxation and
certificate for leading counsel.
Solicitors: Reynolds Porter Chamberlain for the father
Dawson Cornwall & Co for the mother
REPORTER
PATRICIA HARGROVE Barrister