Family Law Hub

F v F [2014] EWHC 3971 (Fam)

Application by father for summary return of children to Hungary. The judge had to consider issues of acquiescence, consent and the children's habitual residence before allowing the application. He also comments on the costs of the application (200k).

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    No. FD14P00837

    Neutral Citation Number: [2014] EWHC 3971 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Friday, 7th November 2014

    Before:

    MR. JUSTICE PETER JACKSON

    (In Private)

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    B E T W E E N :

    Mr F Applicant

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    Mrs F Respondent

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    MR. N. ANDERSON (instructed by Miles Preston & Co.) appeared on behalf of the Applicant.

    MR. T GUPTA QC (instructed by Stewarts Law LLP) appeared on behalf of the Respondent.

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    J U D G M E N T

    F v F (Hague Convention: Consent)

    MR. JUSTICE PETER JACKSON:

    1 This is an application by a father for the summary return to Hungary of his three children, aged six, five and three. They were brought to England from Budapest by their English mother on 16th July 2014 following the breakdown of their parents’ marriage. The mother (as I will call her) claims that the father consented to the children’s permanent removal. He refutes this and says that he was only willing to agree to permanent removal as part of an overall package that the mother had not been willing to accept before she departed. It is common ground that the parents, acting together, had entered the children into English schools and identified a future home for them here.

    2 Before I come to the facts of this case, I pause to note the question of costs. Both parties are expensively legally represented. Indeed, the father has chosen to instruct his own lawyers, rather than lawyers instructed by the Central Authority, and the mother has likewise not stinted herself. Following this hearing, another hearing in front of another judge was listed, in that case to consider the father’s challenge to the divorce jurisdiction invoked by the mother.

    3 The costs of these Hague Convention proceedings, a summary process as they are intended to be, currently amount to £85,500 on the father’s part and £101,000 on the mother’s. Taking into account other costs relating to the dispute about costs, the parties have spent approximately £200,000 on this application alone. As to the forum argument, in the roundest of figures, they are expecting to spend another £300,000.

    4 These parties need to be made aware of the overriding objective which governs proceedings in these courts. I will read, without cluttering the reading with numbers, some of the relevant considerations. These rules have the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved. Dealing with a case justly includes ensuring that it is dealt with expeditiously and fairly in ways that are proportionate to the nature, importance and complexity of the issues, saving expense and allocating an appropriate share of the court’s resources while taking into account the need to allot resources to other cases. The court then has a number of duties in relation to actively managing cases, which include setting timetables or otherwise controlling the progress of the case, encouraging the parties to use non-court dispute resolution procedure, helping them to settle the whole or part of the case, encouraging them to cooperate, and giving directions to ensure that the case proceeds quickly and efficiently.

    5 For my part, I am not willing to stand by and watch a waste of resources on this scale, both as to the parties’ own resources and to the time of the court. I will, as I have told the parties, determine the jurisdiction dispute myself, if it remains a live one, and I will at this hearing fix a date at which that will happen during the month of December. It would be absurd to put that in the hands of a different judge, who would then have to get to grips with the circumstances of this family from scratch.

    6 I turn now to the father’s present application. It has been heard over the course of two days, broken by unsuccessful attempts between the parties to negotiate. Although it raises some unusual issues, I give this judgment ex tempore so that the parties can immediately know the outcome.

    7 There is an excellent agreed chronology of events, which has been added to by the parties in submissions, and there are ample witness statements. The information, in my view, is more than sufficient to enable an application of this sort to be decided. There are no irreconcilable factual differences; nor are there any issues of credibility that are essential. For those reasons, more fully given at an interim stage in the hearing, I refused the mother’s application for oral evidence to be given.

    8 I also note that the parties reached an agreed position that was endorsed by Ms. Justice Russell at a pre-trial hearing that it was not necessary for the children to be interviewed by CAFCASS in view of their ages. I agree with that position. The court nonetheless has an obligation to consider the children’s voices in this matter and their points of view, and so I do.

    9 Turning to the chronology, the father, who is a German citizen with parents living in Hungary, was born in Malaysia and is now aged 36. The mother was born in Northern Ireland. She is British and is now aged 34. She has family in this country. The father himself has spent some considerable time in this country during his life, and the parents met when they were students at university here.

    10 They married in April 2004 in England, having a few days previously signed a German prenuptial agreement about which the mother has now some reservations. After the marriage, the parents went to live with the father’s parents in Budapest, and then, at the turn of the Year 2004/5, they moved to Malaysia, where they remained until May 2012. During that period, they bought a pied-à-terre in London, a flat in joint names that they used when they visited this country.

    11 The three children were all born in Malaysia. The family’s return to Budapest coincided with the oldest child’s arrival at primary school age and, between May and the summer of 2012, the family lived with the paternal grandparents before purchasing a property of their own in Budapest that is owned by the father’s company. The children attended an international school with an English teaching medium.

    12 The marriage came to an end in the spring of this year. Whether that was accepted as final in March or in May does not greatly matter. It appears that the end of the marriage was the father’s decision initially, and that the parents attempted to get some sort of counselling, but it was to no avail. In mid-May, the father first consulted a Hungarian lawyer. At all events, I find that, from May 2014 onwards, the parties were focused upon making arrangements for their separation, rather than for their continued marriage.

    13 I will jump forward a couple of months to 28th August 2014, which is when the father’s application for the children’s summary return to Hungary was issued. During the past two and a half months since then, the mother and children have been living in London. There has been the litigation that I have referred to. Since 23rd September, the mother and children have lived in a property purchased by the father in a way that I will describe.

    14 So the focus of this judgment now turns to the events between May and August, which have to be looked at in some detail. The mother’s case is summarised at p.63 of the bundle, at para.16:

    “The decision for the children and I to move permanently to England was finally resolved upon by the father and I sometime in early June 2014. It was a joint decision, and it was also a final decision in the sense that it was an unconditional decision: the only things outstanding were details of the move”.

    The father says that there were discussions, plans and actions, but no agreement.

    15 I start on 16th June 2014, when the mother came over on her own to London to reconnoitre properties and schools with the father’s full knowledge. The children remained in Budapest. In the middle of June, there was correspondence between the mother and the Budapest school concerning leaving plans for the children and the new schools that they would be going to in the September term.

    16 On 18th June, the mother consulted her English family lawyer, Ms. Chism of Stewarts LLP. That was entirely unknown to the father, who was first aware of any English legal involvement on 1st August. On 22nd June, the father signed application forms for the two older children to attend a school in London from September. On 23rd June, the mother came over for another three day visit to London to visit properties and schools. Also, on 23rd June, there was a leavers’ assembly at the older children’s schools, which they attended. On 27th June, the Budapest schools broke up for the summer. During the course of June, the parents purchased air tickets for the mother and children to travel to and from Budapest, leaving Budapest for London on 16th July and returning on 1st August.

    17 The parents identified a property in London and made an offer that was accepted on 2nd July. On the same day, the father sent an email to members of the mother’s family informing them of the separation. It was an email discussed with the mother before it was sent. It does not seem to me to matter very much whose idea it was to send it, and it appears at p.19. There are four paragraphs, the first three dealing in general terms with the sadness of the breakdown of the marriage, and assurances about the father’s intentions for the future.

    18 There is a fourth paragraph, which the mother, having seen the first three, suggested that the father should add. The additional fourth paragraph is not word-for-word what she suggested, but nothing turns on the difference. I quote the fourth paragraph:

    “Looking into the near future, we decided that [the mother] and the children will be moving to London and have had an offer accepted on a house in Balham. [The children] have places at [schools]. I plan to spend as much time as possible in London based out of [the jointly owned flat]. I think it is the best for everyone, especially for the kids getting a good education early on within a stable environment, not losing their friends every year, and it is important for [the mother] to be physically close to all of you”.

    19 On 3rd July, the father paid deposits to the English schools to secure the children’s places in a total sum of £4,500. On 4th July, the father sent to the mother the first draft of a separation agreement drawn up by his Hungarian lawyer, and dealing with both financial and children matters. That first draft appears at p.157 in the papers, and amounts to a comprehensive proposal for arrangements relating to all aspects of the family life. It made proposals with regard to the father’s purchase of a London property and how that should be held, the question of joint custody and the amount of time per month that the children would spend with their father, levels of monthly maintenance, and arrangements for the division of the jointly owned property. As one reads that agreement, all of these features are interspersed with each other.

    20 On 7th July, on the mother’s own evidence, the father told her verbally that he was not in agreement to the children leaving Hungary unless they had finalised an agreement of that kind. On 9th July, both parents met with Hungarian lawyers. The mother says that she was meeting hers for the first time. On 11th July, the mother’s brother-in-law, who is himself an English lawyer, though not in this field, wrote an email to the father which said that his sister-in-law had told him that the father was keen to understand more about the process of separation and divorce in England, and the email touches upon some questions that the father, so the brother-in-law thought, might like to have answered. That, so far as I know, was not answered by the father, and I have no other indication (indeed all the indications are to the contrary) that the father was interested in English divorce procedures. The mother, however, was.

    21 Over the weekend of the 10th to 12th July, the parents were at a holiday home in Hungary, and the mother says that they spoke to the children about the move to London. The father does not accept that, but I rather think that the mother is to be preferred when one considers an email that the father wrote on 2nd August, to which I will refer later, at p.131, when he said that he had trusted her that they could inform the children before signing about moving to London.

    22 On 14th July, on the mother’s evidence again, she was told verbally by the father that he required an agreement to be signed on 16th July, when the parties were meeting again at the lawyer’s offices, before he could agree to the children going to live in England. Also on 14th July, the parents exchanged messages about the family’s nanny having agreed to move across with the mother and children.

    23 On 15th July, the mother sent a long email to the father setting out her proposals for the terms of their separation. This is a longish email that needs to be read in its totality. Although the copy I have does not reveal her financial proposals, the document is aiming to achieve what the mother herself refers to in its body as being “an overall package”. In that message, she regretted that they had not yet been able to reach agreement and urged him to keep talking, but said that she could not sign an agreement tomorrow. She preferred that any proceedings should take place in England. She refers to him having threatened her to stay in Budapest, then apologising for doing so, and then doing so again. She implored him to reach an agreement with her on the terms that she proposed. Those terms included agreement to joint custody and the children living with her in England. That email needs to be read in its entirety to judge its effect.

    24 This was clearly becoming a stressful time for the parents with the pre-booked tickets for 16th July, and it is, to my mind, an indicator of that stress that the mother’s own father came out on the night of 15th July in order to offer her support.

    25 In the early morning of 16th July, the father sent a revised separation agreement to the mother. That agreement was different to the first draft in a number of respects. I need only refer to two of them. The first is that, by para.9.4, the agreement stipulated that:

    “The new permanent residence of the children and wife will be in London after the divorce, provided that it is filed in Hungary before 30th September 2014. Failing this deadline, the husband does not agree for the wife and children to leave Budapest”.

    26 The second aspect of the agreement that is different is that it contains more advantageous financial terms. I am not aware of the extent to which they met or did not meet the mother’s requirements. For instance, monthly periodical payments as a global sum had risen from £3,500 to £6,000.

    27 On 16 July, the parents and the mother’s father attended before the lawyers in Budapest; the mother had declined to sign the agreement presented by the father, and a date when the matter would be reconsidered and concluded was set for 4th August.

    28 It was in those circumstances that, on 16th July, the children and their mother, with the father’s full knowledge (he was indeed leaving on a separate flight) departed from Budapest for England, taking the children’s passports with her.

    29 On 22nd July, the parents visited a firm of solicitors in London, and the father instructed them to arrange the conveyance of the new London property into his name.

    30 On 23rd July, two things occurred that are worth recording. The first is that the parents went, together with the children, for a short visit to the new London property. During that visit, the father played with the children, and the mother (and I accept that she is likely to be correct about this) says that the father referred to the property to the children as being their new home.

    31 There is a text message from the father to the mother after his departure that day reading:

    “In plane now, will call tonight again, I am so happy with the house, well selected, we can do this, love you”.

    However, on the same day, at what time I do not know, the mother instructed her current English solicitors to issue her divorce petition, relying upon the fact that:

    “The petitioner is domiciled and habitually resident in England and Wales, and has resided there for at least six months immediately prior to the date of the issue of the capital petition”.

    She also filed her Form A seeking a financial remedy in this court.

    32 On 26th July, the mother and children went for a few days to go on a camp with members of her family in England. On 29th July, the father, who was not aware that the mother had issued English proceedings, exchanged contracts in relation to the purchase of the London property. The 1st August arrived with the father expecting the children’s return on their return tickets, but instead, that very day, the mother informed him by telephone that she was intending to remain in England with the children. At that point, she told him that this was to attend the funeral of someone known to the older members of her family, but not to the children themselves, the funeral apparently being on 6th August. That funeral had been arranged sometime around 25th July, but had not found its way to the father’s knowledge as being a reason why the children would not be travelling.

    33 The father’s reaction to this telephone call was almost immediate. In an email sent at half past two, when the children would just have been in mid-air had they travelled, he complained in the strongest possible terms that they were not coming back. His complaint covered the fact that the mother had not been in touch for some days. He rejected her suggestion that he should come over and have a holiday in England, and he said that the entire situation was unacceptable and that he would report the matter to the police if the mother and children were not back on the following day. The email contains this sentence:

    “From then on, the children will stay in Budapest until you have signed the divorce papers. If we find ourselves in a locked situation, it will be your responsibility to explain to our children why they cannot see their father for weeks, and why they are not moving to London. The house I bought in London is mine, and you have no rights to move in there because the home of our kids is and remains in Budapest”.

    34 To that, the mother replied in an email much later that evening, referring to the funeral as being an unexpected and unfortunate change in plans, and she then announced that she would not be returning to sign the agreement in Budapest.

    35 In the mother’s email, she also asserted that the father had agreed that the children could come to live in London permanently, that he had made that clear in his email to the family, that they had arranged schools for the children on that basis, and they are settled into life in England. She then went on:

    “I will not be returning to sign the agreement in Budapest. I have been clear from the outset that I am uncomfortable with signing it and with the pressure you have put me under to do so. Therefore, after much deliberation, on careful consideration and some legal advice, I have commenced divorce proceedings in England”.

    Later:

    “I know that this may come as a disappointment to you. However, now that camp is over, we would really like to see you in London”.

    36 To that, on 2nd August, the father replied with a long and impassioned message, which appears at p.130, protesting about the mother having kept the children and, in effect, having gone back on his understanding of the process in which they were involved. He stated that he had been lied to about the signing of divorce papers in Budapest on 4th August, and that the legal battle would take years, during which the children would remain in Budapest and attend school there. Once again, the message needs to be read as a whole.

    37 Further messages from the father over the course of the 2nd and 3rd August are very much to the same effect, including a message that he sent to the mother’s family protesting. In that, he said this:

    “I trusted [the mother] on our agreement how to separate and went ahead to sign up the kids for school, buy the house etc. before signing the divorce papers, and now I am being back stabbed!”

    38 The scheduled meeting on 4th August with the Hungarian lawyers of course did not take place. Instead, on that day, the father was sent a letter for the first time from the mother’s London solicitors saying that she had begun divorce and financial proceedings here. Also, on the same day, the father cancelled the arrangements that had been planned for the belongings of the mother and the children to be shipped to London.

    39 On 11th August, the father completed the purchase of the London property. On 21st August, he signed a statement in support of this application and, on 28th August, the application itself was formally issued. The 28th August was the date that the children were due to return to school in Budapest. That concludes my survey of the chronology.

    40 I turn to the law. I refer in passing only to Article 3 of the 1980 Hague Convention, which defines removal or retention of a child as wrongful, where, amongst other circumstances, the child was habitually resident in a state prior to the removal.

    41 Article 12 reads as follows:

    “Where a child has been wrongfully removed or retained in terms of Article 3, the authority concerned shall order the return of the child forthwith”.

    42 By Article 13:

    “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

    a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention”.

    43 In interpreting the provision in Article 13(a) concerned with consent, I have the guidance contained in the decision in Re P-J (Abduction: Habitual Residence: Consent) [2009] 1FLR 1059. I refer, in particular, to these principles articulated by Lord Justice Ward at para.48. They are numbers (1) and (5) through to (9) of a longer list:

    “(1) Consent to the removal of the child must be clear and unequivocal.

    ------

    (5) Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely in the context of the realities of the disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract.

    (6) Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.

    (7) The burden of proving the consent rests on the person who asserts it.

    (8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

    (9) The ultimate question is a simple one, even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?”

    44 I also hold in mind a passage cited by Mr. Gupta on behalf of the mother at para.9 in his skeleton argument, which I will not read into this judgment. In summary, I understand it to explain that the court should have regard to the realities of the situation so that, for example, a father who has solidly consented to a course of action cannot bring it to its knees at the very last moment simply by turning up at an airport and saying that he withdraws his consent. I, therefore, approach the question of consent, doing my best to look at the reality of what was going on in this family.

    45 I will touch next on the defence of acquiescence relied upon by the mother, and direct myself, in accordance with the leading authority of Re H (Abduction: Acquiescence) [1997] 1 FLR 72, and the observations of Lord Browne-Wilkinson cited by Mr. Gupta at para.22 of his document.

    46 The mother further raises a question as to whether, at the time they left Hungary, these children were habitually resident there, or indeed whether they became habitually resident here at the point of their arrival in this country against this background. Again, I will not further weigh down this judgment by doing more than refer to the dicta of Lady Hale in Re A (Jurisdiction: Return of Child), where, at para.54, as part of a longer list, she said this:

    “(iii) The test adopted by the European Court is ‘The place which reflects some degree of integration by the child in a social and family environment’, in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

    (vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned”.

    (viii) As the Advocate General pointed out in paragraph AG45 and the court confirmed in paragraph 43 of Re A (Area of Freedom, Security and Justice), it is possible that a child may have no country of habitual residence at a particular point of time”.

    47 Lastly, so far as the law is concerned, I refer to Article 20 of the Hague Convention, which reads as follows:

    “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”.

    That Article is not, as I understand it, formally incorporated into our law, but its significance is obliquely achieved by means of the Human Rights Act.

    48 In regard to habitual residence and appearing as it should, along with my previous comments, I note the observations of Lady Hale in Re LC (Children) [2013] UKSC 221, at para.63:

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

    I note the reference to the departure from a home country in ambiguous circumstances.

    49 Lastly on this point, I further take note of the recent decision of the Court of Appeal in Re H (Jurisdiction) [2014] EWCA Civ. 1101, when it was made clear that there is no hard and fast rule that one parent cannot achieve a change of habitual residence by acting unilaterally, and that effectively what the court must do is look at the whole picture and place the children at the centre of it.

    50 I next shortly record the parties’ submissions. The father’s submission, made through Mr. Anderson, is that he did not consent and that the mother knew he did not consent. What he was pursuing was a twin track approach allowing both possibilities to exist; that being the children remaining or the children departing. It is said that the father was then tricked by the mother into an arrangement for the children to leave. He expected them back two weeks later, but they never came. It is further said that the father did not acquiesce; indeed, he objected immediately and continuously. In the circumstances of this case, it is disputed that the children lost their habitual residence, and it is said that Article 20 does not begin to apply.

    51 For the mother, it is firstly said that the father unequivocally agreed in early June to the move of the children to England, reference being particularly made to the email to the mother’s family on 2nd July. Next, Mr. Gupta QC points to the whole panoply of arrangements that were made for the children’s reception in London; the securing of expensive school places and the purchase of a large property, all in cooperation with the mother.

    52 Mr. Gupta submits that the father should not be allow to withdraw his earlier consent by action that can, Mr. Gupta says, be characterised as unfair and bullying tactics. He urges that the Hague Convention, as an instrument designed to secure the protection of children from the harmful effects of child abduction, should not itself be turned into an instrument of harm. In this case, it is suggested that the father’s withdrawal of consent was too late and for the wrong reasons.

    53 As to acquiescence, it is argued on the mother’s behalf that this is demonstrated by the father having referred to the property as “their new house” after the children had got here on 23rd July, that the father, although he may not have understood what the mother was doing at the that stage, was aware of the situation after 1st August, but he nevertheless went ahead and completed on the property on which he had signed contracts on 11th August, and reference is also made to the fact that it took him three weeks to begin these proceedings.

    54 As to habitual residence, Mr. Gupta argues that these children became integrated here upon their arrival, rather in the manner that Lady Hale mentions in Re LC, and that they have gained habitual residence here. Even if the Hague summons was dismissed, this should be declared so that the father would not have a second bite of the cherry under Article 11(4) of the Brussels II Regulation. Next, he says that, even if the father did not consent, enough had been done to create an integrated environment for the children in England for them to have lost their habitual residence in Hungary upon their departure on 16th July.

    55 Finally, with regard to Article 20, Mr. Gupta argues that to return the children summarily to Hungary would be disproportionately in breach of the mother’s Article 6 and 8 rights, and also rights under the European Charter of Fundamental Rights, the same point being made in relation to the rights of the children.

    56 I come now to my findings of fact. Firstly, these are good parents who genuinely want the best for their children. They tried to negotiate an agreed framework for their separation in this spirit. For both parents, the issues relating to the children and to their finances were of importance.

    57 Secondly, while there are aspects of each parent’s conduct that may be open to criticism, I find nothing of any relevance to choose between them in that regard. It was the father who wanted a divorce, and the mother who was prepared to entertain it. It was the mother who wanted to come to England, and the father who was prepared to entertain that. It was the father who insisted on a Hungarian divorce package, and the mother who wanted to insist upon an English one. To the extent that each party’s submissions have strayed into moral criticisms of the other, I do not find the answer in those submissions. I prefer to treat both of them as good parents faced with a difficult situation, and to apply the law to the facts as I have found them.

    58 Thirdly, I find that discussions took place through May and June between the couple directly, and latterly through lawyers, although the father had a Hungarian lawyer at an earlier stage than the mother. Those discussions always related to an attempt to reach an all-in agreement covering all aspects of the separation. Both parents were attempting to be cooperative, and they were optimistic that agreement could be reached, sufficiently so for serious steps to be taken to progress a plan for the mother and children to transfer to England, a country where the children had not previously lived. There is no doubt that the aim of the arrangements was for the children to start school from a London home in September.

    59 Fourthly, I find that these events amounted to a series of proposals that were well-advanced, even to the point of the children becoming engaged in them. I do not, however, accept the mother’s case, set out in the passage that I quoted earlier, that, in early June 2014, there had been “a joint decision and … also a final decision, in the sense that it was an unconditional decision”. This was not a final decision. It was one important part of what the mother referred to in her email message of 15th July as being an “overall package”. Taken out of context, the fourth paragraph of the father’s email of 2nd July suggested by the mother might lead to a different conclusion. But it is clear to me that that was an example of the one preferred possibility being progressed, and I do not find it to be evidence of a final decision.

    60 Fifthly, on the mother’s own case, she knew that the father was not agreeing to permanent relocation. On 7th July, the father told her this. That is not, in my view, fairly characterised by the mother as “manoeuvring” on the father’s part. Considering that she herself had taken English legal advice three weeks earlier, and, for all I know, since that time and not told the father about it, her criticism, I think, must be regarded as unfounded. Further evidence that the mother knew that the father was not consenting to her plan is her email of 15th July, and lastly, the terms of the separation agreement presented on 16th July, at paragraph 9.4. In response to that, the mother says, at p.74, paragraph45, that she told the father that she was not going to sign anything until she had independent advice, and asked him to set up another meeting, and that he ultimately agreed.

    61 I find that the insertion of the words in paragraph 9.4 in the second draft of the separation agreement was not anything new, except perhaps as to the date mentioned therein, but a reflection of what the father’s position had been throughout, and that the mother knew that that was the case. I find that the mother’s eventual decision, no doubt with a heavy heart, was to proceed with an attempt to achieve a permanent move, regardless of the father’s opposition, but, as part of that plan, she did not tell the father what she intended to do until three things had happened; firstly, that she had taken the children to England from where she did not let them return, secondly, that she had secured the signing of contracts on the home that she intended to occupy without telling the father of the third development, namely that she had or intended to issue divorce proceedings in England.

    62 Sixthly, as a subsidiary finding, had the father known of the mother’s intentions, he would not have acted as he did in preparing everything for the arrival of the children.

    63 I come then to my conclusions; firstly, consent. The court’s task is to determine whether there was consent, taking full account of the realities of family life and of family breakdown. It is not a determination of whether somebody ought to have consented, or whether a withholding or withdrawal of consent was reasonable or not.

    64 By that light, I reach the clear conclusion that this father did not consent to the children’s permanent removal from Hungary on 16th July. His position that future arrangements for the children had to be part of an overall package has been known to the mother from the outset, and I do not accept that she had any basis for thinking that a move to London was a separate issue.

    65 As I have said, if there was any ambiguity at all, it was removed from play by 7th July, at the latest. I, therefore, reject any suggestion that the father would ever have unconditionally agreed to a move. Whether one regards his stance as a sensible wish to achieve an overall settlement or an example of somebody playing hardball is not of any consequence to an assessment of consent. The fact that the arrangements in London were so far advanced does not allow me to infer agreement in the face of the father’s clearly stated contemporaneous position and the mothers own evidence that agreement had not been reached.

    66 As to the position of the children, I would accept that statements made to much older children that they were moving to another country might provide the necessary evidence for consent. But here, any remarks that I have found the father to have made to children of this age is no more than an example of the father engaging with them at an interim period in the family arrangements.

    67 Further, I accept that there may be a point where consent has been so unambiguously given that it cannot be withdrawn, but this is not such a case. There was no clear and unequivocal consent in the first place. The father’s position amounted to a lack of consent, and not to a withdrawal, and I would add certainly not a withdrawal arising out of pique at being deprived of a week’s holiday, as the mother has suggested. Even if I were wrong about the absence of consent from the outset, I find that the father’s actions and statements before the children’s departure made it clear that he was not consenting any longer, and well before the children left.

    68 As to acquiescence, the mother’s case in this regard is weak. The father’s immediate response was to be incensed at what had occurred. I cannot in any way find that for him to have completed the purchase of the home could amount to acquiescence, and the children’s occupation of the home and continued presence in London has only been a side-effect of these proceedings, expressly recorded to be without prejudice to the issue of acquiescence.

    69 Habitual residence does not commonly raise itself as a separate issue In proceedings of this kind Here, however, Mr. Gupta argues that the father went so far in cooperating with steps in England that the children’s habitual residence ceased to be in Hungary from the point when they left Budapest, the actions, of course, amounting to engagement with schools, house purchase, and making statements to the mother’s family and to the children.

    70 This submission deserves serious separate consideration. But, having given it that, I do not find that the children had, on departure from Hungary on 16th July, “de-integrated” from the environment where they had lived for the past two years, a very significant period of time for children of this age, to the point that they had lost their habitual residence there. Habitual residence is a child-centred concept, and as I have said, the fact that the father may have opposed a move does not raise an automatic bar. However, it is, in these circumstances, in my view, a very significant factor.

    71 I reject the possibility that the children had no habitual residence. They were obviously going to be either habitually resident in Hungary or in England and Wales. I find that, until the parents’ own arrangements were finally settled, any transfer of habitual residence from Hungary to the United Kingdom will not have taken place. I, therefore, cannot accept the mother’s arguments under Article 3.

    72 Finally, as to Article 20, I perceive this to apply to a far more extreme situation than the present, where an application of the Convention would, for some reason, offend public policy or affect the conscience of the court. That is not the case here. Indeed, even the counsel who appear in front of me cannot draw attention to any instance here or elsewhere where Article 20 has been engaged to prevent a return that would otherwise have occurred.

    73 I accept that to grant the father’s application for summary return leaves this family’s affairs in a mess. But, in reality, that is a situation that it is well capable of being sorted out. The court is concerned here with where decisions about the children should be taken, not what decisions should be taken. In the meantime, if the children return, they have a home, school, both of a high standard, and their grandparents on the paternal side and a familiar environment. They are not of an age where the disruption, including to their schooling, would be likely to be harmful in the long run.

    74 It, therefore, follows from everything that I have just said that I must grant the father’s application for the children’s return to Hungary. This understandably creates difficulties for the children, for the mother, and probably also for the father. But that is, I am afraid, the consequence of the mother seeking to impose her solution prematurely on the father in the absence of agreement, and in circumstances where, unfortunately for her, the children were at the time habitually resident in Hungary.

    75 During this hearing, at two points, I adjourned so that the parents and their representatives could talk. I have no idea what those discussions consisted of, but I hope, if only for the children’s sake, that they resume in all their aspects. In the circumstances of this case, and subject to any subsequent submissions by the parties, I propose to interpret the word “forthwith” in Article 12 broadly and with an eye to the children’s situation. I propose to fix a date approximately one month hence for the children’s return to Hungary, so that any move that has to take place takes place during the school break.

    76 I end by urging these parents, in the strongest terms, to take advantage of any remaining window of opportunity to find a solution to what will otherwise be a painful and costly dispute, and one that, given their individual qualities, is surely unnecessary.

    77 That is my judgment.

Judgment, published: 12/01/2015

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Published: 12/01/2015

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