Family Law Hub

A v B [2015] EWHC 1562 (Fam)

Mother's application for the summary return under the Hague Convention of a child to Germany. In this unusual case, the father maintained that the child had been conceived with the intention that the child would live with him and his wife in England, not with the mother in Germany. The judge ruled that the child was habitually resident in England.

  • This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    Case No: FD 14P01010

    Neutral Citation Number: [2015] EWHC 1562 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Draft delivered on 26 May 2015

    Handed down on 3 June 2015

    Before :

    MRS JUSTICE PAUFFLEY

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    Between :

    A (Applicant)

    - and -

    B (Respondent)

    In the matter of D (a Child: Habitual Residence: Consent and Acquiescence)

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    Deirdre Fottrell QC (instructed by Creighton and Partners, Solicitors) for the Applicant, mother

    Andrew Norton and Marlene Cayoun (instructed by Philcox Gray, Solictors) for the Respondent, father

    Hearing dates: 19 – 21 May 2015

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    Judgment Mrs Justice Pauffley :

    Introduction

    1. Applications for summary return under the Hague Convention seldom involve a need to hear oral evidence. Where, as here, the parties' accounts of key events bearing on the issue of habitual residence as well as Article 13b defences of 'consent' and 'acquiescence' are hotly contested, it becomes altogether necessary. In this instance, in addition to considering a quantity of documentary material, I listened to four witnesses giving evidence over a period of three days.

    2. At the end of it all, it becomes a relatively straightforward exercise to decide as between the two versions of recent history; and my deliberations were greatly assisted, I should say, by Counsel on both sides. All three of them – Mr Norton ably assisted by Ms Cayoun, and Ms Fottrell QC – not only provided quite excellent Practice Direction documentation, they managed the process of examination in chief and cross examination in a time efficient, issue focussed and courteous fashion. In addition they produced succinct written submissions shortly after the conclusion of the evidence in a way that deserves commendation.

    3. My overall conclusion in relation to the principal issue is that the child at the centre of this quite extraordinary dispute was not, as his mother suggests, habitually resident in Germany and, therefore, Article 3 of the 1980 Convention is not engaged. In the event that I am wrong as to that, I conclude that (i) the mother gave clear and unequivocal consent to the child leaving Germany for England and (ii) her subsequent actions as recorded on social media and voice mail amount to acquiescence to the child's continued presence here.

    Background

    4. The background for the purposes of judgment may be shortly summarised.

    5. The mother, A, has lived in Germany for about 4 years. She is a national of a country in West Africa. She hopes to be able to secure the right to remain long term in Germany. A has 5 children who range in age between 8 and 19 months. The elder two live in West Africa. Two girls, aged 4 and 2, whose fathers are both German, live with the mother in Germany. Her youngest child, D, the focus of this application, was born in Germany in late October 2013. He travelled to England on 1 March 2014 and has lived here ever since.

    6. The child's father is B, a British citizen who lives with his wife, C, in London. C is a national of the same West African country as A. C has significant medical difficulties which have made it impossible for her to conceive and carry a child to term. In 2009 and 2010, the couple tried, unsuccessfully, to produce a child with the assistance of medical treatment. They had also considered adoption and fostering.

    7. D was conceived in February 2013. The mechanism of conception is uncontroversial. The way in which the arrangements were made for it to occur as well as the understanding as to where and with whom the child, once born, would live are significantly disputed; so, too, the identity of the principal care giver during the child's four month stay in Germany following his birth.

    8. Both parents have rights of custody. The mother as the result of the German Civil Code; the father as the result of the registration of the child's birth in mid November 2013.

    Mother's case

    9. The mother's case as summarised by Ms Fottrell amounts to this –

    * that D's birth resulted from an arrangement between the mother and B;

    * the intention was that D would live with the mother but see his father regularly;

    * she alone has rights of custody under German law;

    * she agreed D could travel to England in March 2014 for a period of weeks to see family members;

    * the father, by failing to return D to Germany, has unlawfully retained him;

    * any dispute as to with which parent D should live ought to be resolved in Germany;

    * the court could either make a return order under the Hague Convention or make a transfer request for proceedings to be resolved in Germany pursuant to Article 15 of Brussels IIR.

    Father's case

    10. The main thrust of the father's case is that the mother offered to help him and his wife by bearing a child for them. The father asserts that –

    * Article 3 is not engaged because at the relevant time D was not habitually resident in Germany;

    * The agreement was that the child would live with him and his wife in England, seeing the mother during holidays;

    * D is a British citizen;

    * C lived with the mother in Germany from September 2013 and from the time of his birth was D's primary carer;

    * The mother did not engage with D; and he was not integrated as a sibling to the mother's older children;

    * By contrast, D was visited by his father and paternal grandparents shortly after the birth and prior to his departure for England;

    * The intention had always been that D would travel to England as soon as possible – he did so shortly after receipt of his British passport;

    * D was integrated within the social and family environment of B and C and was not habitually resident in Germany;

    * In the alternative, the mother consented and acquiesced in D settling in England long term consequent upon the arrangement that she would bear a child for B and C.

    Law relating to 'habitual residence'

    11. The principles for determining habitual residence were set out by the Supreme Court in A v A & Another (Children: Habitual Residence) [2013] UKSC 60. Habitual residence, in the context of BIIR, is: "the place which reflects some degree of integration by the child in a social and family environment." Drawing the threads together, Lady Hale articulated the following principles –

    (i) … habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

    (ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted by the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

    (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…

    (iv) …. the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents merely being one of the relevant factors …

    (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.

    (vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

    (viii) ... it is possible that a child may have no country of habitual residence at a particular point in time."

    12. The Supreme Court endorsed the approach of the European Court in Mercredi v. Chaffe (Case C-497/10) [2012] Fam 22 and particularly the task for the court at first instance in evaluating the facts. The court must consider the following – "the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration."

    The genesis and content of the arrangement between the adults

    13. I turn then to consider a number of sets of disputed circumstances, all of them ultimately relevant to the issue of whether D and those upon whom he became dependent were integrated, as the mother suggests, in the social and family environment of Germany. I begin with the way in which the arrangement between the three adults came into being.

    14. The mother and C met for the first time a few days before New Years Eve i.e. December 31 2012 in Germany. It's the mother's case that a few days later, over the 'phone, C told the mother about her medical difficulties and that she could not have children. According to the mother's evidence, she was later prevailed upon by Mrs T, a friend in Germany, to "help C" and if she did she would be Mrs T's "daughter for life." Mr and Mrs T had also said, according to the mother that it was "a good idea … a good thing for (her) it will help with (her) immigration status if (she) gives birth to a white child." The mother told Mr and Mrs T, according to her evidence, that she "would not give birth to a child and give the child away. Aunty (Mrs T) had said 'No, no, it would not be like that. They (B and C) would come and collect the child for holidays.'"

    15. The mother maintains she had agreed to have a baby for B and C on the day when Mr and Mrs T had "begged (her) to do it." She strongly denied the suggestion that the arrangement had ever involved B and C in raising the child, saying that was "a lie." They had never had such an arrangement. Later, towards the end of her evidence in chief, and with vehemence the mother protested that they "had never had that discussion – that the child would go to live in London. Not even on one day."

    16. The mother also said she had agreed to the arrangement "because C had said she prefers her husband to have the baby with A rather than go outside and have it with someone else." Later she insisted that "these people had taken advantage of (her);" the mother had not known of their plans and emphasised she is "poor and illiterate."

    17. The father's and C's version of events is very different. C says she told A she was not able to have children during the course of a very friendly discussion between them on New Years Eve 2012. After C's return to England in January 2013, A rang to offer to have a baby for her. In cross examination, C provided more detail, explaining she had been at a cousin's house and it was late at night when she'd received the call. A had suggested she would have a baby for B and C and because she "had felt sorry for her." Although C had called Mr T to tell him about the offer, he had not suggested anything. His only involvement was on the day of conception when C had called a meeting to discuss the way in which the baby would be conceived.

    18. The father likewise strongly disagreed with the suggestion that Mr T had found someone "poor and vulnerable" to have a baby for them. After the holiday around New Year 2012, his wife had told him she had met A and that she was a "nice girl." On the day that A had rung his wife to say she was willing to have a baby for them, he had asked, 'Why and how much?' His wife, he said, had phoned A back, told her that they had £2,000 in savings and offered that amount which A had accepted. According to C, they paid A 1,000 Euro in May 2013 and a further 1,000 in November 2013.

    19. C undertook research to ascertain when A was likely to be at her most fertile. When she arrived in Germany in late February 2013, she asked the mother to undertake a pregnancy test to establish she was not already pregnant. The result was negative. Just before the father travelled to Germany, he had carried out research to discover that surrogacy achieved by artificial insemination would be viewed as an illegal arrangement in Germany.

    20. The three adults had agreed that conception would be achieved in the usual way. In cross examination, C said she had "tried to black it out (that her husband and A would be having sex) because (she) knew that a child would come out of it."

    21. Both the father and C contend that the arrangement from the outset was that D would live with B and C in England. The intention, said the father, was that they "would have remained friends and that it would be a life time arrangement." Why, he asked rhetorically, would he agree to having a child with A on the basis that he would only see him in the holidays?

    22. B's mother, the paternal grandmother, gave evidence that when A had been about 12 weeks pregnant, her son had telephoned saying, "Hello Mum, I've got some news, you're going to be grandparents…. B had said someone in Germany had offered to be a surrogate. But due to the fact that she was in Germany, they did not want it spread about. Just (the grandmother) and (her) husband knew."

    23. Ultimately in relation to this issue, I am in no doubt. The arrangement between the parties was for the child born to the mother to be brought up in England by his father and C. Common sense dictates that when a woman agrees to give birth to a child for another childless woman and her husband the strong probability is that the child will be raised primarily by the childless couple. The notion that the father and his wife would agree to proceed on the basis that the child would be brought up abroad with only occasional holiday contact seems both illogical and implausible.

    24. Not only was the evidence of the father, C and the paternal grandmother infinitely more credible than that of the mother on this and every other disputed issue, a number of later events taken together with a quantity of written material take the matter beyond argument.

    Additional material relating to intentions and integration – arrangements before and after D's birth

    25. The other matters supportive of the case put forward by B and C as to the intention following the child's birth are these. When in late September 2013 the mother developed complications in her pregnancy, C went to stay with her and her children in Germany. She remained in the mother's flat, apart for four days when she returned to England for a medical appointment, until 1 March 2014 by which time D was four months old.

    26. It is noteworthy that the mother's written statement makes no mention of C's lengthy stay in Germany nor of the fact that C was there in the mother's flat when she went to hospital to give birth. Only in cross examination did the mother come to admit those facts.

    27. The father and paternal grandparents arrived in Germany two days after D was born. The father took two weeks paternity leave from his employment. According to C and the paternal grandmother – whose evidence I unreservedly accept – the person who looked after D once he returned home from hospital aged 4 days, was C. She attended to his every need "24/7" as she described in evidence and throughout. C was sleeping in the same room and bed as the youngest of the mother's daughters; D was in his cot in the same room. The mother and her other daughter slept in another room.

    28. When the paternal grandmother visited as she did twice in those four months, she confirmed that C was looking after D who was "always with her." She said, "We noticed that A was distancing herself. She left C to do everything for D. I assumed that was because she didn't want to become attached to D." She and her husband had stayed for 11 days after D was born. When they returned shortly before D travelled to England, the paternal grandmother described "a very pleasant evening the night before (they) left." She had invited A to visit them at their home in England. As before, C had been "doing everything for D" and A was looking a lot better than immediately after her stay in hospital.

    29. I did not believe the mother's account of having D's cot in her room, or of C sleeping in a room with the mother's daughters, or that during the time D was in Germany she was the main care giver. I considered the evidence of C and the grandmother infinitely more reliable and credible. The truth is that C provided for D for, as she said in her written statement, 90% of the time; and the mother purposely arranged things so as not to allow an attachment to develop between herself and D. The arrangement was that he would go to live with B and C in England so soon as that could be achieved.

    30. It is also material to consider the way in which D's birth was registered with the German authorities on 15 November 2013. His three names were chosen, as the mother accepts, by the father and C. The mother willingly provided all of the documentary material necessary to enable the issuing of D's British passport. In mid December 2013, D was registered as a British citizen – a process supported by the mother in that it was necessary for her to supply her own birth certificate.

    Developments after D's arrival in England

    31. There were further significant developments in relation to the habitual residence question, after D's arrival in England. On 13 March, the father sent A a Facebook message in these terms – "Hope you are OK and still not upset with us. I would like to start sending you money every month because what you have gone through deserves rewarding. I can send it by post or Western Union? Also if you want I can try and bring you to England. All I ask of you is to say the right thing to the Germans. I will send each month until D is 18. I hope this will take away some of the pain you have gone through."

    32. The mother's response is dated 16 June so comes about three months later. The father denied any messages had been erased between the two dates. She said this – "Thank you so much I appreciate it. Hi how are you doing and how is C and he (sic) son doing." The father replied the following day, "We are all fine A. D is growing up fast. He is teething at the moment. Did you have a nice birthday?" About a week later, the mother replied, "hi, yes I have a nice birthday. Thanks."

    33. During her evidence in chief, the mother essentially agreed the content of those Facebook messages explaining that the father had been "trying to coax and persuade (her) to go to the social people and police and tell them (she) had given them the child." She said nothing which could have been construed as any disagreement with the message in which she asks the father how C and her son are doing.

    34. In cross examination, the mother gave a long, involved account denying that she had written the second part of the message on 16 June and asserting it was incomplete as printed. The mother went on to claim that Mr T's cousin, M, had come to her house and "they must have sent him to fiddle with (her) Facebook account." She said her "tablet is used by everyone" and that she had not been aware of these messages until her Solicitor had asked her about them. She continued, "Luckily, that very day, M had come around to her house and (she) had confronted him." There had been, said the mother, a heated argument.

    35. The mother's evidence, strikingly inconsistent as it was, did not impress me at all. I am convinced that the mother was the author of the Facebook messages attributed to her and that the story about Mr T's cousin, provided only during cross examination, was pure fabrication. It was an obvious but futile attempt to explain away something which she knew to be extraordinarily damaging to her case. The message from the mother in mid June strongly supports the father's case as to the arrangement for D to be with him and his wife as 'their' son, living in England.

    36. On 15 March 2014, the mother was asked to and did sign a "Shared Custody Consent" document. It was witnessed by Mr T. It is in these terms – "I (A) mother of D agree and give my consent to B the father of D has my permission to take our son out of my country of residence for indefinite period of time. Should you have any query in regard to this, please feel free to contact me on (phone number)."

    37. The father and C say that the document was their joint effort at drafting something to enable them to register D with a GP in England. In evidence, the father said the first question they'd been asked was whether D's mother was registered with a GP. He had replied that D's mother consented to him being in the UK and was told he would need a letter. He had emailed the draft document to Mr T.

    38. The mother's written evidence suggested she has "a knowledge of English and can speak and understand it reasonably well when basic language is used; but (she) is not fluent and cannot understand more complex words and phrases." In her statement the mother said she had "looked at the form and understood all of the wording except for 'indefinitely.'" She also said Mr T had explained it "as something (she) needed to sign in order for D to receive urgent medical treatment." She had been worried about D particularly as B and C had said nothing about D being sick.

    39. In her oral evidence, the mother's account of how she came to sign the document was somewhat different. She said Mr T had told her "the child was sick and needed to go to hospital. (Her) heart was warm. (She) thought (she) was giving permission for the child to be treated by the doctor." In cross examination, the mother said she had not known the meaning of the word "indefinitely" until her pastor and social worker had told her it means "forever." She added "I swear to God, they told me the child was not well" that was why she signed the document. How, she asked, could she do that – give away her child and get money?

    40. In addition to exchanges on social media, there was a series of voicemail messages received at the home of B and C in mid April 2014. According to B and C, the caller was the mother, the language used was her first language (not English) and the voice is recognisably the mother's. The messages have been translated into English.

    41. The content of the messages is troubling. Amongst other things, the caller who is palpably angry says, "If you don't give me my child, I will kill you and forfeit him. I know that I have other children. You are the one who has not even got shit…" "I swear to God, I will tell the social services people to take the child. Because I will not be able to look after three children. I don't have anything to do with D but just to show that I am more wicked than you, I am going to do this." "Take the child, I don't want the child. I am not going to be able to look after three children … As for myself I want nothing to do with D." There was also a reference to "two thousand" which according to C should have been translated as "The two thousand you give me …"

    42. When confronted with the written transcripts, the mother did not accept she had left those messages. She said she wished to hear the audio recordings. They were played in court the next morning. Ms Fottrell's instructions were that the voice was not the mother's. At my invitation, A went back into the witness box, confirmed she had listened to the recordings and that the voice was not hers. She said she had heard the phrase "I swear to God" and accepted that she had used the same expression in her evidence.

    43. In fact, if my arithmetic is correct, whilst in the witness box the mother used that phrase at least nine times. It seemed to me that it was her way of instilling emphasis and deployed at times when she wished to insist with vehemence that the case against her was untrue. The more the mother insisted and "swore to God", the less believable she became.

    Credibility issues

    44. Making every allowance for the fact that the mother's first language is not English and that she gave evidence with considerable assistance from an interpreter, I nonetheless conclude that in most of the significantly disputed areas she was shown to be fundamentally unreliable. In addition to those matters already identified, the mother was, as Mr Norton and Ms Cayoun suggest, untruthful in the initial information given to Solicitors at the time the application for summary return was begun. There was significant inconsistency in her evidence about how the agreement to conception arose. The mother was dishonest in the account given about communications between herself and the father after 1 March 2014. Most startlingly of all, she was prepared to deny on oath that the voice heard on recordings played in court on the third day of the hearing was hers. It must have been entirely obvious to everyone who had listened to the mother's lengthy evidence over two days that she was lying when she disowned the recording. I had no doubt at all – it was a further blatant attempt at deceit.

    45. I should mention that it was something of a surprise that the mother's written statement contained information about her ability to understand and speak English "reasonably well" given that in court she relied upon the interpreter to translate every question. Likewise, I was somewhat perplexed by the mother's ability to communicate in English on Facebook when in court she required every word to be translated. But those are anomalies, nothing more. My central conclusion is that the mother's evidence was, in so many material respects, fundamentally untrustworthy.

    46. It should also be said that the father's initial statement contained a number of false statements, corrected by a further statement made three days later. In evidence, the father said he had made his "incorrect statement" because when they had been in Germany making this type of arrangement (for the mother to carry the child for them) they had been "unsure of the legal issues." They had understood it would be necessary to say the child had been conceived as the result of an affair – but he "had been uncomfortable about walking into court with that lie" so had changed his account with the help of his Solicitor.

    47. I am alive to the fact that an individual may seek to deceive for a whole host of reasons. The father has satisfied me that the reason he gave false evidence in his first statement was as he explained; and the unconventional, potentially even illegal, arrangement for D's conception makes his initial deceit understandable.

    Overall conclusion in relation to habitual residence

    48. I have taken account of but cannot accept Ms Fottrell's submission that it would be "wrong in law and in fact" to find that in March 2014 D was habitually resident other than in Germany. The inquiry, self evidently, is both factual and individual. My task has been to consider two radically different sets of assertions so as to determine the truth. The father's evidence supported by C and the paternal grandmother establishes his case to my complete satisfaction. The mother emerges as unreliable and inconsistent. Moreover, her case is implausible in the extreme.

    49. There is, as Lord Hughes said in A and A and Another (supra) "no 'rule' automatically ascribing habitual residence by dependence to a place to which the child has never been. There is a factual enquiry into the integration of the family unit to which he or she belongs, and that may well yield the conclusion that the child shares the habitual residence of that unit even if he has not yet achieved physical presence there, especially if he is being prevented by coercion or other force majeure from doing so. The decision of the Court of Appeal in (the A v. A) case involves a rule or general proposition because it necessarily excludes habitual residence without some past physical presence. The contrary approach, which to my mind is correct, involves no rule or generality at all, save for the advice to look, in the case of an infant, at the position of the family unit of which he is part. That does not involve a rule for dependent habitual residence. It merely asserts the possibility that habitual residence may exist in a State which is the home of the family unit of which the infant is part, and where he would be but for force majeure."

    50. I accept, of course, that Lord Hughes' view in relation to this issue was a minority one and that as he and Lady Hale agreed, if a case turned on this issue, reference to the CJEU would be indicated.

    51. I nonetheless conclude, as the result of my extensive factual inquiry that D who was only ever part of B's and C's family unit, never became habitually resident in Germany. There can be no question but that B and C have remained, at all material times, habitually resident in England. C did not relinquish her habitual residence here when she went to support the mother through her pregnancy and to assume responsibility for D whilst waiting to travel to England.

    52. The only reason why on B's and C's account – which I accept – D did not travel to London earlier was the unavailability of his passport. He was either habitually resident in England where he had never set foot as the result of his father's and C's habitual residence here; or, at the time he left Germany, he had no habitual residence because he was not integrated within a social environment there.

    53. He may have been physically living in Germany but in circumstances where C and B, to a lesser extent, occupied the parenting roles, providing him with an environment which centred upon them rather than the mother and her children, D's integration was with C and B rather than the mother.

    54. If I am wrong in relation to the 'habitual residence' question then it becomes necessary to consider whether either of the exceptions to a mandatory return under Article 13b are established.

    Article 13b 'consent'

    55. When I consider the issue of 'consent' I remind myself of the key passages from Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051. As relevant here, they might be summarised as follows – Consent to the removal of the child must be clear and unequivocal.

    The burden of proving the consent rests on him or her who asserts it.

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

    56. The mother vehemently maintains that at no stage did she ever agree to D relocating to the UK. She said in evidence that if she "had known of these plans or had an inkling then D would not have crossed that airport." According to A, the only reason why D was going to England was to "meet family members."

    57. Exhibited to the mother's written statement are photographs of a baby bath, high chair and cup which are, she says, still at her house in readiness for D's return.

    58. The father, C and the paternal grandmother assert an entirely different scenario of consensual departure on the basis that D would be living long term and throughout his childhood in his father's and C's home. I have already concluded that their account of the arrangements and the way in which they would be carried into effect is to be preferred over that put forward by the mother.

    59. In addition to what had been agreed, as the father and C described, they place reliance upon travel arrangements which involved the paternal grandfather in driving a car to Germany to bring D's possessions which filled the car.

    60. The father maintains D's cot, bedding and pram as well as his clothing and photographs were transported to England. He also says the mother handed over D's Red Book in which his immunisation record appears. C said "all of D's belongings were loaded into the car – the mother had helped (them) pack and put the steriliser into a bag." C had wanted to leave some things behind but everything had gone in.

    61. The paternal grandmother essentially confirmed that account saying the car contained all the objects a baby would require in those first few months. When it was put to the mother that the grandfather's car had been packed with D's clothes, pram, steriliser and cot, the mother replied, "There was nothing of D's – no suitcase – these people are lying, I swear to God!"

    62. Though the burden on proof on this issue rests upon B and C, it is nonetheless enlightening to consider the mother's version of events when considering the probabilities. Her account of D's trip to England for a few weeks, when he was four months old (three months corrected for prematurity), to meet his family members does not make much sense. After all, D's paternal grandparents and father had all visited in the immediate aftermath of the birth. C was there throughout. The grandparents returned in late February to accompany C and D back to England. The notion of international travel for the purposes of familiarising an infant with his paternal relatives seems extremely unlikely.

    63. But more important than inherent probabilities, the father, his wife and the paternal grandmother have established to my complete satisfaction that the mother did indeed consent to D's relocation to England pursuant to the agreement that A would give birth to D who would be a child for B and C, and on the basis that he would be settled in England.

    'Acquiescence'

    64. Finally I consider 'acquiescence' bearing in mind the guidance provided by Lord Browne-Wilkinson in Re H (Abduction: Acquiescence) [1998] AC 72 which is still, as Mr Norton submits, the leading case on acquiescence.

    65. Applying the guidelines to the facts in this instance reveals the following timeline. D travelled here on 1 March 2014. There was Facebook messaging between the father and mother on 13 March and 16, 17, 24 June as well as angry voicemails left by the mother on the father's phone in mid April. The mother maintains there was a paediatric appointment for D on 18 March and that the agreement had been D would return to Germany to attend.

    66. The father's oral evidence on the point was of interest. He said that the opening remark of his Facebook message on 13 March was a reaction to the mother being "upset." During the previous few days, she had been asking him and his wife "to bring D back (to Germany) for a vaccination because he had an appointment for one prior to coming to the UK." They had replied that they "could not really do this and had explained that it could be done in the UK." The mother had been, he said, "upset and difficult."

    67. That account may be usefully considered alongside the mother's written statement in which she describes how she received a letter from the German government dated 25 March in which it was said she may be entitled, as a single parent, to a payment of 5,000 Euro. The mother says she made a claim in anticipation of D returning to her care but subsequently informed the authorities he had been retained in England whereupon the application was cancelled.

    68. The mother's written statement also describes how she had received a letter from German social services in June 2014 because the doctor had made a referral when D had not attended his hospital appointment. The mother had attended a meeting with a social worker, explained what had happened and was advised to contact a particular individual. The mother also said in evidence that she had been asked at the Job Centre, "Where is the child?"

    69. My strong sense from the evidence by and on behalf of the father as well as from the mother was that she was very fearful of any adverse consequences for her application to secure the right long term to reside in Germany. Towards the very end of her oral evidence, the mother said she had been "very scared that if (she) said anything to the authorities (about the arrangement to have a child for B and C), they would put (her) in jail and even have (her) deported."

    70. The evidence clearly suggests that the application for summary return was prompted by the referral to social services in June; and the mother's fear that she would find herself in trouble as the result of the way in which D had been conceived and then relocated to England.

    71. The extant material, particularly the social media and voicemail messages, supports the notion that apart from her desire to have D attend at hospital on 18 March (so that she could be seen to be complying with the requirements of the authorities), and until she made contact with the Central Authority in August 2014 the mother did indeed acquiesce in D's continued retention in England.

    Exercise of discretion

    72. When I consider the discretionary exercise consequent upon my findings that 'consent' and 'acquiescence' are established, I have in mind the guidance provided by Lady Hale in Re M (Abduction: Zimbabwe) [2007] UKHL 55. "In consent or acquiescence cases … general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that (his) future can be decided in (his) home country."

    73. In this instance, D has lived in England with those he considers to be his parents and with whom he has undoubtedly forged attachments for 15 months. He is still only 19 months old and has been in the de facto care of C for all of his life. The major objective of the Convention, namely swift return, cannot be achieved. This is not and never has been a "hot pursuit" case. The application did not begin until "long after the trail had gone cold." As Lady Hale observed in Re M (supra) "It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's …integration in his new community."

    74. I am in no doubt, weighing Convention factors against D's welfare interests, the balance comes down heavily in favour of resolving any disagreement about D's living and contact arrangements here in England rather than in Germany.

Judgment, published: 11/06/2015

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Published: 11/06/2015

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