The first case decided by the Court of Appeal of England and Wales in 2015 is an international parental abduction case. The full title of it is Re S (A Child) (Habitual Residence and Child’s Objections) (Brazil) and the judgment is available here. The judgment was issued on 13 January 2015 following a hearing on 4 December 2014. There seem to be an increasing number of these cases being processed by the higher courts in the UK now.
The background to this case was that the child was born in June 2002. It was a case brought under the Hague Convention 1980 and the High Court’s inherent jurisdiction but the issues were identical. The child’s return to Brazil was sought. The child objected to this. The High Court concluded that the child was habitually resident in the UK and that, accordingly, the child would remain in the UK. The High Court judge who initially dealt with the case went on to consider what would have been the outcome had that judge concluded that the child was in UK in the on the basis of a wrongful retention – the child having come to the UK for a holiday. This was not strictly necessary to decide because the child’s habitual residence was found to be the UK and, on top of that, the child was content with that outcome. The judge concluded that, even if the child had been wrongfully retained in the UK, it would not have been appropriate to order the child’s return because of the child’s wishes and feelings.
The mother, a Brazilian citizen who sought the child’s return to Brazil, appealed to the Court of Appeal. The Court of Appeal dismissed her appeal. Its reasons for siding with the father/child were different to those of the High Court.
The parents met in the UK in the early 1990s and the mother lived in the UK until 2013, as did the child (there was a second child as well but he was not involved in the proceedings). The parents’ marriage ended in 2011 and they started living separately in 2012 with the father leaving the matrimonial home. He had begun a relationship with another woman in circumstances that were described by the Court as being “particularly hurtful” to the mother and “difficult” for the child. Faced with this situation, the mother decided that she wanted to return to Brazil. In January 2013 she made an application to do so permanently, taking both children. The father, albeit reluctantly, agreed and an order permitting the return was made in June 2013. The evidence placed before the Court that made the order was to the effect that the children were willing to go to Brazil “partly because” that was their mother’s wish.
The mother and children left the UK for Brazil on 1 August 2013. They left behind many of their possessions. The children were enrolled at a Brazilian school. In January 2014, the children visited their father in the UK. They became upset because they missed him and their life in the UK. There was a financial dispute hearing in February 2014. This was not successful – it is not entirely clear but it seems that no agreement as to future financial arrangements was made. In March 2014, the mother emailed the father about the financial dispute; she copied in the children to this email. The child who was to become the subject of the abduction proceedings emailed her father and, amongst other things, complained that he was not making adequate financial provision. The text of the email included this passage, reproduced in the Court’s judgment:
“I am super happy in my school but when I found out you don’t want to pay for it I felt so upset. This is the first time I feel like I belong, I have made lots of friends and everyone is inviting me to their houses, parties etc….. I never want to change school and if you don’t give mummy money I don’t think I want to see you in Easter [sic] as I will be too angry to see you. If I have to move school I will never see you or talk to you ever again.”
“I am passing all of my tests and I am super happy in my school that I have a smile on my face all the time whether it’s my friends making us laugh or if it’s just that I feel so lucky that I have an aunt who bothers caring for us.”
The father and father’s mother replied to this but the upshot was that there was no contact between the father and this child from late March 2014 until June 2014. The High Court judge attributed this to the financial dispute. The other child’s contact with the father also dried up and a proposed visit by the father to Brazil in April 2014 was cancelled because he was not sure that his children would see him. The relationship between the father and children subsequently returned to normal when they saw each other in the summer and spent time on holiday in France. On 24 July 2014 the child who became the subject of the abduction proceedings told her father, with whom she was with at the time, that she did not want to go back to Brazil. (After later reviewing the evidence the High Court judge concluded that the child’s position was not so much that she wanted to live with the father, and not the mother, but that she wanted to live in the UK). She also told the mother – who was in the UK at the time because of the ongoing financial proceedings. The child did not return to Brazil with the mother, although her brother did. The mother issued Hague proceedings seeking the child’s return.
High Court decision
The High Court judge’s reasoning was as follows:
“38. I have to ask myself, did she integrate into Brazil? On the surface she seems to have done so. She went to school; she is a compliant, co-operative child, she did well at school, she had friends, she had a social life but her state of mind was that of starting off with reservations, nagging doubts, thinking of home. Home not being where she sleeps but where she felt she belonged. Home was England. She has told her mother and in her own words she made it clear what her feelings were and she has remained consistent to that.
39. I have come to a clear view that she did not acquire habitual residence in Brazil. I have no doubt the mother has. In this particular case, an unusual case with this child’s strong feelings and sense of being English, is such that she did not acquire integration into Brazil [sic]. Did she lose her habitual residence in England? That has been a question that I have considered and it has troubled me. In many cases people fly off to another country, emigrate and as they fly they automatically lose their habitual residence. This is a child that went because adult decisions had been made and she knew her mother wanted to go but she had reservations. Those reservations prevented her adapting, and feeling at home in Brazil. I do not think she lost her habitual residence in this country. I think she retained it, notwithstanding the mother lost hers. I think she is still habitually resident here and has always been so.”
Court of Appeal decision
At paragraph 33 of the judgment, the Court of Appeal, rejecting the High Court’s assessment on this point, decided that the child’s country of habitual residence had become Brazil. The Court said:
33. When I take these indicators of the position in the spring and early summer of 2014 together with the whole picture of the move and G’s connections with and life in Brazil, I am driven to the conclusion that Hogg J was wrong to find that G was habitually resident in England throughout. Such nagging doubts as she had did not interfere with the process of integration in Brazil and the position “on the surface” represented the reality. I would allow M’s appeal in relation to habitual residence, set aside Hogg J’s determination on the point, and replace it with a finding that G was habitually resident in Brazil at the material time, namely July 2014.
That was not the end of the matter. The child objected to returning to Brazil. The Court decided (as did the original judge) that this objection was a valid one and that, as such, it amounted to an exception operating against the return which was, all things being equal, necessary to put right the wrongful retention that had been found to have taken place. The core reasoning on this point was as follows (references to G are to the child):
65. It is clear that the judge considered G’s views to be of central importance in her determination. G’s objections had opened the gateway to the discretion that the judge had to exercise and there was perhaps more than the usual amount of information about her present state of mind because Mr Power [the CAFCASS officer] had had more opportunity to discuss matters with her than is usual in cases like this. What she said to him about her time living in Brazil may have been coloured by subsequent events, but her state of mind since the inception of the current proceedings was something that Mr Power was very well placed to assess contemporaneously.
66. He told the judge that G’s objections were her own genuine objections, that there was a conviction in her, not just a wish but something deep down inside her to the effect that she wants to be in England. He said she regards England as her home. He said that attention had to be paid to her wishes and feelings and that if she were to be forced to go back, there was a real risk of psychological damage to her. In addition, he said that her relationship with M would be permanently damaged. Furthermore, he thought her threats not to co-operate with a return were real.
67. The judge expressly accepted that G’s objections were strong and that they were not about returning to M’s care but to Brazil. As I read  to  of the judgment, she also impliedly accepted the elements of Mr Power’s assessment that she set out in those paragraphs. Furthermore, she accepted, as she was entitled to do, that G had behaved as a mature 12 year old and argued her case in a mature, rational way. Taken together, all of this amounted to a cogent case against return.
68. The judge set against it the physical separation that there would be from [her mother] and [her brother]. [Counsel for the mother] suggests that it was inappropriate for her to take the view that this was mitigated by the fact that G and [her brother] would, at 10 and 12, increasingly be leading their own lives with their own friends anyway. She also took into account the availability of electronic communications as a way of the siblings keeping in touch. This was, exactly the sort of assessment that a family judge can and often does make and I do not detect any error of approach.
69. As for the argument that welfare disputes about [G’s brother] and G may be consigned to different courts if G is not returned to Brazil, which in [the mother’s Counsel’s] submission would be undesirable, that may in fact be a problem which, if it exists, is more academic than real, given that there does not seem to be any active dispute about [G’s brother’s] welfare.