R (A Child: Habitual Residence), Re
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE MOORE-BICK
- LADY JUSTICE BLACK
- LORD JUSTICE BRIGGS
Areas of Law
- Conflict of Laws
- Family Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
This case revolves around determining the habitual residence of S, a child, and focuses on whether she is habitually resident in England or Italy. Parker J initially declared S habitually resident in England and ordered her return for a welfare assessment. M appealed, arguing the trial judge misinterpreted her intentions and the documentary evidence. The appeal was allowed, and the case was remitted for rehearing in the Family Division due to the judge's incomplete consideration of the factual evidence and the need for potentially hearing oral testimony.
Judgment
Lady Justice Black :
This appeal concerns decisions taken by Parker J in relation to S who was born in June 2005 and is 9 years old. The appellant is her mother (M) and the respondent is her father (F). The principal issue is in relation to S’s habitual residence.
On 23 September 2013, F commenced proceedings here, seeking a residence order in relation to S. By virtue of Council Regulation (EC) No 2201/2003 (Brussels IIR), jurisdiction in those proceedings depends upon S being habitually resident in England and Wales on that date. F contended that she was; M contended that she was habitually resident in Italy.
Parker J accepted F’s case and found that S was habitually resident here at the relevant time. M appeals against her declaration to that effect made on 3 December 2013. She also appeals against the judge’s order of 7 February 2014 that S must be returned to this jurisdiction on or before 14 February 2014 so that a CAFCASS officer could meet her as part of an assessment of the welfare issues in relation to her. If the appeal succeeds in relation to the question of habitual residence, it necessarily succeeds in relation to the order for the return of S.
Parker J began her judgment of 3 December 2013 with the observation that this is “a very difficult case”. So, indeed, it is. The judge was not helped at all by the stance taken in the litigation by M in particular.
Outline history
F is Scottish by origin; M is Italian. They have lived in this country at times and have jointly owned a property here (“the property”), although that has now been repossessed because of mortgage arrears. They separated in 2009 and were divorced in March 2011.
M has been the primary carer for S since the separation. In August 2009, she was granted a residence order in relation to S and her considerably older sister C. She was also granted leave to remove both children from the jurisdiction to Kenya where she was working. M returned to this country in 2010 and, in July 2010, was granted leave to remove the children from the jurisdiction to Italy permanently. It is common ground that she and S became habitually resident there. F was to have contact but he says that by October 2010, M was in breach of this requirement. Contact seems to have ended completely eventually, as he last saw S in March 2013.
M was diagnosed in January 2011 with cancer and has been receiving chemotherapy, primarily in Italy. She and S remained living in Italy until 31 August 2013. On 31