Boy still habitually resident in France, Family Court rules

Family Law|July 19th 2016

An eight year-old boy remained habitually resident in France despite an extended stay in England, a Family Court has concluded.

The boy, referred to as ‘D’, is now eight years old. His mother is half-French, and holds dual nationality, as does D himself.

The parents met in 2005 and began living together in London the following year. D’s mother is now 41, while the father is 12 years older than her. They did not marry but when D was born in 2008, the father was named on the boy’s birth certificate, thereby giving him parental responsibility.

In 2011 the parents split up. D and his mother remained in London. The couple agreed contact for the father and he saw D on certain days of the week and every other weekend.

Later that year, the mother began a new relationship with a French man, eventually announcing plans to move to France with D in order to live with her new partner. The father was unhappy with this idea but agreed to mediation, he claimed. He also pushed for a formal parenting agreement with the mother.

The father insisted that in September 2013 the mother made the decision to take D to France with her without his permission. However, at a hearing in the Family Division of the High Court, His Honour Judge Clifford Bellamy explained that:

“It became apparent from the father’s oral evidence that [the father’s claim] is not entirely accurate. The father had been willing to agree to the mother and D relocating to live in France but on condition that she should first sign a parenting agreement.”

D’s parents discussed the move but the father made no attempt to apply for a prohibited steps order forbidding the mother from leaving, nor did he apply for D’s return once he and his mother had in fact moved to France.

Questioned about this, the father insisted that the move had only ever been intended as a temporary one, in spite of the fact that the father received a consent order concerning the move from the mother’s solicitor which clearly described the move as ‘permanent’. However, he never actually signed this.

The mother also says she never presented the move, in September 2013, as anything other than permanent.  Her new partner, referred to in the judgement as ‘W’, works as an engineer.

She still lives with him near the coast in Brittany and the couple are now engaged, with a wedding planned for October this year.

The father continued to press the mother regarding a parenting agreement, emailing her that:

“It is in your interest to make sure that we have reached agreement, as your failure to do so will be considered abduction.”

Nevertheless, he was supportive when she later began a studying for a PhD which required her to spend time in the Netherlands.

The mother discussed plans for D to attend school in England and the father says this was evidence that she did not regard her move to France as a permanent one. He also interpreted her and D’s move to the Netherlands as a separation from W. This was definitely not the case said the mother.

In December the mother and D returned to Brittany from Holland. Meanwhile, the boy continued to visit his father regularly, enjoying holidays with him.

The Judge explained:

“What is very clear is that both parents were committed to maintaining the relationship between D and his father. Although the papers suggest that there were occasional strains in the relationship between the parents and notwithstanding the fact that the father was unable to achieve his objective of having in place a signed parenting agreement, the parents were for the most part able to work co-operatively in their parenting roles.”

At Christmas last year, the mother and D travelled to England for a holiday. D went to stay with his father and the mother visited her father in Sussex, where he lived alone. She found him very unwell and in need for daily care. She stayed on longer than planned to look after him.

After Christmas, D travelled to Sussex to be with his mother, where they stayed until April, when her father had recovered from his illness,. They then returned to France.

D’s parents disputed the meaning of the visit. According to the father she had separated from W and D acquired habitual (legal) residence during the stay in Sussex and London. The mother strongly denied this, saying they had travelled over with a single suitcase each and insisting that D remained habitually resident in France the whole time. She explained that they had stayed in her father’s guest bedroom with only the bare essentials they had brought with them.

The father claimed the grandfather had not really been seriously ill and the mother had in fact relocated on a permanent basis.

The mother’s return to France was delayed after she suffered a miscarriage. Eventually, shortly before the planned return, her father was copied into an email confirming that D could return to his school in France. The father claimed this was the first he had heard of it, emailing the mother

“I have not been consulted on this matter. When we last spoke we agreed that it was now in D’s best interest to settle back in the UK at his new school. I have not agreed to D being taken out of his school in the UK to go to school in France. This would be abduction. We have not formally agreed a parenting agreement that gives my permission to take D to live outside of the UK.”

Shortly afterwards, the father applied for various legal orders, including a temporary prohibited steps order which would have forbidden her from leaving the jurisdiction with D. He told the court:

“There is an unfortunate history of changing his his place of living. I’d never agreed to him moving abroad without a parenting agreement and she has never signed one, although verbally agreed to one. We recently – I tried to, I had to go to a lawyer to, to try and negotiate for mediation on the grounds that there was some domestic violence, but there hasn’t been any. We haven’t been living together for over four years, and she had moved to France and it was a fait accompli. I couldn’t do anything about it but I had, I had been seeing him, you know catching the ferry over there, and then she, she sent me an e-mail saying that she was coming back because she wanted him to, to go to school here in the UK. I think also she had fallen out with her partner, which has a bit of a history of instability in terms of their relationship, and I have been e-mailed by her requesting me to help her on one occasion, because of his behaviour.”

But at the time of the application, the father did not know she had already returned to France. She, meanwhile, was unaware of the hearing.

The question then arose as to whether the French or English and jurisdiction, and this issue revolved around whether or not D was legally resident (‘habitually resident’) in England or France at the time he and his mother returned to Brittany.

In a detailed judgement, Judge Bellamy considered evidence which appeared back up both the father’s and mother’s claims. The mother said D had rich and fulfilling life in Brittany with her partner, while the father claimed they were isolated and that D had settled well during his return to England.

Judge Bellamy said he had not doubt that between the family’s first move to France in September 2013 and December last year, D had thoroughly settled into life across the Channel and thereby acquired habitual residence in the country.

He admitted that the question of whether or not D subsequently lost his habitual residence in France during his extended stay in Sussex in his grandfather’s flat was difficult, but concluded that the boy did not, saying:

“In this case I am satisfied that by December 2015 D’s life was deeply integrated in France and that he had acquired a degree of permanence there. There is no evidence of the mother having engaged in actual pre-planning of the move to England before she and D arrived here. Such limited arrangements as she made (accommodation and schooling) both seem to have been made after she and D arrived in England. It is clear that the ‘central members of the child’s life in the old state’ – W and D’s pet, Charlie – remain in France as do most of his clothes and toys.”

This conclusion was, he said, “quintessentially fact-specific”. The father’s applications were dismissed.

Read Re D here.

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  1. Luke says:

    It seems the father agreed for the child to go to France temporarily with provisos, which she backtracked on.
    He was trying to be cooperative, but my vicarious experience is that that is a huge mistake – people are often not reasonable. It’s wrong but the reality is that the courts take a willingness to be accommodating as the jumping off point for what happens next – so the only sensible course of action is to compromise on nothing and allow the other party to do nothing at all on trust, be as obstructive as necessary in order to protect your rights.

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