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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> The Mother v The Father [2025] EWHC 826 (Fam) (14 February 2025) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2025/826.html Cite as: [2025] EWHC 826 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London
		14th February 2025

MR JUSTICE TROWELL:

1. I am going to deliver this judgment from my loose notes having heard the submissions made on behalf of the parties. I apologize that it will not be as clearly expressed as it would have been had I had time to compose it.
2. I have to deal in this hearing with what is being treated as if it were a request under Article 15 of the 1980 Hague Convention for a declaration of this court in relation to the habitual residence of the child at the time of his removal or retention (I will give the child's details in a moment) and a determination that the removal or retention of the child by the mother is wrongful within the meaning of that convention.
3. These proceedings relate to a child. She is aged two, coming up to three.
4. I have heard submissions on behalf of the father of the child from Mani Singh Basi, his counsel, and on behalf of the mother, from her counsel, Hannah Nielsen.
5. The father has attended court in person. The mother has attended remotely.
6. I have apologised to the mother and the father that I am going to refer to them as father and mother in this judgment.
7. The child is the child of the parties, the father and the mother. She was born in this country in 2022. The mother and the father started a relationship while the mother was living in Ukraine and the father was living in this country. It is put to me that the father travelled out to Ukraine to be with the mother. What is undoubtedly common ground is that the mother came to England in February 2022, after the outbreak of war in Ukraine, and lived here with the father when she was already pregnant with the child, and the child was born in this country, as I have already said, in 2022.
8. In July 2024 the child and mother left this jurisdiction on a trip which the father says was to Poland, but the mother says was a trip that he knew full well was in fact on to Ukraine and Poland was only a staging post. She and the child have remained in Ukraine.
9. The first issue that I need to consider is the habitual residence of the child. I need to note that when the mother, pregnant with the child, came to this country she moved in to live with the father. Their relationship seems to have been strained and they separated in 2023. The mother moved into a rented property. The rent was paid by the father, but, I am told, the contract was in the name of mother. And so the child moved out from the home which was being shared by the parents into a home with her mother alone.
10. After the mother and the child moved out the child did continue to have a relationship with her father, and it is uncontested that she spent every weekend with him. I am told that the times were from 10 until 4, on Saturdays and Sundays. I am also told, though the mother is not in agreement with this, that the child was close to the father's family, particularly his dad and his cousins.
11. The competing positions on habitual residence are these: the father says that the child was habitually resident here; the mother says that the child had no habitual residence. She says that she, the mother, was here temporarily. She came to England, not with an intention of settling in England, but with an intention of staying here because of the war in Ukraine. It is common ground that they came to this country because of the war in Ukraine. So the mother asserts that she continued to be habitually resident in Ukraine and was staying here temporarily because of the war, and the child has no habitual residence anywhere.
12. The father says that the mother settled in this country. It is of course not the mother's habitual residence that I need to determine. It is the child's habitual residence I need to determine. He says the child is habitually resident here and it is on that I shall focus.
13. In relation to the law that I should apply when considering habitual residence, I have been addressed in writing at some length by Mr Basi. The critical point on which both counsel agree is that the test is essentially a factual one which should not be overlaid with legal subrules or glosses. This is taken from the extensive quote that is given me from Hayden J in his decision in Re B (A child) (Custody Rights: Habitual Residence) [2016] EWHC 2174.
14. There are 13 points to bear in mind set out by Hayden J in that case. That the test is a factual one is in fact the second one. I will first reflect back on the first one which is "The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in the social and family environment". That is a reference to the European test in the case of A v A (Children: Habitual Residence) UKSC 60.
15. My attention was drawn by Ms Nielsen to the sixth point of Hayden J, parental intention. She draws my attention to that because this says parental intention is relevant to the assessment here, and she points me to the mother's intention in the light of her case that she did not intend to settle here.
16. The difficulty I have in assessing what weight to put on parental intention, even if I were to accept her client's case that she only intended to be in this jurisdiction on a temporary basis whilst the war was carrying on, is that the father's intention does not seem to be questioned and his intention at this time is to be here, and his intention for the child seems to be that she should be here. There is no case presented to me by the mother that the father intended that the child should move back to Ukraine in due course, so at best it seems to me that point is neutral.
17. What I am going to have to focus on is the day to day facts, and whether they point to some degree of integration by the child in the social and family environment. So I turn to the points which were set out by Mr Basi at paragraph 26 of his position statement.
18. His first point is that the child was born in England and in his words "until she was abducted", let us say until she was taken out from England, "she had never before left England". He then points out she had been registered at the local medical facility. And thirdly, that she had been attending nursery, and she was due to return to the nursery in September 2024.
19. The mother tells me that that the nursery point is nowhere near a significant point because the child only attended for four hours a week. And the mother also makes the point that the mother would give her a packed lunch which would be Ukrainian food, and that is a marker of her having not integrated in British society. Her point about food would seem to be a marker in relation to a relationship to Ukraine, but of course the mother's case is not that the child was habitually resident in Ukraine.
20. Mr Basi tells me the child was registered with a dentist in England since December 2023. He tells me, she attended weekly play sessions at Tuff Tray Play. He concludes this paragraph in his position statement with the points about the contact with the father which I have already mentioned.
21. Two further points are made by Mr Basi in oral submissions. One is in relation to the accommodation which the mother was staying in in this country. It was held, he tells me, under a one-year lease. The lease had originally been taken out I think in January 2023 when the parties separated, and renewed in January 2024, and would have expired in January 2025, so though not long-standing it was not short-standing, if I can be forgiven for putting it that way. The mother tells me that the lease was for a year in the first instance, and then that the tenancy was being held over on a monthly basis.
22. At this stage, because it will be relevant to the question of whether the removal or retention of the child abroad was wrongful, I should set out that the mother agrees that no notice had been given to the landlord that she was going to be leaving the property. She says that that would have been relatively straightforward to be given after she left because it was only being held over on a monthly basis and there was no point contacting the landlord in advance.
23. On the father's case, if the lease was to run for another year, there would have been a point in contacting the landlord, but there appear to have been break clauses on his version at any rate, such that the rent was not paid for another year. Nonetheless it is common ground that the landlord was not notified.
24. The next point that the father makes to add to this list is that the child and the mother's stuff, their possessions, were to a large extent still in the flat after they left, and those possessions and where those possessions are, mark to an extent the degree of integration that the mother and the child have in that place.
25. The mother accepts that the child's possessions and indeed her possessions were still in that flat. She rejects the father's case that those possessions were left around the flat, including on the drying rack as if she were about to return to the property Indeed the father's case is there was still food in the fridge. She does not accept that. She says that the items were packed, and I have been shown a WhatsApp message where she requests the husband to send the stuff over to Ukraine.
26. There was no proper answer given to me as to why if it were an agreed removal, and I note that this is a point in relation to wrongful removal or retention rather than habitual residence, why that stuff had not been sent in advance over to Ukraine or sent on the moment that the mother was leaving to Ukraine. Instead she had to request the husband to go back to the flat to send boxes over to Ukraine. But I am dealing now with the issue of habitual residence.
27. I do remind myself that the normal approach is that a person is habitually resident somewhere, rather than not habitually resident anywhere, which is the mother's case here.
28. I am told by Ms Nielsen that this is a novel situation where the mother is here in effect sheltering from the war and it was always her intention to return to Ukraine and so there was no integration by the child in British life, and I do record that she says further that the mother did not have English friends here, and that the mother spoke to the child in Ukrainian, and the mother served the child Ukrainian food.
29. However, it is compelling evidence that the child is habitually resident here, that she lived here; she went to nursery here; she was registered at medical facilities here; she was registered with a dentist here. She took part in weekly play sessions here, and that the father who is a British citizen also lived here. I should note while considering this point that the child has both British and Ukrainian citizenship herself and holds a passport in relation to both countries, so that does not particularly assist me.
30. It is overwhelmingly the case that this court finds that the child was habitually resident in England and that case, on the balance of probabilities, is comfortably to be preferred over a case that she has habitual residence nowhere. So in relation to the first point that I need to find, the child was habitually resident in England and Wales.
31. The next point that I need to consider relates to whether the father had rights of custody and whether he exercised those rights to custody, and whether there was therefore a wrongful removal or retention.
32. That he has rights of custody flows from the fact that he is named on the child's birth certificate, he has parental responsibility in relation to the child.
33. That he was exercising the rights of custody appear to me entirely unchallengeable and I think it is fair to say it is not challenged, in that it is agreed he had contact with the child each day of the weekend. It may well be that he exercised his parental responsibility further in relation to nursery and medical conditions. I know not, and I have not heard any argument against or for that, but it is clear that the father had rights of custody and was exercising those rights of custody.
34. The next question I need to consider is whether the removal or retention of the child is wrongful. The mother's position on this is that the father knew she was going to Ukraine. The father does not accept that, and indeed I have been pointed to a written document helpfully provided to me by the mother in which it is recorded that he consents to the mother taking the child to Poland. That accords with his case as to what he consented. The reason he consented to do that is because the mother wanted to go to Poland because a relative was unwell, and he says that it was his case that he was clear that the child should not go to Ukraine.
35. The mother says he knew full well that she was going to Poland only in order to go to Ukraine, and that the reason that he only signed a letter saying she had permission to go to Poland and not permission to go to Ukraine is that she knew from previous experience that she would be challenged taking a child to Poland but would not be challenged taking a child from Poland to Ukraine, so it was entirely unnecessary.
36. That explanation is not one which on the balance of probabilities I accept. It seems to me entirely implausible that if the mother went to the lengths of ensuring that the father committed himself by way of a signature to a trip to Poland that she would not ensure that he had committed himself by way of a signature to a trip to Ukraine. She was not to know that problems might not arise if there was no such commitment. I prefer, on the balance of probability, the father's case that he knew the trip was to Poland and he did not know that the mother intended to go from Poland to Ukraine.
37. However, even if I am wrong on that, the mother's case will nonetheless amount to a wrongful retention. She accepts that there was no discussion with the father that she intended to stay in Ukraine permanently. She says that her stay was simply open-ended. That is there was no end point put on how long she would stay. That does not amount to the father agreeing for her to move with the child to Ukraine. At best that can amount to her spending some time in Ukraine, perhaps whilst her relative was ill. It is entirely inconsistent with the case she wants to put that he had agreed she could move to Ukraine on a permanent basis to simultaneously say that there was no discussion as to how long she would be in Ukraine.
38. It is right that the letter that I have been shown by the mother does not have a fixed end date as to the trip to Poland, but it does not amount to evidence that there was an agreement by the father for her permanent removal to Ukraine, only a temporary period of time in Poland.
39. Further, I have corroborating evidence in this regard that this was not agreed to be a long-standing let alone a permanent move, as the father has said to me there would have been notice given to the landlord. As I have already observed there would have been a packing of the mother and the child's stuff and it being sent on, and there would have been notice given to the nursery, and there was no notice given to the nursery.
40. All these points confirm in my view that the trip was only a short-term trip, and even if I am wrong and the father had agreed for the mother to go to Ukraine, and I do not accept that, I add it must still amount to a wrongful retention in Ukraine.
41. I think that I have now dealt with the points on which I am asked to make a declaration. I am content to make a declaration as to habitual residence, and that the removal or retention of the child in Ukraine is wrongful. It is a breach of rights of custody attributed to the father in the country in which the child was habitually resident immediately before the removal or retention and those rights were actually exercised at the time of the wrongful removal or retention.