We live in a global society, where movement between countries is easy, commonplace and trivial. This is especially so of course in the European Union, where free movement of people is one of the founding principles of the Union.
As I have stated here before, this free movement of people across international borders can lead to considerable complexities when it comes to family law disputes. A particularly sad example of this cropped up in GM v DB, a case published last week, in which a family has been literally divided in two between two countries.
The case concerned a Romanian mother and an Italian father. The mother had three older children of her own and travelled to Italy to find employment to support her children in Romania. Whilst in Italy she met the father and formed a relationship with him. They never married, but had two children, A, who was born in Romania in 2011 and B, who was also born in Romania, in 2012.
The family moved quite frequently between Romania and Italy. When the relationship between the mother and the father broke down in about January 2014 they were living in Italy. The mother then wanted to return to Romania with the children. On 15 of January the mother and A left Italy and travelled to Romania. Whether she had the father’s consent was in dispute. B remained in Italy with the father, as he was awaiting an operation in Italy for a cleft palate. The mother claimed that she agreed B could stay and that she would collect him later.
In August 2014 the mother brought A to England and in March 2015 the father issued proceedings under the Hague Convention for the summary return of A to Italy. The mother raised defences under Article 12 of the Convention, claiming that more than a year had elapsed since the alleged wrongful removal and A was settled in that jurisdiction. Under Article 13(b) she also claimed that to order A to return to Italy would put him at grave risk of physical and psychological harm and otherwise place him in an intolerable situation.
The father’s application went before Mrs Justice Hogg in the High Court. The first thing she had to decide was the fundamental issue of whether A was habitually resident in Italy at the time he left on the 15th of January 2014. She looked at the history of A’s movement between Romania and Italy prior to that date and found that he had made the trip to Romania, Italy and back to Romania ten times. He had spent a total of about eighteen months in Romania and eleven months in Italy. In the circumstances Mrs Justice Hogg concluded that:
“It was a disrupted confusing life with little long term stability in either [environment] because no sooner had he begun to settle in one environment, he was uprooted again to the other environment. This is an unusual case because, in my view, he had no habitual residence.”
Accordingly, A had no habitual residence in Italy and therefore the father’s case failed. There was no need to consider the defences under Articles 12 and 13.
But Mrs Justice Hogg did not leave it there. She concluded her judgment with the following appeal to the parents:
“I look, sadly, to the future. I have already criticised the mother to her face about not involving the father in making big decisions as to where A should live in that she did not ask him whether he could come here. She did not even consult him about which school or nursery he should attend. I hope in the future that the parents together can resolve their difficulties about where the two boys should be. Each boy that they have created is living away from one parent and they are each living away from their own full sibling. It is a very regrettable situation. Both boys need a relationship with both parents and with each other and of course the half-siblings.”
So we have two brothers, divided not just by the breakdown of their parents’ relationship but also by national boundaries, so that each will grow up not just in a different culture but possibly without having a proper relationship with their sibling and their other parent. Such a situation is, I’m sure, not unique and is likely to become more common. One can only hope that the parents take Mrs Justice Hogg’s words to heart.
The full report of the case can be read here.
