Court rejects Latvian mother’s claims of habitual residence

habitual residence

The future of two children born to a multinational couple should be decided in England, the High Court has ruled.

The case concerned two children –  a girl, ‘E’, aged nine, and her brother ‘M’, now aged four. Their father was born in Nigeria but is a long-term resident of England, while their mother comes from Latvia on the Baltic Sea.

The parents met after the mother moved to England in 2006. After she fell pregnant, the mother returned to Latvia for a period before coming back to the UK. The mother and father married in July 2007. E was born a few months later.

Shortly afterwards, the father assaulted her. She called the Police and he was arrested, eventually receiving a caution. The mother then travelled back to Latvia with E for nearly two years. He claims to have paid her child maintenance during this time.

Eventually they reconciled and the mother flew back to Britain and moved in with the father again. Their turbulent relationship then took on a stop-start pattern, with the mother living with the father for periods of time before returning to Latvia following arguments and then flying back to Britain again.

In April 2011, during a period when the couple were sharing a cramped London flat, the mother alleges that the father assaulted her again. The Police were called and he was arrested but the couple again reconciled.

Later the same year the mother became pregnant with her second child and once again returned to Latvia, wanting medical treatment for suspected complications in her own country. M was duly born the following May.

The couple’s relationship continued this stop-start pattern, with the mother flip-flopping between life in England with the father and life with her family back in Latvia. She claims the father pressured her into terminating her third pregnancy while there.

Arguments continued and the Police were called to the family home on multiple occasions. Meanwhile the father pressed for indefinite leave to remain the UK. He eventually received a permanent residence card on the basis of his wife’s Latvian nationality. Latvia is a member of the European Economic Area.

In the High Court, Mr Justice Baker explained that:

“On the mother’s account, the same problems arose between the parties, with the father continuing to behave in an aggressive manner.”

During a later return to England from Latvia, the mother began searching for separate accommodation for her and her children.

She explained that:

“I spoke to social services and obtained an advice about securing alternative accommodation for myself and the children in the UK. I desperately wanted to separate from the applicant and live separately from him. When speaking with social services I understood from them that [the] council would be able to assist in accommodating me due to his abusive behaviour if I left him. However, in order to receive the help from [the] council I was advised that the children needed to be present in the UK”.

When she went back to her flat to collect belongings, however, another argument broke out with the father, during which he reportedly perforated her eardrum by striking her with a shoe.

A brief return visit to Latvia ended after just five days when she and the children once again flew back to Britain and moved in with the father. Social services insisted she leave, however, and she eventually found temporary accommodation in a hostel, later moving to a council flat where she remains.

The father was convicted and received a 16 month jail sentence. Worried that the children might have developed tuberculosis, the mother made another trip to Latvia to have them examined in September 2015. After discovering that testing could take as long as six months, she decided to return to England, leaving E and M in the care of her own parents until her worries about their health had been resolved.

Following his release from jail meanwhile, the father was granted a prohibited steps order that would prevent the mother from taking his son and daughter out of the UK. As they were in Latvia at the time she was duly ordered to return them.

The mother claimed that when she tried to do so, however, they refused to come back with her. A psychiatrist concluded that they were afraid of their father.

The father continued his legal action, pressing for E and M to be made wards of court and brought back to Britain. The mother’s counsel queried jurisdiction: did the English courts really hold jurisdiction over the two children? This question eventually came before Mr Justice Baker.

The father argued that E and M had been ‘habitually resident’ (resident for legal purposes) in England at the time the proceedings began in February last year. This would mean the English courts did hold legal authority, or jurisdiction , under Article 8 of Council Regulation (EC) 2201/2003, commonly known as Brussels IIA or Brussels II Revised.

He also suggested that his son and daughter had been wrongfully removed from England by the mother. She, meanwhile, countered that the children had been legally resident in Latvia throughout and insisted that Latvia was the court system best placed to hear their case.

Mr Justice Baker did not accept these claims, however, declaring that:

“In my judgment, this is a finely balanced decision but I have reached a clear conclusion that, by September 2015, E and M were habitually resident in England and Wales. I further find that the children’s removal to Latvia in September 2015 was only intended to be temporary. It was the mother’s clear intention that they would return to England at the end of the academic year. I therefore find that E and M remained habitually resident in England at the date when the father started these proceedings in February 2016. As result, this court has jurisdiction under Article 8 of Brussels IIA.”

Read EE & ME (Children) here.

Photo of Riga by Stryn via Wikipedia under a Creative Commons licence

Stowe Family Law Web Team

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