IQ Legal TrainingBerkeley Lifford Hall Accountancy ServicesHousing Law WeekAlphabiolabs

Home > Judgments > 2011 archive

V v V [2011] EWHC 1190 (Fam)

Disputed divorce jurisdiction case involving consideration of the wife’s residence at the date of her divorce petition. Held: the wife was entitled to proceed with her petition.

This case concerned the issue of whether the court had jurisdiction to entertain a divorce petition issued by Mrs V (the wife) on 1 April 2010.  The wife claimed that the court had jurisdiction on the basis of indent 5 of Article 3(1)(a) of Council Regulation (EC) No 2201/2003 ("Brussels II Revised"):

"In matters relating to divorce … jurisdiction shall lie with the courts of the Member State… in whose territory… the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made".

The husband (Mr V) disputed jurisdiction, claiming that the wife had not been habitually resident (or even resident) in England between December 2009 and March 2010 but that she had resided in Switzerland during that period.

The first issue for the court, therefore, was whether as a matter of fact the wife had originally intended her stay in Switzerland from December 2009 to be a permanent move, as the husband said, or whether it had been temporary with a view to the family returning to London, the latter being the position of the wife.  Peter Jackson J. found, on the basis of all the evidence before the court, the wife's account to be the correct one.

The next question was whether, having made this finding, the wife satisfied the criteria of the fifth indent of Article 3(1)(a). 

The meaning of 'habitual residence' is set out in LK v K [2007] and Z v Z [2010].  The emphasis is on a person's centre of interests and the test for habitual residence is objective.  Concepts such as 'permanent', 'habitual', 'residence' and 'home' have a mental element which the court is able to assess objectively.

However, it was necessary in this case for the court to choose between the two different interpretations of indent 5 found in Marinos v Marinos [2007] and Munro v Munro [2008].  The question was whether the reference to an applicant having 'resided' in a country for a year prior to the petition required 'habitual residence' or simply 'residence'.

Preferring the approach of Munby J. in Marinos, the judge held that indent 5 of Article 3(1) required habitual residence at the time of the petition and residence in the jurisdiction for at least a year prior to that date.  He therefore went on to consider the meaning of 'residence' as opposed to 'habitual residence'.  Drawing a distinction between a person being 'resident' in a country and being physically 'present', the judge concluded that there is no difficulty in the concept of a person being resident in more than one place at a time.

In this case, therefore, the judge concluded that the wife was habitually resident in London at the time of her petition and, though not strictly necessary given his conclusions as to the interpretation of the law, as an alternative she had been habitually resident for at least a year prior to that date.  She had been resident in London for at least a year before the presentation of the year, notwithstanding the time spent in Switzerland but in the alternative the judge found that even if she was resident in Switzerland from December 2009 to March 2010, she was simultaneously resident in England.  Finally, the judge rejected the husband's argument that the wife had been habitually resident in Switzerland during those three months.

The wife was therefore entitled to proceed with her petition.

Summary by Sally Gore, barrister at 14 Gray's Inn Square


Neutral Citation Number: [2011] EWHC 1190 (Fam)
Case No: FD10D01711


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20th May 2011

Before :

- - - - - - - - - - - - - - - - - - - - -
Between :

 V Petitioner

 - and - 

 V Respondent

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Robert Peel QC and Mr Nicholas Chapman (instructed by Hughes Fowler Carruthers) for the Petitioner wife

Mr Timothy Scott QC and Mr Simon Calhaem (instructed by Spring Law) for the Respondent husband

Hearing dates: 9th and 10th May 2011

- - - - - - - - - - - - - - - - - - - - -
JUDGMENT (Approved)
This judgment consists of 64 paragraphs.  Pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken and copies of this version as handed down may be treated as authentic.  Permission to report is granted.
Mr Justice Peter Jackson:
1. The issue here is whether the court has jurisdiction to entertain a divorce petition issued by Mrs V (the wife) on 1 April 2010.

2. The claimed basis for jurisdiction is provided by indent 5 of Article 3(1)(a) of Council Regulation (EC) No 2201/2003 ("Brussels II Revised"):

"In matters relating to divorce... jurisdiction shall lie with the courts of the Member State... in whose territory… the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made."

3. The wife, upon whom the burden of establishing jurisdiction rests, contends that she had been habitually resident in London since August 2008, and thus for over a year at the time of her petition.

4. The husband, Mr V, disputes this.  He accepts that the wife was habitually resident in London between August 2008 and December 2009 but contends that she was not habitually resident (or even resident) in London between December 2009 and March 2010, but rather that she resided in Switzerland during that period.

5. I will set out the facts (making findings where necessary), consider the applicable law, and state my conclusion.  I will make comment about the level of costs.

6. The husband is 41 years old.  He is a member of a Greek shipping family.  As a young child he moved with his mother to Switzerland and attended school there before going on to university in the United States.  In 1994, he moved to England.  In 1996, he was the beneficiary of family litigation which provided him with a substantial personal fortune, from which he bought a property in Kensington, which I will refer to as "the London house".  He has not been employed in recent years and describes himself as a private investor.   

7. The wife is 38 years old.  She was born and brought up in Brazil and then attended schools in the United States and Switzerland.  She went to university in Paris before attending an art course in London, following which she briefly worked in a gallery in New York. 

8. In 2001, the husband was living in London.  The wife had returned to Paris and in the summer of that year they met in St Tropez.  They began to live together in the London house and in 2003 they married.

9. In 2004, substantial work was carried out on the London house, overseen by the wife and paid for by the husband. 

10. In July 2005, the couple moved to Los Angeles and their first child, a daughter, was born in the following month.  The London house was let for five years.  Their very extensive belongings were placed in storage. 

11. There is an issue between the parties as to the reason for leaving London at this time.  The wife says that it was prompted by the husband's desire to be out of the country for three years so as to reset the clock of his non-domiciled tax status and enable the family to live in London uninterrupted once schools were required.  The husband says that they left simply because they wanted to.  I find that tax planning was a major reason for leaving London.  This is effectively reflected in a later e-mail from the husband to an immigration solicitor in January 2009, referring to "the 3 years away that I needed to restart my non-domiciliation from zero years."  In this family, other priorities tend to take second place to tax considerations.

12. At the end of 2005, the family moved to São Paulo, where they lived in rented accommodation until June 2008.  Over this period, they travelled widely to mainland Europe, England and Greece, the husband's family owning a holiday home in Crete.  In March 2008, they visited London to arrange a first school place for their daughter.  They spent the summer (and also the following Christmas) in Switzerland, staying in the husband's family chalet in Gstaad, which is shared with his mother and other members of his family.  In July 2008 their second daughter was born in Milan.

13. In August 2008, the family moved back to England and rented an address until the London house became available again in July 2009.  The furniture was then taken out of storage and a certain amount of redecoration was undertaken by the wife.  The 2009 summer holidays were spent in Greece and in Gstaad and the children began school and playgroup in September.  The wife began a part-time interior design course, which required attendance on Wednesdays.

14. The husband decided not to remain in England and from the 2009 summer holiday he moved to live in Gstaad.  He was particularly anxious to avoid UK tax liability in relation to a substantial piece of business on which he was working.  The wife and children visited him in Switzerland over the October 2009 half term.  By this time the older child was, unsurprisingly, missing her father

15. Since 2009, the need for the family to restrain its expenditure has been apparent to both spouses, and in particular the husband.

16. In November 2009, the wife negotiated with the older child's school for her to be taken out of school for the first term of 2010 so that she could spend more time with her father in Switzerland, where she would go to school.  It was clearly stated that the child would return to school in London in April 2010, and that the missed term's fees would be paid anyhow.  The letter making this request to the school was approved by the husband.  In Switzerland, the husband submitted an application to an international school in Gstaad.  This explicitly referred to the child attending for the first term of 2010 only.  Both schools have confirmed that their understanding was always that the child would return to continue her education in London in the following term.

17. At the same time, the wife informed her course provider that she would be commuting back to London on Wednesdays during the January-March 2010 term only.

18. On 18 December 2009 the wife and children went to Gstaad.  The wife remained there until 21 March 2010, but she returned to the London house frequently, spending 28 nights there during the three-month period.  On one occasion, the wife was detained for several hours at the airport when entering England because of uncertainty about her immigration status.

19. In February 2010, the wife was looking for rental properties in London on the basis that the London house would be sold at some point after July 2010.  The search was conducted through an agent who is a lifelong friend of the father.

20. The children returned to London on 23 March, being delivered by their father, who returned to Switzerland without passing through passport control.

21. On 24 March, the wife attended an interview at the Home Office in support of her application for a UK residence permit, which was granted on 30 March.  The process, which began in 2009, had been carried through with the full knowledge and support of the husband.

22. On 1 April 2010 the wife issued her petition, but did not serve it.  On 15 April, the husband came to London.  The wife asked him to accompany her to a wedding in Paris at the weekend, but he preferred to be with the children in London.  Words followed.  On 19 April, following the wife's return to London, her divorce petition was served.  On 21 April the older child's school term began.

23. The wife's explanation for the time spent in Switzerland is that it was nothing more than a temporary time-limited arrangement for the benefit of the older child.  In her affidavit, she sets out the details at paragraphs 31-33:

31. [He] left me and the children in London in mid-September 2009 on the basis that he would return to London in April 2010.  During this period we would visit each other, and the venue would depend on the school term and holidays.  The children and I were in a regular routine in London and it was not intended that this would be unduly disrupted.  ...

32. However during this period when [he] and I were apart, [our elder daughter] began to miss her daddy more than we had anticipated.  I took the girls to Gstaad to visit him over the half term at the end of October 2009.  We talked about the situation and how we would resolve it.  The children and I flying over at weekends was a possibility but this seemed too disruptive of our lives in London; also we thought that [she] was missing seeing her father on a daily basis and that weekend visits might not be the answer.

33. [He] suggested that I come to Gstaad with the girls for the period from January to March 2010.  The children and I would then return home at the end of the winter term and for the Easter holidays and it would not then be too long before [he] could join us again in London.  I was prepared to go along with [his] idea as long as I could ensure that [our daughter] would not lose her place at [school in London] if she was absent in Gstaad for a term, and that she could obtain a place at the [school] in Gstaad for one term.  

24. The husband says that, on the contrary, it had been agreed that the wife and children would be moving permanently to live with him in Switzerland.  In his affidavit, he sets out the details at paragraphs 43 and 45. 

43. As [she] says, it became apparent in September-October 2009 that [our elder daughter] was missing me and that it was necessary for her sake that the family should be reunited sooner rather than later.  Accordingly, it was agreed that [she] and the children would move to Gstaad in December.

45. Whatever [her] intentions were when she made the arrangements to keep [the] place open at [the London School], once she had moved to Gstaad in December 2009, she made the decision to settle there with the children as we had been discussing.  I discussed this with [her] at the time and she agreed that there was no plan to return to London.  She started to settle into life in Gstaad and told other people that she was now living there on a permanent basis.  ...

25. The husband says that the account given to the schools that the child would be returning to school in London had to be given, as the wife's application for a UK residence permit would otherwise have been prejudiced.  In relation to the trip to London at the end of March 2010, he says that he expected the wife and children to return to Switzerland after about ten days in order to resume life and schooling there.

26. I resolve this central factual issue in favour of the wife.  I find that the account that she gives is likely to be correct and that the husband's account can be rejected.  My reasons are as follows:

(1) The wife's account has been consistent throughout.

(2) It is supported by all contemporaneous documentation, and in particular the communications with the school and the course provider.  I do not accept that a false account was given to the schools to protect the wife's immigration application.  That was an application which could not have ranked very highly in the parties' minds if permanent residence in Switzerland was in fact the plan, and it was not high on the agenda at the end of 2009.

(3) The wife's account is supported by most of the circumstantial features.  I would instance the following, in no particular order:

• The two family dogs, who had been in London since 2008, were not brought to Switzerland, but placed in kennels outside London.  In contrast, they had travelled with the family to the United States, Brazil and Switzerland after the previous long-term departure from London in 2005. 

• The family's belongings remained in the London house and were not placed in storage, as they had been in 2005.

• The wife and children took only winter clothes to Switzerland, the rest of their extensive wardrobes remaining in London.

• The wife returned frequently to London, including visits to continue her course.

• In contrast to the pursuit of UK residence status for the wife, no application for a residence permit has ever been made in Switzerland by either party.

• The chalet at which the husband lives in Gstaad, and which the family has often visited, is not a family home which is ever likely to have represented a permanent solution for the wife.  I accept her description of it as a holiday home for herself, the husband and children.  It had been the Swiss home of the husband's mother since 1978, and since 1998 has been rented by the husband and his mother jointly.  I do not accept that the wife was involved in any discussions about adapting the property to be a family home, for example by choosing carpets, as the husband suggests.  Nor is there any evidence of discussion between the parties about finding their own home in Switzerland.

• In contrast, the wife was actively house-hunting in London.  There would be no reason for her to do this if the family had agreed to relocate, and in the light of the choice of an agent so close to the husband I discount the possibility that she was doing so secretly.

• The contents of the correspondence and other documentation following the service of the divorce petition support the wife's case (see below).

(4) The wife's evidence was clearly given, if somewhat self-serving at times, and was not shaken in cross-examination.

(5) The husband's written account is thin and unconvincing.  His affidavit evidence is inaccurate about his movements in the latter half of 2009 and about the wife's movements over the same period.  It is also inconsistent, suggesting in one breath that the permanent move was agreed upon before the wife and children left London, and in another that the idea developed after they arrived in Switzerland.  I do not accept the husband's explanation that these discrepancies arose from his being preoccupied with other concerns.  They reflect that fact that he was trying to describe events that did not occur.

(6) There is not a single contemporaneous document supporting the husband's case that a permanent move to Switzerland was being contemplated.  This absence is noteworthy because he and the wife were in continuous e-mail communication in the latter part of 2009, being in different countries.

(7) Other circumstantial features include the following:

• When the wife and children did not return to Switzerland in April 2010 the husband did not remark upon it in any written communication, still less make a complaint.  (I refer to the evidence about conversations below.)  There were 23 e-mails from the husband to the wife in the period after she left Switzerland, of which 10 were after the time when, on his account, she should have been back there with the children.  Not one of these speaks of a failure to return.  Similarly, when the husband solicitors first wrote to the wife's solicitors on 30 April in a very detailed letter, there was no complaint whatever about the wife's presence in London.  On the contrary, the letter says that the husband was "happy with the present arrangements for the children". 

• No enquiry was ever made about a place at the Swiss school being available for the term starting on 19 April, nor did the husband even ask the wife about it.

(8) The husband's oral evidence was particularly weak.  It was very hard to understand what his position was on a number of issues.  At other times, his evidence did not appear to support his case.  In his evidence in chief, he said that at the time when he approved a draft of the letter to the London school at the end of November 2009, "it was not really clear if the move was permanent or not".  Under cross-examination, he was vague and evasive, as if dreading the consequences of being clear about anything.  On the particular question of his response to the wife's non-return in April 2010, he volunteered that he had repeatedly telephoned her to ask when she would be back, but was met by a series of explanations and excuses.  His evidence did not satisfy me that this was so.  The suggestion emerged for the first time in the witness box.  It does not appear in either of his affidavits, and nor was any such suggestion put to the wife, who gave evidence first.  Given the complete absence of corroboration or circumstantial support, it would have taken a far more convincing witness than the husband to persuade me that these conversations had taken place.

(9) I have read but can attach no weight to the statements filed by witnesses on behalf of the husband.  They lack any compelling quality and none of the makers made themselves available to give evidence.

(10) I accept that from 2009 onwards financial considerations began to play a part in the couple's thinking.  I do not accept the husband's case that a move from London was thought to be necessary for reasons of economy.  His evidence went no higher than saying that he understood that the wife accepted that she had to move to Gstaad for financial reasons.  I preferred her denial.

27. My overall finding on this issue is that the wife has lived in London since August 2008.  However, she and the children have been away on these significant occasions (and no doubt on others, and elsewhere):

Christmas 2008      Gstaad
July 2009 (month)    Crete
August 2009 (month)    Gstaad
October 2009 (half term)   Gstaad
December 2009 - March 2010 (winter term)  Gstaad

28. Within the last period of three months the wife spent about two thirds of the time in Switzerland and one third in London.

29. The nature of this family's background provides an important context when it comes to interpreting the movements of its members.  Just as there are multinational companies, so this is a multinational family.  Their lives have not been tied down by mundane considerations such as financial budgets, local connections, immigration restrictions or language limitations.  Instead, they have lived a protracted modern version of the 18th-century Grand Tour, gravitating towards places where the moneyed international social set gathers.  The husband, in particular, appeared to struggle in evidence to comprehend the concept of "home" as applying to his family at all.  They have, as Mr Scott QC says, shallow roots. 

30. The parties deploy this conclusion to different effects.  On behalf of the wife it is said that a term's absence has much less significance than it would for a more conventional family.  On behalf of the husband it is said that the family's itinerant lifestyle makes it easier to interpret the period spent by the wife in Switzerland as a change in habitual residence.

31. To complete the narrative, the family has remained in London to this date.  The London house, the only family home that either of the parties had owned, was sold in November 2010.  Each parent has found rented accommodation.  The children's main base is with the mother but they spend substantial time with their father.

32. In May 2010, the husband filed an Answer contesting jurisdiction.  In June 2010, he issued Hague Convention proceedings seeking the children's return to Switzerland.  In July 2010 he issued divorce proceedings in Greece, which have since been stayed pending the outcome of these proceedings.

The law
33. I acknowledge the high quality of the submissions I have heard on this issue. 

34. The jurisdictional grounds under Article 3(1) of BIIR are these:

Divorce, legal separation and marriage annulment
Article 3
General jurisdiction
1.  In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State

(a)  in whose territory:

— the spouses are habitually resident, or

— the spouses were last habitually resident, insofar as one of them still resides there, or

— the respondent is habitually resident, or

—  in the event of a joint application, either of the spouses is habitually resident, or

— the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

—  the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her 'domicile' there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the 'domicile' of both spouses.

35. Habitual residence is a concept under European law whose meaning is not in doubt.  Its character appears in paragraph 32 of the explanatory note of Dr Alegria Borrás to the equivalent article in the original Council Regulation ("the Borrás report"):

"A person's habitual residence is the place where the person has established, on a fixed basis, the permanent or habitual centre of his interests, with all the relevant factors being taken into account." 

36. It is well established that one cannot be habitually resident in two countries simultaneously for the purposes of EU law.

37. In L-K v K [2006] EWHC 153 (Fam), Singer J said this of habitual residence: "By way of gloss on that, it does not have to be permanent.  It needs to be habitual.  The emphasis is on a person's centre of interests.  The verb used is "established" and all relevant factors are to be taken into account."

38. I also refer to Z v Z [2010] FLR 694, a decision of Ryder J.  He considered the relevance of a party's intention when considering their centre of interests, and accepted that intention forms a part of the court's overall assessment and that it takes its place as one of the facts in the case (paragraph 44).  Mr Scott argues that this introduces an undesirable element of uncertainty.  If intention were synonymous with the subjective, capricious wish-fulfilment of one party, I would agree.  The test for habitual residence is objective.  But what is meant by intention here is no more than another way of bringing into play the reasons for the parties' actions.  Concepts such as "permanent", "habitual", "residence" and "home" have a mental element which the court is well able to assess objectively.  I therefore agree with Ryder J in this respect.

39. Worthwhile matters appearing from the Borrás report are that the grounds for jurisdiction are objective (paragraph 28) and are based on the principle of a genuine connection between the person and the claimed jurisdiction (paragraph 30).  In the great majority of cases jurisdiction will belong to the court of the state in which both spouses are habitually resident.

40. In contrast, the report also refers to two of the grounds for jurisdiction (one being the ground relied on in this case) as being designed for "exceptional cases on the basis of habitual residence combined with other elements."  (Paragraph 32)  In the case of the fifth indent the "other element" is the requirement of at least a year's residence immediately before the application was made.  In the case of the sixth indent it is the requirement of at least six months' residence and nationality of the state in question, or in the case of the United Kingdom, domicile.  Reference is made in the explanatory notes to the difficult negotiations that led to the formulation of each of these grounds for jurisdiction.

41. The meaning of the fifth and sixth indents has been considered in two decisions of this court. 

42. In Marinos v Marinos [2007] EWHC 2047 (Fam), Munby J held there are two elements to the fifth indent.  The petitioner must be habitually resident at the date of the presentation of the petition and must have been resident, though not necessarily habitually resident, in the state for at least a year before then.

43. In Munro v Munro [2007] EWHC 3315 (Fam), Bennett J considered that the fifth and sixth indents are to be read as imposing a single requirement of habitual residence of at least one year or six months, as the case may be, at the date of the presentation of the petition. 

44. The distinction between the two interpretations depends upon whether one regards the expression "resided there" as implicitly taking colour from the immediately preceding reference to residence that is habitual, or as having an independent meaning.

45. In the present case, the parties' submissions as to which interpretation is to be preferred were not strongly pressed, perhaps because they were made before the court's findings of fact were known.  As it was, Mr Scott indicated a mild preference for the reasoning in Munro, while Mr Peel QC argued gently in favour of Marinos.

46. As I said in argument, it is unfortunate that families such as these should have to expend resources arguing about the true meaning of a poorly drafted phrase, which defines itself as ambiguous in having attracted two distinguished conflicting interpretations.  However, given the issue that I have to decide, I cannot avoid reaching my own conclusion about the nature of the requirement. 

47. I consider that for jurisdiction to be established on the ground specified in the fifth indent of Article 3, the petitioner must show habitual residence at the time of the presentation of the petition and that he or she has been resident in the jurisdiction for at least one year immediately before that date.  I therefore find myself in agreement with the interpretation provided in Marinos.  My reasons are these:

(1) It reflects a plain reading of the article.

(2) Habitual residence is a term of art, while residence is not.  Residence, as Mr Scott says, is simply where a person lives.  As the Borrás report makes clear, the drafting of these particular indents was heavily contested.  I agree with Munby J (at paragraph 46) that "the regulation... quite clearly distinguishes between two different concepts.  If it had been intended to refer just to the one concept the regulation could, for example, very easily (and whether in English or in the equivalent French) have used [other] words" (and he then goes on to illustrate).  In contrast, the decision in Munro requires the court to add a word ("habitually") that does not appear. 

(3) I read the article as a whole as requiring a petition to show the qualitative feature of a genuine connection, as represented by habitual residence and, in minority cases under the fifth and sixth indents, a quantitative feature based upon length of residence.  I believe that this is what is meant by Dr Borrás when she speaks of "the basis of habitual residence combined with other elements" in these indents. 

(4) On the issue as a whole, I respectfully prefer the analysis of Munby J.  The reasoning of Bennett J at paragraphs 49-54 of his judgment is, I find, less easy to follow.

(5) As it happens, the decision in Munro did not turn on the interpretation of the sixth indent, but was determined by a finding that both spouses had been domiciled in this country and the jurisdiction existed under Article 3(1)(b).  Bennett J's observations were, as he acknowledged, obiter dicta.

48. It is therefore also necessary to consider the question of residence, as opposed to habitual residence.  
49. The recent decision of the Court of Justice of the European Union in Mercredi v Chaffe [2011] 1 FLR 1293 concerning Articles 8 and 10 of BIIR in the context of habitual residence of children distinguishes between habitual residence and "mere temporary presence".

50. I agree with Munby J that it is possible to be habitually resident in one country and resident (but not habitually) in another.  I also agree with him (at paragraphs 74-78) that it is possible to be resident in more than one country, in the sense of having more than one place of residence simultaneously.  That was the case in Marinos, where the petitioner had homes in Greece and England, between which she divided her time roughly equally.  She described herself as being resident in both countries.

51. Mr Scott queried whether this can be correct.  He argued that it is possible to have more than one residence between which one alternates, but questions whether one can have more than one residence simultaneously.  He points out that European law places a high premium on certainty, and in some countries residence permits are required.  However, he accepted that there is no authority on the point.

52. I have no difficulty with the concept of a person being resident in more than one place at a time.  It is a description that applies aptly to a number of situations – the family with more than one main home, the person who spends extended periods away at an established place of work.  Such a person is of course only present in one place at a time, but the relevant concept is residence and not presence.  It makes no sense to regard a person who travels between two homes on a regular and frequent basis as oscillating in perpetual succession between being resident at one and then at the other.  This does not accurately reflect ordinary use of language, nor provide any valuable certainty, while any consequences in terms of civil status or tax status can readily be catered for.  In particular, since simple residence is not a basis for jurisdiction, simultaneous residence in more than one member state cannot lead to jurisdictional conflict.

53. I find that the wife was habitually resident in London at the date of her petition.  The evidence clearly establishes that it was the place where she had established, on a fixed basis, the habitual centre of her interests.  Her home was in London.  Most of her social set lives here.  Her children had been going to school here.  Her doctors and a number of other providers of services were here.  Her interrupted course of studies was here.  Almost all her belongings were here.  The dogs were here.

54. As an alternative I further find, and for the same reasons, that the wife had been habitually resident in London for at least a year before the presentation of her petition.  I do not consider that the absence in Switzerland alters that conclusion.  Given my view about the correct legal test, the conclusion in this paragraph is not strictly relevant, but I state it in case my prior legal conclusion is at fault.

55. Next, I find that the wife had been resident in London for at least a year before the presentation of her petition. I do not consider that the absence in Switzerland alters that conclusion, any more than her other absences can have done.  Mr Scott did not suggest that a month in Crete plus a month in Switzerland over the summer holidays of 2009 would amount to a change of residence from London to those places, even though both are familiar family holiday homes.  However, he did argue that absence for a school term has a different quality, even if it was on a temporary basis.  I agree with that, and in the case of many families it might well amount to a change of residence.  In the case of this particular family, I do not so find.  It was not in reality a change of residence for the wife, but a temporary presence in Switzerland for the benefit of the husband's relationship with their children.  The context is important here, and I prefer the argument of the wife that the family's way of life makes her absence from London of less significance than it would be in many cases.  Her constant return trips to London are also a factor.  The period in Switzerland amounted in all to no more than a couple of months of temporary absence, continually interrupted by flights back home.  Looking at the matter overall, this relatively short period did not prevent that the wife from being regarded as being resident in London for the year before she presented her petition.

56. In the alternative, I further find that, even if the wife was resident in Switzerland during the period in question, she was also simultaneously resident in London.  Again, this finding is not necessary for my decision, but I make it in case my conclusion in the preceding paragraph is in question.

57. Finally, although again it is not necessary for my decision, I do not accept the husband's case that the wife was habitually resident in Switzerland during those three months.  I find that she has not been habitually resident in Switzerland at any time.  Nor can I accept the husband's fallback position, which is that the wife was not habitually resident anywhere during those three months.

58. For the reasons contained in paragraphs 53 and 55 above (and, were it necessary, for the alternative reasons contained in paragraphs 54 and/or 56), I conclude that the wife is entitled to proceed with her petition. 

59. For what it is worth, I believe that this outcome in fact best serves the purposes of the Council Regulation.  I do not accept the husband's explicit charge that the wife was 'forum-shopping'.  Throughout its existence, this family's connection with this country has been stronger than its connection with anywhere else, and in particular with the husband's chosen forum in Greece.  If the wife failed to establish jurisdiction on the basis of her present petition, she would simply issue a fresh petition on undoubtedly firm jurisdictional foundations.  The husband's petition in Greece does not qualify under any basis provided by BIIR.  He would have had to persuade the Greek court to act on the basis of local law, if such were possible, and a further forum battle would no doubt have followed.  If the husband had succeeded in his opposition to the presentation of the wife's current petition, I suspect that it would have turned out to be a Pyrrhic victory, in the truest sense of the word.

60. These parties have not hesitated to litigate about every conceivable issue.  In addition to the issues of jurisdiction and child abduction, the case has constantly been before the court since April 2010.  There have been arguments about chattels, occupation and non-molestation orders, freezing orders, interim financial orders, and litigation funding.  There have been several hearings about the children, and even though a shared residence order is now in place, a two-day hearing about the precise arrangements is listed for June 2011.  Having been informed of the issues between the parents, I strongly urged them to have discussions with a view to reaching one of a number of fairly obvious solutions for their own benefit and that of their children. 

61. Persistent failure to reach agreement has generated an absurd level of legal costs.  I directed the parties to provide schedules of expenditure to date.  The wife's costs now amount to £425,000, of which £114,000 remains unpaid.  The husband's costs amount to £500,000, of which £63,000 remains unpaid.  The overall bill to the family, now standing at £925,000, will no doubt top £1 million if next month's hearing about the children goes ahead.  It should be recalled that this level of expense has been incurred without a basis of jurisdiction having been established, or a page being filed in relation to the ultimate financial orders that will be required.

62. The case is evidently not proceeding in accordance with the overriding objective that it should be dealt with expeditiously and by saving expense, and it is also being allotted a disproportionate share of the court's resources.  I shall direct that at every future hearing of whatever kind each party shall provide the court with an updated schedule of costs of the kind presented at this hearing.  It is just possible that continuous reminders of the irreplaceable loss of money that could be better spent will have some effect on the parties' thinking.

63. Lastly, Part 3 of the Family Procedure Rules 2010 requires the court to consider at every stage in proceedings whether alternative dispute resolution is appropriate.  The court is entitled to adjourn proceedings on its own initiative to enable alternative processes to be explored.  I would expect that this option will be very much in the mind of judges conducting any future hearings.

64. I invite the parties to present draft orders resolving the various outstanding issues.