IpsofactoJ.com: International Cases [2005A] Part 2 Case 6 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Re G & B (children);

Father of children

- vs -

Mother of children

LORD JUSTICE THORPE

LORD JUSTICE POTTER

LORD JUSTICE TUCKEY

11 NOVEMBER 2003


Judgment

Thorpe LJ

  1. As originally advanced, this appeal seemed to turn on the ambit of Articles 9, 10 and 11 of the European Convention on Recognition and Enforcement of decisions concerning custody of children and on restoration of custody of children (hereinafter referred to as the European Convention). The Convention is dated 20 May 1980 and was incorporated into our law by the Child Abduction and Custody Act 1985.

  2. The facts giving rise to this appeal can be briefly summarised. The parties to the appeal are Italian and in middle age. They married in Rome in 1984 and have two children, a girl of eleven and a boy of nine. Shortly before the birth of the elder child the family moved to Paris. There they lived until the breakdown of the marriage in September 1998. The father returned to Italy leaving the mother and the children in the family home in Paris. Soon after the separation the father commenced divorce proceedings in the Tribunale de Grande Instance in Paris. The divorce was granted on 20 December 2000 and ancillary orders were made including orders for contact to the father and periodical payments to each child. In relation to contact the court received two psychological reports and further specific contact orders were made from time to time.

  3. About a year ago the mother sought to move with the children to London. Her application for permission was ultimately not opposed by the father and an order was made on 11 December 2002 by Judge Guy Avocat sitting in the Affaires Familiales Division of the Tribunale de Grande Instance, granted the mother’s application to remove to London with effect from 1 January 2003. The order provided that in the interim the father should have contact in Italy between 28 December and 4 January and thereafter one weekend a month plus half the school holidays. The judgment criticises the mother and she was ordered to pay a contribution towards the father’s costs.

  4. The Christmas contact as ordered by the court did not take place. Accordingly on 31 December the father applied to the judge in Paris for a variation of the order of 11 December in respect of his share of the forthcoming Easter holidays. He also sought the downward variation of the order for periodical payments to the children. The mother counterclaimed for an upward variation of the child periodical payments orders. The applications were decided by Judge Avocat on 3 February 2003. At the hearing it was submitted on the mother’s behalf that Judge Avocat lacked jurisdiction in consequence of the mother’s move to London. That submission was rejected on the narrow ground that the mother and the children were indisputably resident in Paris on the date of issue of the father’s application. Otherwise Judge Avocat granted the father’s application for variation of the Easter holiday contact arrangements and dismissed both applications for variation of the periodical payments orders. This judgment is even more trenchant in its criticisms of the mother. She was ordered to make a substantial contribution to the father’s costs.

  5. Sadly the sharing of the Easter holidays was also frustrated when on 12 April the children refused to go with their father and expressed considerable hostility towards him. They even asserted that he had treated them with violence when the family was living in Paris.

  6. Unsurprisingly the father turned to the Central Authority in London for aid in enforcing the order of 11 December 2002. An originating summons was issued on his behalf on 18 June 2003. On 8 July Wilson J gave directions and ordered a CAFCASS report to ascertain the views of the children pursuant to Article 15(1)(b) of the European Convention. The originating summons was listed before Wall J on 31 July. He heard oral evidence from the CAFCASS officer but not from the parents. He rejected the submission advanced by counsel for the mother to the effect that enforcement should be refused under Article 10 of the Convention. He ordered that Judge Avocat’s order of 11 December be registered and that it should be enforced. However pursuant to the discretion as to implementation vested in him by Article 11 of the Convention he directed that there should be an initial period of visiting contact in London to be arranged and assessed by Mr. Hartley, the CAFCASS officer, followed by two further periods of visiting contact in London to be arranged by Mr. Hartley. Mr. Hartley was required to file a written report by 25 September in preparation for a further hearing before the judge on 29 September. Wall J directed that his judgment should be translated into French so that Judge Avocat would have proper knowledge of the implementation programme. The father’s application for permission to appeal was refused.

  7. The application was renewed to this court and granted by Hale LJ on 20 August 2003. She observed that the mother might seek to cross appeal the rejection of her defence under Article 10. Whether prompted or not, the mother’s cross appeal was lodged on 22 August and on 5 September, hardly two clear days before the date set for the appeal, the mother filed an application to admit fresh evidence, namely an opinion from an advocate of the Paris Bar to the effect that Article 1072 of the French Code of Procedure Civile applies equally to international relocations as it does to domestic relocations. Accordingly she stated that since the mother ‘had established her dwelling’ in London Judge Avocat no longer had jurisdiction in relation to contact disputes.

  8. The father’s response was to file an application on the day of the hearing to admit the expert evidence of another advocate of the Paris Bar who contested that construction of Article 1072.

  9. At the outset we agreed to read this evidence for what it might be worth, particularly given the concession by Mr. James Townend QC for the father that, if Judge Avocat no longer had jurisdiction, then the mother must have a right to a fresh assessment by a London judge.

  10. A number of points may be made in relation to the mother’s application to admit expert evidence and to challenge the jurisdiction of Judge Avocat.

    • First the submission was not made below nor did it appear in the mother’s skeleton argument of 20 August 2003. It makes its first appearance in the skeleton argument prepared by Mr. Timothy Scott QC on 5 September.

    • Second neither of the opinions strike me as comprehensive, conclusive or compelling. As is too often the case each expert seems to espouse the cause of the party on whose behalf he or she has been instructed.

    • Third the issue as to whether or not Judge Avocat retains jurisdiction should properly be determined by him. It was obviously open to the mother to apply for the variation of the continuing contact order immediately following the events of 12 April. Mr. Scott submitted that the children had acquired habitual residence in this jurisdiction by the end of March 2003 at the latest. Such an application would have raised the issue of jurisdiction, alternatively would have afforded Judge Avocat an opportunity to consider whether an investigation of the circumstances in the aftermath of 12 April should be conducted by a London judge.

    • Fourth it is to be noted that this is a Paris case through and through. All previous proceedings have been in Paris prior to the issue of the originating summons pursuant to section 16 of the Child Abduction and Custody Act 1985. Furthermore there are unresolved financial proceedings which remain to be determined in Paris, including the division of the substantial proceeds of sale of one jointly owned flat and the disposal of a second Paris flat jointly owned and tenanted. Financial issues in relation to the children have been, and probably should continue to be, dealt with in Paris. The order of 3 February 2003 provided that the contact transport costs should no longer be borne by the mother alone but should be shared. The order of 11 December 2002 established the mother’s responsibility for the school fees of the children in London.

  11. For all these reasons I conclude that Mr. Scott’s endeavour to introduce expert evidence as to the law of France should be seen as an essentially diversionary tactic. This appeal is not concerned with the law of France but with the proper application of an international convention. Mr. Scott has not demonstrated anything within the terms of the Convention to support the submission that the relocation of the primary carer frustrates the process of international enforcement. Nor has Mr. Scott cited any authority in this jurisdiction or in any other European jurisdiction to support the submission. It is accordingly necessary to proceed to decide the real issues in the case as identified by Hale LJ and as elaborated in the skeleton arguments, ignoring paragraphs 36 – 44 of Mr. Scott’s skeleton which advance his application to admit fresh evidence.

  12. Those issues can be briefly defined:

    1. Was Wall J wrong to reject the mother’s reliance on Articles 10(1)(a) and (b) – the subject of the cross-appeal?

    2. If no, was the judge’s order a permissible implementation under Article 11(2) or was it a review of the substance of Judge Avocat’s decision prohibited by Article 9(3)?

  13. It seems logical to consider first Mr. Scott’s cross appeal. For if he can demonstrate that Wall J erred in rejecting the mother’s defence under Article 10 then Mr. Townend’s appeal is trumped.

  14. Before deciding those issues it is necessary to set out the relevant provisions of the Convention and the Act.

  15. For the purposes of the present appeal it is necessary only to cite Article 7 and parts of Articles 9, 10 and 11. The following is the necessary citation:

    Article 7

    A decision relating to custody given in a contracting state shall be recognised and, where it is enforceable in the state of origin, made enforceable in every other contracting state.

    Article 9

    3.

    In no circumstances may the foreign decision be reviewed as to its substance.

    Article 10

    1.

    In cases other than those covered by Articles 8 and 9, recognition and enforcement may be refused not only on the grounds provided for in Article 9 but also on any of the following grounds:

    a.

    if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the state addressed;

    b.

    if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child;

    Article 11

    1.

    Decisions on rights of access and provisions of decisions relating to custody which deal with the right of access shall be recognised and enforced subject to the same conditions as other decisions relating to custody.

    2.

    However, the competent authority of the state addressed may fix the conditions for the implementation and exercise of the right of access taking into account, in particular, undertakings given by the parties on this matter.

    3.

    Where no decision on the right of access has been taken or where recognition or enforcement of the decision relating to custody is refused, the central authority of the state addressed may apply to its competent authorities for a decision on the right of access, if the person claiming a right of access so requests.

  16. The relevant provisions of the Act may be summarised without citation. Section 15 provides that enforcement under Article 7 shall be ordered unless any of the grounds specified in Article 9 or 10 are made out and provided that the foreign order has been registered. Section 16 provides the mechanism by which an applicant, with the aid of the Central Authority may achieve registration. Since this appeal is concerned only with the enforcement of an order for access it is unnecessary to summarise other sections of the Act.

  17. There is very little authority on the construction and ambit of the European Convention. This may be because it has not been widely used, at least in this jurisdiction. However what utility it has lies more in the enforcement of access than custody orders. This is only because the more useful Convention of 1980, the Hague Abduction Convention, has not been construed in this jurisdiction to provide for the recognition and enforcement of an access decision which was made in another contracting state. Only two previous decisions of this court have been cited during the course of argument. In the case of Re H (Minor) (Foreign Custody Order: Enforcement) [1994] 1 FLR 512 this court held that the words ‘recognition and enforcement’ in Article 10 were to be construed disjunctively. Thus if the judge were satisfied on the facts that an Article 10(1)(b) exception had been made good he was not bound to enforce the order simply because he was bound to recognise it.

  18. More influential is the later decision of this court in the case of Re A (Foreign Access Order: Enforcement) [1996] 1 FLR 561. The judgment of Leggatt LJ makes plain that the task of the judge is to recognise and register the foreign access order unless an exception under Article 9 or Article 10 is made good by the respondent. In the course of his judgment Leggatt LJ, having cited Article 11(1) and (2) of the Convention, continued:

    Thus Article 11(2) gave to the judge a discretion to fix the conditions for the implementation and exercise of the right of access. This discretion had to be exercised in the light of Article 9(3) that:

    In no circumstances may the foreign decision be reviewed as to its substance.

    That citation demonstrates that this court regarded Article 9(3) as being a freestanding provision.

  19. Waite LJ in his judgment sought to set the European Convention in its context. He said:

    Although the Hague Convention and the European Convention are different treaties to which effect is given by different parts of the Child Abduction and Custody Act 1985, the underlying policy is the same. It is to settle the lives of children. The Hague Convention seeks to do that by avoiding the disruption suffered when a child is abducted from the jurisdiction of habitual residence. The European Convention seeks to spare children the unsettling effect of a potential conflict or orders for custody or contact in different jurisdictions.

    Although both Conventions contain provision for ascertaining the views of children old enough to make a judgment of their own, neither Convention makes such views conclusive, and the terms of both are sufficiently stringent to make it plain that the signatory state did not intend that the underlying policy of the Convention should be eroded by a proliferation of supposedly hard cases

    Just as the Hague Convention makes mandatory the return of a wrongfully abducted child in all circumstances save those for which exceptional provision is made in Article 13, so the European Convention, by section 15 of the Act and Article 7, makes mandatory the recognition and enforcement in England of foreign custody and contact orders in all circumstances, save those for which exceptional provision is made in Article 10.

    When the scheme of the legislation is applied to the present case, it became the duty of the judge, when faced with an application under section 15 of the Act for recognition and enforcement of a foreign contact order, to enquire under Article 10(1)(b) whether by reason of a change of circumstances, including the passage of time, the effects of the original decision are manifestly no longer in accordance with the welfare of the child. That question had to be answered after ascertaining the views of the children, if their age and understanding made it practicable to do so under Article 15(1)(a).

  20. Mr. Scott criticises Wall J for rejecting the mother’s Article 10 defence by elevating a general principle that might have long-term validity but which minimises the harmful immediate effects of enforcement on the children.

  21. The transcript of judgment, as yet unapproved, explains the judge’s rejection of the Article 10(1)(a) defence in the following three paragraphs:

    42.

    What the decision of the French court provides is that this father should see these children, or rather these children should see this father, at weekends and should share holidays with him. In principle, as I understand it, it is not said by the children’s mother that contact is contrary to the interests of the children; everyone agrees that contact in a proper relationship between father and children is in their interests.

    43.

    Therefore I cannot myself bring that situation into the proposition that the effects of the decision are manifestly incompatible with the fundamental principles of law relating the family and children in the state addressed.

    44.

    A fundamental principle of law in England is that it is in the interests of the children to have contact with their absent parent unless there are compelling reasons for them not to do so. It may be that a particular form of contact at a particular time is one which is not in the interests of the children, but to bring that proposition into the concept of manifestly incompatible with fundamental principles of law seems to me untenable. And so I reject the defence under Article 10.1(a).

  22. Wall J then cited Article 10(1)(b) and continued:

    49.

    I have to say I am not persuaded of that because it seems to me, once again, that it remains in the interests of these children to have contact with their father, and in the longer term remains in their interests to stay with him and to maintain the important part of their Italian heritage, which is not just him but is, of course, from their mother as well.

    50.

    Although at the moment aspects of the French order such as staying contact in Italy, or even weekend staying contact in this country may be impracticable, I am not persuaded that this fits within the phrase,

    The effects of the original decision are manifestly no longer in accordance with the welfare of the child.

  23. I do not accept Mr. Scott’s criticism of these paragraphs. In addition to the judge’s reasoning I would cite paragraph 49 of the explanatory report to the European Convention. It states:

    It should be noted that the term ‘manifestly’ is used both in sub-paragraph (a) and sub-paragraph (b) of paragraph 1. The intention of those who drafted these texts was that these grounds for refusal should not be used except in a clear case.

  24. In other words Article 10(1)(a) and (b) are to be construed and applied stringently. The case advanced by the mother in her statements is very far from clear. The ultimate judgment of Judge Avocat of 3 February 2003 noted ‘the attitude of obstruction deliberately adopted by [the mother] as regards the exercising by [the father] of his rights’. Later he found ‘the absence of fair play on the part of [the mother], who provides false information regarding the dates of the school holidays in the London establishment attended by the children’. Against that background there must be profound questions as to the causation of the unprecedented rejection and hostility displayed by the children on 12 April. Questions equally must arise as to the origin of allegations of violence by the father in France that never surfaced during the course of the hearings there. The Convention would be rendered impotent and its policy frustrated were primary carers able to avoid enforcement by asserting circumstances and developments that cry out for profound investigation by the courts of the jurisdiction primarily seized. In the Paris proceedings there have been two psychological reports and Judge Avocat has had considerable experience of the case and the consequential opportunity to get the measure of the parents, their motivation and their sincerity.

  25. I find the issue raised by Mr. Townend’s appeal more finely balanced. At first blush the contrast between the order made in Paris on 11 December 2002 and the order made in London 31 July 2003 is so extreme as to demand classification as a substantial review. Putting the same point in the other way how can an order for at most three brief meetings in London, probably all assessed by the CAFCASS officer, be said to be the implementation of an order for the children to spend half their summer holidays in Italy? But that first impression is displaced by the terms of Wall J’s judgment. First the judge recognised the reality: ‘It seems to me that any staying contact in Italy this summer is simply out of the question ....’ He then identified the inevitable consequence: ‘It seems to me that this matter needs to move forward and can only really move forward slowly ....’ But his ultimate objective was clear: ‘.... in taking this course I am genuinely attempting not only to bring about what the French Court wanted to achieve, but to do it in a way which will benefit the children and restore his relationship with them. In fixing conditions for the implementation of the order I am not reviewing its substance. The order remains. I am seeking to bring about its full implementation in a gradual way.’

  26. Mr. Townend also specifically criticises the judge’s continuing use of Mr. Hartley who, Mr. Townend submits had fulfilled his function under Article 15(1)(b) by his oral report on 31 July as to the children’s wishes and feelings. The considerable role that the judge imposed upon him in the following months prior to review on 29 September was only compatible with the exercise of a substantive jurisdiction under the Children Act 1989.

  27. Again I reject that specific submission. The judge impeccably identified the urgent and vital need to restore the relationship between father and children that the move to England seemed to have destroyed. Mr. Hartley was his chosen delegate whose presence would simply improve the prospects of restoration. Conventions for international enforcement of contact orders are prone to overreach themselves in their ambitions. Access orders can seldom be written on stone tablets. The orders are peculiarly vulnerable to change of circumstance, the maturation of children, and the dynamics within sometimes the old family and sometimes a newly constituted family. In consequence enforcement, not only after lapse of time but after relocation and in a foreign court, is always likely to be problematic. These realities in my judgment demand a liberal construction of Article 11(2) in order to achieve the overriding objectives of the Convention, one of which is to ensure that the act of relocation does not avoid the orders for contact made by the court that granted permission.

  28. I would however add two footnotes. First it is clear from his judgment that Wall J was very conscious of the need for a collaborative approach to the question of jurisdiction. In paragraph 56 of his judgment he said:

    56.

    .... I think I ought to say that at some point as I indicated earlier, it will be necessary for the parties and I think the French court, to consider whether or not this case should, in its full jurisdictional sense, now come to be dealt with in England, but I cannot and should not make any directions about that because it seems to me that whether or not the French judge wishes to remain seized of the case and whether the parties invite him to remain seized of it, or whether the mother applies for him to discharge himself, or the father applies for further orders in France, no doubt to be met by a counter-claim by the mother for the English jurisdiction to operate – these seem to me all matters which must be dealt with by the French court, and the French judge will need to make up his or her mind about it.

    57.

    What I do propose to do at the conclusion of this judgment is to direct that the transcript of it be obtained a public expense so that it is available for my French colleague to see if necessary, and for him or her to understand why it is that I have taken the course that I have and in the light of the course I am taking whether or not it is appropriate for the full jurisdiction to be ceded to this country.

  29. I only endorse the judge’s approach. Ideally decisions as to the transmission of jurisdiction following relocation should be concordant in both jurisdictions and to that end preceded by open communication between the trial judge seized in each jurisdiction. Direct international judicial communication is a comparatively recent development and one fully supported by the Permanent Bureau at The Hague. Although France has expressed support in principle for the appointment of a liaison judge to facilitate international judicial communication, France has yet to make an appointment. Provided that rules of natural justice are never jeopardised open communication between judges on the transmission of jurisdiction should certainly be considered. Adversarial manoeuvrings to sustain one jurisdiction or to establish another are particularly wasteful of costs and singularly unlikely to promote the welfare of the children at the heart of the case.

  30. My second footnote is to emphasise that the difficulties in construing the European Convention are by no means confined to the Articles in issue in the present appeal. Another particularly obscure area is the ambit of Article 11(3) which might have come into play had Wall J refused registration and implementation. These difficulties are likely to be considerably increased for practitioners and judges in this specialist field given the recent proliferation of international instruments. First there is the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (the 1996 Hague Protection of Children Convention). Articles 23, 26 and 27 specifically address the enforcement in one contracting state of access orders made in another contracting state. Although the United Kingdom has not yet ratified this Convention it is unquestionably its policy so to do once temporary obstacles have been overcome.

  31. Then there is the Brussels II regulation which came into force on 1 March 2001. Although limited to ‘civil proceedings relating to parental responsibility for children of both spouses on the occasion of matrimonial proceedings between the parents’ it undoubtedly provides for recognition and enforcement of contact orders made in another European jurisdiction. Furthermore almost since the inception of the regulation a replacement regulation of wider ambit has been under negotiation (Brussels IIA). The text of the Regulation has recently been adopted by the Council of Ministers and the Regulation will come into force on 1 March 2005.

  32. Finally the Council of Europe has drafted a Convention which opened for signature in May 2003. It is entitled the 2002 European Convention on Contact concerning Children. The Department for Constitutional Affairs is currently conducting a consultation paper on whether the United Kingdom should sign and ratify this latest Convention. If, as seems to me very likely, the consultation results in a decision to ratify, then the treaty jungle becomes even denser. There are, therefore, a number of authorities with different responsibilities to promote conventions in similar areas. Although undoubtedly all the authorities strive to cooperate rather than to compete, the end result may be a proliferation of instruments which by their complexity promote confusion amongst judges and practitioners as much as good outcomes for children and families.

  33. This second footnote is fundamental to these proceedings. It results from an opportunity, which I gratefully acknowledge, to read in draft Chapter 20 of International Movement of Children: Law Practice and Procedure by Lowe, Everall and Nicholls, forthcoming publication by Jordan Publishing.

    POSTSCRIPT

  34. My reading of Chapter 20 also alerted me to the impact of Article 37 of the Regulation Brussels II which is as follows:

    Relations with certain multi-lateral Conventions

    In relations between Member States, this Regulation shall take precedence over the following Conventions insofar as they concern matters governed by this Regulation: -

    The European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody Children.

    [Four other Conventions are listed of no relevance to the present appeal.]

  35. Clearly if Article 37 is given its face value the present proceedings wither at their root and become a nullity. A point so fundamental could not be allowed to go unresolved and accordingly we reopened the appeal for further argument on the Article 37 point and requested the Official Solicitor to instruct an advocate to the court. The Official Solicitor helpfully instructed Mr. Michael Nicholls, one of the co-authors of the forthcoming publication, and we have been much assisted by his learned and thoughtful submissions. Since Mr. Nicholls submits that the enforcement summons of 18 June 2003 was a nullity in consequence of invoking the European Convention, an enforcement road closed by Article 37 of Brussels II, Mr. Scott QC naturally adopted his submissions. Mr. Townend QC robustly submits that the order of 11 December 2002 does not lie within the territory of Brussels II and accordingly enforcement was properly sought under the European Convention. The resolution of these submissions depends upon a survey of Articles 37, 13 and 3 of Brussels II; a Regulation which Mr. Townend submits has been drafted with ‘disgraceful laxity’.

  36. Article 37 establishes the precedence of Brussels II only in respect of ‘matters governed by this Regulation’. To see what matters are governed by the Regulation it is helpful to establish the general structure of the Regulation and then to set out the Articles of key relevance. Chapter 1 deals with the scope of the Regulation, Chapter 2 with jurisdiction and Chapter 3 with recognition and enforcement. The essential statement of the scope of Brussels II is to be found in Article 1 as follows:

    1.

    This Regulation shall apply to:

    (a)

    civil proceedings relating to divorce, legal separation or marriage annulment;

    (b)

    civil proceedings relating to parental responsibility for the children of both spouses on the occasion of the matrimonial proceedings referred to in (a).

  37. Jurisdiction in relation to parental responsibility is established by Article 3 as follows:

    1.

    The Courts of a Member State exercising jurisdiction by virtue of Article 2 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in a matter relating to parental responsibility over a child of both spouses where the child is habitually resident in that Member State.

    2.

    Where the child is not habitually resident in the Member State referred to in paragraph 1, the courts of that State shall have jurisdiction in such a matter if the child is habitually resident in one of the Member States and:

    (a)

    at least one of the spouses has parental responsibility in relation to the child; and

    (b)

    the jurisdiction of the courts has been accepted by the spouses and is in the best interests of the child.

    3.

    The jurisdiction conferred by paragraphs 1 and 2 shall cease as soon as:

    (a)

    the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final; or

    (b)

    in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final; or

    (c)

    the proceedings referred to in (a) and (b) have come to an end for another reason.

  38. Article 13, in the chapter providing for recognition and enforcement, contains the essential definition of judgment in the following terms:

    1.

    For the purposes of this Regulation, ‘judgment’ means a divorce, legal separation or marriage annulment pronounced by a court of a Member State, as well as a judgment relating to the parental responsibility of the spouses given on the occasion of such matrimonial proceedings, whatever the judgment may be called, including a decree, order or decision.

  39. Applying these Articles to the facts of the present appeal the crucial question becomes: was the order of 11 December 2002 an order ‘given on the occasion of such matrimonial proceedings’? My firm conclusion is that the order falls within the scope of Articles 1 and 13 and accordingly enforcement must be sought under this Regulation, the precedence of which is established by Article 37. In reasoning this conclusion I would rely upon the scheme of the Regulation, the terms of its preamble and the report by Dr Alegria Borras on the proposed Convention which preceded the Regulation.

  40. The objective of Brussels II was to establish jurisdictional rules to regulate the conduct of proceedings for judicial separation, divorce or nullity within the community. Consequential issues concerning children of the marriage are included but consequential financial issues are not. However the jurisdiction established in relation to the children of the marriage is not perpetual but terminates in the circumstances defined by Article 3. Orders of the court of a member state exercising jurisdiction must then be enforced by the courts of all other member states (excepting Denmark which is not a party to the Regulation). Judicial management and control of issues concerning children is generally extensive, frequently arising before the pronouncement of the decree and frequently continuing long after the pronouncement of the decree. This can only sensibly be seen as a continuous process. Of course an order conferring on one parent custody or residence is more easily classified as a unique determination encapsulated in a single order, but orders for contact or access generally have to be revisited and revised to reflect changes of circumstance. If the Regulation is to be effective access orders of the court exercising jurisdiction must be enforceable whether the order is embodied in the decree that changes the marital status of the parents or whether in an order predating or post-dating the decree.

  41. Of course I recognise that the language of the English text in Articles 1 and 13 does not immediately seem to support that construction. As Mr. Townend submits the literal meaning of the words ‘on the occasion of the matrimonial proceedings’ suggests a purely temporal test. But in the overall context of the Regulation I accept Mr. Nicholls’ submission that the words denote a lineal connection between the order for separation, dissolution or annulment and the proceedings relating to parental responsibility for the children determined at a time when the court in question retained exclusive jurisdiction.

  42. Turning to the preambles, paragraphs (1) – (8) define the primary purpose of the Regulation to unify the rules of conflicts of jurisdiction in matrimonial matters and matters of parental responsibility and of enforcement of judgments, so as to achieve rapid recognition and enforcement for the proper functioning of a community requiring free movement of persons. The tenth preamble is a limiting provision upon which Mr. Townend seeks to rely but it does not begin to exclude from the operation of the Regulation orders for contact or access. What the tenth preamble excludes is all issues of financial provision. It must be read in conjunction with the eleventh preamble which states:

    This Regulation covers parental responsibility for children of both spouses on issues that are closely linked to proceedings for divorce, legal separation or marriage annulment.

    That preamble supports Mr. Nicholls’ basic submission that a wide construction must necessarily be given to the phrase in Articles 1 and 13 ‘on the occasion of such matrimonial proceedings’.

  43. Turning to the Borras report, paragraph 15 refers to ‘proceedings for divorce .... and proceedings relating to parental responsibility for the children of both spouses on the occasion of the application’. The concluding phrase of the quotation is clearly significant. Then in paragraph 23 Professor Borras states:

    It is a question, however, only of the matters relating to parental responsibility that appear to be linked to the matrimonial proceedings when those take place (see Article 3(3)).

  44. This reference to the jurisdictional provisions of Article 3 is highly significant. It clearly suggests that therein lies the key to the construction of the phrase ‘on the occasion of the matrimonial proceedings’. It clearly suggests the construction that ‘on the occasion of’ extends to all orders made in the course of the matrimonial proceedings at anytime from their inception until the cessation of jurisdiction under Article 3(3).

  45. This construction will in individual cases require a decision as to whether the proceedings giving rise to jurisdiction have terminated in a final judgment within the meaning of Article 3(3). The construction of Article 3 is relatively straightforward on its face, a conclusion which is fortified by paragraph 39 of Professor Borras’ report. In any case where the courts of the member state exercise jurisdiction not only in relation to divorce but also parental responsibility, jurisdiction is not lost on the date that the divorce proceedings are finalised. Jurisdiction in relation to parental responsibility will continue until finalised. To quote from paragraph 39(b) of Professor Borass’ report:

    It is therefore understood that proceedings on parental responsibility, once initiated, must continue until a final judgment is reached. The fact that the application relating to the marriage has been resolved may not prejudice the expectations created both for the parents and for the child that the parental responsibility proceedings will terminate in the Member State in which they began.

  46. The determination of when the proceedings in relation to parental responsibility are terminated by ‘a judgment in these proceedings (that) has become final’ may depend upon practice and procedure in the individual member state. As Mr. Nicholls has helpfully pointed out, in this jurisdiction a boundary is established by Rule 2.40 of the Family Proceedings Rules, the effect of which is that an application in relation to children of the family will be treated as an application within the divorce proceedings if its date of issue is within twelve months of the last step taken in the divorce proceedings. Wherever it be made an order sanctioning the permanent removal of the children from the jurisdiction is likely to be classified as a final judgment in the parental responsibility proceedings. Thus in this case I would judge the order of 11 December 2002 to be the final order of the Paris court terminating its exclusive jurisdiction in relation to parental responsibility. The London court is then free to assume jurisdiction.

  47. Mr. Townend also submitted that throughout the Regulation all references to parental responsibility should be given the meaning that they bear in the Children Act 1989. Mr. Townend boldly submitted that the concept could not be construed to include questions of contact. Such a narrow construction would frustrate an important objective of the Regulation. Mr. Townend’s argument rests on the terms of the tenth preamble. But as I have already observed that preamble must be read in conjunction with and in contrast to the eleventh preamble, which indicates with sufficient clarity the wide ambit of parental responsibility issues. Difficulties precluding a definition of parental responsibility within the Convention are fully explained in Professor Borras’ report.

  48. The conclusion that the order of 11 December 2002 falls within the scope of the Regulation, and is thus exclusively enforceable by the Regulation, carries the obvious consequence that the originating summons issued on 18 June 2003 is a nullity. That faces the father with a choice between issuing fresh enforcement proceedings under Brussels II or issuing an application in London for an order under section 8 of the Children Act 1989, the determination of which will require a full merit investigation. In neither instance will the father be entitled to automatic public funding. The first alternative appears particularly sterile given the tragic developments in the family dynamics since 11 December 2002. At least this tragic dimension has not been accentuated by the procedural error. A supplemental CAFCASS report dated 25 September 2003 discloses an extremely worrying reaction on the part of the younger child when introduced to his father on 12 September. We also have a brief judgment of 29 September given by Mr. Justice Wall at the adjourned hearing. He took the inevitable course of awaiting our judgments. He concluded with this sentence:

    Accordingly, if the Court of Appeal dismisses the appeal and the cross-appeal, and takes the view that further case management directions are necessary, I respectfully invite it to make them.

  49. However that sentence does not contemplate the dismissal of the present proceedings, a development which renders it impossible for this court to embark upon management of the future. That must await the father’s decision as to whether he will issue fresh proceedings. I would only record Mr. Townend’s suggestion that this court should consider directing, or at least giving leave for, a report from a consultant child and adolescent psychiatrist. Were there ongoing proceedings I would wish to explore that option immediately. The younger child’s reaction on 12 September was sufficiently extreme to suggest not only the need for expert assessment but also possibly a referral for therapy. As things stand this family needs all available expertise and it is vital that the mother understands that as the primary carer she has a great responsibility to achieve the restoration of the open relationship that the children enjoyed with their father prior to the family’s removal from France. The option of specialist mediation should also be explored and, since the case falls within the ambit of the current Reunite research project, I would refer the case for their consideration.

    Potter LJ

  50. I agree.

    Tuckey LJ

  51. I also agree.


Cases

Re H (Minor) (Foreign Custody Order: Enforcement) [1994] 1 FLR 512

Re A (Foreign Access Order: Enforcement) [1996] 1 FLR 561

Legislations

European Convention on Recognition and Enforcement: Art.7, Art.9, Art.10, Art.11

Child Abduction and Custody Act 1985: s.15, s.16

Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children 1996: Art.23, Art.26, Art.27

French Code of Procedure Civile: Art.1072

Authors and other references

Lowe, Everall & Nicholls, International Movement of Children: Law, Practice and Procedure (To be published by Jordan Publishing. The court referred to a draft copy of the works by the learned authors.)

Representations

James Townend QC & Marie-Claire Sparrow (instructed by Messrs Pritchard Joyce & Hinds of Beckenham, Kent BR3 1AY) appeared for the appellant father.

Timothy Scott QC & Clare Renton (instructed by Messrs Stafford Young Jones of London EC4R OAU) appeared for the respondent mother.

Michael Nicholls (instructed by the Official Solicitor) appeared as Advocate to the Court on 2 October only.


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