A v B
| Jurisdiction | England & Wales |
| Judge | SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION |
| Judgment Date | 01 November 2011 |
| Neutral Citation | [2011] EWHC 2752 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD11P02190 |
| Date | 01 November 2011 |
[2011] EWHC 2752 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Nicholas Wall, The President of the Family Division
Case No: FD11P02190
Edward Devereux (instructed by Bindmans) for the Applicant
Christopher Butterfield (instructed by William Bache & Co) for the Respondent
Hearing dates: 12th October 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment consists of 7 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Sir Nicholas Wall P:
The case in summary
The principal question raised by this case is whether or not I have jurisdiction to entertain a father's applications in relation to his daughter. This involves an examination of Council Regulation (EC) no. 2201/2003. more commonly known as "Brussels II Revised". I propose, for convenience, to call it in shorthand BIIR. Paragraph 2 of Article 19 of BIIR, which is said to apply here, reads as follows: -
"2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before the courts of different Member states, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established."
Paragraph 3 of Article 19 reads: -
"Where the jurisdiction of the court first seized is established, the court second seized shall decline jurisdiction in favour of that court……."
The child with whom I am concerned is M, who was born on [a date in] 2008, and is thus 3. Her parents are not married to each other, and the father does not currently have parental responsibility for M. The parents, who are both English by origin, met sometime in 2001, and began a relationship in about 2005. Their relationship came to an end in 2007, prior to M's birth.
On 21 November 2007, in circumstances to which I shall refer again in due course, the mother went to Sweden, where M was born. DNA tests carried out through Swedish social services confirmed the father's paternity.
On 23 December 2009, M was placed in foster care following a hearing in the Landsrattren (the administrative court of Stockholm). On 8 February 2010, M was returned to her mother's care following a further hearing in the same court. She has remained in her mother's care ever since.
On 21 December 2010, an order was made by the Stockholm District Court. This recorded an agreement between the parents as to future contact by the father with M. The court ordered the mother to pay one third of the father's travel costs incurred in relation to his contact with M and the local authority was charged by the court to appoint a person to carry out an investigation pursuant to the Swedish Parental Code with regard to the custody of and contact with M. The investigation was to be received by the court by 15 September 2011 at the latest: otherwise the agreement (and presumably the order) was to last until such time as the questions had been resolved through a judgment or decision which had gained legal force.
Contact did not take place pursuant to the agreement, and in June 2011 the father made an application in the Swedish court seeking interim joint custody and for the order of 21 December 2010 to be enforced by way of a fine. On 4 July 2011 there was a hearing in the Stockholm District Court and by an order dated 11 July 2011 that court: -
(1) dismissed the father's interim application for joint custody;
(2) dismissed his application for the mother's breaches of contact to be the subject of a fine; and
(3) decided that the father should have no contact with M.
On 24 August 2011, according to the mother, the father's appeal against the order of 11 July 2011 was dismissed by the Swedish Court of Appeal. The mother now asserts, through counsel, that the report due on 15 September 2011 will be available on 15 December 2011, when the court will consider the future handling of the case.
In late September 2011 the mother came to this jurisdiction with M. Her case is that she is staying temporarily with her mother and that she wishes to return to Sweden with M. Through counsel she says that I should stay the English proceedings under paragraph 19 of BIIR. She offers a number of undertakings designed to reassure the court as to the genuine nature of her wish to return to Sweden.
The applications by the father before the court
Counsel for the father opened the case to me on the basis that there are currently four applications by the father before this court. They arise in the following way. On 11 August 2011 the father applied on a without notice basis to HH Judge Barnett sitting in this building as a judge of the High Court. He directed that the matter be listed for argument as to jurisdiction during the week commencing 22 August 2011, and that the Swedish Central Authority, pursuant to Article 55 of BIIR should provide to the English Central Authority any information which it had as to the mother and M's location and whereabouts, and any information it had in respect of all child protection or other welfare proceedings taken or otherwise involving M.
On 24 August 2011 Macur J vacated the hearing fixed by Judge Barnett and adjourned the father's application under the inherent jurisdiction with liberty to restore. On 29 September 2011 the father made an application that M should be made a ward of court. On the same day, and again on a "without notice" basis, Bodey J warded M and made a location order. He ordered that the mother was not to remove herself or M from the jurisdiction without the court's permission: he directed that the father's solicitors disclose the papers in the case to the legal department of Northamptonshire County Council and adjourned the case to 3 October 2011. He also made a location order.
On 3 October 2011, Charles J directed that the case should be reviewed by him on 7 October, and ordered the mother to file a statement dealing (inter alia) with her future intentions as to where she and M were to live. He also made various orders for disclosure of documents from different social services departments, the detail of which I do not need to record.
Unfortunately, Charles J was not available on 7 October and the case came before Coleridge J. He made various orders for disclosure and directed a hearing before me on 12 October 2011. Thus it was that the case came before me on that date.
The father's case
For the father, Mr. Edward Devereux opened the case to me in great detail. I make no criticism of him for that, and quite see that from the father's perspective, the situation is highly unsatisfactory and frustrating. His case, in essence, is that the mother only fled England to avoid a detailed enquiry, the institution of care proceedings and the likely removal of M from her care at birth by Northumberland County Council; further that she is a liar who suffers from a long history of mental health problems and has also misled numerous medical professionals about her physical health; that she has recently disavowed any intention of living permanently in Sweden and, despite her protestations to the contrary has led a peripatetic existence, a principal purpose of which has been, and continues to be, the hitherto successful attempt to prevent him playing any part in M's life.
The father has produced four very substantial bundles of documents, largely comprising material gathered together from various English Social Services Departments, all of which I read after the conclusion of argument and submissions. In the detailed case summary prepared by Mr. Devereux, the father seeks: —
(a) proper disclosure of all relevant material from Sweden;
(b) the joinder of M as a party;
(c) a section 37...
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