AH v CD
| Jurisdiction | England & Wales |
| Judge | Mr Justice Williams |
| Judgment Date | 15 June 2018 |
| Neutral Citation | [2018] EWHC 1643 (Fam) |
| Docket Number | Case No: FD17P00490 |
| Court | Family Division |
| Date | 15 June 2018 |
[2018] EWHC 1643 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Williams
Case No: FD17P00490
and
and
and
Ms Deirdre Fottrell QC and Mr Richard Jones (instructed by Dawson Cornwall) for the Applicant father
Mr Christopher Hames QC and Mr Paul Hepher (instructed by Hornby and Levy) for the 1 st Respondent mother
Mr Alistair G Perkins (instructed by for the 2 nd Respondent local authority
Ms Mehvish Chaudhry (instructed by Freemans solicitors) on behalf W by his litigation friend the Official Solicitor
Mr Michael Gration (instructed by Cafcass Legal) on behalf of the Children's Guardian
Hearing dates: 11th – 15th June 2018
Judgment Approved
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
B was 4 1/2 years old when he was abducted from Spain by his mother and brought to England on a date between 2 & 4 October 2014. As a result of the mother's actions, compounded by subsequent events including shortcomings in the responses of almost every agency involved in his life since then, it is only now, in June 2018 that a court is in a position to make real progress in addressing the consequences of that abduction and resolving his future. In the period since his abduction B had no contact with his father for over three years; led a chaotic peripatetic existence in England, Scotland, Ireland, and possibly the USA; was received into state care in England where he has lived with foster carers for the last 2 1/2 years; was separated from his older brother W with whom he had lived for his whole life; and was separated from his mother when she chose to return to Brazil and found herself unable to return to England in February 2016. As Mr Perkins said, the combination of circumstances which led to this disastrous state of affairs was a perfect storm where the mother's covert abduction and evasion of court process in Spain and England was compounded by oversight, error, inadequacy, and shortcomings, one building upon and magnifying the effects of the earlier to whip up the most destructive maelstrom which engulfed B and his brother W, but also his mother father and everyone else involved in his life. B has been ably represented in these proceedings by his guardian Mr Walker together with counsel, Mr Gration.
B's father AH who lives in V Spain has been engaged in litigation in Spain and in England since July 2014. He is represented in these proceedings by Ms Fottrell QC and Mr Jones together with his solicitor James Netto of Dawson Cornwell.
B's mother CD who lives in Brazil and whose actions triggered events of the last four years is represented in these proceedings by Mr Hames QC, Mr Hepher and her solicitor Ippy Mohane of Hornby and Levy.
The London Borough of Haringey who commenced care proceedings in respect of B in November 2015 and who hold a final care order in respect of both B and W made in June 2016 are represented by Mr Perkins.
W was joined as a party to these proceedings by Mr Justice Holman in late 2017. He has been represented by Ms Chaudhry acting for the Official Solicitor. He is also represented by Mr Walker as his guardian in the linked application by which the mother seeks the discharge of the care order.
Over the last five days I have been engaged in the determination of the multitude of legal and factual issues which arise out of the father's application for B's return to Spain pursuant to the provisions of the 1980 Hague child abduction Convention and his linked application to enforce custody orders made in his favour by the Spanish courts in May 2015 and April 2016.
The Issues
It is perhaps no surprise given the perfect storm that has been generated in B's life that it has given rise to a veritable tsunami of factual and legal issues raised by the parties to these applications. That is in no sense a criticism, far from it, but is simply a reflection on the factual and legal consequences that courts must confront where there is not rapid and effective action by the relevant individual and state agencies following on from an abduction. In terms of this hearing I have received immense assistance from all the lawyers and also from the parties themselves.
The list of issues that the parties agreed following no less than two advocates meetings in the week before this trial commenced identifies the following as requiring determination. I have added into the list of issues the parties' respective positions on each of these issues in summary form. I shall explore the substance of their arguments in the course of my analysis of the factual background and my more detailed analysis of the issues at the conclusion of this judgment. Given that the skeletons and the chronologies I've been provided with run to over 120 pages alone, my summary will necessarily be brief but I hope I have been able to absorb the substance of each parties case and have eventually been able to address the principle legal and factual arguments made on behalf of each party and ultimately to give reasons which allow each of the parties to understand why I have reached the conclusions that I have. This judgment is already of very considerable length and I do not think it would assist either the parties or anybody else who may be called upon to read it to set out in more detail than I do the written and oral arguments made, the evidence heard or the legal framework which applies.
The enforcement of the Spanish judgments.
i) Have the requisite requirements so as to cause a valid registration of the judgments of the Spanish courts made as a consequence of the orders of;
a) the domestic violence Court number 3 V of judge XY dated 21 May 2015 (the Spanish order of 21.5.15) and
b) 7 April 2016 (the Spanish order of 7.4.16),
been complied with so as to enable the court to consider enforcement of the same?
No party actively pursued this point although LBH refer to it as does the Guardian. He notes that some of the procedural requirements do not appear to have been strictly complied with. Plainly the court in pursuance of its own duties should be alive to it.
ii) Are there any grounds established so as to cause the nonrecognition of the judgment made as a consequence of the Spanish order of 21.5.15?
Article 23 (b)
CD argues that the Spanish proceedings demonstrate that B was not given an opportunity to be heard. She argues that at no stage do the Spanish court documents record a judge asking let alone answering the question of whether and if so how B's voice should be heard. They submit that the social enquiry reports which are present on the court file cannot properly be interpreted to reach the conclusion that they were produced as a result of the court determining that B's voice was to be heard through that medium.
LBH do not resist enforcement of the judgment.
The Guardian on behalf of B has taken the lead on the submissions in respect of this aspect of the case and the examination of the documents. The Guardian submits that on a review of the documents from the Spanish court, it does not appear that the court determined the father's application for an assessment of the two children. No later document suggests that the question of whether and if so how B's wishes should be taken into account was ever raised. The Guardian also submits that the context in which the May 2015 judgment was delivered demonstrates that it was not properly viewed as a situation of urgency. In relation to the final order that was plainly so but also in relation to the earlier order.
The father submits that the Spanish court documents make clear that the court must have ordered an assessment of B and this would inevitably have included seeing B and obtaining his views. The report on the court file in November 2015 illustrates this, it is said. Ms Fottrell submits that the content of the report and the absence from it of any views from B is nothing to the point. An attempt was made to get his views which was frustrated by the mother's abduction and going to ground. It is submitted that an opportunity was given but could not be fulfilled. It is argued that the judgments of 29 January 2015 and the subsequent judgment of May 2015, both delivered by the same judge, demonstrates that the judge was alive to the need to take account of B views.
Article 23 (c)
CD sought to set aside my earlier summary dismissal of her Article 23(c) ground of appeal on the basis that the Spanish court documents demonstrated that by the time the decision was reached in May 2015, the mother did not have lawyers on the record and that in fact they had applied for and been granted permission to come off the record. I granted that application to enable her to pursue this ground. The mother argued that the decision clearly was given in default of appearance because she did not respond to that application which was a fresh application. It was submitted that she had not been served with the document which instituted the proceedings? and she had consequently not had an opportunity to defend the proceedings. It was submitted that her Spanish lawyers failed to contact her to inform her of the ongoing proceedings and therefore she remained in the dark about the application and was unable to...
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