A and B (Through their solicitor, James Alexander Netto) v F
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 08 September 2021 |
| Neutral Citation | [2021] EWFC 76 |
| Docket Number | Case No: ZC20P01589 |
| Year | 2021 |
| Court | Family Court |
[2021] EWFC 76
THE HONOURABLE Mr Justice Cobb
Case No: ZC20P01589
IN THE FAMILY COURT
SITTING AT THE ROYAL COURTS OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Goodwin QC and Dr Rob George (instructed by International Family Law Group LLP) for the Applicants (A and B)
The father appeared in person, unrepresented
The mother appeared in person, unrepresented
Hearing dates: 25–27 August 2021
Approved Judgment
THE HONOURABLE Mr Justice Cobb
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
The applications before the court are made by two young people, A, a girl aged 17y 7m and her brother B aged 12y 4m; they are both assessed as competent to litigate and make the applications by their solicitor, James Netto. The applications were initiated in the High Court under Part 18 Family Procedure Rules 2010 (“ FPR 2010”) on 4 March 2021. At first, the Applicants sought disclosure of documents from, and party status in, existing proceedings between their parents. The Applicants subsequently made applications (issued in May and August 2021) for the following substantive relief:
i) To “rescind” or “vary” an order made at the Central Family Court by HHJ Caroline Wright, sitting as a Deputy High Court Judge, on 23 December 2020, by which she ordered their immediate return to this country from the Kingdom of Spain; this application is made pursuant to section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (“ the 1984 Act”).
ii) In the event that the order of HHJ Wright is rescinded or varied so as to remove the requirement for the children's return, for the transfer of proceedings issued in this country to the Kingdom of Spain under Article 15 of the Council Regulation 2201/2003 (“ BIIR”);
iii) In the event that the order of HHJ Wright is rescinded or varied, but the transfer is refused, a welfare-based determination that they may remain living in Spain with their father.
The Applicants had earlier sought a stay of the order of HHJ Wright, which Peel J initially granted in March 2021, and I extended in May 2021, when the matter was first listed before me.
Although the Applicants had initiated their application under the High Court's inherent jurisdiction seeking discovery of court documents and joinder, the essential relief sought (identified at §1(i) above) pertains to an order made in the Family Court; although the High Court has similar power to set aside its own orders (under rule 4.1(6) FPR 2010 1 and/or otherwise) the relief sought under section 31F(6) of the 1984 Act is available only in the Family Court. Having heard submissions from the parties, I re-constituted the hearing within the Family Court, and the order made herein is made within those proceedings.
It would ordinarily be desirable for any application for rescission or variation under section 31F(6) to be re-listed before the judge who made the original order (see Peter Jackson LJ in Re E (citation below) at [45]), but this was not in fact proposed in this case, and given that the application had commenced in the High Court and was then listed before me, I proceeded to hear it substantively. I wish to make clear that the Applicants do not assert any error on the part of HHJ Wright and they have been clear
that this is not an appeal from her decision. The application has been determined on that uncontroversial basisIt was agreed at the pre-trial review that I would consider the issues in §1(i) and §1(ii) on the written and oral submissions of the parties; only if I reached the stage contemplated in §1(iii) would it be necessary for me to receive oral evidence. The hearing was conducted in a ‘hybrid’ form; the Applicants' mother, the Second Respondent (“the mother”), (accompanied by an interpreter) has been present in Court in London as have counsel and solicitors for the Applicants, and me. The Applicants' father, the First Respondent (“the father”), has joined by video-link from Spain. I asked at the pre-trial review whether the children wished to attend the hearing or meet with me (by video-link) in accordance with the Guidelines for Judges Meeting Children who are subject to Family Proceedings of 2010, but they have politely declined to take up either offer.
In determining issues §1(i)/(ii), I received and read detailed statements of the parties (from Mr James Netto on behalf of the Applicants); I have received translated versions of a number of documents generated in ongoing proceedings in Spain, together with a litigation chronology prepared by Mr Netto which the mother has helpfully annotated with her comments; the mother has prepared for me her own ‘flowchart’ of the Spanish Court proceedings. I received oral submissions from Mr Goodwin QC and Dr George on behalf of the Applicants, from the mother and father in person.
Following those submissions, I concluded that the order of HHJ Wright should indeed be “rescinded”, and that an invitation should be extended to the Courts of Spain under Article 15 BIIR to assume jurisdiction. I did not need therefore to go on to consider the issue in §1(iii). I advised the parties of this decision at the conclusion of the hearing; this judgment sets out my reasons for my conclusions.
Background
The Applicants are the two children of the Respondent parents. The father is Belgian, and the mother is Spanish. The Applicants were born in Spain, are Spanish citizens, and are currently living in Spain with their father. A has been in Spain for over two years, and for all but three months of that period, she has been in the care of her father. B has been in Spain, with his father, since May 2020 (15 months).
The parents were married in 2002 and two years later A was born. In 2009, B was born. The family lived in Spain until 2010 when they all moved to live in England. In 2015, the parents separated, and the father returned to Spain; the mother has notionally remained living in London, though has property in Spain. Divorce proceedings followed in England, as did contested proceedings under the Children Act 1989 (“ CA 1989”). On 23 May 2017, HHJ Tolson QC, sitting at the Central Family Court, made final orders under the CA 1989 which provided for the children to live with their mother and spend time with their father “on such occasions as are agreed between [the parents]”; at the hearing at which these orders were made the father was neither present nor represented, though it is apparent that he had proper notice, and the opportunity to advance his case. The father applied to have the order set aside; HHJ Tolson QC dismissed the application on 11 July 2017. At that later hearing the parents agreed that the children would spend four weeks in each summer holiday with the father.
Within a short time of that order, the children visited their father in Spain for a summer holiday. At the conclusion of the visit, the children did not return to the mother or this jurisdiction as planned. The mother issued proceedings under the 1980 Hague Convention in Spain, and an order for their return was made in March 2018. The children finally returned to England in September 2018. Financial proceedings between the parents, consequent upon the divorce, had in the meantime concluded in this country in June 2018.
In 2019, the children visited Spain again for a holiday, this time initially accompanied by their mother, who was visiting the children's maternal grandmother (“MGM”). During this visit the mother and A had a serious argument; A fled to her father's home. On her return to her mother and the MGM, further disagreement followed, and A filed a complaint with the police against her mother, alleging mistreatment. The police complaint did not in fact lead to a prosecution, but A was removed from her mother's care and for three months was placed in institutional care in Spain; there is a dispute between the parties now as to whether either parent could have given permission to the other to make arrangements to care for A in the short-term. Pursuant to an order of the Valencia Court in November 2019, A was placed in the temporary care of her father, where she has remained. The order was “conditional on the girl being on the one hand schooled in Madrid in a centre that follows the British educational system” and secondly, conditional upon the father filing a “request for modification of measures” (custody). An order for ‘contact’ between A and her mother was further made. A was placed in school in Madrid. B remained with his mother in London. The Valencia Court had recorded the “very difficult relationship” between A and her mother; in her ruling, the Magistrate-Judge of the First Instance Court added:
“[A], who will be 16 years old in three months, showed a radical aversion to living with her [mother] again, and although this rejection is justified in a way, it is true that the imposition by force of coexistence with the mother at a time when the confrontation with her is very acute, it could be very damaging for a young woman who has already shown her indomitable character, even betting on risky behaviours” (sic.). (Emphasis by underlining added).
The mother did not issue fresh proceedings in Spain under the 1980 Hague Convention; alternatively, on 5 December 2019, she...
To continue reading
Request your trial
-
NP v TP
...had cause to consider how the court could/should exercise the jurisdiction under section 31F(6) MFPA 1984 in the case of Re A and B [2021] EWFC 76. I set out at §25 to §39 of that judgment the not insignificant jurisprudence which has grown up around the application of section 31F of the MF......