A (A Child) (Custody Decision after Maltese Non-Return Order: Brussels II
| Jurisdiction | England & Wales |
| Judgment Date | 2006 |
| Neutral Citation | [2006] EWHC 3397 (Fam) |
| Date | 2006 |
| Court | Family Division |
Child abduction – Removal from jurisdiction – Child visiting father in Malta – Mother bringing Hague Convention proceedings for childs return – Maltese court making non-return order – Mother bringing English proceedings for review of order – Father failing to facilitate guardians investigations – Whether childs return to jurisdiction should be ordered – Council Regulation (EC) 2201/2003, arts 11, 42 – Convention on the Civil Aspects of International Child Abduction 1980, art 13.
The parents married in England in 1986 and their first child, A, was born in 1987. They moved to Malta, where they lived for 15 years. The mother gave birth to two children in Malta, N, and finally S in 1994. In 2000, the family moved to England. The mother and father experienced marital problems and in 2001, the father went back to Malta. A experienced problems with cannabis, leading to an arrest, and went to live in Malta. He was subsequently followed by N. In 2006, the police visited the house in relation to an incident in which S and friends had broken a window pane and taken a ladder from premises for use as a slide. In July 2006, S went to Malta for a holiday, during the course of which he allegedly told A that he had been in trouble with the police, that he had been involved in cannabis taking and that he had witnessed his aunt smoking such in his house. The father brought proceedings in Malta. The court ordered, inter alia, that S was to remain with the father until the Central Authority of Malta had contacted the Central Authority of England to investigate the case. The mother brought proceedings under the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention), seeking an order for the return of S pursuant to art 12. The Maltese court made a non-return order, holding that, notwithstanding that the prerequisites for a return order under art 12 were made out, an art 13(b) situation was established, and that it should exercise its discretion not to return the child. The mother brought proceedings in the English courts, seeking the review of that order and the return of S pursuant to art 11 of Council Regulation (EC) 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility). A guardian was appointed to represent S, with the intention that she would travel to Malta to investigate his circumstances. The father failed to respond to correspondence from the court in that respect, which prevented the guardian from such investigation. Issues arose, inter alia, as to
whether S ought to be returned to the jurisdiction pursuant to art 11 of the regulation.
Held – (1) It was obviously unsatisfactory and risked, in some cases but not all, being unfair and unjust for a case to proceed in the absence of participation by a relevant party. The court was always anxious to hear the other party unless the circumstances were of such urgency or of such danger as to make that impracticable. However, that was a principle which had to give way to the necessity for decisions to be made in relation to children. Article 42 contained two specific requirements that needed to be ticked in the certificate which was conclusive of the court’s determination. Those were that the child be given an opportunity to be heard with the proviso that such a hearing might be considered inappropriate having regard to the child’s age or degree of maturity, and, secondly, that the parties were given an opportunity to be heard. It was a matter of plain common sense that neither of those imposed an obligation to do nothing until the child and/ or the parent could in fact be heard if the parent and child could not in fact be heard. In the instant case the father had been given every opportunity and every encouragement both to participate on his own behalf and to facilitate communication between the child and the legal representative whom the court had decided to bring in to ascertain the childs individual and independent point of view.
(2) On the evidence in the instant case, the situation was not, as had been found by the court in Malta, so risky and so potentially dangerous as to surmount what certainly was the English view of art 13(b) as a very considerable hurdle. There was no substance in the anxiety about the mother being permissive to the extent that the she would allow her sister to smoke cannabis in the house. The episode of the window breaking was regrettable, but not so out of the ordinary as to make it an intolerable situation for the child’s return to England or such as would expose him to serious risk of physical or psychiatric harm. It was ordered that the child remain living with his mother and, for that purpose, be returned to the jurisdiction of England and Wales.
ApplicationThe mother instituted proceedings under the Brussels II Revised Regulation, art 11, to examine the question of custody of the child, S. The facts are set out in the judgment.
Frances Heaton (instructed by Pannone) for the mother.
Robin Barda (instructed by CAFCASS Legal) for the child by his guardian.
The father did not appear and was not represented.
SINGER J.[1] These proceedings are concerned with the country where and the parent or other persons with whom SA should live henceforth. They come about in these broad circumstances, before I descend into detail. S is 12 and a quarter. He was born on 25 July 1994. He is the third child of parents who were
married but are no longer married. His father currently and for some years has lived in Malta. His mother has for some years lived in England.
[2] S went on holiday to stay with his father in early July this year and was due to come back on 28 July. He did not as a result of actions taken unilaterally by the father in the magistrates court in Gozo where the matter was dealt with throughout by the same judge, the learned magistrate Dr Paul Coppini.
[3] The mother instituted proceedings on 21 August under the Hague Convention seeking an art 12 order for the return as soon as practicable of S to this jurisdiction. With commendable despatch the judge in Malta heard the mother’s application on 23 August, heard oral evidence from the father, the mother and indeed the child, from the parties’ oldest son A, from a relative of the mother and from two persons who had been concerned to a relatively minor extent with S during his stay in Malta in July this year.
[4] On 4 September 2006 a reserved judgment was issued in the form of an order, the outcome of which was that, notwithstanding that the prerequisites for a return order under art 12 were made out (there was really no doubt about habitual residence and so on), the learned judge decided that an art 13(b) situation was established and that he should exercise his discretion not to return the child to England and Wales. He took into account, in a manner which I shall describe more fully in a moment, what were the views expressed by the child in the course of his evidence and he made what is called a non-return order.
[5] The application before me is maybe the first of its kind in England and Wales, but I cannot be absolutely certain of that. It is an application which has only been possible since the regulation to which I will refer to as BIIR came into force. The full title of that instrument is Council Regulation (EC) Number 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, repealing Regulation (EC) Number 1347/2000. It will therefore be readily apparent why I refer to it as BIIR.
[6] Amongst its many provisions, BIIR complements or supplements the Hague Convention on Child Abduction incorporated into English law in the Child Custody and Abduction Act 1985 by grafting some specific provisions onto the Hague Convention in cases which involve a removal or retention as between two Member States of the European Union, as long as one of them is not Denmark.
[7] The relevant article for present purposes is art 11 of BIIR. Where a court refuses to return a child pursuant to art 13 of the Hague Convention, then the home court (in this case England) must be notified of that fact and sent the relevant documents very swiftly. It is then open to either parent within three months to move the home court ‘so that the court can examine the question of custody of the child’. Article 11 goes on to make it clear that, notwithstanding the fact that the requested court (Malta in this case) declined to order the return of the child under the Hague Convention, the judgment of this court under these provisions, having examined the question of custody, can reach a
conclusion which does indeed require the return of the child to England, as well as dealing with other matters concerning his custody. In that event and subject to the issue of a certificate under art 42, the order of the English Court is immediately enforceable without more ado and without reinvestigation of the merits within the jurisdiction of the requested court, Malta. The relevant provisions, which I have summarised and referred to only as far as is necessary for present purposes, are contained in arts 11(6), (7) and (8) and 42 of BIIR.
[8] This hearing today is the hearing to determine the outcome of the application which the mother issued by originating summons on 13 September 2006 entitled in the matter of the Hague Convention and in the matter of BIIR, as well as in respect of the court’s inherent jurisdiction, in which the relief which she seeks is that the 4 September 2006 decision of the Court of Magistrates in Gozo should be reviewed under the provisions of BIIR and that S be returned to England forthwith to reside with the mother. The mother is represented today before me by Miss Heaton. The child, who was made a party to the proceedings with a guardian appointed to represent him, Teresa Julian...
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