G v H
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 12 September 2023 |
| Neutral Citation | [2023] EWHC 2351 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD23P00147 |
[2023] EWHC 2351 (Fam)
Mr Justice Poole
Case No: FD23P00147
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts Of Justice
Strand, London, WC2A 2LL
Michael Gration KC (instructed by Anthony Louca Solicitors Limited) for the Applicant
Teertha Gupta KC (instructed by Goodman Ray Solicitors) for the Respondent
Hearing date: 12 September 2023
Introduction
The child with whom I am concerned is F who is an 8 year old boy. G is his father, H is his mother. He has an elder sister J. The family lived in England but moved to Portugal in 2020. After financial difficulties due to third party fraud, in 2022 the mother took up employment in England. The children stayed with G in Portugal. After a visit home to Portugal the mother returned to England on 22 January 2023 taking F with her, without G's consent. She admits that at the time this was a wrongful removal within the meaning of Article 3 of the 1980 Hague Convention. However, on 25 January 2023 the mother applied to the Portimao District Court in Portugal for what may be termed a child arrangements order and on 3 May 2023 that court made “provisional” orders including (in translation) that “The boy, F, shall be entrusted to the care of his mother and shall live with her…”
The preliminary issues for determination on the father's application for summary return of F to Portugal are:
i) What is the meaning and effect of the Portuguese order?
ii) Whether, as the mother contends, the admitted wrongful removal has been rendered lawful by the subsequent order of the family court in Portugal.
iii) If not, should the Court proceed to a final determination of the father's application and, potentially, make a summary return order notwithstanding the Portuguese court order?
A very similar set of circumstances arose before Sir Mark Potter, then President of the Family Division, in T & J (children, Re (Abduction: Recognition of Foreign Judgment) [2006] EWHC 1472 but he resolved the issue before him by reference to Council Regulation (EC)No.2201/2003 (BIIr) which is no longer applicable in this jurisdiction. How should the court approach the current circumstances without recourse to BIIr?
I announced my decisions to the parties at the hearing but informed them that I would give a judgment in writing.
Upon F's removal, G reported the matter to the police and made an application for F's summary return to Portugal which was issued in the High Court in England and Wales on 17 March 2023. Case management directions were given at a first hearing on 24 March 2023 at which the mother confirmed her reliance on Art 13(b): grave risk of harm/intolerability, and Art 13(2): child's objections. She has conceded that she removed F from Portugal on 22 January 2023 without consent and that the removal was wrongful at the time. The parties agreed an extended timetable after non-compliance with those directions. By 3 July 2023, the court had statements from each party and a Cafcass report from Ms Demery.
In the meantime the mother's application was heard by Judge Trindade in the Portimao Family and Children's Court on 3 May 2023. The record of the hearing and order, in translation, reveals that at a short hearing the judge heard from both parents and from J, but not from F. The parties were represented. Submissions were made by State Counsel. The order made was,
“As the file and the statements made at this conference show, the parents have different views about the arrangements to be made and it is clear that they have a contentious relationship which may be detrimental to the best interests of the children.
On the other hand, it appears from the case-file that the father has set in motion a mechanism to return the child to Portugal, although it is not known how and under what terms.
Thus, it is important to ascertain from the Portuguese Central Authority, what is the status of the case that is being dealt with in the courts of England, as well as the application made by the father, which is hereby ordered by this Court.
Furthermore, in order to regulate the current situation of the children and to ensure that the children have contact with their parents (Article 37, paragraph 5 RGPTC — General Arrangements for Civil Proceedings), I hereby order the following provisional arrangements:
1. The boy, F, shall be entrusted to the care of his mother and shall live with her, who shall exercise parental responsibility in matters relating to the management of his daily life;
2. The girl, J, shall be entrusted to the care of her father and shall live with him, who shall exercise parental responsibility in matters relating to the management of her daily life;
3. Parental responsibility in matters of particular importance for the life of the children shall be exercised jointly by both parents, except in cases of manifest urgency, in which case either parent may act on his or her own behalf and shall inform the other parent as soon as possible.”
Arrangements for the children to spend time with the parent with whom they were not living were then set out. There has been no appeal against that decision.
This intervening order of the Portuguese Court was brought to the attention of Moor J at a pre-trial review but he ordered that the final hearing should go ahead as listed. However, at the listed final hearing, on 24 July 2023, Sir Jonathan Cohen decided not to proceed but gave directions including that the assistance of the international judicial liaison network be sought in relation to a number of questions about the Portuguese Court's orders, namely:
“a. Was Judge Trindade authorising the Mother to continuing living with F in England until his future is resolved?
b. When will the next hearing take place in the Portimao Family and Children's Court?
c. In the opinion of the Portuguese Court is it seised with the jurisdiction over F's welfare?
d. How long will it take for the Portuguese courts take to make a final welfare decision?
e. Will Portimao Family and Children's Court accept the England & Wales Cafcass report in so far as it relates to F's welfare?
f. What steps will be necessary for that review to take place i.e. preparation of social or other reports and can this be done without F needing to travel to Portugal?”
The final hearing was re-listed before me on 12 September 2023 by which time responses had been received via the Portuguese Hague Network Judge. Their responses were:
“a) Provisional arrangements have been made for the exercise of parental responsibility, with the child F residing with his mother in England and the child J with his [sic.] father in Portugal.
b) No proceedings or parental conference have been scheduled. However, as it appears that the parents do not agree on the residence/custody of the child F, the proceedings will proceed as normal, with the lodging of pleadings in due course and the holding of the trial. This will not take place before December as the Court's diary is currently full until the end of November 2023.
c) This Court has jurisdiction to rule on the question of the child's residence. However, the Portuguese judge recognizes that the Court in the area of the child's residence may be better placed to assess the welfare and quality of life of the child F;
d) There is no prediction as to how long it may take for a decision to be handed down as the courts are not always in charge of managing the time for a final decision, but are dependent on external reports and expertise, which may prolong the time for a decision. However, it is believed that a final decision (in first instance) will be made by July 2024;
e) The Family and Children's Court of Portimão will accept reports from official bodies in England and Wales working in the area of children and young people;
f) These reports can be made by the children's organizations in England and Wales and then sent to the case file, without the need for the child to travel to Portugal.”
The first matter for me to determine is what is the meaning and effect of the order made in Portugal on 3 May 2023. Mr Gration KC submits that it merely recognises the reality of the child arrangements in place and was not designed to defeat the father's Hague application. He points to the wording of the determination that the order is made “in order to regulate the current situation of the children” and to ensure that the children have contact with their parents. He highlights the questions raised in the determination about the proceedings in England, and draws attention to paragraph (c) of the Hague Network Judge's response, which leaves open whether the Court “in the area of the child's residence may be better placed to assess the welfare and quality of life of the child.”
For the mother, Mr Gupta KC submits that the Portuguese order, as the Network Judge has clarified, placed F in the care of the mother in England as an interim order. I prefer that interpretation, indeed I am sure that the effect of the order was for F to reside with his mother in England until further order of the Portuguese court. As the Network Judge has also clarified, the Portuguese court is in fact seised with jurisdiction over F's welfare but will take into account evidence in the England and Wales Cafcass report about his welfare. There would be no need for F to travel to Portugal.
Consequently, were I to make a summary return order at the final hearing of the father's application, the mother could return F to Portugal but lawfully turn around at the airport there and bring him back to England. Due to the order of 3 May 2023, that would not be a breach of the father's rights of custody. For so long as the Portuguese order remains in force, it would be futile for the High Court in this jurisdiction to make a return order.
The second issue for...
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