G v K
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 03 December 2021 |
| Neutral Citation | [2021] EWHC 3240 (Fam) |
| Docket Number | Case No: CRR 2021/04 and LV19P02410 |
| Year | 2021 |
| Court | Family Division |
[2021] EWHC 3240 (Fam)
THE HONOURABLE Mr Justice MacDonald
Case No: CRR 2021/04 and LV19P02410
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Teertha Gupta QC and Ms Margaret Parr (instructed by MSB Solicitors) for the Applicant
Mr Henry Setright QC and Ms Emma Spruce (instructed by Access Law) for the Respondent
Hearing date: 2 November 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
In this matter I am concerned with proceedings with respect to A, born in 2016 and now aged 5. A's mother is G (hereafter, “the mother”), the applicant and appellant in these proceedings. She is represented by Mr Teertha Gupta of Queen's Counsel and Ms Margaret Parr of counsel. A's father is K (hereafter, “the father”), the respondent in these proceedings. The father is represented by Mr Henry Setright of Queen's Counsel and Ms Emma Spruce of counsel. The following applications are before the court:
i) The mother's appeal against the order registering the judgment of the Court of Appeal, St Denis, La Réunion dated 21 October 2020 made by made by District Judge Alun Jenkins on 6 July 2021.
ii) The mother's application for orders in this jurisdiction under the Children Act 1989 issued on 14 March 2019.
iii) The father's application for orders facilitating the enforcement of the registered French order of 21 October 2020, which provides for A to reside with him.
The court has had the benefit of a court bundle containing the papers relevant to the father's application to enforce the order of the Court of Appeal on Réunion dated 21 October 2020 and the mother's application for orders under the Children Act 1989. A separate appeal bundle pertaining to the mother's appeal against the registration order dated 6 July 2021.
Given the nature of the issues raised in the applications before the court, having heard submissions from leading and junior counsel I reserved judgment.
BACKGROUND
The background to this matter is as follows. The parties commenced their relationship in 2010. At that time, the father lived in Belgium and the mother in England. The father obtained employment in La Réunion and the parties cohabited in Réunion from 2012. Réunion is an oversees département of France and is governed by French law. Then parties entered into a civil partnership in 2014. Neither the mother nor the father holds French nationality. As I have noted, A was born in Réunion, in October 2016. The parties' relationship broke down in August 2018.
On 15 November 2018 the mother left Réunion with A without the consent of the father. The mother was refused entry into the United Kingdom in circumstances where the father had obtained orders from the court in Réunion preventing the mother removing A from that territory. On 28 November 2018, the father made an application to the court in Réunion for a determination in respect of parental rights. The mother made a cross-application in the same terms. On 21 December 2018 the High Court of Saint-Denis in Réunion made a order establishing joint custody and directed a welfare report.
On 6 February 2019 the Family Court Judge of the High Court of Saint-Denis gave judgment. The court has before it a translation of the decision of the court. The court awarded residence of A to the mother and lifted the prohibition on the mother removing A from Réunion. The latter decision was made on the basis of the High Court's conclusion that the mother “must be free to settle where she wishes, insofar as her actions are not contrary to the child's welfare and are not intended to deprive the father of his rights.” Within that context, the High Court concluded that there was nothing to prevent the mother from settling in England, her country of origin, if she wished to.
As I have noted, the decision of the High Court of Saint-Denis rested its conclusion on the determination that the mother must be free to settle where she wishes provided, inter alia, her actions were not intended to deprive the father of his rights. Within this context, with respect to contact between the father and A, the order of the High Court provided that A was to spend two weeks every two months with the father until she commenced education, plus one month in July to August, and thereafter all half term holidays and half of school holidays. The order further permitted the father to have contact with A in England “freely” subject to him giving 15 days notice.
The order of the High Court of Saint-Denis further noted that Art 373-2(3) of the French Civil Code required any change of residence by one of the parents that modified the terms of the exercise of parental responsibility must be the subject of notice to the other parent and, in case of disagreement, determination by the court. In addition, the order noted that all important decisions regarding residence were to be taken by the parents jointly and that any request to amend the provisions of the order was subject to a prior attempt at mandatory family mediation pursuant to Art 7 of the French Law of 18 November 2016, failing which an application to vary would be declared inadmissible.
On 9 February 2019, the mother left Réunion for the jurisdiction of England and Wales. The father contends he was given little notice of this move. The mother and A have remained in England and Wales since that date. Some five weeks later, on 19 March 2019 and notwithstanding the terms of the order of the High Court of Saint-Denis dated 6 February 2021 regarding the requirement for mandatory family mediation prior to any application to vary the terms of that order, the mother made a without notice application to the Family Court sitting in Liverpool to vary the order made by the High Court and for a prohibited steps order under the Children Act 1989 to prevent the father from removing A from the jurisdiction of England and Wales. The application form alleged that there was a risk of abduction. However, the application also states that the father wished to take A for 15 days, which action was on the face of it consistent with the contact order made by the High Court of Saint-Denis on 6 February 2021 that A was to spend two weeks every two months with the father. In her first statement, the mother says she had changed her mind regarding the appropriateness of the level of contact she had agreed before the High Court and which that court had ordered.
In the Form C1A that accompanied her application, the mother alleged domestic abuse against the father by way of him “trapping” her in Réunion in November 2018 and being verbally abusive to her. Exhibited to the mother's statement is an email from the mother's lawyer confirming that in December 2020 the Disciplinary Chamber of the Medical Board of La Réunion sanctioned two doctors for wrongly representing the position in respect of the mother's mental health. The mother contends that the father, who is also a doctor, was the instigator of this conduct.
The mother's application came before District Judge Doyle on 15 March 2019 who, properly, declined to deal with it and re-allocated the matter to HHJ De Haas QC, then the Designated Family Judge for Cheshire and Merseyside. In doing so, District Judge Doyle rightly reminded the mother of the duty on a litigant making an application without notice to make known all matters relevant to the application, whether or not those matters support the making of the order sought. On 22 March 2019 HHJ De Haas QC declined to make an order on the grounds that the court had no jurisdiction to vary an order made by the High Court in Réunion having regard to the provisions of Art 9 of Counsel Regulation (EC) 2201/2003 (hereafter BIIa). Within this context, the contact between A and her father went ahead for two weeks in March 2019 in London, the mother stating in her written evidence that she told the father that she had lost A's passport. A further period of two weeks contact took place in June 2019 in Réunion.
On 17 July 2019, the day on which the father was due to collect A for summer contact pursuant to the terms of the order of the High Court of Saint-Denis of 6 February 2019, the mother issued a further application in the Family Court sitting at Liverpool, again seeking to vary that order. That application was again made without notice to the father, although the justification for this course taken by the mother is unclear. The mother's application dated 17 July 2019 asserted, in contrast to the earlier without notice application in March 2019, that there had not been any form of domestic violence and that there was no risk of child abduction. The grounds of the mother's application were that the order of 6 February 2021 was not working, was too vague and was having an emotional and physical impact on A's welfare based on her alleged response to contact with her father in March 2019.
The statement of the mother in support of her application argued for a wholesale revision of the arrangements for contact put in place by the High Court in Saint-Dennis in the order of 6 February 2019. On 17 July 2019 HHJ De Haas QC made a prohibited steps order to maintain the status quo and listed a return date on 18 July 2019 to enable the father to be given notice. In the event, the father was served with the application with insufficient time for him to attend the hearing but was able to speak briefly with the mother's counsel. The father indicated that he wished to secure legal representation and requested an adjournment. Within this context, HHJ De Haas QC adjourned the matter until 16 August 2019 and continued the prohibited steps order preventing the father from removing A from the...
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