M v B
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Bodey |
| Judgment Date | 10 June 2016 |
| Neutral Citation | [2016] EWHC 1657 (Fam) |
| Court | Family Division |
| Date | 10 June 2016 |
| Docket Number | Case No. FD16P00133/132 |
[2016] EWHC 1657 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Bodey
(In Private)
Case No. FD16P00133/132
Mr. M. Hosford-Tanner (instructed by A & N Care Solicitors) appeared on behalf of the Applicant.
The Respondent appeared in Person.
JUDGMENT (As approved by the Judge)
A Introductory
This is a father's appeal against orders made by District Judge Robinson at the Central Family Court on 17 th March 2016 directing the registration and enforcement of a French residence order regarding the parties' two sons, which order was made in the mother's favour on 28 th October 2008. The court which made that order was the court of first instance, in Brittany, France. The necessary certificate under Article 39 of Council Regulation (EC) no. 2201/2003 ("B2R" or "The Convention") enabling those orders of recognition and enforcement was signed by the court in Brittany on 7 th March 2016. On 17 th March 2016, the same day as the mother issued her notice of application here for recognition and enforcement of the French order, she also issued an application here under the Hague Convention for the summary return of the children to France. However, that has stood in abeyance on the basis that the recognition and enforcement issues should be resolved first.
The father faces the difficult task of showing that the case falls within the exemption from recognition and/or enforcement contained in Article 23(a) of the Convention, which provides that:
"A judgment relating to parental responsibility shall not be recognised: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought, taking into account the best interests of the child …."
The other exemptions in Article 23(b) to (g) do not apply here.
The father's case is effectively that the circumstances have now changed so much with the passage of time since the French order was made in 2008 (if only because the two children are now so much older) that in all the circumstances Article 23 is made out. The mother strongly opposes the father's appeal. She maintains that, as the 2008 French order remains extant (despite its obvious age) it should be enforced in this jurisdiction in line with the philosophy of reciprocal enforcement which underpins the Convention, as is exemplified by recital 21 of the Convention which provides:
"The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required".
The father has represented himself, assisted by a French interpreter. He, the father, asked if a lady companion could be in court for the hearing, to which there was no objection from the mother's side. I proffered that the lady could sit beside him to help him, but he was content that she should sit at the back of the court, as she did and as she is now doing during the delivery of this judgment. The mother, who is publicly funded (and has been assisted by a French interpreter) has been represented by Mr. Hosford-Tanner of counsel who was accompanied by his instructing solicitors. It is not easy to provide a level playing field when there is an 'inequality of arms' such as this; but I tried my best to explain things to the father as we were going along and to assist him by formulating some of the questions which he wanted to put to the mother. I have read all the relevant parts of the bundle, including statements by both parties setting out their cases and an attendance note by CAFCASS officer dated 23 rd May 2016 setting out her discussions with both children at court on 18 th May 2016.
Normally, in an application such as this, oral evidence would probably not be necessary. Here, however, there is a profound dispute of fact on the statements as to the circumstances in which the children were transferred in 2013 from the mother in France to the father who brought them to England. The mother says that the father has wrongly retained them here since 2013 and the father says that he has had them here with him since 2013 with the mother's consent. It seemed to me that this was an important, if not pivotal, issue as regards the overall justice of either recognition and enforcement or non-recognition and non-enforcement of the 2008 order. I considered that I ought, therefore, to hear the parties, so as to be able to make a factual finding on the issue. It could have been done by inferences (as is so often done in Hague Convention proceedings); but with both parties here with interpreters it could have left a sense of grievance in the party against whom I made findings on the factual issue in question, if he or she had not been given a chance to give his or her explanations in an attempt to rebut those possible inferences.
To take one possible finding, if the father is right and the mother voluntarily relinquished residence of the children to him for good three years ago in 2013, it would hardly be appropriate or fair now to enforce the 2008 order against him. It would not be difficult on that factual hypothesis to find that recognition and enforcement would be manifestly contrary to the public policy of this jurisdiction. But the same would not apply if the factual finding were the other way about, namely that there has been a wrongful retention in this country by the father.
B Background
The mother is aged 34, having been born on [date stated] in Kinshasa, Congo. She is a French citizen. She lives near Bordeaux in the same property as that to which she moved after the parties separated in 2007/2008. She works as a domestic carer, although she is on unpaid leave of absence since 1 st June 2016 to enable her to attend to this case. The father is aged 42, having been born on [date stated], also in Kinshasa. He too is a French citizen. He lived in Rennes in France following the parties' separation until 2013, when he moved to England in the interests of finding employment. He is now living in [town in England named] and working as a kitchen porter. The two children the subject of the French order of 2008 and therefore of these proceedings are A, a boy, born in 2004, who is aged 12 and B, a boy born in 2006, who is 10. Both are French citizens. In 2001 the parties were married in the Congo. They subsequently moved to France where both children were born. In 2007 the parties separated. The mother and children moved from Brittany to Bordeaux. The father later moved from Brittany to Rennes.
On 28 th October 2008 when the children were aged four and two respectively the French court, namely the Court of First Instance, in Brittany, pronounced a divorce. The divorce order had an agreement between the parties dated 8 th September 2008 whereby the parties agreed and the court approved that the residence of the children should be granted to the mother with such contact to the father as the parties might agree, but in default of agreement then for half of each school holiday. It was further agreed and, accordingly, ordered that the father should pay the mother maintenance at the rate of €120 per month per child. The mother's case is that that was not often paid. Other than that, the order of 28 th October 2008 took effect and seems to have worked satisfactorily in most respects for the next five years or so until 2013. In 2009 the father applied to the court in Bordeaux and achieved the suspension of the maintenance which I have just mentioned on the basis that he was out of employment. He was ordered to provide the mother with six monthly evidence of his income and his efforts to find employment, but the mother's case is that this never happened. That, however, is not a point which has been explored at this hearing. Nevertheless, it meant that she was responsible, on any view, both for bringing up and providing financially for the children.
In 2011 the father made complaints to the police and social services in Bordeaux about the mother's care of the children and about their alleged treatment by her alleged then partner. She was, accordingly, summonsed before the social services and before the court in Bordeaux. Those documents are in the bundle. Following investigation of the issues raised about the safety and the welfare of the children, they were returned to her or else allowed to be retained by her. She thereafter continued to care for them under the 2008 residence order and the father's contact continued likewise under that order. However the mother's case, which I accept, is that bringing up two children and having to work to support them, sometimes extremely long hours, was exhausting and that she became seriously run down and eventually unwell.
As a result, it is her case that in the summer of 2013 she asked the father to take the children and care for them until she could resume their care. The children were then nine and seven respectively. The mother accepts that the father said at that time that he was relocating to England and she accepts that she agreed to the children going with him until she was better. She obtained certificates from the school (which the father relies on) which are headed "Certificat de Radiation", which means "striking off", signed by the school dated 3 rd July 2013. By my translation, the certificates say in respect of both children that they were struck off the register as from 2 nd September 2013. The mother also gave the father the children's relevant health books. He relies on having been given those books and the school...
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