MD v AA and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWHC 2756 (Fam) |
| Docket Number | Case No: FD08P01701 |
| Court | Family Division |
| Date | 31 July 2014 |
[2014] EWHC 2756 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Peter Jackson
Sitting at the Royal Courts of Justice
Case No: FD08P01701
Jacqueline Renton (instructed by Wedlake Bell LLP) for the Applicant Father
Edward Devereux (instructed by Osbornes) for the First Respondent Mother
Nicholas Anderson (instructed by Cafcass Legal) for the Second Respondent Child
Hearing dates: 19 and 20 June
Judgment date: 31 July 2014
JUDGMENT:
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 persons concerned 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.
This is an appeal against English orders recognising and registering a decision of the Bucharest Court of Appeal dated 27 November 2013 at the conclusion of proceedings that had continued in Romania for six years to the day. The Court of Appeal ordered that the custody of David, a seven-year-old boy who has lived with his mother in England since the age of eight weeks, should be transferred to his father in Romania. The order was registered for enforcement in this jurisdiction and the mother has appealed. At the end of a hearing that took place on 19–20 June, I informed the parties that recognition of the Romanian order would be refused. This judgment contains my reasons.
In summary:
(1) These issues concerning parental responsibility are governed by Articles 21–39 of BIIR — the Council Regulation (EC) No. 2201/2003 ( Brussels II Revised Regulation 2003).
(2) Article 21(1) provides that a judgment given in a Member State shall be recognised in another Member State without any special procedure being required.
(3) Article 21(2) allows any interested party to apply for a decision that the judgment be or not be recognised.
(4) Article 23(a)-(g) sets out seven grounds on which a judgment shall not be recognised.
(5) In this case, the mother relies on grounds (a) to (d), asserting that:
(a) Recognition would be contrary to public policy taking account of David's best interests.
(b) David was not given an opportunity to be heard, in violation of the fundamental principles of procedure in this jurisdiction.
(c) She herself was not served with the father's application that led to the November 2013 decision and was not enabled to defend those proceedings.
(d) She was not given the opportunity to be heard in those proceedings.
(6) The father contests each of these grounds. David's Children's Guardian submits that recognition should be refused on ground (b) and possibly also on ground (a). She makes no submissions on the other grounds.
My conclusion is that the mother succeeds under Article 23(b) because David was not given an opportunity to be heard in the Romanian proceedings, and also under Article 23(c) and (d) in that she was not effectively served and was not given an opportunity to be heard. I dismiss her appeal under Article 23(a), the public policy ground.
I also uphold the mother's complaints in relation to certain aspects of the registration procedure in this jurisdiction, but her appeal does not ultimately succeed on those grounds.
At the end of the hearing, I expressed concern at the damaging effect on David's welfare of the interminable litigation between his parents. The state of affairs described below is thoroughly contrary to the spirit of the BIIR regime, which aims to ensure that decisions are made in the country of a child's habitual residence and swiftly enforced elsewhere. I hope that even now the parents will take responsibility for David's future by reaching a mediated solution.
In what follows, I set out the background, the history of the litigation, the legal framework, and my analysis and conclusions in relation to each ground of appeal.
BACKGROUND
David's parents are both Romanian. The father is aged 36 and the mother 31. They met in 2003 while they were both working in England, the father as a builder and the mother as a cleaner. They lived together in England from 2004 until November 2007, when they separated.
In the meantime, David was born. In August 2006, during his mother's pregnancy, the parents had returned to Romania to get married. The mother remained there for David's birth on 8 November 2006, with the father travelling backwards and forwards to England. The mother and David remained in Romania for a short time because of visa problems that were solved by Romania's accession to the European Union on 1 January 2007. On 10 January 2007, the mother rejoined the father in England with baby David.
In November 2007, the parents separated. In 2009, the father returned to Romania, though he has maintained a second home in England, to which he returns for about 10 days each month for work and to see David.
The parties' marriage was dissolved by the Romanian court in April 2008. The mother and David live alone. In January 2013, the father remarried and now has a 1-year-old daughter.
Until November 2012, the father had regular contact with David in England, including overnight contact at weekends. The mother then withheld contact for reasons that have not been adjudicated upon, and David then saw almost nothing of his father until March 2014. At that point, following the mother's arrest for an alleged failure to comply with an order of this court, David was placed in the care of his father in England. At present, following a succession of temporary orders, he divides his time equally between his parents.
The overall picture is that:
• The father lived in England between 2003 and November 2009. Since then he has lived in Romania, visiting England for substantial periods. Despite the acute difficulties in the parents' relationship, he has a significant relationship with David.
• The mother has lived continuously in England since 2003. She has been David's main carer since his birth. She states that she has not been back to Romania since coming here with David in January 2007.
• David has lived in England since he was under two months old, a period of 7 years 7 months in the life of a child aged 7 years 9 months. He has attended school here since September 2010. Reports from school and other sources, referred to below, are positive. He has never been back to Romania and speaks only a few words of Romanian.
PROCEEDINGS ABOUT DAVID
These have continued uninterrupted since November 2007. Even though David has been habitually resident in England since arriving here, his parents have chosen to litigate about him in Romania and the Romanian court has, with one exception, entertained their litigation. In broad terms, there have been eight main orders over the last six years, with every previous order being subject to appeal or to a rehearing. The effect of this has been that in the eyes of the Romanian court David has been lawfully in his mother's care for three periods totalling 3 1/2 years, while custody has been awarded to his father for four periods totalling 3 years. This situation does not reflect David's actual experience, which has until recently been that he has lived in the continuous care of this mother, but it means that his legal status has been perpetually provisional. One obvious detriment is that he has been unable to go to and from Romania, with the loss of the family contacts and cultural experiences that he might have enjoyed had the legal position ever been resolved.
I turn to the detailed narrative. On 22 November 2007, following the parents' separation, the father returned to Romania to begin legal proceedings. On 27 November 2007, he issued an application for divorce and custody.
On 4 April 2008, the Onesti County Court dissolved the parties' marriage and awarded custody to the father, a decision based on the father's case that the mother was not interested in caring for David. The mother did not participate in those proceedings.
On 18 August 2008, the father applied to this court to register the Romanian order. A series of hearings took place here.
In the meantime the mother appealed in Romania on the basis that she was living in England and had not been properly served with the father's Romanian application. On 2 February 2009, her appeal was allowed by the Bacau County Court and the case was sent for a retrial.
As a result, the English proceedings became dormant, the last order being one made on 27 August 2009 concerning the father's contact.
The matter came again before the Onesti County Court, which again granted custody to the father on 8 December 2009. On this occasion it did not find that the mother was not interested in David, but rather that the father was in a better material position to bring him up.
On 10 May 2010, the mother appealed again to the Bacau County Court. Again, her appeal was allowed, the court finding that in view of the fact that the parties' last common address was in England, jurisdiction lay with the English court.
The father appealed to the Bacau Regional Court of Appeal against this decision, and on 13 April 2011 his appeal was allowed. The court found that the Romanian court had jurisdiction on the basis that the parties are Romanian citizens. The matter was sent for rehearing to the Bucharest District 1 Court.
On 12 December 2011, the Bucharest District 1 Court awarded joint parental authority to both parties with David's domicile and residence being found to be at the mother's address in England. Both parties' applications for exclusive custody were...
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