Re G (Children) (Foreign contact order: Enforcement)
|England & Wales
|11 November 2003
| EWCA Civ 1607
|11 November 2003
|Court of Appeal (Civil Division)
|B1/2003/1861, A, B & C FAFMI
 EWCA Civ 1607
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE-FAMILY DIVISION
(MR JUSTICE WALL)
Lord Justice Thorpe
Lord Justice Potter And
Lord Justice Tuckey
B1/2003/1861, A, B & C FAFMI
JAMES TOWNEND QC and MARIE-CLAIRE SPARROW (instructed by Messrs Pritchard Joyce & Hinds of Beckenham, Kent BR3 1AY) appeared for the appellant father.
TIMOTHY SCOTT QC and CLARE RENTON (instructed by Messrs Stafford Young Jones of London EC4R OAU) appeared for the respondent mother.
MICHAEL NICHOLLS (instructed by the Official Solicitor) appeared as Advocate to the Court on 2 October only.
As originally advanced, this appeal seemed to turn on the ambit of Articles 9, 10 and 11 of the European Convention on Recognition and Enforcement of decisions concerning custody of children and on restoration of custody of children (hereinafter referred to as the European Convention). The Convention is dated 20 May 1980 and was incorporated into our law by the Child Abduction and Custody Act 1985.
The facts giving rise to this appeal can be briefly summarised. The parties to the appeal are Italian and in middle age. They married in Rome in 1984 and have two children, a girl of eleven and a boy of nine. Shortly before the birth of the elder child the family moved to Paris. There they lived until the breakdown of the marriage in September 1998. The father returned to Italy leaving the mother and the children in the family home in Paris. Soon after the separation the father commenced divorce proceedings in the Tribunale de Grande Instance in Paris. The divorce was granted on 20 December 2000 and ancillary orders were made including orders for contact to the father and periodical payments to each child. In relation to contact the court received two psychological reports and further specific contact orders were made from time to time.
About a year ago the mother sought to move with the children to London. Her application for permission was ultimately not opposed by the father and an order was made on 11 December 2002 by Judge Guy Avocat sitting in the Affaires Familiales Division of the Tribunale de Grande Instance, granted the mother's application to remove to London with effect from 1 January 200The order provided that in the interim the father should have contact in Italy between 28 December and 4 January and thereafter one weekend a month plus half the school holidays. The judgment criticises the mother and she was ordered to pay a contribution towards the father's costs.
The Christmas contact as ordered by the court did not take place. Accordingly on 31 December the father applied to the judge in Paris for a variation of the order of 11 December in respect of his share of the forthcoming Easter holidays. He also sought the downward variation of the order for periodical payments to the children. The mother counterclaimed for an upward variation of the child periodical payments orders. The applications were decided by Judge Avocat on 3 February 2003. At the hearing it was submitted on the mother's behalf that Judge Avocat lacked jurisdiction in consequence of the mother's move to London. That submission was rejected on the narrow ground that the mother and the children were indisputably resident in Paris on the date of issue of the father's application. Otherwise Judge Avocat granted the father's application for variation of the Easter holiday contact arrangements and dismissed both applications for variation of the periodical payments orders. This judgment is even more trenchant in its criticisms of the mother. She was ordered to make a substantial contribution to the father's costs.
Sadly the sharing of the Easter holidays was also frustrated when on 12 April the children refused to go with their father and expressed considerable hostility towards him. They even asserted that he had treated them with violence when the family was living in Paris.
Unsurprisingly the father turned to the Central Authority in London for aid in enforcing the order of 11 December 2002. An originating summons was issued on his behalf on 18 June 2003. On 8 July Wilson J gave directions and ordered a CAFCASS report to ascertain the views of the children pursuant to Article 15(1)(b) of the European Convention. The originating summons was listed before Wall J on 31 July. He heard oral evidence from the CAFCASS officer but not from the parents. He rejected the submission advanced by counsel for the mother to the effect that enforcement should be refused under Article 10 of the Convention. He ordered that Judge Avocat's order of 11 December be registered and that it should be enforced. However pursuant to the discretion as to implementation vested in him by Article 11 of the Convention he directed that there should be an initial period of visiting contact in London to be arranged and assessed by Mr Hartley, the CAFCASS officer, followed by two further periods of visiting contact in London to be arranged by Mr Hartley. Mr Hartley was required to file a written report by 25 September in preparation for a further hearing before the judge on 29 September. Wall J directed that his judgment should be translated into French so that Judge Avocat would have proper knowledge of the implementation programme. The father's application for permission to appeal was refused.
The application was renewed to this court and granted by Hale LJ on 20 August 2003. She observed that the mother might seek to cross appeal the rejection of her defence under Article 10. Whether prompted or not, the mother's cross appeal was lodged on 22 August and on 5 September, hardly two clear days before the date set for the appeal, the mother filed an application to admit fresh evidence, namely an opinion from an advocate of the Paris Bar to the effect that Article 1072 of the French Code of Procedure Civile applies equally to international relocations as it does to domestic relocations. Accordingly she stated that since the mother 'had established her dwelling' in London Judge Avocat no longer had jurisdiction in relation to contact disputes.
The father's response was to file an application on the day of the hearing to admit the expert evidence of another advocate of the Paris Bar who contested that construction of Article 1072.
At the outset we agreed to read this evidence for what it might be worth, particularly given the concession by Mr James Townend QC for the father that, if Judge Avocat no longer had jurisdiction, then the mother must have a right to a fresh assessment by a London judge.
A number of points may be made in relation to the mother's application to admit expert evidence and to challenge the jurisdiction of Judge Avocat. First the submission was not made below nor did it appear in the mother's skeleton argument of 20 August 2003. It makes its first appearance in the skeleton argument prepared by Mr Timothy Scott QC on 5 September. Second neither of the opinions strike me as comprehensive, conclusive or compelling. As is too often the case each expert seems to espouse the cause of the party on whose behalf he or she has been instructed. Third the issue as to whether or not Judge Avocat retains jurisdiction should properly be determined by him. It was obviously open to the mother to apply for the variation of the continuing contact order immediately following the events of 12 April. Mr Scott submitted that the children had acquired habitual residence in this jurisdiction by the end of March 2003 at the latest. Such an application would have raised the issue of jurisdiction, alternatively would have afforded Judge Avocat an opportunity to consider whether an investigation of the circumstances in the aftermath of 12 April should be conducted by a London judge. Fourth it is to be noted that this is a Paris case through and through. All previous proceedings have been in Paris prior to the issue of the originating summons pursuant to section 16 of the Child Abduction and Custody Act 1985. Furthermore there are unresolved financial proceedings which remain to be determined in Paris, including the division of the substantial proceeds of sale of one jointly owned flat and the disposal of a second Paris flat jointly owned and tenanted. Financial issues in relation to the children have been, and probably should continue to be, dealt with in Paris. The order of 3 February 2003 provided that the contact transport costs should no longer be borne by the mother alone but should be shared. The order of 11 December 2002 established the mother's responsibility for the school fees of the children in London.
For all these reasons I conclude that Mr Scott's endeavour to introduce expert evidence as to the law of France should be seen as an essentially diversionary tactic. This appeal is not concerned with the law of France but with the proper application of an international convention. Mr Scott has not demonstrated anything within the terms of the Convention to support the submission that the relocation of the primary carer frustrates the process of international enforcement. Nor has Mr Scott cited any authority in this jurisdiction or in any other European jurisdiction to support the submission. It is accordingly necessary to proceed to decide the real issues in the case as identified by Hale LJ and as elaborated in the skeleton arguments, ignoring paragraphs 36 – 44 of Mr Scott's skeleton which advance his application to admit fresh evidence.
Those issues can be briefly defined:
i) Was Wall J wrong to reject the mother's reliance on Articles 10(1)(a)...
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