Re H (A Child)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ryder |
| Judgment Date | 11 September 2009 |
| Neutral Citation | [2009] EWHC 2280 (Fam) |
| Court | Family Division |
| Date | 11 September 2009 |
| Docket Number | Case No: FD07P00295 |
[2009] EWHC 2280 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: Mr Justice Ryder
Case No: FD07P00295
Mr Edward Devereux (instructed by Messrs. Dawson Cornwell) for the Applicant
Mr Teertha Gupta (instructed by Cafcass Legal) for the 2nd Respondent
Hearing date: 11 September 2009
Mr Justice Ryder:
Introduction:
This is the final hearing of proceedings under Brussels II Revised initiated by the Applicant father, ('F'), by application dated 11th September 2008 seeking orders relating to the only child of the parties, H, who was born on the 3rd October 2005 and is now 3 years and 11 months old. The F relies on the provisions of Articles 11 and 40 of Brussels II Revised and (principally though not exclusively) the judgment of Singer J. in Re A; HA v MB (Brussels II Revised: Article 11 (7) Application) [2007] EWHC 2016 (Fam), [2008] 1 FLR 289. The matter was last before the court on 27th April 2009 when a detailed directions order was made by Singer J.
The F has provided a number of statements and affidavits from himself and his legal representatives upon which the court has relied: his first is dated 9th August 2007; a first statement from Miss Anne-Marie Hutchinson is dated 28th August 2007; a second statement from Miss Anne-Marie Hutchinson is dated 11th September 2008; the F's second statement is dated 11th February 2009; a third affidavit of Miss Anne-Marie Hutchinson (entitled “second affidavit”) dealing with service is dated December 2008; a fourth affidavit of Miss Anne-Marie Hutchinson is dated 23rd February 2009, also dealing with service; and the F's third statement is undated. The summary of the facts which follows is taken from those materials in the circumstance that the mother has yet to respond to this court by the filing of evidence or otherwise.
The mother ('M') has not participated in these proceedings. Her last known address (and that of the child) is in Seville, Spain.
Acutely aware of the considerable delay that has taken place in determining this application, along with the attendant costs, the F realistically seeks today an order for reasonable direct contact with H along with various orders in respect of parental responsibility and recitals to assist in the implementation of that contact, notwithstanding that the mother has plainly intentionally and successfully sought to avoid any participation in these proceedings, has repeatedly avoided service initiated by all manner of different mechanisms, and has effectively frustrated contact since her wrongful retention of H in Spain in August 2006. The last time the F saw H was for one hour in June 2007. Further delay in granting the orders which F seeks is likely to be regarded as inimical to H's best interests.
To maximise the F's ability to successfully participate in contact with H in Spain in the near future, this court has decided to give a detailed judgment which sets out what it intends to do but does not finalise matters for the purposes of Article 10 (b) (iv) so that further use can be made of international judicial cooperation before jurisdiction is ceded to Spain. Given the response of the Spanish Liaison Judge, there may well be advantages at this stage in this approach. The judgment is to be translated and communicated without delay to the Spanish Central Authority and the Spanish Liaison Judge and also to the last known address and e-mail address of the M and her Spanish lawyers.
Factual background
The F is an Algerian/British national and the M is a Spanish national. The F was born on 14th November 1971 in Algeria and is now 37. He spent much of his early life in Algeria, where his close family remain. He studied aeronautical engineering in Algeria before moving to Spain. He came to the United Kingdom in 2001. He has in the past worked as a postman and in the restaurant trade. He currently lives with his partner, S N, and their daughter, B, in London. He works for Royal Mail in a delivery office.
The M was born on 12th March 1975 and is now 34. The M's close family remain in Spain. The M came to this country and studied and graduated with a degree in International Business and Tourism Studies at the London Metropolitan University in March 2005. It appears that after a time the M did not work as she was in receipt of Disability Living Allowance, perhaps due to her suffering from rheumatoid arthritis.
The parties met and formed a relationship in 2001 and thereafter married in the UK on 5th September 2002. They have one child, H, who was born on 3rd October 2005, who is now aged 3 years and 11 months old and who is a Spanish and Algerian national. The parties were in Spain for H's birth and returned to the UK on or around 13th October 2005. The principal matrimonial home was in London, although in 2004 the parties purchased an “off plan” flat in Spain. The parties renewed their vows at a ceremony in the Register Office in W, London on 24th March 2005.
During the course of the marriage there were frequent trips abroad to Spain and Algeria and frequent discussions, in particular during 2006, about the parties moving to Spain.
On 27th August 2006, the M travelled to Spain with H for the purposes of a short holiday planned to be for about one week. At the end of that month she informed the F by telephone that she was not intending to return to the UK. The F did not provide his consent to this retention and immediately sought advice and assistance as to what to do: after searching on the internet he found details for the international child abduction charity, Reunite.
On 7th October 2006, the F initiated Hague Convention 1980 proceedings in Spain through the Central Authority in London. The Court of First Instance apparently received this application on 24th November 2006.
In November 2006, the F travelled to Spain and had contact with H there. On 15th November 2006, the Seville Family Court of First Instance appointed an attorney, Mr Eugenio Carmona Delgado, to act for the M.
On 15th December 2006, the M issued a divorce petition in the Seville Family Court of First Instance.
There were preliminary hearings in the Hague Convention 1980 proceedings in Spain on 18th December 2006 and in January 2007.
On 5th February 2007, a hearing took place in the divorce proceedings initiated by the M in the Seville Court of First Instance, whereby the M's divorce petition was admitted for hearing. The matter was then listed for examination at an oral hearing which the F was ordered to attend.
By an application issued in the UK on 9th February 2007, the F applied, acting in person, for various section 8 of the Children Act 1989 orders: a shared residence order, a prohibited steps order and a defined contact order. It appears that the F served the M with this application by recorded delivery. The first hearing in respect of those applications was on the 20th March 2007. On that date, and in the absence of attendance by the M, Deputy District Judge Sheldrake sitting at the Principal Registry of the Family Division in London adjourned the matter to the 8th June 2007 so that directions could be made.
On 7th May 2007 as indicated by a ruling dated 14th May 2007, there was a further hearing relating to the M's divorce petition before the Seville Court of First Instance. On application by the F that the courts in the UK were in fact competent (and not those of Spain), the Seville court decided to “abstain from hearing” the divorce proceedings brought by the M “due to lack of international competence”. It is believed that the M did not seek to appeal that order.
In May 2007, an attempt was made to serve the M with the order of DDJ Sheldrake. That was unsuccessful.
By application issued on 6th June 2007, the F applied to adjourn the hearing on 8th June 2007 on the basis that the M had not been served with the order of DDJ Sheldrake and therefore did not have notice of the hearing.
On 6th June 2007, various orders, without attendance from either party but upon the court reading a letter from the F's solicitors, were made by District Judge Roberts. The matter was adjourned until 14th August 2007 and it was directed that the court was to serve a copy of the order and the application dated 8th February 2007 on the M. Those orders of District Judge Roberts were served on the M through her legal representatives in Spain in June or July 2007. The F then travelled to Spain and had further contact with H in June 2007.
On 13th August 2007, the F's solicitor, Miss Anne-Marie Hutchinson of Messrs. Dawson Cornwell was telephoned by the M. The M said that she would “not [be] coming to court” on 14th August 2008 and that her lawyers in Spain had advised her to ignore the hearing.
On 14th August 2007, District Judge Green made a number of orders, in the absence of the M attending, (though being satisfied that she knew of the hearing). They included listing the matter for consideration of the F's applications for declarations as to parental responsibility and habitual residence on 13th September 2007, and ordering the M to attend that hearing (supported by a penal notice).
On 3rd September 2007, the F's Spanish lawyers made an application for “the immediate resumption without further delay of these proceedings for the return of a child”.
On 13th September 2007, Coleridge J. made declarations that the F had parental responsibility for H and that she was habitually resident in the UK and directed that the F could disclose papers filed in the proceedings to the Home Office to assist in his application to vary his leave to remain in the country.
The Hague Convention 1980 proceedings made slow progress in...
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