Re H. (A Minor) (Foreign Custody Order: Enforcement)

JurisdictionEngland & Wales
JudgeTHE PRESIDENT,LORD JUSTICE STEYN,LORD JUSTICE KENNEDY,ORDER
Judgment Date27 October 1993
Judgment citation (vLex)[1993] EWCA Civ J1027-2
Date27 October 1993
CourtCourt of Appeal (Civil Division)

[1993] EWCA Civ J1027-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(Order of Mr. Justice Ward)

Before: The President Lord Justice Steyn Lord Justice Kennedy

Re H (A Minor)

MR. G. CLARK (instructed by Messrs. Leathes Prior, Norfolk, NR1 4DR) appeared on behalf of the Appellant.

MR. BELLAMY (instructed by Messrs. Mishcon de Reya, London WC1B 5HA) appeared on behalf of the Respondent.

MR. POSNANSKY (instructed by the Official Solicitor) appeared as Amicus Curiae.

1

( )

2

Wednesday 27th October 1993

THE PRESIDENT
3

THE PRESIDENTThis is an appeal by a mother from the judgment of Ward J of 28th July of this year. The learned judge had before him what he described as an interesting application under the Child Abduction and Custody Act 1985, which had become a rather troublesome one. The application concerned a child who was born in Belgium, of Belgian parents and who is a Belgian National herself. She was born in January 1981 and is therefore approaching 13 years of age. There had been proceedings in Belgium following the break-up of her parents' marriage. In Belgium the relevant juvenile court made an order relating to access. It appears that the mother brought the child to the jurisdiction of the United Kingdom in breach of the orders of the Belgian court. The child has remained here.

4

The father, who was a merchant seaman and away at sea for a great deal of the time, sought redress from the Belgian court in December 1988. The court ordered the mother to appear in January 1989 and she complied with that order. By a judgment of 10th January 1989, the juvenile court for the Judicial District of Nivelles gave a judgment which set out that a separation agreement, which had been entered into between the mother and father, had accorded visiting rights to the father at certain periods at the child's domicile, which was meant to indicate the mother's home, and that after the child had attained the age of six the father of the child should be entitled to receive the child for holidays, provided it was not against the wish of the child and provided that the conditions of stay provided security. The judgment recorded that it was highly desirable in the child's interest that she should be able to have contact with her father, who had remarried, and that she become acquainted with the family.

5

The court ordered that the provisions of the original separation agreement should be modified. It ordered that the father had the right to maintain personal relations with his daughter and vice versa. It also authorized the father to visit the daughter at the domicile of the former wife before her departure abroad. It made the order, which is relevant for the purposes of the application made to the court in England, that the father should be authorised to take the child outside the mother's domicile and receive and accommodate her in his domicile in Belgium during half of the child's vacation and school holidays. It was subject to certain conditions, such as prior notification. The court ordered further that the mother should take the child to the father, and that the father should take the child back to the mother at the end of the visiting period. There was also provision for telephone contact and written communication.

6

In June 1990, the Ministry of Justice in Belgium (as the central authority in that country) sought the Lord Chancellor's help (as the central authority in this county) under the European Convention, because the father was not able to locate the child, who had been brought to this country.

7

The matter came before Ward J on 10th October 1990. He made an order ex parte that the order of the juvenile court in Belgium, dated 10th January, be registered in the High Court of Justice pursuant to section 16 of the Child Abduction and Custody Act 1985. Because the order was made ex parte, he granted liberty to the defendant (that is the mother) to apply to vary or discharge it on 48 hours' written notice to the father's (the plaintiff) solicitors. There were consequential orders which he made to ensure that the child remained in the jurisdiction. He made orders relating to the whereabouts of the child and where she should remain.

8

Eventually, the mother issued a summons dated 8th April 1991 in which she sought the following relief: that the order of Ward J, dated 10th October 1990, registering the order of the Belgium Juvenile court be discharged; or alternatively, that the order of the Juvenile court be not enforced; and further that the court should make such order for access by the father to the child as was consistent with her welfare.

9

That application came before Sir Gervase Sheldon, sitting as a Deputy Judge of the High Court, on 15th May 1991. He dealt with the matter. This is described by Ward J in his judgment (page 6). He said that subject to the plaintiff father having access on Friday 17th May at times to be agreed, a court welfare officer should prepare a report to be limited to the girl's views on access generally. He adjourned the matter until 4th June. When it came back before him on 4th June, counsel for both parties were present. There was then available a report from the court welfare officer. The learned judge then made the following orders: "on the plaintiff father undertaking, firstly, to deposit his passport with his solicitors; secondly, not to take any further proceedings in Belgium or this country before August 1992 to enforce the Belgian order, that the plaintiff should have interim access to the child for four hours on two days in December 1991, two days in January 1992 and finally on a day in August 1992." The judge ordered that the plaintiff's application to enforce the provisions of the Belgian order should be adjourned to be heard in August 1992 after the access provided for by his interim order had taken place. By paragraph 5 of that order, the learned judge dismissed the defendant mother's application to revoke or de-register the registration of the Belgian order. So her application stood dismissed.

10

The matter came back to court because difficulties ensued. The hoped for settlement of difficulties which undoubtedly must have been in the mind of Sir Gervase Sheldon did not transpire. The court welfare officer reported in very trenchant terms that this was a very anxious and worried little girl. He reported that she did not wish, and was quite determined not, to have any contact with her father so far as she could help. The welfare officer regarded that as being quite genuine. As Ward J stated in his judgment at page 9:

"'Helena has a genuine fear of father currently and that his presence results in a great deal of anxiety for her. I believe she would suffer damaging trauma if required to undertake staying access against her will."

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He thought that an attempt to enforce staying access could well further damage the girl's already poor relationship with her father. A later report endorsed all those matters and made it clear that the position had become more difficult.

12

The father's application to enforce the order of the Belgium court eventually came before Ward J. When the matter came before him he had the benefit of seeing the reports of the court welfare officer. Counsel for the mother drew the judge's attention to the provisions of Article 10 of the European Convention. The judge cited the relevant provisions at page 13 of judgment just below E:

"'(Recognition and enforcement may also be refused) on any of the following grounds:

(a) If it was found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the state addressed.

(b) If it is found that by reason of a change in the circumstances, including the passage of time, but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly,"

13

and I stress "manifestly":

...

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