Re L (A Child) (Recognition of Foreign Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Munby,Sir Stephen Sedley,Lord Justice Thorpe |
| Judgment Date | 21 August 2012 |
| Neutral Citation | [2012] EWCA Civ 1157 |
| Docket Number | Case No: B4/2012/1109 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 August 2012 |
[2012] EWCA Civ 1157
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MRS JUSTICE MACUR
[20I2] EWHC 938 (Fam)
Royal Courts of Justice
Strand. London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Munby
and
Sir Stephen Sedley
Case No: B4/2012/1109
Richard Harrison QC and Edward Devereux (instructed by Dawson Cornwell) [none of whom acted for him below] for the appellant father
Marcus Scott-Manderson QC and Cliona Papazian (instructed by Johnson and Gaunt) for the respondent mother
Hearing date: 7 August 2012
This is an appeal from a decision of Macur J in the Family Division on 24 April 2012: Re LSdC [2012] EWHC 983 (Fam). It raises important questions in relation to Council Regulation (EC) No 2201/2003, commonly referred to as Brussels II revised ("BIIR"), 1 which have not previously been considered by the Court of Appeal.
The facts in outline
We are concerned with a little boy, L, who was bom in this country on [a date in] 2011. His mother was born in this country, his father in Portugal. They met and formed a relationship - they have never married - when the father was working in Oxfordshire.
In June 2011, at a time when the relationship had already come under considerable strain, they all three moved to Portugal, where they lived with the father's parents. The mother attempted to leave Portugal clandestinely with L on 14 November 2011 but this was prevented following police intervention.
On 23 November 2011 there was a meeting at the Aveiro offices of the Portuguese Commission for the Protection of Children and Juveniles (CPCJ) attended by the father, the mother, and their respective fathers. An agreement was arrived at between the father and the mother, subsequently ratified (homologated) by Assistant Scrivener Costa in the Aveiro Family and Minors Court on 7 December 2011.
The agreement was described (I quote from the translation; the original is in Portuguese) as an "Agreement on the Exercise of Parental Responsibilities." The agreement is a short document of nine clauses occupying only two pages. Clauses A and B provide that the parents will "jointly exercise the parental responsibilities relating to issues of particular importance for the life of [L]", except in cases of "clear emergency" where either parent can act alone, and that the "exercise of parental responsibilities on the day to day basis relating to current facts in the life of the Minor is to be met by the parent with whom he is". Clauses C, D and E provide for what Macur J correctly described (para [5]) as arrangements for exactly equal shared care on a rotating two-monthly basis in England and Portugal to endure until L's third birthday. L was to stay with his mother in England in December 2011 and January 2012 and then with his father in Portugal in February and March 2012. Clause F provides that "during the two months that each parent has the minor the other parent as well as the maternal or paternal grandparents will be able to visit the minor whenever they wish". I need not refer to clauses G and H. Clause I provides that the agreement is to be in force until L is three years old "by which time both [parents] will proceed with the alterations that from then on will be better in harmony with the interests and needs of the minor."
I must return to this point in due course but for the moment observe that, to adopt English legal terminology, clauses A and B relate to parental responsibility, clauses C, D and E provide for residence, and clause F provides for contact.
The Portuguese judge (again I quote from the translation), "having verified the necessary legal requirements and analysed the interests of the minor and with the favourable opinion of the Public Ministry", decided to "homologate" the agreement and "order[ed] the parents to abide by its terms." But he added this caveat:
"However, I stress to the parents that it is convenient for the child to establish residence with one of the parents as once the child gets older especially from three years old onwards there will be the issue of frequency of pre-school and then school materials which will not fit with the "comings and goings" of the child between the homes of the mother and the father."
The Portuguese court issued certificates in accordance with BIIR: first, on 1 March 2012, a certificate in the form of Annex III, and subsequently, on 27 March 2012, a certificate in the form of Ann ex II (see below).
On 18 December 2012 the mother and L came to this country. It is common ground that this was lawful and in accordance with the agreement. Thereafter the father at least treated the appropriate 'hand over' date as being the 18 th rather than the 1 st of the relevant month.
On 7 February 2012 the mother applied without notice to the Oxford County Court seeking a prohibited steps order and a residence order under the Children Act 1989. The District Judge granted interim relief the same day, including a prohibited steps order to remain in force until the next hearing preventing the father from removing L from the jurisdiction of England and Wales. On 22 February 2012 His Honour Judge Corrie transferred the proceedings to the High Court. His order recited that the father contested the jurisdiction of the English court. Each parent having undertaken not to remove L from the jurisdiction of England and Wales until further order, Judge Corrie discharged the prohibited steps order. On 2 March 2012 the father applied to enforce the Portuguese decision in accordance with BIER Article 41, relying on the Annex III certificate. He sought a stay of the English proceedings. It is to be noted that although in his application the father described the Portuguese order as relating to "rights of access", and said that what he was seeking was what he called "contact", his application made clear that the basis of his claim was the mother's refusal to comply with clause C of the agreement in relation to February and March 2012. On 6 March 2012 Baron J gave directions, the father maintaining his objection to jurisdiction and the undertakings previously given being continued.
The proceedings were heard by Macur J on 26–27 March 2012. During the course of the hearing the father applied also to enforce the Portuguese decision in accordance with BIIR Article 21, relying for this purpose on the Annexe II certificate. On 24 April 2012 Macur J gave a reserved judgment. She dismissed the father's applications. She held that the English court had jurisdiction. Being satisfied, as she said (para [48]), that it was prima facie in the best interests of L to conduct proceedings here, she stayed the Portuguese proceedings pursuant to BIIR article 20 and, with effect from the conclusion of any appeal against her order, lifted the stay of the English proceedings. She re-imposed the prohibited steps order, this time directed to both parents. Her order included provision for interim contact between the father and L in this country pending determination of any appeal or further order. In the event, we were told, the last contact occurred on 2 July 2012, after which the father returned to Portugal.
Macur J refused the father permission to appeal. He renewed his application to this court and on 2 July 2012 my Lord, Thorpe LJ, adjourned the application into court on notice with appeal to follow. In accordance with that direction the application came on for hearing before us on 7 August 2012. In the meantime, on 23 July 2012 the mother had filed a respondent's notice.
BIIR
Before turning to explain the basis of Macur J's judgment and the father's grounds of appeal it is convenient to set out the relevant provisions of BIIR.
I start by drawing attention to some of the Recitals to BIIR:
"(1) The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. To this end, the Community is to adopt, among others, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market.
(2) The Tampere European Council endorsed the principle of mutual recognition of judicial decisions as the cornerstone for the creation of a genuine judicial area, and identified visiting rights as a priority.
…
(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility.
(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court.
…
(21) 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.
(22) Authentic instruments and agreements between parties that are enforceable in one Member State should be treated as equivalent to "judgments" for the purpose of the application of the rules on recognition and enforcement.
(23) The Tampere European Council...
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