Re M (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Treacy,Lord Justice Simon,and |
| Judgment Date | 29 June 2017 |
| Neutral Citation | [2017] EWCA Civ 891 |
| Docket Number | Case No: B4/2016/2200 |
| Date | 29 June 2017 |
| Court | Court of Appeal (Civil Division) |
[2017] EWCA Civ 891
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE MOYLAN
FD15P00632
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Treacy
and
Lord Justice Simon
Case No: B4/2016/2200
Mr David Williams QC & Mr Hassan Khan (instructed by Dawson Cornwell) for the Appellant
Mr Frank Feehan QC (instructed on a direct access basis) & Miss Andrea Watts (instructed on a Pro Bono basis) for the Respondent
Miss Jennifer Perrins & Mr Mike Hinchliffe (instructed by Cafcass) for the 2 nd Respondent children
Hearing date: 21March 2017
Judgment Approved
This is an appeal from an order made by Mr Justice Moylan (as he then was) on 11 May 2016. The proceedings concerned two girls, one of whom is now aged 12 and the other aged 13. The father is Estonian and lives in Estonia. The mother is British and has lived in England with the children since August 2013. The father obtained an interim contact order from the Estonian court in June 2015 and sought to enforce it in this country. Moylan J declared that the order was an enforceable order but made no order in respect of it because he found that it was incapable of practical enforcement in this country in its current terms. In essence, this was because the order provided for the father to have contact "in the presence of a third party being a competent child welfare authority of the UK" but there was no child welfare authority or child care professional willing to supervise the contact and Moylan J concluded that there was no order he could make to compel this.
Terminology
In the course of this judgment, I will sometimes refer to "contact" and sometimes to "access". There is nothing to differentiate between the two concepts, both of which are to be found in the materials to which I have reference. Similarly, at times I refer to the Estonian court's decision as an "order" and at times as a "judgment". In the domestic context, we would draw a rigid distinction between orders and judgments but in the international context, the distinction is not so clear and it is sometimes necessary to term a "judgment" that which the courts of this country would call an "order".
The background, including the making of the June 2015 interim contact order
The mother and father married in 2002. The mother already had two children from a previous relationship who are now in early adulthood. The family lived together in England until 2008, during which time the two girls to whom the present proceedings relate were born. They then moved to Estonia, where they lived together until August 2013, when the mother secretly brought all four children to England. The father applied under the 1980 Hague Convention for the return of the younger two children to Estonia. In response, the mother relied upon Article 13(b) of the Convention, asserting that she had been the victim of domestic violence perpetrated by the father and that he had sexually assaulted her eldest daughter (the allegations including rape) and had frequently physically assaulted her second child. Roderic Wood J, who heard the Hague application in July 2014, decided that having regard to the protective measures available in Estonia and the undertakings offered by the father, grave risk/intolerability under Article 13(b) was not established. However, he found that the children objected to being returned and declined to order their return.
Meanwhile, in Estonia, on 22 July 2014, the father had submitted an application for custody to the Estonian court. The proceedings involved a number of orders and appeals before, in June 2015, the Estonian County Court granted the interim contact order to which I have already referred and which is at the heart of this appeal. The material part of the order provided (as translated):
"2. The procedure for access of the father … to the children … shall be established as follows, until an adjudication terminating/concluding the proceedings of the civil case… has entered into force:
2.1 The father and the children shall meet once per month for up to four hours in the settlement of the children's place of residence, in the children's habitual living environment in the presence of a third party, the third party being a competent child welfare authority of the Kingdom of Great Britain and Northern Ireland, whereas that third party shall have the right to assign a competent natural person to be present."
The order went on to give practical directions about fixing the time of each month's meeting, to permit additional meetings by agreement between the parents and the third party, and to order the mother not to hinder the father's communication with the children "through any means of communication during the court proceeding" and to provide contact details for the children including telephone numbers, email addresses and Skype user names.
The Estonian County Court's ruling, in which it gave reasons for the order, is available. The court there explained that its decision was guided by the interests of the children and that "In the best interests of [the children] is the securing of a stable living situation and communication with both parents." It is not easy to make complete sense of the translated document but the court appears to acknowledge "the reluctance" of the children "who have not met with [the father] over a year and could be alienated from" him and to conclude that it would endanger the children's interests if they were required to come to Estonia to spend time with the father "since it would be a sudden and radical intervention to the children's current life situation and could create new uncommon situations for them." It then went on to deal with restoring communication between the children and the father through indirect means before turning to direct contact (D45). Given the difficulty posed by attempting to read the ruling in translation, I will set out the whole paragraph although not all of it is material to the present issue:
"During the proceeding it is found that according to the implemented provisional legal protection, the [father] has not had the possibility to restore communication with the children. The court has also given the right to be heard to [the children] before the solving of the application of implementing of the provisional legal protection … however, this solution was not used by the children in association with the parent they are living with. Thus, the court deems necessary to appoint an additional communication regime so a third party would be present, that is a competent guardianship authority in the United Kingdom of Great Britain and Northern Ireland, who has the right to appoint the competent natural person (Family Law Act § sub-paragraph 3)." [ sic]
Counsel for the father have provided us with the Estonian family law provision there referred to, which it seems is §143(3) of the Estonian Family Law Act, which reads:
"A court may restrict the right of access or the enforcement of the earlier decisions made concerning the right of access or terminate the enforcement of earlier decisions made with respect to the exercise of the right of access or with respect to the right of access. A court may order that a parent or another person has access to a child in the presence of a suitable third person. If the third person is a rural municipality or city government or a legal person in private law, the rural municipality or city government or the legal person shall appoint a competent natural person to perform this duty."
After the making of the June 2015 interim contact order (hereafter simply "the interim contact order"), there were further proceedings in Estonia. In February 2016, the father made a separate application to the court for contact, which was dismissed by the Estonian court on the basis that the children were by now habitually resident in England. On 3 May 2016, the Estonian court dismissed an application by the mother for the variation or annulment of the interim contact order, which was specifically stated still to remain in force. As for the father's original custody application, that had not been determined by the time of the hearing before Moylan J, the expectation being that it would be decided later in 2016. When the matter was before us, the position was that directions had been given concerning evidence in November 2016 and it was thought that there would be a final decision some time during 2017. We have not been informed of any developments since then.
I should explain that the Hague abduction proceedings were not the only proceedings that have taken place in England. The father was prosecuted for criminal offences, it seems relating to an alleged sexual assault upon the mother's older daughter. The trial concluded in February 2014 with the jury unable to agree. The CPS decided not to proceed with the planned retrial and dropped all charges against the father in July 2014.
The enforcement proceedings: Brussels IIA
The father's application for enforcement of the interim contact order was made under Council Regulation (EC) No 2201/2003 ("Brussels IIA" or "the Regulation"). Chapter III of the Regulation deals with recognition and enforcement. The Regulation is designed to provide for particularly straightforward enforcement of judgments granting rights of access, such as the interim contact order in this case. The material provisions are contained in Section 4 of Chapter III (comprising Articles 40 – 45), which applies by virtue of Article 40(1)(a).
Article 41 provides, so far as is material:
Article 41
Rights of access
1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State...
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