Re N (A Minor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 12 March 2014 |
| Neutral Citation | [2014] EWHC 749 (Fam) |
| Docket Number | No. FD13P02331 |
| Court | Family Division |
| Date | 12 March 2014 |
[2014] EWHC 749 (Fam)
Mr Justice Holman
(sitting throughout in public)
No. FD13P02331
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Ms. C. Renton appeared on behalf of the Applicant Father.
Miss J. Renton appeared on behalf of the Respondent Mother.
This case concerns the recognition and enforcement under the EU Council Regulation known as Brussels II or Brussels II Revised of a judgment of a court in Spain relating to parental responsibility. In the case of Re L, to which I will refer below, Thorpe LJ said at paragraph 85: "At first sight, this appears to be a complex appeal but in reality there are but two points." The present case was also described by counsel as "complex". Their respective skeleton arguments each extended to over 25 pages and ranged far and wide, and about 20 authorities were collectively assembled. In my view, however, the case is a short and straightforward one.
The case concerns the impact and effect of a regulation of the European Union, emanating from Brussels. It is therefore of obvious public interest since the reach and impact domestically of European law is a matter of continuing public debate and interest. I therefore decided, without any opposition or resistance on behalf of either parent, that I would sit throughout robed and in public, and I have done so. I have directed, pursuant to section 39 of the Children and Young Persons Act 1933, that no report of these proceedings shall name or identify the child concerned or his whereabouts, nor his family, and no picture shall be published of him or them.
THE ESSENTIAL FACTS
The essential facts may be relatively shortly summarised. The father is aged 35. He was born in Morocco and is a citizen of Morocco and no other state. (He himself is not, therefore, a citizen of the European Union). However, he has lived for many years in Spain. He lives in a small village in southern Spain where he is a labourer or handyman, and is of very modest means.
The mother is aged 34 and is British. She already had one son, J, who was born in 2006 and will soon be eight. J's father is British and lives in England.
These parents met in Spain in 2007 and soon began to live together. The mother's own parents, although British, also live in the same village as the father in southern Spain. The mother and father have one son, N, who was born in Spain in April 2008 and is now almost six. The father is named on his birth certificate. N is a British citizen, for I have seen his British passport. There was some question raised at the hearing (irrelevant to the outcome of this case) as to whether he is or may be entitled also to Spanish and/or Moroccan citizenship.
During the summer of 2009 the parents separated. There is some dispute as to how, immediately after that, N divided his time between his father and his mother, who was then staying with her parents in the same village. In March 2010 the mother travelled to England to attend a rehabilitation clinic. J came with her, but not N. After leaving the clinic, the mother did not return to live in Spain. She began living in a town in southern England with a man by whom she now has a third child, a daughter, L, who was born in March 2011 and is now aged just three. The mother no longer lives with the father of L. She now, therefore, has three children, aged eight, almost six and just three. They have the same mother but three different fathers and are genetically half siblings to each other. N's father is a Moroccan, living in Spain. The fathers of J and L are Englishmen living in England.
Throughout the period March 2010 to May 2012 N remained resident in the village in Spain, although he was brought by his grandparents on a visit to see his mother in England for a few weeks in the summer of 2010. There is some dispute as to how much in the period March 2010 to May 2012 he was actually living with his father or actually living with his grandparents in the same village. Their homes are very close to each other and it seems clear that his father was very involved in his care and upbringing and he saw his father a great deal.
During 2011 there were custody proceedings before a local court of first instance in Spain. On 10 October 2011, after a contested hearing, that court granted custody to the mother with permission for him to live in England with her; joint parental authority to be shared between both parents; and regular staying contact to the father in Spain during the school holidays.
Although the judgment of the court of first instance has not been translated into English, the reasons for that decision are summarised in the later judgment of the Spanish appeal court, to which I refer below. The reasons are recorded as follows (bundle C100):
"The lower court judge considered that both parents are perfectly capable of assuming the care and custody of the minor, both of them having a relationship of affection towards him and a wish to be involved in his education and development, both parents having overcome the drug addiction problems suffered by both of them in the past. However, he [viz the lower court judge] felt that the child would be better looked after with his mother in view of his age (he was born in April 2008) and in view of the fact that, since the mother has two other children, he would be living with his siblings, while the father, who is of Moroccan origin, is alone in Spain."
The father promptly appealed from that decision to the relevant provincial court (which I will call the appeal court). As he was appealing the order of the court of first instance, the father did not permit N to travel to England to start living with his mother here. So pending the hearing of the appeal the mother applied to the court of first instance for "provisional enforcement" of its order. The father strongly resisted that, and it is clear from that court's later judgment dated 23 April 2012 that the basis of the opposition was that if, pending the hearing of the appeal, the child was allowed to travel to live or stay with his mother in England, it would be "impossible or extremely difficult to restore the situation" in the event of the appeal being successful.
With hindsight, it can be seen that the father and his lawyer were very accurate and prescient in making that prediction and argument. However, it was rejected by the judge of first instance on 23 April 2012. He said in his judgment (now at bundle C149 to 150):
"… objectively considered, the new situation generated by compliance with what is foreseen is not irreversible, given that we find ourselves faced with a mere change in the custody of the child, and so, therefore, in the event of revocation of the original ruling, nothing would impede the child from once again returning to paternal guardianship; even the circumstance of the mother being currently resident in Great Britain is no reason to prevent that, as there is no obstacle to the child making the return journey to Spain.
It is true that the father, opposition applicant, expressed his fear that [the mother] would not comply with the order of the provincial court if, upon the original order being revoked, they established a regime of paternal guardianship, with the added difficulty that would be involved in enforcing that decision with the child out of the country; yet it must be warned that such circumstances cannot impede the stipulations of the order that interests us, since it revolves around a mere hypothesis based on the presumption of guilty behaviour on the part of [the mother], taking for granted the fact that she will disobey the stipulations of a judicial order. Obviously, one cannot deny the person who has received a favourable judgment from seeing it enforced by using the argument that, if said judgment is not confirmed by a higher court, they will disobey the orders of the latter; especially when there is no precedent that permits us to presume behaviour of such kind plus a public commitment on the part of [the mother] to comply with whatever the provincial court may order, such as the one expressed during the hearing when she was questioned in that respect, and, above all of course, notwithstanding the responsibilities of all kinds which she could incur in the case of non-compliance."
It is crystal clear from that passage that the judge of first instance ordered "provisional enforcement" and permitted the child to come to England because in his judgment there was no basis for believing or presuming that the mother would not obey the order of the appeal court if it later ordered, as it did, that the child should live, not with the mother but with the father in Spain. There were two reasons for that. First, "there is no precedent [i.e. previous behaviour by the mother] that permits us to presume behaviour of that kind". It was "a mere hypothesis". Second, there was "a public commitment" by the mother to comply with whatever the appeal court may order. The mother indeed accepts that during the hearing on 23 April 2012, while being questioned by the public prosecutor and also by the judge himself, she did clearly and expressly personally say that if the appeal was later allowed she would comply with the order of the appeal court.
Although the term "undertaking" may be peculiarly English and does not feature in the translation of the Spanish judgment (where the phrase "public commitment" is used), both counsel before me treated what the mother had said directly to the Spanish court as being the equivalent of an undertaking or promise to that court.
Further, the above passage refers to ...
To continue reading
Request your trial
-
G v K
...of the delay in the appellate process in France reaching its conclusion, Mr Setright and Ms Spruce rely on the decision of Holman J in Re N (A Minor) [2014] EWHC 749 (Fam) as authority for the proposition that delay caused by an appeal process will not establish the high threshold set by A......
-
Re- A (A Child) (Enforcement of a Foreign Order)
...of how to enforce the October 2020 Order as a “separate and discrete matter”: per Holman J in Re N (Abduction: Brussels II Revised) [2015] 1 FLR 227, at [52]. He submitted that recognition does not necessarily result in the simple enforcement of the order but requires the court to determine......
-
M v B
...ET v TZ (Recognition and Enforcement of Foreign Residence Order) [2014] 2 FLR 373 (Wood J); and Re N (Abduction: Brussels II Revised) [2015] 1 FLR 227 (Holman J). 37 Mr Hosford-Tanner incorporates extracts from those authorities at paragraphs 42 to 52 of his Skeleton Argument of 8 th June 2......