Re S (Brussels II: Recognition: Best Interests of Child (No 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman,Holman |
| Judgment Date | 08 December 2003 |
| Neutral Citation | [2003] EWHC 2974 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FDO2PO 1248 |
| Date | 08 December 2003 |
[2003] EWHC 2974 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
The Honourable Mr Justice Holman
Case No: FDO2PO 1248
Henry Setright QC (instructed by Reynolds Porter Chamberlain)for the father
Mark Everall QC and M Scott-Manderson (instructed by Dawson Cornwell) for the mother
Hearing date: 26 November 2003
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 8 December 2003. It consists of 8 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
This has been the restored hearing following my judgment of 3 September 2003 and as provided for in paragraph 3 of the order of that date. Both parents have attended as I required, but I regret that despite several hours spent in negotiation outside the courtroom they cannot agree on the way forward and I am required to rule.
These continue to be proceedings for the recognition, registration and enforcement pursuant to the provisions of Brussels II of the order of the Antwerp court of first instance dated 12 July 2002. For the purposes of the present judgment it is necessary to quote in full the material part which provides that:
"M'S residence shall be arranged by mutual agreement between the parties and that, failing such mutual agreement, the following residence shall be arranged:
M shall stay with petitioner [viz the father]:
noon;
during Christmas and Easter holidays: always the first week from Sunday noon until Sunday noon, always at 12 o'clock at noon;
during summer holidays: from 15 July up to and including 31 July and from 15 August up to and including 31 August, always from and until 12 o'clock at noon;
during Autumn and Spring (half-term) holidays (early February): from Sunday noon until the next Sunday noon, always at 12 o'clock at noon;
one extended weekend in May, ie in the week of Ascension Day, until Sunday noon, always at 12 o'clock at noon;
M shall stay with the defendant [viz the mother] all other days.
Decide that Petitioner shall come and pick up the child and bring him back on the days and at the times specified above.
So far, since he came to England, M has never stayed overnight with his father at all; has never been with his father on his own, but always accompanied also by his mother; and has not had contact outside England. As I understand it, visiting contact has taken place roughly once every two months although there have been longer gaps. In essence, the father seeks a relatively rapid progression to staying contact in Belgium, substantially in accordance with the Belgian order. He proposes a few weekend overnight stays, first in England then in Belgium, leading to one week's staying contact pursuant to the Belgian order during the "Spring (half-term) holidays (early February)" or, at the latest, by the Easter holidays. The mother, on the other hand, feels that there must be a much longer period of "phasing in", first in England, then in Belgium with, possibly, one week's staying contact during the summer holidays 2004. She said in her brief oral evidence that she feels that a gradual build up would be more beneficial to M (who will be three next month). She feels the whole experience of going to Belgium straightaway could be overwhelming for M. She feels it is very rushed to complete a programme of phasing in by the end of January with a view to staying contact during February. She feels it could be very unsettling for him and she does not want him to lose his stability and relationship with herself.
Apart from the issues as to the timing and pace of "phasing in" the Belgian order, the mother continues specifically to fear that if M goes to Belgium the father might not return him. Having heard brief oral evidence from both parents, I fully accept that the fear of the mother is a sincere and genuine one, and I understand why she has that fear. But I consider that the objective risk of non-return is a very low one. The Belgian order itself is quite clear, and clearly requires the father to bring the child back to the mother in England at the end of the specified contact periods. The father seeks to enforce the Belgian order but I do not think he would break it. He has offered various undertakings today that will be incorporated in my order today and must be personally signed by him. Belgium is a reciprocating party to the Hague Convention on the civil aspects of international child abduction and I am confident that if (which I do not expect) the father were wrongfully to retain M in Belgium, the courts of Belgium would swiftly order and cause his return to England which is manifestly his state of habitual residence. Finally, the father currently lives with and is obviously close to his parents (who have attended this hearing) and it strikes me as highly unlikely that this whole family would wish to become fugitives from justice.
Before ruling on the issues as to the pace of contact, I must determine and describe the legal framework and test, for this is a case to which Brussels II applies and that Regulation is the law which I am bound to apply.
Chapter III of the Regulation is headed "Recognition and enforcement". It is divided into sections. Section 1 is headed "Recognition" and Section 2 "Enforcement" and, as I said in paragraph 36 of my first judgment, it is plain from that structure that the regulation draws a clear distinction between the two. It is important to note, however, that section 1, Recognition, applies to judgments generally. As defined by Article 13(1), judgment "means a divorce, legal separation or marriage annulment…. as well as a judgment relating to the parental responsibility of the spouses given on the occasion of such matrimonial proceedings. Section 2, Enforcement, however, applies only to "a judgment on the exercise of parental responsibility (see the opening words of Article 21(1) which effectively define the scope of the whole of section 2). The reason for this is made clear by paragraph 80 of the Explanatory Report dated 28 May 1998 (98/C221/04) by Dr Alegria Borras on the Convention which preceded Brussels II. [The content of Brussels II is "substantially taken over from" but is not in the same terms as the Convention: see paragraph (6) of the preamble to Brussels II.] Dr Borras says of the article of the Convention (Article 20) which corresponds to Article 21 of Brussels II:
"While, for matrimonial matters, recognition procedures are sufficient, in view of the limited scope of the Convention and the fact that recognition includes amendment of civil-status records, rules for enforcement are necessary in relation to the exercise of parental responsibility for a child of both spouses."
So the Regulation, like the Convention, clearly recognises that in matters of change of status, recognition alone is sufficient; whereas in matters of "the exercise of parental responsibility" something more, namely rules for enforcement, is required. Note, too, that whereas elsewhere (eg Articles 3, 13 and...
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