Re T and J (Abduction: Recognition of Foreign Judgment)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT |
| Judgment Date | 20 June 2006 |
| Neutral Citation | [2006] EWHC 1472 (Fam) |
| Court | Family Division |
| Date | 20 June 2006 |
| Docket Number | Case No: FD06P00282 |
[2006] EWHC 1472 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The President
Case No: FD06P00282
Michael Hosford-Tanner (instructed by Reynolds Porter Chamberlain) for the Plaintiff
Lorna Meyer (instructed by Messrs Parkinson Wright) for the Defendant
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.
Hearing dates: 25 th & 26 th May 2006
This judgment is being handed down in private on 20 June 2006 It consists of 16 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.
Sir Mark Potter, P:
In these Hague Convention Proceedings, the plaintiff mother applies for the return of her children T, a girl born on 25 August 1998 and now almost eight, and J, a boy born on 31 December 1999 and now aged 6, to the jurisdiction of the Government of Spain pursuant to the Child Abduction and Custody Act 1985.
The parties were married in 1998. The mother is Estonian and the father is British. They met in Estonia and three years later, shortly after the birth of T, married on 5 September 1998 in Kidderminster, England. In late 2000 they moved with T and J to Spain from the Czech Republic where they were then living and became resident in Spain.
In Spain, the father at first worked as a salesman and the mother, who was not employed, was the principal carer for the children. However, quite soon their roles were reversed in that the defendant became unemployed and the plaintiff became busy as a self-employed real estate agent. The marriage became unhappy and the parties decided to separate. At that time the family were living in Malaga, the habitual residence of the children being in Spain.
The mother made arrangements to move with the children to a new apartment around the corner from where they were then living.
On 24 September 2005, whilst the mother was moving furniture to her new apartment, the father offered to take the children to a restaurant and then to a playground to enable the mother to handle the furniture removal. In the absence of mother and without her consent, he flew directly to England that day with the children, a fact of which the mother became aware only when he telephoned her that evening from England so to inform her.
The mother attended the local police station, but the police were unwilling to help because the parties were not divorced.
The mother swiftly consulted Spanish solicitors. She was at the time unaware of the Hague Convention and states that she was not advised of its existence or a possible remedy under its terms. On or about 27 September she commenced proceedings of a quasi-criminal nature in the Spanish court for the return of the two children to Spain and, on 9 November 2005 began matrimonial proceedings asking for orders for separation, custody and return of the children. The quasi-criminal proceedings were the subject of some kind of short preliminary hearing on 6 February 2006, when the father's statement was taken, but the proceedings appear to have hung fire since, and neither party has sought to rely upon them as relevant.
On 15 November 2005, in interim proceedings for "temporary and prior measures" the wife sought an ex-parte order for care and custody of the children, but it was refused on the grounds there were no special reasons for urgency or danger advanced which justified an order without hearing the defendant father and the Public Attorney.
On 17 January 2006 the father requested and was granted a lawyer at public expense.
On 2 February 2006 the father commenced proceedings in the Worcester County Court both for divorce and under Children Act 1989 for a residence order in respect of the children. He made clear in the application papers that the mother's preliminary proceedings were afoot in Spain relating to the temporary custody of the children "until a full divorce hearing is heard", but that no divorce petition had been filed by either party as yet. Those proceedings have been stayed by order of Hedley J on 14 February 2006 when giving preliminary directions for the determination of these proceedings and in resisting the order sought by the mother for the return of the children, the father now undertakes to withdraw those proceedings.
On 6 February 2006 the Spanish court heard the mother's provisional measures application for separation, grant to her of parental authority over the children and their care and custody, removal of the father's parental authority over the children, an order forbidding the children leaving Spain, and confiscation of the father's and children's passports. The father brought a counter application for care and custody of the children with visiting and communication rights to the mother. Each claimed financial provision against the other in respect of the children's care.
A number of witness depositions were received in evidence and oral evidence was taken from the mother, the father (who came from England to attend) and several witnesses.
The written judgment of the court is before me in translation. It is dated 9 February 2006. However it is clear from the court stamp that it was not issued till 16 February 2006 and it was only communicated to the parties on 21 February 2006.
The judgment is careful and fully reasoned. At section 2 of the reasoning it states:
"Our sole purpose here is to decide the provisional measures by which the spouses are to be governed and those relating to the children of the marriage starting from two basic premises: the existence of the problem which arose between the parents out of the de facto separation to which they have not found an answer, in that the parties have been unable to reach an agreement, and the need to impose solutions which will to some degree not be to the parties' liking; and the merely provisional nature of the solutions intended as a precautionary measure while the main proceedings are in progress, in order to regulate the serious and obvious problem which has arisen."
In section 3 of the judgment, reference is made to various provisions of the Spanish Constitution and civil code and the requirement that
"the measures to be taken concerning children must always be dictated by what is for their benefit, not to be confused with the parent's interests…. The aim is always to see that the children are affected as little as possible by the separation, whether this be of a married couple or co-habiting partners."
There is a very full review of the principles applicable and of the facts taken into account.
At p.5 of the judgment in translation, having found and recorded that in mid-September the parties had agreed to separate, but no specific agreements regarding the children had been proved (Finding 4), the court found and recorded at Finding 6:
"On 24 September last year, one week after the separation agreement was put into effect, [the father] took his two children to England, and specifically to Worcestershire, a decision which he took unilaterally and without the consent of his wife, in the belief that the children would be better off there, also to improve his financial situation and to obtain public assistance to improve conditions for himself and his children. He has been living there since then, looking after and attending to the children, and his mother, brother and other members of the family also live there. "
It is recorded at Finding 7 that:
"… [the father] has informed [the mother] of where the children were and never concealed their whereabouts, and has even invited [the mother] through relatives to visit her children in England, although she, for reasons unknown, has not accepted, and since September last year has not had any contact with these children, apart from a few telephone calls, the frequency of which are not mentioned either"
At the end of the findings of fact on p.6 of the judgment it is stated:
"It is clear that both in the [mother's] bill of complaint and in the hearing, both parties have made serious accusations against one another, which, are, respectively, the abduction of the children by the father, and offensive behaviour, a hard and despotic character, disorderly conduct, leaving the home and "addictions". It is also recorded that on 27 September, the wife made a complaint against the husband to Duty Magistrates Court No.3 of this city, for taking the children without her consent and by deceit. For his part, [the father] accuses his wife of neglecting and mistreating the children, on repeated occasions and in different countries, although he admits he did not report these incidents until recently, when he did so to the English courts, and has supplied a copy of the accusation. He did this when he learned of the action and the attentions of the petitioner regarding the children, and explained that until then he was protecting them and was very much in love with his wife."
The court concluded that it was evident that there were no factors or circumstances which would prevent either of the spouses from obtaining care and custody of the children, both being fully capable and having expressed a wish to do so. It was stated:
"The fact that the father took the children to England is not in itself a...
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...arose before Sir Mark Potter, then President of the Family Division, in T & J (children, Re (Abduction: Recognition of Foreign Judgment) [2006] EWHC 1472 but he resolved the issue before him by reference to Council Regulation (EC)No.2201/2003 (BIIr) which is no longer applicable in this jur......