Re A HA v MB (Brussels II revised: article 11(7) application)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SINGER,Mr Justice Singer |
| Judgment Date | 24 August 2007 |
| Neutral Citation | [2007] EWHC 2016 (Fam) |
| Docket Number | Case No: FD06P02074 |
| Court | Family Division |
| Date | 24 August 2007 |
[2007] EWHC 2016 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice Singer
Case No: FD06P02074
To be cited as:
Mr Marcus Scott-Manderson QC and Mr David Williams (instructed by Gillian Radford and Co) for the Applicant Father
Mr Michael Nicholls QC and Miss Marie-Claire Sparrow (instructed by Pritchard Joyce and Hinds) for the Respondent Mother
Miss Kate Branigan QC (instructed by CAFCASS Legal) for the Child A
Hearing dates: 14 and 15 and 28 June 2007
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 24 August 2007. It consists of 143 paragraphs and an Annex 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 child and the adult members of his family must be strictly preserved.
Introduction
The issues for determination in this case arise as a result of articles 10 and 11 of the compendiously entitled ' Council Regulation (EC) No 2201/2003 (Brussels II) of 27th November 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, repealing Regulation (EC) No 1347/2000'. I will refer to this as 'BIIR'. Unlike its repealed predecessor, BIIR applies to all children who fall within its jurisdiction and scope, although no maximum age is prescribed so that this is left to national law.
These issues involve consideration of as yet unplumbed depths (certainly in English jurisprudence and, as far as the admittedly non-comprehensive enquiries of counsel could establish, elsewhere) sounded by those and other articles of BIIR; and of their inter-relationship with the Hague Convention on the Civil Aspects of International Child Abduction 1980 (to which I will refer simply as 'Hague') as interpreted and applied in England and Wales; and their interface with our own domestic law and procedure in relation to questions concerning a child's welfare, primarily founded on the provisions of the Children Act 1989 and of the Family Proceedings Rules 1991 (and their counterpart for use in Family Proceedings Courts).
So far as I am aware the only reported case in this jurisdiction to date on such an application is my judgment in Re A (custody decision after Maltese non-return order), [2006] EWHC 3397 (Fam), (2007) 1 FCR 402.
BIIR took direct effect from 1st March 2005 (with the exception of some articles earlier in force but not relevant for present purposes). By article 72 the Regulation is 'binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.' 'Member States' include all the existing and subsequently acceding countries, with the exception of Denmark which opted out. It is in this slightly restricted sense that I use the term Member States in this judgment.
Before BIIR's entry into force the European Commission Services published the first version of a 'Practice Guide' to assist with interpretation and implementation of the revised Regulation. The Practice Guide makes it plain that it does not have the force of law, which ultimately (and 'ultimately' may be the right word) must be for the European Court of Justice to decide. In June 2005 the European Commission published an updated version of the Practice Guide.
Our domestic procedure has to an extent been modified by Amendment Rules and internal Regulations in an attempt to accommodate the requirements of BIIR but, in my view and that of others, does not as yet provide a complete and coherent code to meet the requirements which the Regulation imposes on Member States. See, for instance, the decision of Black J concerning the provisions in relation to the registration and enforcement in this jurisdiction of foreign judgments which are supposed to be recognised and enforced with little ado: a judgment in the case of D v D [2007] EWHC 822 (Fam), handed down on 20th April 2007 and as yet unreported:
The Family Proceedings Rules 1991 and the Family Proceedings Courts (Children Act 1989) Rules 1991 are in course of comprehensive revision. I should in the interests of transparency make it clear that both Michael Nicholls, leading counsel for the mother in this case, and I are members of the Child Abduction Working Party constituted to operate under the aegis of the Family Procedure Rule Committee which oversees the overall Rule overhaul.
The intended composite Family Procedure Rules are, as I understand it, unlikely to come into force before October 2008 at the earliest. In the interim I shall suggest at the foot of this judgment that some degree of uniform approach should be adopted for applications seeking the return under BIIR of children in relation to whom an article 13 Hague non-return order has been made in a Member State.
Information which I have obtained from the statistical records for recent years maintained by the Central Authority in London indicates that the volume of refused outgoing Hague requests to EU member states for children's article 12 return is as set out in the Annex to this judgment. I am grateful to Mr Wood and Miss Marsh of the International Child Abduction and Access Unit ('ICACU', which now performs the function of Central Authority for England and Wales for both Hague and BIIR purposes in place of the former Child Abduction Unit) for extracting the information, but it must be noted that a small number of these refusals will have been made for reasons outside the scope of article 13 of Hague, whereas it is only non-return orders based on article 13 which trigger an article 11 application under BIIR. So it can be expected that the annual volume of such applications is unlikely to exceed single figures. In my view they should be heard by a High Court judge of the Family Division, and cannot or should not be assimilated with domestic Children Act applications, all this for reasons which I will advocate later.
An outline of the history of the marriage and its breakdown
The child A is a two-year-old boy born in England on 12th May 2005. His father (F) is a Palestinian national born in Gaza and now aged 44. F left Gaza and lived for a time in Greece before coming here on a six-month visitor's visa in 1996. In 2001 he met the mother (M) a French national now aged 27 who was then working and living in London. In June 2001, within a very few months of meeting, they were married at a Register Office. A consequence of the marriage was that F was then granted the right to reside here until August 2008, a permission revocable in certain circumstances. In October 2004 they celebrated a Muslim marriage. F worked nights in casinos but lost his employment in about April 2004 after his employers discovered that he had assumed a false identity, and since then has apparently not worked full-time until recently. M until shortly before A was born in May 2005 continued to work in Slough for Amazon. They maintained separate accommodation until 2002 and then lived together (with some separations) in a succession of flats in the London area.
M's view of their marriage is that it was a very troubled relationship from the beginning, with difficulties caused by F's restrictive, indeed oppressive, attitude and behaviour towards her, aggravated by his tendency to depression. Each party has given a detailed account from their viewpoint in the extensive written evidence, supplemented by their oral testimony. F denies most of M's account, and appears not to recognise that there were already significant difficulties between them before A's birth. The experienced CAFCASS officer Mrs Bennett-Hernandez, in her capacity as A's guardian, formed the view that H continues to harbour what (having heard him and M at some length) I regard as the entirely unrealistic hope that M will return to live with him and that their relationship can be salvaged.
In June 2005 when A was a month old M took him for a two-week break to her parents in France, and again a month later in July 2005. By the time of the second visit the family was about to become homeless in London. They were due to vacate their flat while M was in France. F was not working and was without visible sources of finance, but while M was away he took on a flat at a rental which virtually consumed M's maternity pay.
M became unwell in France and needed hospital treatment so that the earliest date for her return had to be put back until 23rd August 2005. She says that in that period F made extensive and threatening phone calls and in particular that he threatened to take A to Gaza. He denies that.
By the time of her return to England M had become very alarmed about F's behaviour. She decided to end the marriage. She came back to England on 23rd August 2005 and presented him with a prepared document (which he refused to sign) agreeing to a divorce, assigning reasons for it (his abusive behaviour and lack of participation in the household), vesting 'complete care' of A in M, and effecting a financial separation. She proposed fortnightly supervised contact exclusively in France. In fact to date F has been unable to obtain the necessary...
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