S (A Child) (Foreign Contact Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall |
| Judgment Date | 16 June 2009 |
| Neutral Citation | [2009] EWCA Civ 993 |
| Date | 16 June 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2009/0719; B4/2009/0719(A) |
[2009] EWCA Civ 993
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY, FAMILY DIVISION
(MRS JUSTICE MACUR)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe and
Lord Justice Wall
Case No: B4/2009/0719; B4/2009/0719(A)
Mr C Howard QC and Ms T Gupta (instructed by Messrs Dawson Cornwell) appeared on behalf of the Appellant mother.
Mr M Nicholls QC and Ms I Ramsahoye (instructed by Messrs Kingsley Napley) appeared on behalf of the Respondent father.
This appeal arises out of proceedings before the Court of First Instance in Milan which resulted in an order, the summary of which I take from the skeleton argument of Mr Michael Nicholls QC who is counsel for the respondent to the appeal. The Court of First Instance directed that the custody of Angelica, the only child of the parties, be assigned to the Municipality of Milan. The order required the mother to return Angelica immediately to Italy to enable Angelica to be placed in foster care. Alternatively the order provided that the Municipality should arrange for Angelica to be placed with her mother, subject to her election, in a protected environment, to arrange a therapeutic programme and to organise meetings between Angelica and the father.
That sad order has of course a family background. The parties met and married. Angelica was conceived as a result of assisted reproductive techniques. The relationship between her parents broke down even before her birth. Angelica has always been in her mother's care. Her mother has become convinced that Angelica has been interfered with sexually by her father. She has not complied with arrangements for contact between Angelica and her father. Accordingly orders for contact have been made within the Italian proceedings, it being common ground that the Italian jurisdiction has priority despite the fact that mother and child are habitually resident in this jurisdiction. So the Italian order must be seen in that context. No doubt the objective of the Italian judge was to achieve a relationship between daughter and father no matter what draconian provisions were necessary to achieve that result.
The order was in fact made on 26 January 2009 by the Tribunale Ordinario in Milan. That being an order capable of immediate registration and enforcement under the provisions of the regulation of Brussels II bis, it is perhaps almost inevitable that the father applied in this jurisdiction for permission to register the order. The effect of registration would be to achieve enforcement without exequatur, as though it were an order made by a domestic court within this jurisdiction. That application came before Macur J, who on 24 February granted permission for registration pursuant to article 28(2) of the Regulations. By paragraph four of her order, she provided that the mother might seek to appeal, had one month in which so to do and granted a stay until the expiration of the time for filing of mother's notice of appeal.
It seems that as further opportunity for the mother to exercise her appellate right the judge ordered that there be a further listing before a judge of the High Court on 17 March with a time estimate of only half an hour. I believe that that provision resulted in a listing before Hedley J, but I will not lengthen this judgment by reference to any order in the Family Division other than that of Charles J of 18 May. By that stage the mother had issued her notice of appeal, not within the Family Division but to this court, and accordingly Charles J surveyed a scene in which the mother was seeking her appellate process in this court and not in the court below. So he made a wise order which was essentially to leave both appellate routes open. He said by paragraph one that the mother's Appellant's Notice should be treated as if filed today within the Principal Registry of the Family Division. He made a number of other sensible directions and orders, culminating in an order that the mother's appeal should be listed before a judge of the Division before the end of the Trinity Term, and we have been informed by counsel that it is in the list for 29 July.
The uncertainty as to process grew out of an e-mail that junior counsel then appearing for the mother sent to the senior district judge's clerk in the Principal Registry. Counsel said that he was enclosing the order of Macur J and the subsequent notice of registration. He continued:
“I would like to know:
1. the name of the appropriate form to complete in respect of the appeal (including a copy of the form if possible)
2. whether the appeal is in respect of paragraph 1 of the High Court Order or the notice of registration
3. to which judge the appeal lies
4. what supporting documents would be needed.”
We do not have a copy of the response from the senior district judge's clerk but we do know its content from an e-mail that the senior district judge sent to my legal secretary. He ruled:
“If the defendant wishes to appeal against the order of the High Court judge in relation to registration, the appeal would be from the order giving permission to register; the notice of registration is not itself an order.”
So far so good. He continued:
“An appeal lies to the Court of Appeal and is made by filing an appellant's notice. Permission to appeal is required.
The procedure and documentation is governed by CPR Part 52.”
The direction there is partially correct, it seems to me. No doubt there is no requirement for permission. The right of appeal is contained plainly within the Regulation. But the direction that the appeal should be to this court was not accepted by the mother's solicitor and accordingly by letter of 1 April, a few days after the exchange with the senior district judge's clerk to which I have referred, there came a letter. The letter drew attention to the information relating to courts pursuant to article 68 of the Regulation and the decision of Black J in the reported case of Re: D [2008] 1 FLR 51 I will read into this judgment the relevant articles of the Regulation but suffice it to say that the lists that are appended to article 68 specify which court of individual member states is to take proceedings under articles 21, 29, 33 and 34 of the Regulation. To those lists I will refer in greater detail in due course.
The decision of Black J contains one paragraph which is relevant to the issues we decide this morning. It is paragraph 38 and is as follows:
“Finally on the issue of procedure, I enquired during the hearing why it was thought that I had jurisdiction to entertain an appeal from the decision of another High Court judge. Nobody had been able to find the answer as to the proper appeal route. I presume that an appeal to a High Court judge had been chosen by analogy with the procedure where a litigant seeks to overturn a without notice order and therefore applies, on notice, to the court which made that order. However, the Regulation and the FPR 1991 talk in terms of an 'appeal' and I am not convinced that this analogy is appropriate. Article 68 of the Regulation provides that member states are to notify the Commission of the lists of courts responsible for certain procedures under the Regulation and art 33 provides that an appeal against a decision on an application for a declaration of enforceability must be lodged with the court appearing on the list. Counsel had not been able to obtain information about the courts listed by the UK. I have proceeded to deal with the appeal de bene esse, therefore. It has subsequently been confirmed that I was right to do so and the appeal was properly directed to the High Court.”
My legal secretary had referred to me the exchanges between junior counsel and the senior registrar's clerk and I had decided to support the line taken by the senior district judge. But of course the submission of the lists and of the decision in Re: D by the mother's solicitor required a reconsideration of the provisional view that we had taken. Accordingly I copied the letter and its enclosures to the senior district judge and asked him to clarify with Black J what was the subsequent confirmation that she had received that indicated that the appeal was to her court. Unfortunately the senior district judge has not been able in the interim to discuss with Black J what she relied upon, and it falls to us to decide authoritatively what are the proper procedural steps to take where there is an application for permission to register, where there is a first appeal against registration and perhaps where there is a second appeal against registration.
We have received skeleton arguments from both Mr Charles Howard QC and from Mr Michael Nicholls QC. The issue is succinctly summarised by Mr Nicholls at the outset of his skeleton argument. He summarised the effect of Mr Howard's skeleton thus:
“(a) The Court of Appeal can decide the mother's appeal;
“(b) The mother's appeal ought to be allowed and the matter remitted for hearing before a judge of the division; and
“(c) The mother does not require permission to appeal.”
Mr Nicholls then summarised the father's position thus:
“(a) An appeal under article 33 against registration of such a judgment for the purposes of the enforcement under article 28 must be directed to the Family Division of the High Court;
“(b) No permission to appeal is required;
“(c) However if there is a further appeal under article 34 to the Court of Appeal permission to appeal might be required; and
“(d) No further appeal is permissible beyond that provided for under article 34. For example there is no...
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