JurisdictionEngland & Wales
CourtFamily Division
JudgeNicholas Mostyn QC
Judgment Date29 September 2006
Neutral Citation[2005] EWHC 2860 (Fam),[2006] EWHC 2385 (Fam)
Date29 September 2006
Docket NumberFD04P00675

[2006] EWHC 2385 (Fam)



Royal Courts of Justice


Mr. Nicholas Mostyn QC

(Sitting as a Deputy Judge of the High Court)

(In Private)


(1) MCL
(2) CL
(3) MML
ML and AL (by Their Guardian)


Michael Nicholls QC and Rebecca Carew Pole (Sears Tooth) for the father

The mother did not appear and was not represented

Teertha Gupta (CAFCASS Legal) for the Guardian

JUDGMENT (finalised and anonymised)

Hearing: 27 – 29 September 2006

I direct that this written judgment signed by me may be treated as authentic and that no official transcript need be taken. In any report this case should be referred to as Re ML and AL (Children)and the parties and the children must be fully anonymised.


This is an important case about the operation of Brussels IIr 1 in relation to the enforcement in Austria of a contact order validly made by this court. Its outcome will demonstrate whether the high principles of the Regulation devised by the Commission are to be conscientiously and faithfully applied by the member states, or whether, if I might quote St Paul, its words merely speak into the empty air.


The background is fully set out in my three previous judgments in this case viz the judgment in relation to the division of matrimonial property and maintenance dated 9 December 2005 (reported as TL v ML [2006] 1 FLR 1263); the judgment of the same date [2005] EWHC 3157 (Fam) where I made an interim order for supervised contact (the supervisor being the father's mother); and the judgment dated 20 July 2006 [2006] EWHC 1969 (Fam) where I directed that the children were to be separately represented by a guardian ad litem supplied by Cafcass Legal; suspended the provisions of the order of 9 December 2005; and substituted a single period of supervised contact to commence on 20 September 2006 at an early stage of which the children were to be interviewed and assessed by their guardian and a child psychiatrist. If the view was taken that the children's best interests were being adversely affected by the contact then it was provided that an immediate application was to be made to this court for consideration of cessation of the contact.


These judgments state the context in which the orders were made and I do not propose to repeat their contents here. The critical historical event is that on 28 July 2005 the mother had been given leave permanently to relocate the children to Austria. The order of Wilson J giving her permission was made by consent and recorded (a) an express agreement under Article 12 of Brussels IIr vesting

this court with jurisdiction to determine to finality the father's extant contact application, and (b) and undertaking by the mother to return the children to this jurisdiction if called upon to do so. That agreement is manifestly a full and effective prorogation of jurisdiction over the substance of the matter in favour of this court, provided that I am satisfied that it is in the “superior interests” of the children, which I unequivocally am. It overrides the normal rule expressed in Article 9 which is that absent a prorogation agreement this court would lose jurisdiction three months after the change of habitual residence.


The body of the order of Wilson J contained provisions for limited supervised interim contact and directions for the final determination of the father's application for contact. It was made in the context of extreme difficulty having been encountered by the father in achieving anything beyond the most limited supervised contact from the very moment of the separation of the parents in April 2004. Before Wilson J's order there had been four previous orders dealing with interim contact.


Shortly after the order of Wilson J was made the mother moved in August 2005 with the children to Austria and, at the very least as a matter of fact, the habitual residence of the children changed to that state.


I should say at this point that Mr Nicholls, QC who appears with Mrs Carew Pole for the father mounts an interesting legal argument to the effect that the children's habitual residence as a matter of law never altered from England and Wales as the consent order of Wilson J was procured by the mother's fraud. I shall refer to this argument as “the fraud argument”. The fraud, says Mr Nicholls, was that the mother falsely represented that she would promote and foster contact when, as subsequent events have shown, her true motive was to thwart contact at every turn with the ultimate objective of severing totally the relationship between the father and the children. Mr Nicholls relies on the ancient doctrine that fraud unravels everything and on the case of Re B (a Minor) (Abduction) [1994] 2 FLR 249 at 261. Mr Nicholls therefore seeks declarations (a) that at all times since August 2005 the children have been habitually resident in England and Wales and (b) pursuant to s 8 Child Abduction and Custody Act 1985 that the children were wrongfully removed from England and Wales. The reason that Mr Nicholls seeks this relief is that he (or rather his client) then intends to invoke the machinery of the 1980 Hague Convention on Child Abduction and to have the Central Authority in Austria procure a summary judicial return of the children to this jurisdiction pursuant to the Convention. He is frank enough to say that he adopts this strategy as he has no faith, given what he would regard as a recent act of judicial sabotage in Austria (which I will describe below), that any order that I now make for contact would be recognised and effectively enforced by the Austrian Courts under Chapter III of Brussels IIr.


The position of Mr Gupta, who appears for the children, is pragmatic. He says that there should be a final attempt to persuade the Austrian Courts to recognise and enforce the fresh order for contact that he proposes I should make. He suggests that Mr Nicholls' fraud argument should be stood over and listed to be heard at a later date. He says that two hearings should be listed, the first immediately after the period of contact that he suggests I should order. At that hearing the question of the mother's compliance or otherwise with the order for contact can be judged. She would know that were she to continue to defy the order then there would be a further hearing at which the fraud argument would be ventilated. It would therefore hang as a Sword of Damocles and may have the effect of encouraging the mother to comply with her lawful obligations.


Although I can see some merit in this suggestion I think it would be appropriate only if I was satisfied that Mr Nicholls' fraud point was at least arguable. I am not so satisfied. Moreover, I do not think that invoking the Hague machinery would put Mr Nicholls in any better position than he is under Brussels IIr.


I reject Mr Nicholls' fraud argument for the following reasons.


The order for leave to remove of 28 July 2005 was made in the context of an extremely fraught contact dispute between the parents. The mother's position had been from the date of separation that the father, on account of his personal vices, should be confined to supervised contact. That stance had received at least provisional recognition by the court since the only contact ordered had been of a supervised nature. Those orders had been, so far as I can tell, more or less complied with.


At the time of the order of 28 July 2005 the mother's mental stance was plainly hostile to anything other than limited supervised contact. The father recognised this and consented to a further programme of such contact pending a one day appointment on 9 December 2005 of the hearing of his application for unsupervised contact. That further programme of supervised contact was, so far as I can tell, largely complied with.


I do not think it is possible to spell out from the mother's stance on 28 July 2005 that she “never had any intention of abiding by the contact order made in contemplation of the children's move to Austria in July 2005” (Paragraph 1.15 of Mr Nicholls' case summary). Indeed as Paragraph 2.3 of the case summary states “At that stage, the future pattern of contact, including whether and for how long it should continue to be supervised, was still a live issue between the parents”.


On the contrary, I think that mother did intend to comply with the order for limited supervised contact and hoped that it would be perpetuated at the final hearing on 9 December 2005.


One day was manifestly insufficient to deal with the contact dispute on 9 December 2005. It went part heard. I made an interim contact order and would refer to my reasons expressed in the judgment of that date. Although I could discern no good reason for supervision I acceded to its continuance as the case was not finally decided. However I appointed the father's mother as supervisor. I found her to be sound, responsible and reliable, fulfilling all the necessary qualifications needed by a supervisor. An added benefit would be that she and her husband as grandparents would have contact to the children and their Greek heritage would be promoted.


The mother regarded this order as in effect removing the requirement of supervision. In her eyes supervision by the father's mother was no supervision at all. She therefore immediately moved to a position of defiance of my order. I described her various acts of defiance, non-compliance and strategic manoeuvring in my judgment of 20 July 2005. It is a sad fact that the effect of my order of 9 December 2005 has been to diminish the father's relationship with the children rather than to build it up to the level that I have determined is so vitally in the children's interests. I have had cause to wonder whether on 9 December 2005, given the mother's implacably hostile stance to normal contact,...

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