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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> M & L (Children), Re  EWHC 2535 (Fam) (14 October 2016)
Cite as:  1 FCR 33,  2 FLR 250,  EWHC 2535 (Fam)
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AND IN THE FAMILY COURT
IN THE MATTER OF THE 1996 HAGUE CONVENTION
AND IN THE MATTER OF M AND L (CHILDREN)
Strand, London, WC2A 2LL
B e f o r e :
|- and -
The Respondent mother appeared in person
Hearing dates: 30th August 2016
Crown Copyright ©
MR JUSTICE BAKER :
"The objects of the present Convention are
(a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;
(b) to determine which law is to be applied by such authorities in exercising their jurisdiction;
(c) to determine the law applicable to parental responsibility;
(d) to provide for the recognition and enforcement of such measures of protection in all Contracting States;
(e) to establish such cooperation between the authorities of the Contracting State as may be necessary in order to achieve the purposes of this Convention."
Article 3 provides that the measures referred to in Article 1 may deal in particular with (inter alia) the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation, and rights relating to the care of the person of the child including the right to determine the child's place of residence and rights of access.
"the judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property."
The Practical Handbook on the Operation of the 1996 Hague Convention published by the Hague Conference on Private International Law confirms (at paragraph 3.14 et seq) that "measures directed to the protection of the child's person" include, inter alia, measures relating to the exercise of parental responsibility and rights relating to the care of the child, including residence and access.
"(1) By way of exception, the authority of a Contracting State having jurisdiction under article 5 if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interest of the child may either
- request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or
- suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.
(2) The Contracting States whose authorities may be addressed as provided in the preceding paragraph are
(a) a State of which the child is a national,
(b) a State in which property of the child is located;
(c) a State whose authorities are seized of an application for divorce or legal separation of the child's parents, or for annulment of their marriage, or
(d) a State with which the child has a substantial connection.
(3) The authorities concerned may proceed to an exchange of views.
(4) The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under article 5 .... if it considers that this is in the child's best interests."
"(1) If the authorities of a Contracting State referred to in Article 8, paragraph 2, consider that they are better placed in the particular case to assess the child's best interests, they may either
- request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to take the measures of protection which they consider to be necessary, or
- invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child.
(2) The authorities concerned may proceed to an exchange of views.
(3) The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request."
(1) The children were both born in the UK and, prior to the separation of their parents, lived together in this country. Although L has lived in Norway for a little over a year, his formative years, and the majority of his life, have been spent in England. The family's shared cultural base and experience has been England.
(2) This court has prior knowledge of both siblings and both parents. In contrast, the Norwegian court has no prior knowledge of this family and no knowledge at all about M.
(3) This court has current knowledge of M as a result of the revived proceedings, in which a fresh section 7 report has been prepared. There is current social work and other professional involvement arising out of M's emotional difficulties.
(4) The documentation and professional knowledge of a range of professional involvement in the life of this family going back to the earliest years is held in this jurisdiction.
(5) A Norwegian court would need either to proceed without access to much of this potentially important material or arrange to be translated. The documentation is substantial and the cost of translation would be significant. Furthermore, there would be difficulties in taking oral evidence from the relevant English witnesses. The English court is far better placed to deal with this evidence and to afford the parties an opportunity to challenge it. In contrast, the professional evidence emanating from Norway is much less substantial and probably consists only of the psychological assessment of L commissioned within the current Norwegian proceedings. It will be relatively straightforward for this to be translated into English and for the witness to give evidence before the English court.
(6) Both parents are familiar with the workings of the English family court system. In contrast, the father has no experience of the Norwegian court. Both parties speak English. The mother lived in the UK for nearly 20 years, studied here to Masters level, and is bilingual. The father says he does not speak Norwegian save for a few day-to-day phrases.
(7) Although the Norwegian court would have the advantage of the presence of L in assessing his needs in isolation (and vice versa for the English court and M), the English court is better able to consider the interlocking and potentially distinct needs of both children and how they might be best reconciled and managed.
(8) Whichever court deals with the matter will need to be mindful of the need to ensure that the voices of both children are heard. It is perhaps more acutely difficult for a child of M's age to be effectively and appropriately involved in proceedings conducted in a foreign language and in a foreign country. Although M speaks Norwegian, his first language is English.
"sadly this has not been the case in the English court where a newly qualified social worker (BF) is deemed to be competent instead of a trained, authorised psychologist appointed by the court."
"The court ruling on which the current arrangement is based is characterised by myself not having home-field advantage and that I have gone too far in following the direction of local social workers in the UK, who seem to have been overly focused on concerns relating to a change of environment, to the detriment of other child arrangement parameters, such as caregiving abilities, attachment, the separation of siblings etc."
Later, she adds:
"The applicant father is familiar with the workings of the English family court process and he is on his home ground. I am forced to represent myself as a litigant in person, speaking my second language. Further management of the case to follow an almost 'Kafkaesque' process."
"the English court has limited and biased knowledge and understanding of the siblings and the parents. There has been no investigation in the maternal home and no investigation in relation to the support network in Norway. The latest statistics from UNICEF report that in the league table of children's welfare across income, education, health and life satisfaction, Norway stands second only to Denmark. The UK has moved from number 16 to number 14 in the latest report published 14 April 2016."
Therefore, she submits that it is an advantage that the Norwegian proceedings in respect of L are independent of any work previously undertaken by the English court. It would also be an advantage that the Norwegian court has no prior knowledge of this family since, in her words,
"this would actually [be] the first time I would have the opportunity to tell my side of the story which I have been denied since the very outset This will give the Norwegian court the opportunity to conduct an unbiased investigation, go further back in time and find out how the marriage affected M to be the boy he has now become."
"parents who obstruct the relationship with the other parent are inflicting untold damage on their children and it's about time the professionals truly understand this."
In oral submissions, the mother referred to literature about parental alienation syndrome in support of her argument that the father has alienated M from her and L. It is her contention that the English court and professionals have failed to recognise that this has happened, and that the Norwegian court and professionals will be better equipped to address this issue.
Discussion and conclusion
"should not descend to some kind of divisive value judgment about the laws and procedures of our European neighbours"
and as Sir James Munby P added in Re E (supra), at paragraph 20,
"beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and apply the same insights and approaches as those we are familiar with."