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|Neutral Citation Number:  EWCA Civ 1297
|Case No: B4/2016/2534
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER CIVIL AND
FAMILY JUSTICE CENTRE
His Honour Judge Pearce
|Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
LORD JUSTICE RYDER
LADY JUSTICE KING
John Vater QC and Tom Fazackerley (instructed by Russell & Russell Solicitors) for the Appellant
The Respondent did not attend
Hearing date : 7 December 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lady Justice King:
- This is an appeal against an order made by His Honour Judge Pearce at the Chester Family Court on 26 May 2016 whereby he dismissed the application of the appellant, LD (the aunt) for a child arrangements order which would provide for her niece, G, born 16 August 2007 (9) to live with her in England and to spend time with the respondent, SL, (the father) at his home in Corfu.
- In his judgment the judge concluded on the merits, that it would be in the best interests of G to go and live with her father in Corfu but to continue to see her aunt and other members of the maternal family after she had moved. The judge held that he had no jurisdiction to make a child arrangements order regulating contact in respect of a child who was to live in Corfu. His view as to the proper level of contact was therefore recorded by way of recitals (the recitals) to the order dismissing the aunt's application.
- On 5 July 2016 Lord Justice McFarlane granted the aunt permission to appeal. At the hearing of the appeal, she withdrew her appeal in relation to all those Grounds of Appeal which go to the merits of the judge's decision as to where and with whom G should live. This leaves the only remaining issue as to whether the judge was wrong in his conclusion that he had no jurisdiction to make an order regulating contact as between the aunt and G, once she had left England.
- G's mother, Su L (the mother) was English and lived in the Chester area. In 2005 she met the father on a visit to Corfu. Shortly after they met the mother moved to live in Corfu with the father, where they were married in May 2007. G was born on 16 August 2007. The marriage did not prosper and by January 2008 the mother and father had separated, the father remaining in Corfu and the mother and G living in a house in England owned by the aunt. The parents were divorced in 2014. To the parents' credit, soon after the marriage broke down, they worked out a way of ensuring that G developed a full and valuable relationship with her father, notwithstanding that he lived in Corfu. G and her mother went to stay with the father several times each year, and in addition the father spoke with G each week by Skype and on the telephone.
- Tragedy struck on 22 February 2016 when the mother suffered an aneurysm and fell into a coma, dying a few days later on 27 February 2016. The father came to the UK on 24 February 2016 to be at his daughter's side. Unfortunately, in the aftermath of the sudden death of the mother, the two sides of the grieving family were unable to agree a way forward in G's interests. The father's intention was always that G should now return to live with him and his extended family in Corfu. The aunt, for her part, believed it to be in G's best interests for her to remain in the UK, living with her, with contact to her father.
- On 4 April 2016, unable to reach a resolution, the aunt applied for a child arrangements order for G to live with her and for a prohibited steps order preventing the removal of G to Corfu. A prohibited steps order was granted in the interim and, by agreement, G lived with some family friends under a private fostering arrangement. The trial took place on 24 May 2016 when, as already indicated, the judge dismissed the aunt's application, having concluded that G's best interests did indeed lie with her relocating to Corfu to live with her father. That being the case, given that the father had sole parental responsibility, no child arrangements order was either necessary or appropriate to record with whom G should live. So far as continuing contact with her English family was concerned the judge said:-
"Whilst I have said I have confidence in Mr L's (the father's) ability to maintain connections with the family in England, I think it is in G's best interests that the fact that continuing contact is in some way formally reflected in an order that is made by this court."
- At the conclusion of his judgment, counsel on behalf of the father made a submission, accepted by the judge, that there was no jurisdiction to make a contact order in respect of a child who would be living in Corfu. Unfortunately the provisions of Council Regulation (EC) No 2201/2003 (Brussels II revised) (the regulation which concerns jurisdiction and enforcement of judgments inů the matters of parental responsibility as between Member States) were not brought to the attention of the judge. As a result of the judge's acceptance of counsel's submission, no contact order was made and future contact arrangements were recorded as an "intention" in the recitals already referred to.
- The judge refused permission to appeal and declined to continue the prohibited steps order, saying that he did not believe there "to be any basis upon which he could make a prohibited steps order" in order to ensure that G returned to the UK following a planned holiday with the father
- The father duly took G to Corfu for their holiday and returned her as promised to the UK. On 21 June 2016 the aunt filed an Appellant's Notice and Grounds of Appeal. Ground 1 of the Grounds says:-
"The learned judge was wrong in law to determine that, having decided that the child should live with her father in Greece, he had no jurisdiction to make any order regulating the time she should thereafter spend with the appellant."
- The balance of the Grounds of Appeal related to the merits of the judge's decision.
- Meanwhile, the father, quite properly, continued his preparations for G to move to live with him in Corfu, initially moving G to live with him in a rented flat in England. On 9 July 2016, the father and G left England permanently for Corfu, where they continue to live together.
- The aunt and the father have worked hard to reach agreement as to the way forward, with discussions taking place overnight and continuing this morning. The father does not appear and is not represented but, with the assistance of the aunt's legal team, and in particular Mr Vater QC, agreement has been reached between the aunt and father, which will result in G remaining in Corfu but with contact with her aunt and maternal family. In those circumstances Mr Vater did not proceed with his appeal in relation to any of the Grounds relating to the merits of the case. Notwithstanding the overall compromise of the appeal on the merits, Mr Vater submits that the error of law which founded Ground 1 should still be dealt with by this court,
- The reason Mr Vater pursued the appeal in relation to Ground 1 is to ensure that in the unlikely event of there ever being proceedings in the Corfu courts, those courts would understand that the judge had been in error in believing he had no power to make a contact order and that, had he not misunderstood the law in this respect, he would have made an order in the terms of the recitals.
- Article 8: Brussels II revised provides the answer as to:
(1) whether this court can hear the appeal in relation to Ground 1, notwithstanding that G is now habitually resident in Corfu and
(2) whether HHJ Pearce had jurisdiction to make a child arrangements order when the matter was before him in May 2016.
- Article 8 provides:-
"1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised."
- Article 16 sets out at what stage a court shall be deemed to be "seised".
- Child arrangements are "matters of parental responsibility" and "child arrangement orders" can be made under section 8 Children Act 1989 regulating with whom a child is to live and how much time that child will spend, or otherwise have contact, with any other person.
- On any view, G was habitually resident in the UK throughout the proceedings. There have been no submissions to the court in relation to the proper interpretation of Article 16, such an argument in the circumstances of this case would in any event be wholly academic as, regardless of whether the court was "seised" of the matter on 4 April 2016 (when the aunt applied for a child arrangements order), on 21 June 2016 (when the appellant's notice was filed), or 5 July 2016 (when Macfarlane LJ granted permission to appeal), G was still living here and undoubtedly habitually resident in the UK.
- It follows that this court has jurisdiction to hear the appeal in relation to Ground 1 and for my part, I accept Mr Vater's submission that any error of law must be put right in any event, but especially so where, as here, there is the potential for proceedings in Corfu in the future. The appellant is therefore entitled to pursue her appeal in respect of Ground 1
- Turning then to the question of whether HHJ Pearce had jurisdiction to make a child arrangements order when the matter was before him in May 2016.
- In May 2016 when the order was made, G was habitually resident in the UK. Regardless of when (pursuant to Article 16) the court first became seised of the matter, it was undeniably "seised" on the day judgment was given and the order made. It follows that, under Article 8, the court had jurisdiction in "matters of parental responsibility" in relation to G in May 2016.
- In my judgment the terms of the Article 8 are clear and unequivocal and the learned judge was wrong in concluding that he could not make a contact order in relation to G in circumstances where she was to live in Corfu.
- Accordingly, Grounds 2-7 of the Grounds of Appeal having been withdrawn, the appeal is allowed in respect of Ground 1. The judge had jurisdiction to make a child arrangements order regulating contact as between the father and the aunt, such an order being in relation to a "matter of parental responsibility" in respect of G, a child who was habitually resident in the UK at the relevant time.
- Mr Vater told the court that the aunt does not now seek a contact order as she and the father have reached an informal agreement as to future contact; that is undoubtedly the most satisfactory outcome, and one which bodes well for the future co-operation between the two sides of the family in the interests of this bereaved little girl. It follows that in the changed circumstances, it is unnecessary to express any view as to the merits of the case which, in the event of any future dispute, is now a matter for the Cypriot courts.
Lord Justice Ryder :
- I agree.
Lord Justice Tomlinson :
- I also agree.
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