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This judgment consists of 7 pages 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 children and the adult members of their family must
be
strictly preserved.
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Neutral Citation Number: [2011] EWHC 2752 (Fam) |
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Case No: FD11P02190 |
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
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Royal Courts of Justice Strand, London, WC2A 2LL |
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01/11/2011 |
B
e f o r e :
SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION
____________________
Between:
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A
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Applicant
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- and -
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B
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Respondent
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____________________
Edward Devereux (instructed
by
Bindmans)
for the Applicant
Christopher
Butterfield
(instructed
by
William
Bache
& Co) for the Respondent
Hearing dates: 12th October 2011
____________________
HTML
VERSION
OF HANDED DOWN JUDGMENT
____________________
Crown Copyright ©
Sir Nicholas Wall P:
The case in summary
- The principal question raised
by
this case is whether or not I have jurisdiction to entertain a father's applications in relation to his daughter. This involves an examination of Council Regulation (EC) no. 2201/2003. more commonly known as "
Brussels
II Revised". I propose, for convenience, to call it in shorthand
BIIR.
Paragraph 2 of Article 19 of
BIIR,
which is said to apply here, reads as follows: -
"2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are
brought
before
the courts of different Member states, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established."
- Paragraph 3 of Article 19 reads: -
"Where the jurisdiction of the court first seized is established, the court second seized shall decline jurisdiction in favour of that court……."
- The child with whom I am concerned is M, who was
born
on [a date in] 2008, and is thus 3. Her parents are not married to each other, and the father does not currently have parental responsibility for M. The parents, who are
both
English
by
origin, met sometime in 2001, and
began
a relationship in about 2005. Their relationship came to an end in 2007, prior to M's
birth.
- On 21 November 2007, in circumstances to which I shall refer again in due course, the mother went to Sweden, where M was
born.
DNA tests carried out through Swedish social services confirmed the father's paternity.
- On 23 December 2009, M was placed in foster care following a hearing in the Landsrattren (the administrative court of Stockholm). On 8 February 2010, M was returned to her mother's care following a further hearing in the same court. She has remained in her mother's care ever since.
- On 21 December 2010, an order was made
by
the Stockholm District Court. This recorded an agreement
between
the parents as to future contact
by
the father with M. The court ordered the mother to pay one third of the father's travel costs incurred in relation to his contact with M and the local authority was charged
by
the court to appoint a person to carry out an investigation pursuant to the Swedish Parental Code with regard to the custody of and contact with M. The investigation was to
be
received
by
the court
by
15 September 2011 at the latest: otherwise the agreement (and presumably the order) was to last until such time as the questions had
been
resolved through a judgment or decision which had gained legal force.
- Contact did not take place pursuant to the agreement, and in June 2011 the father made an application in the Swedish court seeking interim joint custody and for the order of 21 December 2010 to
be
enforced
by
way of a fine. On 4 July 2011 there was a hearing in the Stockholm District Court and
by
an order dated 11 July 2011 that court: -
(1) dismissed the father's interim application for joint custody;
(2) dismissed his application for the mother's
breaches
of contact to
be
the subject of a fine; and
(3) decided that the father should have no contact with M.
- On 24 August 2011, according to the mother, the father's appeal against the order of 11 July 2011 was dismissed
by
the Swedish Court of Appeal. The mother now asserts, through counsel, that the report due on 15 September 2011 will
be
available on 15 December 2011, when the court will consider the future handling of the case.
- In late September 2011 the mother came to this jurisdiction with M. Her case is that she is staying temporarily with her mother and that she wishes to return to Sweden with M. Through counsel she says that I should stay the English proceedings under paragraph 19 of
BIIR.
She offers a number of undertakings designed to reassure the court as to the genuine nature of her wish to return to Sweden.
The applications
by
the father
before
the court
- Counsel for the father opened the case to me on the
basis
that there are currently four applications
by
the father
before
this court. They arise in the following way. On 11 August 2011 the father applied on a without notice
basis
to HH Judge
Barnett
sitting in this
building
as a judge of the High Court. He directed that the matter
be
listed for argument as to jurisdiction during the week commencing 22 August 2011, and that the Swedish Central Authority, pursuant to Article 55 of
BIIR
should provide to the English Central Authority any information which it had as to the mother and M's location and whereabouts, and any information it had in respect of all child protection or other welfare proceedings taken or otherwise involving M.
- On 24 August 2011 Macur J
vacated
the hearing fixed
by
Judge
Barnett
and adjourned the father's application under the inherent jurisdiction with liberty to restore. On 29 September 2011 the father made an application that M should
be
made a ward of court. On the same day, and again on a "without notice"
basis,
Bodey
J warded M and made a location order. He ordered that the mother was not to remove herself or M from the jurisdiction without the court's permission: he directed that the father's solicitors disclose the papers in the case to the legal department of Northamptonshire County Council and adjourned the case to 3 October 2011. He also made a location order.
- On 3 October 2011, Charles J directed that the case should
be
reviewed
by
him on 7 October, and ordered the mother to file a statement dealing (inter alia) with her future intentions as to where she and M were to live. He also made
various
orders for disclosure of documents from different social services departments, the detail of which I do not need to record.
- Unfortunately, Charles J was not available on 7 October and the case came
before
Coleridge J. He made
various
orders for disclosure and directed a hearing
before
me on 12 October 2011. Thus it was that the case came
before
me on that date.
The father's case
- For the father, Mr. Edward Devereux opened the case to me in great detail. I make no criticism of him for that, and quite see that from the father's perspective, the situation is highly unsatisfactory and frustrating. His case, in essence, is that the mother only fled England to avoid a detailed enquiry, the institution of care proceedings and the likely removal of M from her care at
birth
by
Northumberland County Council; further that she is a liar who suffers from a long history of mental health problems and has also misled numerous medical professionals about her physical health; that she has recently disavowed any intention of living permanently in Sweden and, despite her protestations to the contrary has led a peripatetic existence, a principal purpose of which has
been,
and continues to
be,
the hitherto successful attempt to prevent him playing any part in M's life.
- The father has produced four
very
substantial
bundles
of documents, largely comprising material gathered together from
various
English Social Services Departments, all of which I read after the conclusion of argument and submissions. In the detailed case summary prepared
by
Mr. Devereux, the father seeks: -
(a) proper disclosure of all relevant material from Sweden;
(b) the joinder of M as a party;
(c) a section 37 Children Act 1989 investigation to
be
directed;
(d) disclosure of the Northumberland County Council records to him (and not just to his legal representatives);
(e) insofar as it is needed, a finding of fact hearing about any disputed matters;
(f) international collaboration
between
the respective social services departments (to include sharing of documents) and, if necessary, international judicial collaboration through the office of the Head of International Family Law, Lord Justice Thorpe; and
(g) such interim contact as any children's Guardian may direct.
- On the question of jurisdiction, Mr. Devereux submitted that the father's application for parental responsibility expressly fell outside the terms of the Family Law Act 1986 and accordingly
BIIR
did not govern the jurisdictional position. In this respect, he relied on Re S (Parental Responsibility: Jurisdiction) [1998] 2 FLR 921( Re S). Furthermore, he submitted that the mother and M were no longer habitually in Sweden – having lost that habitual residence some time after January of this year. Having regard to the mother's conduct, the correct forum for the hearing of any application was England and Wales.
- Mr. Devereux accepted that there was indeed a lacuna that existed as a result of the grafting on of
BIIR
to the Family Law Act 1986 which placed applications for parental responsibility expressly outside the Act. However, he submitted that this was a drafting error which required applications for parental responsibility to
be
considered within the terms of the Act and, in the first instance, within the four corners of
BIIR.
Accordingly, if Re S no longer applied, it was still open to him to argue that the lis pendens rule did not apply as the proceedings now
brought
by
the father did not involve the same "cause of action" or did not have "le meme object et la meme cause" as those that were
brought
by
him in December 2010.
- Finally, Mr. Devereux argued that insofar as the Swedish Court was appropriately seised, that court should
be
invited to transfer those proceedings to this jurisdiction pursuant to Article 15 of
BIIR
and that, in any event, I had jurisdiction to undertake an enquiry into the circumstances of M's welfare
based
on Article 20 of
BIIR,
with the assistance of collaboration
between
the two relevant social service agencies.
The mother's case
- This was
very
simple. The Stockholm District Court was already seized, and the English proceedings should
be
stayed under Article 19.2 of
BIIR.
The disclosure from the
various
local authorities largely related to 2007, prior to M's
birth.
Swedish Social Services had
become
involved: they had conducted a careful investigation and were satisfied with the mother's care of M. There was no evidence that M had ever come to harm. In addition, there was abundant evidence in the papers that the father also suffered from mental health difficulties
- Whenever the mother had come to England with M - for example in 2008 – she had contacted social services to inform them of her
visit.
The mother had maintained a good relationship with the father's parents: she had
visited
his parents over Christmas 2008: a social worker from Northamptonshire Children's Services had
visited
M at her paternal grandparents' home on 23 December 2008 and had no concerns for the mother's care of M.
- Similarly, in December 2010 another referral had
been
made to Northamptonshire following the mother's presentation at hospital. A
brief
section 47 enquiry had
been
undertaken, after which Northamptonshire again decided to take no further action.
- The mother joined issue generally with the father
both
as to her health and as to her peripatetic lifestyle. She had remained living with M in Sweden until January 2011 when she moved to Paris for the purpose of a 6 month course of study at the Institut d'Etudes Politiques. She subsequently obtained a scholarship to study in Australia. She travelled to the USA on 30 June 2011, where she finished her semester
by
distance learning from the University of Oxford. She was subsequently refused a
visa
for Australia and therefore travelled to the UK in the last of week of September to
visit
her mother.
- The mother had never unlawfully removed M from any jurisdiction. It was the case that in July 2011 the mother had told the Swedish court that she was not returning to Sweden. This had
been
true at the time,
but,
despite this, the Swedish court had retained jurisdiction. The Swedish court remains seised and is awaiting a welfare report on the issues of custody and access from Swedish social services.
- Despite the pre-
birth
concerns of Northumberland Children's Services, Swedish social services had fully investigated the mother's ability to care for M after her
birth
and were completely satisfied with her care. Although M was subsequently
briefly
placed in the care of foster carers
between
December 2009 and February 2010, she had not
been
in foster care since that time.
- Northamptonshire Children's Services had
been
involved three times prior to this current application, at times at the instigation of the mother herself. On each occasion they had
been
satisfied that there was no reason to take any further action. The mother had exercised her right to freedom of movement with M pursuant to Articles 20(ii) (a) and 21(i) of the Treaty on the Functioning of the European Union.
- For the mother, Mr.
Butterfield
then argued that the first question was whether the court had jurisdiction. He relied on Re A (removal outside jurisdiction: habitual residence) [2011] 1 FLR 2025. He also relied on the judgments of Thorpe LJ in Al Habtoor
v
Fotherington [2001] 1 FLR 951 at 970:
"In my opinion the courts of this jurisdiction should
be
very
slow to make orders that directly conflict with pre-existing orders in any friendly foreign state. The principle of comity requires no less."
And further, in Mercredi
v
Chaffe [2011] 2 FLR 515 at 527:
"…. as a matter of comity and the collaboration of courts within the European Union the London judge had an obligation to support the proper conclusions of the French court or, at the least, not to enter into a litigation strategy to undermine the order…
[67] One the one hand it can
be
said that the general rule must
be
that jurisdiction is established in the State of the habitual residence of the child at the time the court is seised. Once seised that court retains jurisdiction even if the child changes habitual residence during the course of the proceedings. This is the principle of petuatio fori. It is a practical rule to prevent one party from aborting proceedings
by
a tactical move during their course. Thus it can
be
argued that the issue of Children Act proceedings fixed jurisdiction in London until the termination of the proceedings."
Other authority
- Apart from Re S, Mr. Devereux referred me to a number of cases, including the decision of the Court of Appeal in Re H (Parental Responsibility [1998] 1 FLR 855. the decision of Munby J (as he then was) in AB
v
JLB(
Brussels
II Revised; Article 15) [2009] 1 FLR 517; the decision of Jonathan
Baker
QC (as he then was) on Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741; and the decision of Charles J in Re S (Care: Jurisdiction) [ 2009] 2 FLR 550.
Discussion and conclusion
- With great respect to Mr. Devereux, none of the cases which he cited to me dealt with the particular conundrum with which I am faced. Re S, it is true, goes to jurisdiction,
but
predates
BIIR
by
many years. Re H goes to the merits of making a parental responsibility order. AB
v
JLB, as its name suggests deals with the transfer of proceedings. Re S-R and Charles J's Re S likewise do not address
BIIR
Article 19.
- In my judgment Article 15 of
BIIR
is inapplicable. Whether or not the case is transferred to England is a matter for the Swedish court to decide. It is for the Member State "having jurisdiction as to the substance of the matter" and it is not for me, on the facts of this case, to request the Swedish court to cede jurisdiction to England and Wales.
- In my judgment, the arguments advanced on the mother's side are to
be
preferred, and the English proceedings will
be
stayed. It seems to me a matter entirely for the Swedish Court as to whether or not it retains jurisdiction in this case, and that any other conclusion would fly in the face of Article 19.2 of
BIIR
- In summary, the Swedish court lawfully took jurisdiction following the
birth
of M and has to date retained it, notwithstanding the fact that, on the facts as they then were, the mother said she was not intending to return to live in Sweden.
- Furthermore. it seems to me that it is for the Swedish court, which is currently seized of the merits, to interrogate the mother about her future intentions. I have not conducted a welfare enquiry, and for this reason will have not conducted a detailed analysis of the local authority disclosure. I am simply looking at the question of jurisdiction and the wording of Article 19.2.
- I also agree with Mr.
Butterfield:
(1) that the only
basis
upon which the English Court might
be
able to take jurisdiction would
be
section 2(3) (
b)
(ii) of the Family Law Act 1986; and (2) that the evidence comes nowhere near satisfying the terms of that section.
- I an equally unimpressed with the argument that I could take jurisdiction on the facts of this case
by
means of provisional, including interim measures under Article 20 of
BIIR.
I reject the argument that
BIIR
does not apply. In my judgment, whilst the argument
based
on Re S is sophisticated, the father's applications for parental responsibility and contact are fully within
BIIR,
and article 19.2 applies to them.
- Given the likely proximity of the hearing in the Swedish court, and also given the history of the matter, however, I take the
view
that it is within my jurisdiction under
BIIR
Article 20 to direct that the mother should obtain from the Swedish Court orders in the terms of the undertakings she proffers, and
both
parties shall
be
at liberty, if so advised, to disclose into the Swedish proceedings
both
this judgment and all the documents in the
bundles
before
me. The use (if any) to which the Swedish Court puts the material will, of course,
be
a matter for it.
- The father's English proceedings will, accordingly,
be
stayed on these terms. I will also give
both parties liberty to apply as to implementation of the order and generally.
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