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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> T v T [2012] EWHC 2877 (Fam) (06 August 2012) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2012/2877.html Cite as: [2012] EWHC 2877 (Fam) |
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THE
HIGH COURT OF JUSTICE
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
![]() | Applicant |
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- and - |
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![]() | Respondent |
____________________
Transcription
by Marten Walsh Cherer Ltd.,
151 Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1 HPTelephone:
020 7067 2900 Fax: 020 7831 6864 DX: 410 LDE
Email: info@martenwalshcherer.com
Website: www. martenwalsheherer.corn
the
Applicant
MISS NAZNIN ISLAM appeared for the
Respondent
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR. JUSTICE RODERIC WOOD:
"The
courts of a Member State shall also have jurisdiction in relation
to
parental responsibility in proceedings other
than
![]()
those
referred
to
in paragraph I" — I interpolate paragraph I is unnecessary for
these
purposes and inapplicable in interpolation — "where:
(a)
the
child has a substantial connection with
that
Member State, in particular by
virtue
of
the
fact
that
one of
the
holders of parental responsibility is habitually resident in
that
Member State or
that
![]()
the
child is a national of
that
Member State."
"(b)the
jurisdiction of
the
courts has been accepted expressly or otherwise in an unequivocal manner by all
the
parties
to
![]()
the
proceedings at
the
![]()
time
![]()
the
court is seised and is in
the
best interests of
the
child."
"1. By way of exception,the
courts of a Member State having jurisdiction as
to
![]()
the
substance of
the
matter may, if
they
consider
that
a court of another Member State, with which
the
child has a particular connection, would be better placed
to
hear
the
case, or a specific part
thereof,
and where
this
is in
the
best interests of
the
child" – I Interpolate
to
note once again
that
phrase "
the
best interests of
the
child":
(a) staythe
case .... and invite
the
parties
to
introduce a request before
the
court of
that
other Member State in accordance with"[other requirements of
the
Regulation].
"The
child shall be considered
to
have a particular connection
to
a Member State as mentioned in paragraph 1, if
that
Member State:
(a) has becomethe
habitual residence of
the
child after
the
court referred
to
in paragraph I was seised" – I interpolate
that
does not apply in
this
case although
the
children had habitually resident in Eire,
they
have been so long since and not since
this
jurisdiction was seised in relation
to
![]()
the
latest application "or
(b) isthe
former habitual residence of
the
child" – I interpolate as it is here in respect of both children – "or
(c) isthe
place of
the
child's nationality" – I interpolate as England is here –"or
(d) isthe
habitual residence of a holder of parental responsibility ..." I do not feel
the
need
to
read into
this
judgment (e).
"31. Onthe
other hand,
the
fact is
that
![]()
this
child has now been habitually resident in Germany for about 10 months, which is a significant period of
time
in
the
lifetime of a young boy still only aged about
three-and-three-quarters.
I know
very
little about his circumstances in Germany. In
the
near future it seems idle
to
make any order as
to
contact here since, as recent events have demonstrated,
the
father is not in a position
to
put
the
mother in cleared funds so as
to
enable
the
contact
to
![]()
take
place. Frankly, I would risk making some so-called 'final order' of indefinite and long-
term
duration with complete uncertainty as
to
whether or when it would ever actually be implemented. Further,
the
position at
the
moment is
that
![]()
there
has been a decision adverse
to
![]()
the
father by
the
First-
tier
![]()
Tribunal.
I have no knowledge whether or when a further appeal
to
![]()
the
Upper
Tribunal
might be heard, nor of course what
the
outcome might be. But
the
current position, at all events, is
that
![]()
the
father's position here is extremely
tenuous
and
that
does not seem
to
me
to
be an appropriate context in which
to
be making some long-
term
order.
32.
The
patent reality about
the
present case is
that
when Judge Hughes reached her decision back in October 2008
to
permit
the
mother
to
relocate with
the
child
to
Germany, and when
the
mother actually did so, future responsibility for
this
child clearly shifted from
the
courts of England and Wales
to
![]()
the
courts of Germany. As I have already remarked,
the
contact order
that
was made by Her Honour Judge Hughes was expressly confined
to
![]()
the
calendar year 2009 and did not even purport
to
be an order of longer
term
duration.
33. So I cannot see
that
it is in
the
best interests of
this
child
that
![]()
this
court, at a distance, should assert some continuing authority over him. Rather, it is patently in his best interests
that
all future issues as
to
contact are considered and resolved in
the
court in Germany which is already seised of
this
matter. It does not seem
to
me
that
Article 15 of
the
regulation is directly in point in
the
present case but, even if it was, I would unhesitatingly conclude
that
Germany is
the
Member State with which
this
child 'has a particular connection'. Each of subparagraphs (a), (c) and (d) of paragraph 3 of Article 15 are satisfied, in
that
Germany has become
the
habitual residence of
the
child, Germany is
the
place of
the
child's nationality, and Germany is
the
habitual residence of a holder of parental responsibility, namely
the
mother. If Article 15 was in point, I would unhesitatingly conclude
that
![]()
the
courts of Germany 'would be better placed
to
hear
the
case' and
that
![]()
that
'is in
the
best interests of
the
child.'"
"31. Any parent inthis
mother's situation is faced with a serious dilemma; whether
to
decline
to
engage in
the
foreign proceedings on any level for fear of
that
engagement resulting in a finding of unequivocal acceptance or rather
to
engage in
the
foreign proceedings
to
such limited extent as is necessary
to
protect her and her child's position in
the
event
that
![]()
the
jurisdictional issue goes against her.
32. In
this
case, an order was made requiring
the
mother
to
deliver up
to
![]()
the
father her daughter, a child who, save for contact, had never been away from her mother, and who
thereafter
was
to
have only
visiting
rights until a final hearing at some unknown
time
in
the
future. It is hard
to
see how
the
mother's decision
to
appeal
that
interim order for a
transfer
of residence within
the
![]()
time
limits prescribed by
the
French court could lead
this
court
to
a conclusion
that
she had accepted unequivocally
the
French court's jurisdiction particularly given
that
she had initiated proceedings in
the
English courts.
33. If I am wrong in reaching
that
conclusion, I am nevertheless clear in my mind
that
![]()
the
best interests of S are met by any welfare hearing and of any consideration by a court of
the
appropriate exercise of parental responsibility being conducted in
this
country. S has lived here since 2009. It is her home. She attends English school and lives within
the
maternal extended family. Here enquiries can best be made as
to
her welfare and circumstances.
The
issues raised by her father as
to
![]()
the
suitability of
the
estate where she lives are potentially serious and can be best investigated by
the
English courts with
the
assistance of CAFCASS rather
than
long distance from France."
(i)The
history of litigation is in
this
country for
the
reasons I have already indicated.
(ii)
The
issue, unlike its appearance in
the
printed cases of each of
these
parties, is an extremely narrow one.
(iii)
There
are no proceedings in Eire.
The
mother has not indicated
that
she would issue any.
There
is no history of litigation
there.
![]()
There
is no evidence available
to
me of
the
duration of such proceedings even if commenced.
(iv)
The
mother engaged unequivocally in
this
litigation clearly of
the
![]()
view
![]()
that
![]()
this
court was
the
appropriate one and could and should determine
the
issues which now arise.
(
v)
![]()
The
father's further concessions in
the
course of
this
hearing make it abundantly clear
that
![]()
the
only real issues are whether or not
the
six-weekly contact should be in Eire or in England and whether or not
the
mother should be
the
subject of some form of inhibition if indeed she has made other lurid remarks just as
the
father accepts
that
he should be made
the
subject of some form of inhibition, whether
that
be by way of agreement or by way of undertaking.
(
vi)
Her Honour Judge Cameron still sits in
the
Dartford County Court and would, subject
to
listing, be available
to
hear
this
case which she has now heard
twice,
albeit at some distance.
(
vii)
As I understand it, enquiries have been made of CAFCASS and
the
same officer who dealt with
this
case on
the
previous occasion, namely, 2008 when
the
CAFCASS enquiry was relevant, is available
to
re-engage with
these
children and
this
family's affairs.
That is my judgment.