BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Family Division) Decisions |
||
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) |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
T |
Applicant |
|
- and - |
||
T |
Respondent |
____________________
151 Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1 HP
Telephone: 020 7067 2900 Fax: 020 7831 6864 DX: 410 LDE
Email: info@martenwalshcherer.com
Website: www. martenwalsheherer.corn
MISS NAZNIN ISLAM appeared for the Respondent
____________________
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) stay the 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 become the 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) is the former habitual residence of the child" – I interpolate as it is here in respect of both children – "or(c) is the place of the child's nationality" – I interpolate as England is here –"or(d) is the habitual residence of a holder of parental responsibility ..." I do not feel the need to read into this judgment (e).
"31. On the 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 in this 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.