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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> X v Y & Anor [2014] EWHC 2147 (Fam) (26 March 2014) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2014/2147.html Cite as: [2014] EWHC 2147 (Fam) |
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FAMILY
DIVISION
Royal Courts of Justice |
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B e f o r e :
(In Private)
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003
AND IN THE MATTER OF Z (A CHILD)
____________________
- and - | ||
Y (1) | Respondents | |
Z (by his Children's Guardian) (2) |
____________________
MR. MALCOLM BISHOP QC (instructed by Pooleys LLP) appeared on behalf of the Respondent.
MS. DEIRDRE FOTTRELL (instructed by Venters) appeared on behalf of the Guardian.
____________________
Crown Copyright ©
MR. JUSTICE BAKER:
"…he evinces a profound fear of the mother. That fear is shared by the father and there is no doubt that thefamily,
that is to say the father and Z, live, as it were, life on the lookout. In truth, this application for relocation is essentially an issue of safety, so far as the father is concerned".
The judge recorded that the Guardian described Z as a "very troubled little boy, sometimes almost in turmoil".
"…in my view, a cool rather unbending character who was very much accustomed to having what he wanted, and it was easy to see why the mother felt unloved, inferior, outgunned, and essentially unimportant, and in relation to the father no doubt much of that was true. But I am satisfied that he has a genuine commitment to Z's welfare as he understands it, and, moreover, that he is open to advice about Z's welfare. I am satisfied that he is genuinely fearful for his and, to a somewhat lesser extent, Z's safety, and I am satisfied that he is genuinely committed, albeit on his own terms, to Z having a relationship with the mother. I can understand why the mother feels that the father will never give up what he has got, but, in my view, that is too harsh a judgment.
As far as the mother is concerned, she is quite simply an emotional volcano, sometimes dormant and peaceful, sometimes erupting powerfully, but much of the time simply smoking so that no one knows whether it will lead to dormancy or eruption. I do not think in the course of my time as a judge I have ever encountered such a stark difference between a witness's statement, in this case comprising some 88 typed pages, and the witness's oral evidence. The more remarkable it was because I am satisfied that both were essentially honestly given, in that they represented her views at different times and in different ways, and yet each was dramatically different to the other. The statement comprises an eruption of bile, anger, resentment, fury, hatred, and utter intransigence, to an extent that I rarely encountered in a sane witness, which this lady undoubtedly is. Her oral evidence, on the other hand, had many attractive features, amongst them being sincerity, empathy for the father, and an unmistakable devotion to Z and his needs".
" What, in my judgment, Z could not handle was the smoking volcano, the unpredictability, the never knowing what was coming next, and the consequent fear of an unpredictable eruption. In my view, that situation is really beyond any child to handle. I am quite clear that Z was frightened of his mother before 3rd June, but the source of fear was her unpredictability. Any picture that he was regularly abused or cruelly treated would be quite wrong. What terrified him, and I choose my words with care, was the combination of knowing that the mother could erupt but never knowing when or why it might happen. It follows that I find Z has a genuinely and rationally based fear of his mother entirely independent of the events of 3rd June."
On the other hand, the learned judge accepted the unanimous view that it was in Z's best interests to recover and develop the relationship with his mother. He was clear that at that stage Z could not handle direct contact. He was equally clear that Z required therapy support but was content to leave the choice of type of therapy to the father's discretion. He did, however, conclude that there should be indirect contact by exchange of letters and cards once a month, with conditions under s.11(7) of the Children Act requiring the father to pass on such communications and to encourage or facilitate a reply, including a photograph. As to the future, the learned judge described long-term contact as "the golden prize to which all should aspire". He added, however, that this was linked to the mother's need for psychotherapy as identified by Dr. Boast. He stressed that he had no powers to compel the mother to undertake such therapy but said that unless it occurred it was hard to see that Z's cooperation for the reintroduction of contact could be enlisted.
"First, I confirm the order that [Z] should live with the father. Secondly, as to contact, my view is that there should be no direct contact unless and until agreed between the parties, or advised by the guardian, or as ordered by the court."
Continuing at para.36:
"I propose to grant permission to relocate permanently, as asked, subject to the following conditions; that continuing jurisdiction is conferred on the courts of England and Wales; that the father enters a formal undertaking to return [Z] to this jurisdiction if called upon to do so; and that the leave will be subject to a time limit of 31st January 2013 so as to avoid unnecessary and so far unpredicted drift in the case. There will, of course, be liberty to apply as to that time limit … There should be an undertaking from the father to procure mirror orders in the court of destination, and to serve these, redacted for confidentiality if necessary, on the mother."
At para.37:
"The quid pro quo of that is that there should be protective orders made in respect of the mother, and they should be of two types. First, not to seek to discover the whereabouts of [Z]'s home or school in the country of destination, and, secondly, not to enter the country of destination, save of course by traversing its airspace, save with the written consent of the father. Those orders should run until the review fixed in this case."
The learned judge also provided that there should be a review in any event in the summer of 2013, but with the parties having permission to apply in the interim either as to implementation of the order or as to contact before departure.
"upon the father agreeing that the English court will retain jurisdiction to deal with any further questions concerning the upbringing of Z and upon the father undertaking (1) to return Z to the jurisdiction of the English court when called upon to do so; (2) to obtain a mirror order reflecting the terms of this order in the country to which he proposes to relocate as soon as reasonably practicable after the relocation; (3) to serve the mirror order on the mother, once obtained, in a redacted form".
As to the orders as to residence and contact, para.5 provided:
"There be permission to the father permanently to remove Z from the jurisdiction to reside abroad on the basis that (a) this permission endures until 31st January 2013; (b) there be liberty to the father to apply to the court to extend the time within which to relocate; (c) the court shall by agreement retain jurisdiction to deal with any question concerning Z's upbringing; (d) the father may withhold the identity of the country to which he proposes to relocate until 24 hours prior to the date of his and Z's departure; (e) the father may withhold the address of his home and Z's school from the mother, but shall notify the Guardian and the court".
Paragraph 7 provided the orders against the mother as set out in the judgment to which I have already referred, and para.9 provided for the review stipulated in July 2013.
The issues and hearing
The evidence
"We met at the offices of Z's solicitor in Reigate. I arrived first. The mother did not smile or greet me when she came into the room, but instead looked at me with a fixed stare that some might have found unsettling and intimidating. I said hello to her and asked her how she was doing. She remained staring at me and responded, 'I'm just wondering why the fuck you ask me that question'. The mother continued with what can only be described as a stream of invective and blame, this time not just about the father but about the British and 'the system' as a whole. The mother said that she saw me as part of that system, at one point I actually was 'the system'. The mother added that no one had given any regard to Z's culture. The mother said that I obviously saw her as everyone sees her, 'a gold-digging, drug-addled, coloured cunt', and that like everyone else I had my head turned by the father's wealth".
"Z is the most important thing in my life and any decisions I make in relation to him have his best interests at heart. I remain fully committed to promoting the relationship between Z and his mother and facilitating contact between them. I always have, and always will, abide by any order the court makes in relation to Z's contact with his mother".
The father reiterated this in his oral evidence, which I found persuasive and compelling.
Jurisdiction issues
"1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:
(a) at least one of the spouses has parental responsibility in relation to the child;
and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child.
2. The jurisdiction conferred in paragraph 1 shall cease as soon as:
(a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;
(b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;
(c) the proceedings referred to in (a) and (b) have come to an end for another reason.
3. The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 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;
and
(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.
4. Where the child has his or her habitual residence in the territory of a third State which is not a contracting party to the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, jurisdiction under this Article shall be deemed to be in the child's interests, in particular if it is found impossible to hold proceedings in the third State in question".
"As a general proposition it should be clear at any particular point during the proceedings, and preferably from the outset, whether or not the court has jurisdiction. Certainly a party who has once accepted jurisdiction should not be able to withdraw it at any time before the conclusion of the case. Acceptance of jurisdiction must include acceptance of the court's decision whatever it may be".
Contact
"As things stand, my view is that it would be simply too risky to Z's emotional wellbeing to expose him to his mother's continued unpredictability and her angry and emotional outbursts, such is the severity of her behaviour. The fact that she has not undertaken any further counselling or psychotherapy, other than her sessions with [her long-term counsellor], who has worked with her for some 7 to 8 years, is a worrying indication that the mother does not feel that her own behaviour could be contributing to this difficult situation".
In oral evidence the Guardian said that she would not trust her not to behave in an unpredictable way.
Section 91(14)
"(1) Section 91(14) should be read in conjunction with section 1(1) which makes the welfare of the child the paramount consideration.
(2) The power to restrict applications to the court is discretionary and in the exercise of its´ discretion the court must weigh in the balance all the relevant circumstances.
(3) An important consideration is that to impose a restriction is a statutory intrusion into the right of a party to bring proceedings before the court and to be heard in matters affecting his/her child.
(4) The power is therefore to be used with great care and sparingly, the exception and not the rule.
(5) It is generally to be seen as an useful weapon of last resort in cases of repeated and unreasonable applications.
(6) In suitable circumstances (and on clear evidence), a court may, impose the leave restriction in cases where the welfare of the child requires it, although there is no past history of making unreasonable applications.
(7) In cases under paragraph 6 above, the court will need to be satisfied first that the facts go beyond the commonly encountered need for a time to settle to a regime ordered by the Court and the all too common situation where there is animosity between the adults in dispute or between the local authority and thefamily and secondly that there is a serious risk that, without the imposition of the restriction, the child or the primary carers will be subject to unacceptable strain.
(8) A court may impose the restriction on making applications in the absence of a request from any of the parties, subject, of course, to the rules of natural justice such as an opportunity for the parties to be heard on the point.
(9) A restriction may be imposed with or without limitation of time.
(10) The degree of restriction should be proportionate to the harm it is intended to avoid. Therefore the court imposing the restriction should carefully consider the extent of the restriction to be imposed and specify, where appropriate, the type of application to be restrained and the duration of the order.
(11) It would be undesirable in other than the most exceptional cases to make the order ex parte."