[View without highlighting]
[Printable RTF version]
The Judge hereby gives leave for this judgment to be reported on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location. In particular the anonymity of the child and the adult members of his family must be strictly preserved. If reported, it shall be the duty of the Law Reporters to anonymise this judgment
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
||26th March 2014
B e f o r e :
MR. JUSTICE BAKER
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 -
||Z (by his Children's Guardian) (2)
MR. CHARLES GEEKIE QC (instructed by Mishcon de Reya) appeared on behalf of the Applicant.
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.
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR. JUSTICE BAKER:
- This judgment is delivered at the conclusion of a review hearing in proceedings under the Children Act 1989 concerning Z (born 24 September 2000 and therefore now aged 13˝). The review was ordered by Hedley J at the conclusion of a contested hearing in March 2012. Since that hearing, that judge has, of course, retired and this review has therefore been listed before me.
- The background to the case is set out in the unreported judgment of Hedley J dated 6 March 2012, and it is not necessary to recite it in full here. I simply record the salient features of the history up to the date of the hearing.
- Z's parents started their relationship in about 1996. Z, a boy, was born in September 2000 and 2 months later, in December of that year, his parents married. The parents are from very different backgrounds. The father is of European origin ; the mother is from the Caribbean. The father is a man of very considerable wealth and is a number of years older than the mother. Their relationship broke down in 2002 and there has been litigation between the parties for most of the subsequent twelve years.
- Initially there was a shared residence order, whereunder Z spent specific periods of time with each parent. There were prolonged difficulties between the parents over parenting issues and Dr. Berelowitz, the well-known child psychiatrist, was involved on several occasions in helping them to resolve those issues. The case returned to court on a number of occasions.
- Matters took a dramatic and decisive turn on 3rd June 2009. On that date the mother, apparently aggrieved at what she perceived to be the father's conduct in respect of certain property matters, took a sharpened knife to Z's school where she believed the father to be present, with the avowed intention, as she subsequently admitted, of killing the father. In the event, on arrival she broke down and handed the knife to the headmistress.
- The consequences of this incident have been profound. First, the police were involved; the mother was arrested and remanded in custody for several weeks, although in the event no criminal charges were pursued. Secondly, of far greater long-term importance, Z was transferred to the sole residence of the father. Orders were made prohibiting the mother from coming within one mile of the father's house and other specified locations and, initially, an order was made for no contact between mother and son. In October 2009 the mother was allowed indirect contact with Z. Reports were commissioned from Dr. Berelowitz and also from an adult psychiatrist, Dr. Boast, who was instructed to assess the mother.
- In March 2010 an order was made for four sessions of direct contact to be supervised by an independent social worker. In May 2010, direct contact was suspended pending a further review by Dr. Berelowitz. As is made clear in the judgment of HH Judge Atkins of that date, Z was saying clearly at that stage that he did not wish to see his mother. The judge expressed the view that it was very desirable for contact to be resumed in due course provided conditions were right, but she was satisfied that it was not at that stage in Z's best interests.
- In January 2011 the father filed an application seeking leave to remove Z permanently from the jurisdiction to a location which he proposed to give solely to the court and not to the mother. The principal reason for the father's application was, as he described in his notice of application, his constant state of fear that, given her close proximity, the mother would again seek to harm him and consequently Z. It seems that this application was prompted in part by a supplemental report from Dr. Berelowitz who identified a high level of anxiety in Z about the mother and recommended that the only realistic solution for Z was to move away to a secret and secure destination where he would be able to move around freely in the knowledge that his mother could not possibly be in the vicinity. Z was made a party to the proceedings and a CAFCASS officer, Ms. Jordan, appointed his Children's Guardian.
- After a series of delays and further directions hearings, the cross-applications by the father for leave to remove and by the mother for restoration of contact, came before Hedley J in February 2012. It is his unreported judgment and order, dated 6th March, at the end of that hearing that form the foundation of the case before me. In his judgment, at paras.2 and 3, the judge observed of Z that:
"…he evinces a profound fear of the mother. That fear is shared by the father and there is no doubt that the family, 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".
- The judge's observations about the parents at paras.11 and 12 of his judgment are worth citing at some length. He described the father as:
"…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".
- I note that Dr. Boast's assessment of the mother, quoted by Hedley J at para.14, was that she had no diagnosable mental illness or personality disorder but was "simply a very complex character".
- Having described the events of 3rd June 2009, Mr. Justice Hedley proceeded to consider the impact on the father and Z of the father. He noted, relying on a psychological assessment carried out for the proceedings, that he had a fear for his safety that was genuine, real and proportionate. Turning to Z's fear of his own mother, the judge considered whether the cause of that fear was (1) the events of 3rd June 2009; (2) ideas suggested to him, directly or indirectly, by the father, or (3) his own previous life experiences. Whilst accepting that the events of 3rd June 2009 were a factor, and also that he had picked up from the father's fear, the judge accepted the opinion of Dr. Berelowitz that the essence of Z's fears derive from his experience of being at home with the mother. He noted that Dr. Berelowitz had gone so far as to describe Z as "paralysed with fear of the mother". This led Hedley J, having read the expert opinion of Dr. Berelowitz and the Guardian, and considered the evidence of the parties, to observe, at para.23:
" 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.
- At the conclusion of his judgment, Hedley J concluded that the father should be permitted to remove Z from the jurisdiction. He thought his fear of the mother was far more likely to subside if there was real geographical distance between them. He gave careful consideration as to the degree of confidentiality, but found in the end that he should not extend confidentiality to the country of destination, which was revealed as Switzerland. In conclusion Hedley J said, at paras.35:
"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."
"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.
- It is unnecessary to set out the full terms of the order made consequent upon that judgment. It should be noted, however, in view of the issues now arising, that it was recited at the top of the order that the same was made
"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 father and Z moved to Switzerland in July 2012. The mother was informed of the country of destination the day before they departed. Prior to the departure the father's solicitor had written to a Swiss lawyer asking him to put in place mirror orders, to which the father had agreed, as recited in the order of 6th March, but the Swiss lawyer had replied that Z and the father would have to be habitually resident in Switzerland before he could obtain any recognition order. Upon their arrival in Switzerland, the Swiss lawyer prepared an application pursuant to the European 1980 Convention on the Recognition and Enforcement of Decisions concerning Custody of Children (the 1996 Hague Convention having not at that stage been ratified by the United Kingdom). Upon receipt of that application, the judge at the Swiss court wrote to ask for the mother's address in order that the proceedings could be served on her. This gave rise to concern on behalf of the father that the revelation of the details of the local court would narrow down very substantially the geographical area in which he and Z were living. The court was invited to adopt a procedure that did not reveal the locality of the court, but the Swiss judge subsequently rejected that approach, stating that it was "out of the question for the details of the court to be hidden from the responding party". As a result, the proceedings for recognition in the Swiss court were withdrawn.
- On 3rd December the father therefore filed an application in this court to be released from his undertaking concerning a mirror order. At a further hearing on 9th December 2012, Hedley J suspended the obligations contained within those undertakings until the review hearing and provided that the court should enquire of the office of the Head of International Family Justice whether the order could in fact be registered or mirrored in the court in Switzerland in such a way that would not reveal the father's and Z's address, Z's school, the district court in which the order was made, or any other information likely to reveal Z's address. The father was ordered to pay the mother's costs of that application and hearing.
- The response from the Swiss network judge confirmed that in Switzerland there was no concept of a mirror order. He offered two ways of achieving the same effect – (1) recognition under the 1980 or 1996 Conventions or (2) an application for guardianship authority based on substantive Swiss law. However, he went on to observe that in both cases the authority was a district one and, the right to be heard being guaranteed by the parties, it was not possible for the address of the jurisdiction to be withheld.
- I note in passing at this stage that this opinion has been confirmed subsequently by a report prepared in these proceedings by another Swiss lawyer, Dr. Spycher.
- The matter then came back before Bodey J on 16th October 2013. The review date was adjourned at that stage to the present hearing. The judge directed that the following issues be considered at the review hearing: (a) whether the father should be released from his undertaking to obtain a mirror order; (b) the continuing jurisdiction of the court of England and Wales in respect of Z; (c) the mother's application for direct contact and the issues of indirect contact, and (d) any other issues regarding the continued recognition and enforcement of the orders of 6th March 2012 and any subsequent order of the English courts in this matter in Switzerland.
- The judge gave directions, including a further report from the Children's Guardian, Ms. Jordan, and brief updating statements from the parties. The hearing was duly listed before me on 24th March. Prior to that, permission was given for both parties to instruct Dr. Spycher, the Swiss lawyer, to answer certain questions on jurisdictional issues. The costs of that report were ordered to be borne initially by the mother but subject to the court at this hearing determining that the father should be required to contribute no more than 50% to those costs.
- Meanwhile, outside the court arena, the following developments had taken place. The father and Z have settled in Switzerland. By all accounts, Zhas settled well and has continued to do as well at school in Switzerland as he did in this country. He is enjoying a range of sporting activities and has become a promising skier. Prior to his departure to Switzerland, the father duly arranged for Z to undergo play therapy but after several sessions the therapist concluded that no further sessions were required and no therapy of any sort has been arranged for Z in Switzerland.
- The mother says, and I accept, that she attended several sessions with a psychotherapist who advised her that she should undergo grief or bereavement counselling, a suggestion that the mother rejected on the grounds that, as she put it, Z was still alive. The mother therefore resumed sessions with a counsellor whom she has been seeing for several years.
- The indirect contact between the mother and Z has been changed in accordance with the order of 6th March 2012. I am satisfied that the father has complied with the s.11(7) conditions imposed on him concerning that contact. All letters since 6th March 2012 have been produced for this hearing. They make interesting reading. The striking feature of the correspondence is that there is little, if any, dialogue between mother and son. Z's letters largely set out what he has done either at school or in his various sporting activities. The Guardian rightly describes his letters as being somewhat cold and dismissive. The mother's letters focus largely on the weather or events in her life or in their past life. They are written in somewhat emotional terms using what the Guardian describes as "flowery language". The mother rarely responds to anything said in Z's letters.
The issues and hearing
- The hearing took place over two days with judgment on the third day. The mother has been represented by Mr. Malcolm Bishop QC, as she has been in the past, and the father, on this occasion, by Mr. Charles Geekie QC. The Guardian has been represented by Ms. Deirdre Fottrell.
- The issues for the court to determine fall into three categories. First, there are a number of linked jurisdictional issues. The father seeks to be discharged from the obligation to file mirror orders in accordance with his undertaking of 6th March 2012. The mother applies for rescission of the provision in the order of that date that the courts of England and Wales shall retain jurisdiction, on the basis that the mother's consent to that order was conditional upon the father obtaining mirror orders in Switzerland. She argues that since the mirror orders have not been obtained, and cannot be obtained, the prorogation of jurisdiction as provided for in the order of 6th March was invalid. In the alternative, the mother seeks an order that this court should now stay these proceedings and relinquish jurisdiction to the Swiss courts.
- Secondly, there are issues concerning contact. At the outset of the hearing the mother indicated that she was seeking the reintroduction of direct contact, initially on a supervised basis. The father opposed this and instead proposed a reduction in the frequency of indirect contact in accordance with the recommendations by the Guardian.
- Thirdly, the Guardian, supported by the father, invited the court to make an order under s.91(14) of the Children Act, that there should not be any further application by the mother for a residence or contact order without the court's leave. In addition, I am told that there are issues about costs and that these have been postponed until after judgment.
- The written evidence put before the court consisted of the updating statements from the parties; the Guardian's report of 11th February 2014; Dr. Spycher's report; the letters passing between the mother and Z, and other miscellaneous documents, including substantial correspondence concerning the attempts to obtain mirror orders. Oral evidence at the hearing was provided by the Guardian, the father and the mother.
- The Guardian's report set out details of her conversations with the parties and with Z. She has seen Z in Switzerland on two occasions. She found him friendly, well-mannered and engaged. He said he loved his life in Switzerland; felt really happy almost all the time; enjoyed school, and has made lots of friends. He said he feels much happier now than he did when living with the mother. He was very scared that the mother would fall out with his friends and neighbours. He said he was frightened of the mother and felt very unsafe. The Guardian said he could not be clearer that he does not want to see the mother, but he was confident that if he did want to the father would make it happen. He said he did not enjoy writing to the mother and wants to write less if at all. He described her letters to him as "weird" and said that often he just does not know what to say in response. He wishes the mother would pick up more on what he has told her. The Guardian got the impression that he wishes everything to do with the court would go away and let him get on enjoying his life.
- The Guardian described the father as presenting as a committed and loving parent. He expressed relief that Z seemed so happy and settled and less isolated. The Guardian was reassured after speaking to the father that he would facilitate contact if Z expressed a wish to see his mother. The Guardian noted that the father has fostered a good relationship between Z and his maternal grandparents, who have been estranged from the mother and whom Z had not previously seen. They now visit and stay with the father and Z in Switzerland twice a year at the father's expense.
- The Guardian's report of her conversations with Z and the father was, on the whole, positive. The same cannot be said of her meeting with the mother. The Guardian's account of the meeting, which was not substantially challenged by the mother, starts as follows:
"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".
- The mother's attitude remained the same throughout the meeting. At one point a member of staff entered the room to check that the Guardian was all right. The meeting ended with the mother observing of the Guardian, "You also resemble the father's ex-partner who died", adding "of cancer". The Guardian pointed out to the mother that she found these comments disturbing, indicating, as they do, no regard for the possible effect of her words on others. The mother responded, "Well, that's just me". The Guardian did not find this reassuring.
- In oral evidence, when cross-examined by Mr. Bishop, the Guardian said that on a human level she felt deeply sorry for the mother who could not see her child. In answer to Mr. Geekie, she described the mother's unpredictability in the meeting as "really quite shocking". She would not trust the mother not to behave in a similarly unpredictable way in contact, even if that contact was supervised.
- In his updating statement, the father outlined the events that had occurred since the last hearing and described Z's progress in terms similar to those of the Guardian. He concluded:
"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.
- I have noted that Hedley J described the father as "cool and rather unbending". Without in any way disturbing the judge's findings, I record that I formed a rather different impression of the father. I found him to be warm and sensitive to Z's needs. It may be that, as a result of his move to Switzerland, he has become somewhat more relaxed.
- So far as the mother's evidence is concerned, there was again, as before Mr. Justice Hedley, a contrast between her written statement and her oral evidence. On this occasion, however, the contrast was the other way round. Her written statement was couched in relatively restrained and moderate terms. In her oral evidence, however, the mother came across as emotional, self-centred and wholly lacking in insight. Like the Guardian, I have every sympathy for her plight at not seeing her son, but, whilst she avoided in court the intemperate language used in her conversation with the Guardian, she displayed a disdainful and defiant approach to the end and repeatedly failed to give a straight answer to a straight question. In short, she did herself no favours at all.
- I am driven to conclude that the mother has not changed at all since the hearing in 2012. Perhaps it is not surprising in particular as she has not received psychotherapy, as recommended by Dr. Boast and stipulated by Hedley J as a prerequisite to the resumption of direct contact. Whatever the reason, the mother's disastrous meeting with the Guardian and in her oral evidence, convinces me that she has not changed at all in the two years since the hearing before Hedley J.
- With those observations in mind, I turn to the issues, beginning with the various matters of jurisdiction raised by the parties.
- The order of March 2012 provided that there should be a mirror order in the destination country. The mirror order would, of course, protect both parties since it would reflect both the order for residence and leave to remove and also the orders concerning mother's contact. The fact that Switzerland was the destination country was known to the father, his legal representatives, the court and the Guardian but not the mother. For whatever reason, it was not known at that stage that mirror orders are not provided for under Swiss law. It is now clear, from legal research on behalf of the father, confirmed by the report of Dr. Spycher, that this is indeed the case.
- I do not regard this as a significant problem. As the father's legal researchers and the report of Dr. Spycher made clear, there is a process whereby the order can be registered, recognised and enforced in Switzerland. The father's legal researchers and Dr. Spycher also make clear that for that to happen it would be unavoidable that the district court for the canton in Switzerland where the father and Z live would be identified to the mother. The legal advice is clear. Although the Swiss court has power to withhold the father's address from the mother, it cannot keep the court's location secret from the parties. Mr. Geekie submits that this is a powerful incentive on the father to continue to comply with the order. I agree. I note in passing that in submissions before Hedley J, counsel then instructed by the father (Mr. Stephen Cobb QC, as he then was) made precisely this point. Although he put the option of a mirror order before the court, he added that such a clause was unnecessary because the English order could be enforced and recognised under international law in the destination country, and that such a process could involve the discharge of the embargo on revealing that country. Mr. Bishop has now accepted that the redacted version of that submission was disclosed to the mother.
- Accordingly, I see no reason not to discharge the second and third undertaking given by the father in respect of a mirror order to Hedley J on 6th March 2012.
- As a result of the father's inability to obtain mirror orders in Switzerland, the mother applied in these proceedings for an order discharging the provision of the order of 6th March 2012 that this court retains jurisdiction to deal with any questions regarding Z's upbringing. It is the mother's case that her agreement to this court retaining jurisdiction was conditional upon the father's undertaking to obtain a mirror order. Had he not given that undertaking, it is said that she would not have been prepared to give her agreement to this court retaining jurisdiction. Accordingly, she says, the provision in the order whereby this court retained jurisdiction was defective.
- The prorogation of jurisdiction is governed by Article 12 of Council Regulation (EC) 2201/ 2003 (commonly known as Brussels II Revised), which provide as follows:
"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;
(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;
(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".
- Although Mr. Bishop appeared at one point in the argument to be contending that Article 12.1 applied in this case, it is in fact Article 12.3 that contains the relevant provisions. Article 12.3 is a complex provision. Its complexities were considered by the Supreme Court in the case of Re I  UKSC 10. From that authority, I draw the following propositions of relevance to this case. First, Article 12 applies irrespective of the habitual residence of the child. As explained by Baroness Hale of Richmond in paras.17-20 of the judgment, there is nothing in either Article 12.1 or Article 12.3 to limit jurisdiction to children who are resident within the EU. At the time of the hearing before Hedley J in February and March 2012, Z was habitually resident in England and Wales. The fact that he is now habitually resident in Switzerland does not preclude the jurisdiction from being further prorogued.
- Secondly, as spelt out by Baroness Hale at paras.21 and 22, there are three criteria in Article 12.3 which have to be satisfied before the jurisdiction can be prorogued, namely (1) the child must have a substantial connection with the Member State in question, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident there; (2) the jurisdiction of the courts must have been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised, and (3) the jurisdiction must be in the best interests of the child.
- Thirdly, the phrase "at the time the court is seised" refers to a particular moment in time. As Baroness Hale observed at para.23:
"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".
- The justices of the Supreme Court were unable to agree whether the words in Article 12.3(b) mean "the jurisdiction of the courts was accepted when the proceedings began by holders of parental responsibility who were then parties" or "the jurisdiction of the courts has been accepted any time after the proceedings have been began by holders who were parties when they were begun". But their inability to agree was irrelevant to the outcome in Re I because, on either interpretation, there had been an unequivocal acceptance of the jurisdiction by all the parties to the proceedings.
- The effect of Hedley J's order of 6th March 2012 was to prorogue the jurisdiction. Although it is not spelt out in the judgment or the order, it is clear that the three criteria in Article 12.3 were satisfied. The first criterion was satisfied because Z manifestly had a substantial connection with this country. The third criterion was satisfied because, as I infer, Hedley J concluded that prorogation was in the best interests of Z. The second criterion was satisfied, not because of any agreement given by the parties at the time of the order, but rather by their unequivocal acceptance of the jurisdiction at the outset of the proceedings. The mistaken assumption concerning mirror orders was therefore irrelevant to the question whether there had been unequivocal acceptance of the jurisdiction at the time the court was seised. The only question is whether it undermined Hedley J's implied conclusion that prorogation was in the best interests of the child. In my view, it did not. The purpose of the mirror order was to assist both parties in the enforcement of the order. As Mr. Geekie has demonstrated, the order can be enforced by other means, and the availability of those means, involving as they do the disclosure of the location of the district court where the father and Z are living, is a cogent factor in ensuring that the father complies with the order.
- Accordingly, I reject Mr. Bishop's first argument that the prorogation of jurisdiction by the order of 6th March 2012 was defective.
- Mr. Bishop's second submission on jurisdiction is that this court should now transfer jurisdiction. Although he puts it that way, I, with respect, consider the correct approach was for this court to ask the question again whether the jurisdiction should now be prorogued. Z is now habitually resident in Switzerland. It is axiomatic that jurisdiction, in respect of matters concerning the exercise of parental responsibility, should normally lie with the country of the child's habitual residence. The question is whether, in those circumstances, the jurisdiction of England and Wales should now be prorogued.
- The effect of Hedley J's order is that this court now retains jurisdiction. Mr. Bishop recognises this when he concedes that it is not disputed that the court has what he calls de facto jurisdiction. The question, Mr. Bishop submits, is whether it should exercise that jurisdiction. Mr. Bishop submits that the court should adopt what he describes as a purposive interpretation of the provisions in Brussels II Revised. He submits that the decision whether to retain jurisdiction or to release it should be welfare-driven. Through him, the mother submits that this court should now transfer the jurisdiction to Switzerland for the following reasons. First, the child is habitually resident in Switzerland and is increasingly absorbed in Swiss life. Mr. Bishop submits that it is therefore surely right that any dispute that may affect his interests should be decided by the courts immersed in that culture. Secondly, the Swiss courts are governed by the principle of the paramountcy of the child's welfare just as much as these courts. He points out that the report of Dr. Spycher demonstrates a sophisticated child-centred approach which is in no way inferior to our own. Thirdly, Mr. Bishop argues that the arguments put forward against pursuing proceedings in Switzerland, namely that they would reveal the child's residence and harm his security, is "fundamentally flawed". Mr. Bishop submits that a contact application by the mother in Switzerland could be conducted without disclosing the precise location of the child. Fourthly, he submits that all that is needed for either party to launch proceeding is for the father to disclose the court district in which he is living and for directions to be sought from that court restricting details of precise residence, etc. Fifthly, Mr. Bishop submits that the ongoing refusal to disclose the general area where the father and Z are living is disproportionate. He points out that there is no suggestion, and certainly no clear evidence, that the mother has broken the embargo imposed on her so far. Finally, Mr. Bishop submits that the mother is what he describes as "a perfectly respectable and responsible mother who in a moment of despair lost control and went to the child's school with the intention of stabbing the father but who, before she came into contact with the father, came to her sense in the head teacher's study and gave up the knife she had intended to use". Mr. Bishop says that the mother accepts that what she did was wrong but adds "if ever a mother has paid a bitter price for a momentary loss of control it is the mother in this case".
- In reply, Mr. Geekie reminds me of the decision of Parker J in the decision in AP v TD (Relocation: Retention of Jurisdiction)  EWHC 2040 Fam;  1 FLR 1851. That decision demonstrates that, where the terms of a final Children Act order under s.8 make it clear that one party may subsequently invoke the jurisdiction of the court in this country in relation to residence and relocation, and the jurisdiction of the courts of this country has been established in earlier proceedings, it is not open to the other parent to withdraw their unequivocal and express acceptance that English court would continue to have jurisdiction in any subsequent proceedings. In that case a final order made in England allowed the children to take up habitual residence in Canada. The terms of the order specifically recorded that "any future disputes about contact shall be resolved in the UK, the mother agreeing to return to the jurisdiction for hearings". Parker J held that neither subsequent orders obtained by the mother in courts in Canada, nor a subsequent denial of jurisdiction by the mother, could defeat the jurisdiction that had been retained in the original order. The English court retained jurisdiction to determine the welfare issues.
- Mr. Geekie further submits that it is in Z's best interests for this court to retain jurisdiction. He submits it would be contrary to Z's interests for the location of the Swiss court to be identified to the mother. This court, and this Guardian, have, furthermore, been involved in these proceedings for many years and are fully acquainted with all the issues. It would be contrary to Z's interests for the issues that may arise in future, in proceedings concerning his upbringing, to be determined in fresh proceedings involving new professionals and possibly a re-examination of historical matters on which the courts in this country have already involved.
- Ms. Fottrell, on behalf of the Guardian, supports Mr. Geekie's arguments on this issue.
- I unhesitatingly accept the submissions of Mr. Geekie. In my judgment, Hedley J was entirely justified in proroguing jurisdiction and I propose to prorogue jurisdiction again. The criteria in Article 12.3 are satisfied. It is true that Z is now habitually resident in Switzerland but, as Baroness Hale confirmed in Re I, this does not prevent prorogation of jurisdiction in this country. Z continues to have a substantial connection with this country, not least because his mother lives here. All parties have given their unequivocal acceptance to the jurisdiction at the outset of the proceedings in the manner set out above. Once given, that acceptance cannot be withdrawn for the reasons explained by Baroness Hale in Re I at para.23.
- Finally, and most importantly, I find that it is in Z's best interests for this court to retain jurisdiction for the reasons identified by Mr. Geekie and Ms. Fottrell. This court is fully acquainted with the history. Much of the information relevant to any future issues that may arise will be located in and derived from this country. It would be contrary to Z's interests to be exposed to a new range of professionals and a new court process. In particular, I accept the submission, having considered all the evidence, that the disclosure of the address of the district court in Switzerland will increase the risk of Z's location being discovered by the mother and, of equal importance, will increase his fear that his location would be discovered. That would be a severe setback to a boy who has now begun to recover from his unhappy experiences in the mother's care. I agree with Mr. Geekie that the need to preserve confidentiality is of fundamental importance in this case.
- In reaching that decision, I fully accept that the Swiss courts would, of course, apply a welfare-orientated approach, if asked to determine questions concerning Z's upbringing. For the reasons set out above, however, I consider that the courts of this country continue to be the appropriate forum for resolving such questions. I shall accordingly include an appropriate declaration and order to that effect in the order made at the conclusion of this judgment.
- At the outset of the hearing the mother applied for the reintroduction of direct contact. The father, supported by the Guardian, opposed this and sought a reduction in indirect contact. In considering these proposals I apply s.8 of the Children Act and have regard to Article 8 of ECHR. Z's wishes and feelings are of particular importance given his age and level of understanding. He remains adamantly opposed to direct contact and wishes a reduction in letters. Of further importance is the risk of harm. The Guardian, in her report, reached this conclusion:
"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.
- Of course I take into account that it is in every child's interests, if possible, to grow up with a relationship with both parents. I share Hedley J's view, expressed in para.27 of his judgment, that this is the golden prize. But at this stage there is no evidence that the mother has any appreciation of Z's needs or insight into his anxieties. She has not changed one iota in the past two years.
- I conclude, therefore, that direct contact would not be in Z's best interests at this stage and that extends to supervised contact and contact by telephone or Skype.
- So far as indirect contact is concerned, the current level of twelve communications a year was fixed at a time when it was hoped that the mother would take steps, through therapy, to address her problems so that direct contact might become possible. Therapy has not occurred in the sense anticipated or hoped for by Hedley J, and the prospect of direct contact has receded. I have already made the observations about the unsatisfactory nature of the letters exchanged by the mother and Z. Z is finding it difficult to write letters and the father is finding it difficult to persuade him to write.
- Having heard the evidence, and argument, I concluded that it was in Z's interests for indirect contact to continue but not at its current level. Taking into account the points made by the parties, both in evidence and in submissions, I have reached the conclusion that letters should continue to be exchanged four times a year, including on Z's birthday and at Christmas. I was minded to urge the mother to reflect about what she says in her letters and the need to respond to information given by Z, so that the correspondence should deal with the present and future and not the past.
- At this point I should record that, when the court reassembled for judgment, Mr. Bishop informed me that the mother had reflected on her position, and the evidence, and had concluded that she did not wish to pursue the question of contact and would propose to write only one further letter. He added that she intended to return to Grenada and would seek a readjustment of the financial settlement between the parties. The mother confirmed to me in court that she had given instructions in those terms. Accordingly, I have concluded that the order should record what the mother's change of instructions have been and, further, that this court is of the view that it is in Z's best interest to continue to have indirect contact with his mother by exchange of letters four times a year, but that the mother has indicated that she proposes to write only one further letter. It seems to me that in those circumstances the order should provide that the mother is at liberty to write four times a year and that, upon receipt of a letter from the mother, the father shall encourage and facilitate Z to reply.
- The Guardian seeks an order under s.91(14) that the mother should not be permitted to make any further application for a residence order or contact order for the next three years without the court's leave. That application is supported by the father but opposed by the mother.
- The leading authority on s.91(14) remains Re P  2 FLR 573, in which Butler-Sloss LJ (as she then was) gave the following guidance:
"(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 the family 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."
- In this case Mr. Bishop says, rightly, that there is no history of inappropriate and repeated applications by the mother for either residence or contact orders. The application for contact considered at this hearing was anticipated by Hedley J's order. Indeed, it was one of the main purposes of the review which he ordered. On behalf of the Guardian, Ms. Fottrell acknowledges that an order under s.91(14) is, as Re P makes clear, a last resort. In evidence, the Guardian said that she only made such a recommendation rarely. Ms. Fottrell submits that it is justified here by the long and difficult history of the case and, in particular, Z's unequivocal desire for proceedings to end. She submits that, in the absence of such an order, the court can have no confidence that the mother would not apply. Given the application of the paramountcy principle, Ms. Fottrell, supported by Mr. Geekie on this point, submits that a s.91(14) order should be made.
- I have given careful consideration to these points put forward by the Guardian and supported by the father, but in the end I have concluded that it would not be right to impose a s.91(14) order at this stage. The principal reason is my concern for Z's welfare. I accept that the prospect of continued proceedings is unsettling for him. What concerns me is that if the door is closed here the mother may try to open the door in Switzerland. The prospect of proceedings in Switzerland is patently much more damaging to Z's welfare for the reasons explained above. It must be clear, and made clear to everyone who reads this judgment and the order to be made hereafter, that this court retains unfettered jurisdiction to deal with all matters concerning Z's upbringing. Instead I shall direct that in the event that either party files any application in respect of Z, that application shall be transferred to me and listed immediately for a case management hearing. This court has wide powers of case management and, in the exercise of those powers, the court would aim to address all concerns about the impact of the application on the child's welfare. I reached this conclusion before the last minute change in the mother's position. I do not consider that change necessitates any amendment to my decision on the s.91(14) issue.
- In addition to the orders provided for in this judgment, I shall extend the injunction set out at para.7 of Hedley J's order. I shall also order a transcript of this judgment. I shall now consider any supplementary issues which the parties wish to raise. I would be grateful in due course if counsel would then agree a draft order.
Copyright Policy |
Donate to BAILII