R (A Child) [2007] EWCA Civ 355

Case No B4/2007/0449[2007] EWCA Civ 355
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE RODERIC WOOD)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 22 nd March 2007
Before
LORD JUSTICE THORPELORD JUSTICE LAWRENCE COLLINSMR JUSTICE MUNBY
IN THE MATTER OF R (a Child)
(DAR Transcript of
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MR H SETRIGHT QC (instructed by Messrs Dawson Cromwell) appeared on behalf of the Appellant.
THE RESPONDENT APPEARED IN PERSON.
Judgment
[1]We are this morning concerned with a little girl, M, who was born on 1 March 2005 and is therefore two years of age. Her mother is Russian, her father Portuguese; they were not married. The issues as to the future of M, after the breakdown of the relationship between her parents, came before the Porto de Mos High Court on 16 December 2005. The parents reached an agreement as to the future and the agreement was embodied in the order of that court. The basics, recorded in the order, were that M should be in the primary care of her mother; father, having parental responsibility, was to be consulted in all major issues relating to the child; the child was in due course to live with the mother in England; the father was to have liberal contact; there was to be financial provision for the child, a monthly sum of €500, index linked; and there was to be no order as to costs. Unfortunately that seeming accord between the parties did not endure and proceedings erupted in this jurisdiction, culminating in orders made by Roderic Wood J on 7 February. The reasons for those orders were explained by him in judgments given on 31 January and 5 February.[2]Before Roderic Wood J there were extremely convoluted arguments addressed by Mr Gupta, on behalf of the mother, and Mr Armstrong, for the father, as to the effect of numerous articles of the Regulation Brussels II Revised. They were all legal arguments on jurisdictional issues and Roderic Wood J’s judgments demonstrate how difficult he found the resolution of the arguments and how confusing he found the interrelationship of the various provisions. Mr Gupta thought that the judge had probably got the law wrong and he unsuccessfully applied for permission to appeal. The consequence was an Appellant’s Notice dated 28 February 2007 which was put before me as a matter of urgency on 1 March, because there was said to be a need for consideration of the accompanying stay application. That was a bizarre application to this court, given that the order in respect of which a stay was sought was a consent order. Seemingly on the previous evening the mother had applied without notice to Holman J, who had quite rightly refused to intervene.[3]What was pressing was that under the consent order for contact in the year 2007 the father was due to have M for contact on 28 February and mother should have travelled to Portugal with M on 27 February. Her excuse for failing so to do was that she wanted an undertaking from the father that he would not issue some sort of challenge to the London jurisdiction whilst M was in Portugal. That seems to me extremely thin; the whole case had been in front of Roderic Wood J in detail up to and including 7 February and if she thought she needed some further protection in relation to the forthcoming birthday visit, she should have asked for it then and it would have been considered on its merits. So the application to this court for a stay and an application without notice to Holman J suggest to me that the mother was playing games and was trying to avoid the obligation that was clearly accepted by her and embodied in the consent paragraphs in the order of 7 February. Be that as it may, fortunately the crisis was resolved and although M was not in Portugal with her father for her birthday, I understand that she was there a day or two late.[4]So although I refused the stay, I did fix the permission application for hearing today on notice with a one-hour time estimate. It looks as if I inadvertently failed to add that if permission were granted then the appeal would immediately follow; that is the usual provision when putting parties to the expense of attending, both sides properly represented, before this court. So I would propose to amend the direction to make it plain that the appeal is immediately to follow.[5]I can do that without the least misgiving because both parties are agreed that that is the sensible course. Mr Setright’s skeleton argument in support of the application for permission demonstrates that this is, in reality, a very simple case. There is really no room for argument but that article 8 of the Regulation rules. M has been here for well beyond the three-month period following her arrival in accordance with the Portuguese consent order; therefore if any judicial intervention is invoked it needs to be here in London, the place of the child’s habitual residence.[6]Mr S has had to cope with this hearing without lawyers because he has already spent no less than £50,000 in pursuing his commitment to his daughter and Mr Setright tells us that the mother has spent £30,000. That is completely shocking, given that that sum could have been invested by the parents for the future education of their child, for instance, and we must therefore try and introduce a bit of reality into this case to bring the focus back where it belongs: that is on M and her welfare, and not on convoluted jurisdictional arguments. We must do what we can to ensure that the future is managed by these two parents for the benefit and welfare of M without further recourse to expensive litigation.[7]So how can that be achieved? I think the best we can do is to take the order made by Roderic Wood J on 7 February and leave the penal notice provisions, leave the important recital that the parents have agreed that M is to be brought up trilingual, leave the undertakings in relation to the London home and as to the implementation of contact, then strike out the first four paragraphs and paragraphs 6-9 inclusive, so that after the recitals and undertakings there will then become:
“By consent it is ordered that…”
The first paragraph thereunder will read:
“The parties having agreed for the year 2007 as set out in the Schedule to this Order marked A, contact for the year 2008 and for subsequent years shall take effect as set out in the Order of the Portuguese court of 16 December 2006 [should be 2005] and any application to vary the amount of contact ordered under the Order…in respect of the year 2008 and subsequent years shall be made to this Court.”
Paragraph 10 of the existing order will then become 2; paragraph 11 will be 3; 12 will be 4; 13 will be 5; 14 will be 6; and 15 will be 7. That is the variation that we make and that is the disposal that I would propose.[8]I agree, particularly with what my Lord, Lord Justice Thorpe, has said about the waste of money on legal fees and is hoped that the interest of the child will now be fully taken into account.[9]I also agree. I add this: I can understand the father’s misgivings about the mother’s commitment to what, as my Lord has pointed out, was after all a consent order when on the very first occasion when contact was, by agreement, to take place in Portugal the unfortunate applications to which my Lord has referred were made both to this court and to Holman J. One can understand the father’s concerns when following an order made on 7 February 2007, contact which is due to take place in Portugal on 28 February 2007 is seemingly resiled from in a letter dated 26 February 2007 -- only two days before -- which announces for the first time a proposal to appeal -- as my Lord has observed, certainly as far as concerns the stay an ill-considered proposal to appeal -- and continues by blandly announcing that in the circumstances it is not appropriate for the contact to take place in Portugal two days later.[10]The mother will have heard the observations which my Lord, Lord Justice Thorpe made during the course of argument, observations with which, with respect, I fully associate myself I very much hope that from now on the mother and the father will focus upon M’s best interests, and will seek loyally to give effect to the order to which they have agreed, regulating contact for the year 2007, and thereafter to the order made by the Portuguese court. The mother needs to be in no doubt that not merely does she owe an obligation to this court, and indeed to the Portuguese court, to comply loyally with the orders of the court; more importantly to my way of thinking she has an obligation to M to give effect in M’s best interests to what she, the mother, has agreed is to be done.

Order

Application granted. Appeal allowed.