“However, I stress to the parents that it is convenient for the child to establish residence with one of the parents as once the child gets older especially from three years old onwards there will be the issue of frequency of pre-school and then school materials which will not fit with the “comings and goings” of the child between the homes of the mother and the father.”
“(1) The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. To this end, the Community is to adopt, among others, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market. (2) The Tampere European Council endorsed the principle of mutual recognition of judicial decisions as the cornerstone for the creation of a genuine judicial area, and identified visiting rights as a priority. ... (12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility. (13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court. ... (21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required. (22) Authentic instruments and agreements between parties that are enforceable in one Member State should be treated as equivalent to “judgments” for the purpose of the application of the rules on recognition and enforcement. (23) The Tampere European Council considered in its conclusions (point 34) that judgments in the field of family litigation should be “automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement”
“The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.” “1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child’s former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child’s former habitual residence. 2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child’s new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.”
“The courts of a Member State shall also have jurisdiction in relation to parental responsibility ... 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.”
“Where a child’s habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.”
“Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.”
“Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.”
“1 In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter. 2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.”
“A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”
“A judgment relating to parental responsibility shall not be recognised: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child; (b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought; ... (d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard; (e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought”
“The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Article ... 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.”
“Under no circumstances may a judgment be reviewed as to its substance.”
“A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.”
“The local jurisdiction shall be determined by reference to the place of habitual residence of the person against whom enforcement is sought or by reference to the habitual residence of any child to whom the application relates.” “1. The court applied to shall give its decision without delay. Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application. 2. The application may be refused only for one of the reasons specified in Articles 22, 23 and 24. 3. Under no circumstances may a judgment be reviewed as to its substance.”
“1 This Section shall apply to: (a) rights of access ... 2 The provisions of this Section shall not prevent a holder of parental responsibility from seeking recognition and enforcement of a judgment in accordance with the provisions in Sections 1 and 2 of this Chapter.” (a) rights of access ... Article 41.1 provides that: “The rights of access referred to in Article 40(l)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.” “1. The law of the Member State of origin shall be applicable to any rectification of the certificate. 2. No appeal shall lie against the issuing of a certificate pursuant to Article 41(1) ...”
“1 The enforcement procedure is governed by the law of the Member State of enforcement. 2 Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) ... shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to Article 41(1) ... cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.”
“The father contends that the agreement as to the joint exercise of parental responsibility and shared care arrangements inevitably incorporates his “rights of access” which facilitate the same. This is a superficially attractive argument. I reject it. Articles 2.9 and 2.10 differentiate between rights of custody and rights of access. Whilst the definition in Article 2.10 could ‘accommodate’ the father’s defined periods of residence as “access”, it strains to do so in contrast to the definition in Article 2.9 which clearly accords with the expressed intention of the parents. I am not persuaded that the terms of Article 2.7 permit the relevant party to extract the “rights of access” involved in exercise of parental responsibility in order to chose between Sections 1 and 2 as opposed to Section 4 of Chapter III procedure to gain tactical or any advantage, particularly as here the father seeks to exercise the “day to day” parental responsibility bestowed upon the parent with whom the child resides at the time in accordance with paragraph B of the agreement. I do not read Article 40.2 to be permissive of procedural selection by the father in these circumstances. This view is supported by the Court of Appeal decision in Re D-F (Children)[2011] EWCA Civ 963 which differentiated between enforcement procedure applicable to shared residence and contact orders. Mr Armstrong’s attempt to distinguish the authority fails. I do not “review” the Judgment of the Portuguese Court as to “substance” in according to it the description afforded to it by the parties and subsequently the court. The description accords with its content. It relates to parental responsibility not access. This contrasts with the case of Re D-F (above). However, the principle remains that the Court of Appeal recognised that different procedures for enforcement of Judgment ensued.”
“The mother has claimed disadvantage and lack of understanding by reason of the absence of an independent interpreter. I am satisfied on the basis of her own evidence that whilst she may not have understood the legal implications of the same that she understood the proposal and agreed to a division of L’s care not merely between parents but also between England and Portugal. I am not satisfied that she was coerced into agreeing terms by the words or actions of the CPCJ officer ... and, although I note what would be a highly unusual presence of two police officers during parental negotiations in this jurisdiction albeit that they were attached to a specialised unit concerned with the welfare of minors, I am not satisfied on the evidence that they acted improperly nor directly influenced the outcome of the meeting.”
“I do not accept the mother's evidence that the lawyer jointly instructed was a “friend of the [father's] family”
“Whilst initially entirely cynical of the mother’s motives at the time of entering into the agreement with the father I conclude that her intention to renege upon the agreement was not formulated until after her return to this jurisdiction when the traumatic events post14 November 2011 were behind her. I find that it was the impending date for L’s return to Portugal and the father reasonably indicating that he wished to make necessary arrangements to facilitate this which galvanised her into making application to the Courts in this jurisdiction on7 February 2012 .”
“I would not have ratified this agreement at first instance. I would not consider it to be in the best interests of an infant child to become a shuttlecock during his early and crucial age of emotional development. That said, I am unable to conclude that the overall situation envisaged would be so obviously and extremely abusive to qualify as the exceptional case. There is certainly nothing contrary to public policy, let alone manifestly so, in encouraging the mediation of parental disputes as occurred here. In the vast majority of cases, as I indicated during the course of argument, a court is entitled to presume that adult parents of full capacity and apparent equal status will reach a conclusion which they regard to best reflect the welfare interests of their child. The additional argument of the mother utilised in support of Article 23(a) exception is the fact that she was not of equal status by virtue of her linguistic difficulties and thereby was not given the “opportunity to be heard” as per 23(d). Having regard to the available evidence I have already concluded that whatever the situation concerning interpretation or translation the mother was aware of the exact terms of agreement to which she subscribed.”
“Her mental/emotional health at the time gives me far more reason to concern myself as to her ostensible consent to the arrangement, or the ability to make any dissent known. I bear in mind that parental agreement was seen as key to the CPCJ officer ... and the caveat expressed by the Assistant Scrivener ... and in the circumstances of this particular case, I have tentatively but no less certainly decided that, without any review of the substance of the Judgment, it would be manifestly contrary to public policy to recognise this Judgment pursuant to Article 23(a) of the Regulations.” “most telling to me is the mother’s evidence that she would “have sold her soul to the devil” to exit Portugal. I found this evidence compelling as to her state of mind at the time. It suggests desperation and despair. Observing the mother closely during this part of her oral evidence I was satisfied that it was not a contrived expression used to manipulate the present proceedings. Equally, I was satisfied that she was not capable at the time of entering into the agreement to have already formulated the intention to breach it. This evidence does not stand alone. I am satisfied on the evidence of the mother and father that whilst in Portugal she was “down” and prescribed anti-anxiety drugs. The father and his mother were sufficiently concerned for her welfare to seek medical attention for her.”
“Clearly L cannot be “habitually resident” in two places at once within the meaning of Brussels II(R). The nature of the agreement reached and ratified by the Portuguese court is such whereby the parents apparently concede a constantly changing “habitual residence” for L. The European Union legal definition of habitual residence is set out in Mercredi v Chaffee (Case C-477/10 )[2011] 1 FLR 1293 . Given his age and understanding he must be deemed to acquire the habitual residence of the parent who is exercising de facto sole parental responsibility at the time. In that the time it is proposed he spends in each jurisdiction is intermittent it is nevertheless of ascertainable regularity. [The father’s counsel] convincingly argues that it could never have been the intention of the parents that the change of habitual residence on a two month rotation would permit the respective jurisdictions of each to operate in the relevant periods. This may be so but is, I find, an effect of the drafting of the agreement. There is no stipulation as to preservation of L’s habitual residence in Portugal, as I find it to have been, or that Portugal should have sole jurisdiction to determine parental disagreements.”
“There is no question but that a prohibited steps order, residence order or the making of L a ward of Court would make the Portuguese order irreconcilable and therefore justify nonrecognition (Article 23 (e)). This is obviously dependent upon the court having jurisdiction to do so. Assuming for the point of this argument, that I do ... my obvious disinclination to this step made clear during the course of argument arises from the proximity in time of the Portuguese order and the inevitable and implicit review of the substance of the Judgment to justify the fresh application. I cannot conceive that the aim of Brussels IIR should be able to be thwarted so readily in such circumstances in the absence of other grounds not to recognise and enforce.”
“Article 13 offers no better solution to the problem raised by the practical effect of the Judgment. Wherever the child happened to be in the cycle of shared care will endow the relevant Member State with jurisdiction.”
“satisfied that the English courts do have jurisdiction to entertain the mother’s applications at least by reason of Article 13”
“A judgment shall not be recognised ... if such recognition is contrary to public policy in the state in which recognition is sought.”
“So far asarticle 27 of the Convention is concerned, the court has held that that provision must be interpreted strictly in as much as it constitutes an obstacle to the attainment of one of the fundamental objectives of the Convention ... With regard, more specifically, to recourse to the public-policy clause in article 27(1), the court has made it clear that such recourse is to be had only in exceptional cases”
“Recourse to the public policy clause inarticle 27(1) of the Convention can be envisaged only where recognition or enforcement of the judgment delivered in another contracting state would be at variance to an unacceptable degree with the legal order of the state in which enforcement is sought in as much as it infringes a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the state in which enforcement is sought or of a right recognised as being fundamental within that legal order.”
“It seems to me that, in applying Art 15(2)(a), I have to give proper weight and effect to the language that is used. The Article does not refer simply to recognition being contrary to the best interests of the child. It refers, rather, to recognition being contrary to public policy, taking into account the best interests of the child. Merely to reconsider the best interests of the child would be to review the Belgian judgment (which is clearly welfare based) as to its substance, which is forbidden by Art 19. I have to take into account the best interests of M, but ultimately to consider whether recognition is manifestly contrary to English public policy. To say that something is contrary to public policy is a high hurdle, to which the Article adds the word ‘manifestly’. This is an international convention and I must apply it purposively, giving appropriate weight to the word manifestly.”
“... it is possible to contemplate a situation in which an order of a foreign court is so strongly contrary to the welfare of the child concerned that it would be possible to conclude that its recognition was manifestly contrary to the public policy of our State. But, in my judgment, this order in relation to M falls far short of that. I have frankly said that in my view it is not an order which was in his best interests, but I am quite unable to conclude that it is so contrary to his best interests that it would be actually contrary, let alone manifestly contrary, to some English principle of public policy to enforce it.”
“I would venture the comment that whilst Holman J accepted that there might be circumstances where the ‘order of a foreign court is so strongly contrary to the welfare of the child that its recognition was manifestly contrary to the public policy of our state’ I consider that such cases would be extremely rare, and that the consequences for the children of recognition and enforcement, though these are separate stages from each other, would have to be of the utmost seriousness. I do not consider it necessary, appropriate or wise to attempt to give examples.”
“A high onus rests upon a parent who seeks to reopen welfare issues ... the policy must be save in the most exceptional of circumstances not to allow the foreign judgment to be subverted.”
“cannot be interpreted in such a way that they disregard that fundamental right of the child [as set out in Article 24 of the Charter], the respect for which undeniably merges into the best interests of the child.”
“The case-law of the court relating to the concept of habitual residence in other areas of European Union law ...cannot be directly transposed in the context of the assessment of the habitual residence of children for the purposes of Art 8(1) of the regulation.”
“The ‘habitual residence’ of a child, within the meaning of Art 8(1) of the regulation, must be established on the basis of all the circumstances specific to each individual case.”
“In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment. In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration.”
“the fact that the children are staying in a Member State where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State.”
“To ensure that the best interests of the child are given the utmost consideration, the ... concept of ‘habitual residence’ under Art 8(1) of the Regulation corresponds to the place which reflects some degree of integration by the child in a social and family environment... ... in order to determine where a child is habitually resident, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent. ... the intention of the person with parental responsibility to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or rental of accommodation in the host Member State, may constitute an indicator of the transfer of the habitual residence. In ... order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host State, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character ...”
“The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant. As a general rule, the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.”
“In my view there is ... a sufficient degree of continuity in the residence in London for habitual residence on the part of the parents to arise and an equally sufficient degree of continuity in their residence in Corfu for the same result to arise. Therefore for part of the year the parents and the children were habitually resident in London and for the remainder of the year habitually resident in Greece.” “A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess.”
“the adoption of the concept of alternating habitual residence adopted by Douglas Brown J in the case of Re V (A Minor) (Abduction: Habitual Residence)[1995] 2 FLR 992 seems to me to be reflective of the facts of the particular case. The family that spends 6 continuous months in one home and 6 continuous months in another will be rare. The concept breaks down in the instance of the family moving between two jurisdictions on a weekly basis.”
“I have no difficulty with the concept of a person being resident in more than one place at a time. It is a description that applies aptly to a number of situations - the family with more than one main home, the person who spends extended periods away at an established place of work. Such a person is of course only present in one place at a time, but the relevant concept is residence and not presence. It makes no sense to regard a person who travels between two homes on a regular and frequent basis as oscillating in perpetual succession between being resident at one and then at the other (emphasis added).”