MCL & Ors v TI & Ors [2006] EWHC 2385 (Fam)

[2006] EWHC 2385 (Fam)

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

FD04P00675

Venue Royal Courts of Justice

Date Friday, 29th September 2006

Before

MR. NICHOLAS MOSTYN QC

(Sitting as a Deputy Judge of the High Court)

(In Private)

Between

(1) MCL(Applicants)

(2) CL (3) MMLApplicant

TL - and - ML AND AL (by their Guardian)(Respondents)

B E T W E E N :

Michael Nicholls QC and Rebecca Carew Pole (Sears Tooth) for father

for The mother did not appear and was not represented

Teertha Gupta (CAFCASS Legal) for Guardian

Hearing: 27 – 29 September 2006

JUDGMENT

[1]This is an important case about the operation of Brussels IIr in relation to the enforcement in Austria of a contact order validly made by this court. Its outcome will demonstrate whether the high principles of the Regulation devised by the Commission are to be conscientiously and faithfully applied by the member states, or whether, if I might quote St Paul, its words merely speak into the empty air.

[2]The background is fully set out in my three previous judgments in this case viz the judgment in relation to the division of matrimonial property and maintenance dated 9 December 2005 (reported as TL v ML

[2006] 1 FLR 1263

); the judgment of the same date

[2005] EWHC 3157 (Fam)

where I made an interim order for supervised contact (the supervisor being the father's mother); and the judgment dated 20 July 2006

[2006] EWHC 1969 (Fam)

where I directed that the children were to be separately represented by a guardian ad litem supplied by Cafcass Legal; suspended the provisions of the order of 9 December 2005; and substituted a single period of supervised contact to commence on 20 September 2006 at an early stage of which the children were to be interviewed and assessed by their guardian and a child psychiatrist. If the view was taken that the children's best interests were being adversely affected by the contact then it was provided that an immediate application was to be made to this court for consideration of cessation of the contact.

[3]These judgments state the context in which the orders were made and I do not propose to repeat their contents here. The critical historical event is that on 28 July 2005 the mother had been given leave permanently to relocate the children to Austria. The order of Wilson J giving her permission was made by consent and recorded(a) an express agreement under Article 12 of Brussels IIr vesting this court with jurisdiction to determine to finality the father's extant contact application, and

(b) and undertaking by the mother to return the children to this jurisdiction if called upon to do so. That agreement is manifestly a full and effective prorogation of jurisdiction over the substance of the matter in favour of this court, provided that I am satisfied that it is in the "superior interests" of the children, which I unequivocally am. It overrides the normal rule expressed in Article 9 which is that absent a prorogation agreement this court would lose jurisdiction three months after the change of habitual residence.

[4]The body of the order of Wilson J contained provisions for limited supervised interim contact and directions for the final determination of the father's application for contact. It was made in the context of extreme difficulty having been encountered by the father in achieving anything beyond the most limited supervised contact from the very moment of the separation of the parents in April 2004. Before Wilson J's order there had been four previous orders dealing with interim contact.

[5]Shortly after the order of Wilson J was made the mother moved in August 2005 with the children to Austria and, at the very least as a matter of fact, the habitual residence of the children changed to that state.

[6]I should say at this point that Mr Nicholls QC who appears with Mrs Carew Pole for the father mounts an interesting legal argument to the effect that the children's habitual residence as a matter of law never altered from England and Wales as the consent order of Wilson J was procured by the mother's fraud. I shall refer to this argument as "the fraud argument". The fraud, says Mr Nicholls, was that the mother falsely represented that she would promote and foster contact when, as subsequent events have shown, her true motive was to thwart contact at every turn with the ultimate objective of severing totally the relationship between the father and the children. Mr Nicholls relies on the ancient doctrine that fraud unravels everything and on the case of Re B (a Minor) (Abduction)

[1994] 2 FLR 249

at 261. Mr Nicholls therefore seeks declarations(a) that at all times since August 2005 the children have been habitually resident in England and Wales and

(b) pursuant to s 8 Child Abduction and Custody Act 1985 that the children were wrongfully removed from England and Wales. The reason that Mr Nicholls seeks this relief is that he (or rather his client) then intends to invoke the machinery of the 1980 Hague Convention on Child Abduction and to have the Central Authority in Austria procure a summary judicial return of the children to this jurisdiction pursuant to the Convention. He is frank enough to say that he adopts this strategy as he has no faith, given what he would regard as a recent act of judicial sabotage in Austria (which I will describe below), that any order that I now make for contact would be recognised and effectively enforced by the Austrian Courts under Chapter III of Brussels IIr.

[7]The position of Mr Gupta, who appears for the children, is pragmatic. He says that there should be a final attempt to persuade the Austrian Courts to recognise and enforce the fresh order for contact that he proposes I should make. He suggests that Mr Nicholls' fraud argument should be stood over and listed to be heard at a later date. He says that two hearings should be listed, the first immediately after the period of contact that he suggests I should order. At that hearing the question of the mother's compliance or otherwise with the order for contact can be judged. She would know that were she to continue to defy the order then there would be a further hearing at which the fraud argument would be ventilated. It would therefore hang as a Sword of Damocles and may have the effect of encouraging the mother to comply with her lawful obligations.

[8]Although I can see some merit in this suggestion I think it would be appropriate only if I was satisfied that Mr Nicholls' fraud point was at least arguable. I am not so satisfied. Moreover, I do not think that invoking the Hague machinery would put Mr Nicholls in any better position than he is under Brussels IIr.

[9]I reject Mr Nicholls' fraud argument for the following reasons.

[10]The order for leave to remove of 28 July 2005 was made in the context of an extremely fraught contact dispute between the parents. The mother's position had been from the date of separation that the father, on account of his personal vices, should be confined to supervised contact. That stance had received at least provisional recognition by the court since the only contact ordered had been of a supervised nature. Those orders had been, so far as I can tell, more or less complied with.

[11]At the time of the order of 28 July 2005 the mother's mental stance was plainly hostile to anything other than limited supervised contact. The father recognised this and consented to a further programme of such contact pending a one day appointment on 9 December 2005 of the hearing of his application for unsupervised contact. That further programme of supervised contact was, so far as I can tell, largely complied with.

[12]I do not think it is possible to spell out from the mother's stance on 28 July 2005 that she "never had any intention of abiding by the contact order made in contemplation of the children's move to Austria in July 2005" (Paragraph 1.15 of Mr Nicholls' case summary). Indeed as Paragraph 2.3 of the case summary states "At that stage, the future pattern of contact, including whether and for how long it should continue to be supervised, was still a live issue between the parents".

[13]On the contrary, I think that mother did intend to comply with the order for limited supervised contact and hoped that it would be perpetuated at the final hearing on 9 December 2005.

[14]One day was manifestly insufficient to deal with the contact dispute on 9 December 2005. It went part heard. I made an interim contact order and would refer to my reasons expressed in the judgment of that date. Although I could discern no good reason for supervision I acceded to its continuance as the case was not finally decided. However I appointed the father's mother as supervisor. I found her to be sound, responsible and reliable, fulfilling all the necessary qualifications needed by a supervisor. An added benefit would be that she and her husband as grandparents would have contact to the children and their Greek heritage would be promoted.

[15]The mother regarded this order as in effect removing the requirement of supervision. In her eyes supervision by the father's mother was no supervision at all. She therefore immediately moved to a position of defiance of my order. I described her various acts of defiance, non-compliance and strategic manoeuvring in my judgment of 20 July 2005. It is a sad fact that the effect of my order of 9 December 2005 has been to diminish the father's relationship with the children rather than to build it up to the level that I have determined is so vitally in the children's interests. I have had cause to wonder whether on 9 December 2005, given the mother's implacably hostile stance to normal contact, whether a policy of appeasement may not have been better. But then, as history teaches us, appeasement almost always leads to disaster.

[16]I do not think that the mother's later decision to defy contemptuously the order of 9 December 2005 can by a process of relation back taint the consent order of 28 July 2005 with fraud.

[17]Re B (a Minor)(Abduction)

[1994] 2 FLR 249

was an entirely different case to this. There the mother had signed an Australian consent order allowing her mother to bring the child, who was in the custody of the father in Australia, to Wales for a 6 month holiday. The mother did not return the child at the end of the holiday. The Court of Appeal held that the consent order had been procured by the deliberate fraud of the mother, the father's consent was vitiated, and the removal was therefore wrongful. That decision is obviously right but it is a league removed from what Mr Nicholls seeks here which is a declaration that habitual residence never altered because of the alleged fraud.

[18]Even if the mother on 28 July 2005 held a secret mental resolve to thwart future contact I am doubtful whether that has the consequence of rendering the change of the children's habitual residence a nullity. For adults habitual residence connotes the centre of a person's economic interests (Swaddling v Adjudication Officer

[1999] 2 FLR 184

, ECJ). A person can be habitually resident somewhere even if his presence in that place is unlawful (Mark v Mark

[2005] 2 FLR 1193

, HL). For children habitual residence is largely a matter of fact. Obviously in a classic abduction scenario the wrongful removal of a child from State A to State B does not change his habitual residence because otherwise the 1980 Convention would be emasculated. But where there has been a removal from State A to State B pursuant to a valid court order and where the children thereafter have lived exclusively in State B, in this case for 13 months, it is stretching language to breaking point to say that they have in fact been habitually resident in State A because the mother had destructive thoughts about contact in her mind at the time of the court order.

[19]It should be borne in mind that were I to make the declarations sought by Mr Nicholls they would be merely exhortatory. It would be for the Austrian Court to determine whether the children were at the relevant time habitually resident in England and whether their removal was wrongful. It may or may not pay any attention to my declarations. Even if it did and came to the same conclusion there would be obstacle of Article 12(2) of the 1980 Convention which says that where a child has been settled in the destination state for 12 months the court is not obliged to order return. Whether the Austrian Court would apply the interpretation of that provision as expounded by the Court of Appeal in Cannon v Cannon

[2005] 1 FLR 169

, CA is anybody's guess. And as Mr Gupta has pointed out there may well be other defences under the 1980 Convention that the mother may be able to mount.

[20]All this is a recipe for swathes of further expensive and protracted litigation which I consider should be avoided if at all possible.

[21]But my primary reason for rejecting the fraud argument is that I firmly believe that this is a case where recognition and enforcement of the order for contact that I propose to make should be achieved under Chapter III of Brussels IIr and that such achievement should be effected by judicial collaboration under the auspices of the EJN.

[22]I now set out the legal framework that governs this case as prescribed by Brussels IIr.

[23]By Art 8 it is provided:

"General jurisdiction 1. 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. 2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12."

[24]Art 9 provides:

"Continuing jurisdiction of the child's former habitual residence 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."

[25]Art 12 provides:

"Prorogation of jurisdiction 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."

[26]Therefore, on the facts of this case, Austria would have acquired by November 2005 exclusive jurisdiction to deal with all matters of parental responsibility unless a valid prorogation of jurisdiction in favour of this court had been made under Article 12. That such a prorogation has been made there can be no doubt by the express and unequivocal terms of the agreement recorded in the order of 28 July 2005. Moreover, given the habitual residence of the father here and the mother's participation in the proceedings up to the hearing on 9 December 2005 this court has jurisdiction under Article 12(3) as well.

[27]It therefore follows that as between this Court and the Austrian Court this Court has the exclusive jurisdiction to deal with matters of parental responsibility. This obviously extends both to all interim as well as final orders. This exclusive right is subject however to Article 20 which provides:

"Article 20 Provisional, including protective, measures 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."

[28]As I will explain, this Article has been invoked by the Austrian Court in this case with the effect of overthrowing the contact order made by me on 20 July 2006.

[29]An order relating to the exercise of parental responsibility made by the court of a state with exclusive jurisdiction is to be recognised and enforced in accordance with the provisions of Chapter III. The relevant articles provide:

"Article 21 Recognition of a judgment 1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required (Article 23 supplies limited grounds of non-recognition of judgments relating to parental responsibility) Article 26 Non-review as to substance Under no circumstances may a judgment be reviewed as to its substance. Article 28 Enforceable judgments 1. 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. Enforceability of certain judgments concerning rights of access and of certain judgments which require the return of the child Article 40 Scope 1. This Section shall apply to: (a) rights of access; Article 41 Rights of access 1. The rights of access referred to in Article 40(1)(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. Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal. 2. The judge of origin shall issue the certificate referred to in paragraph 1 using the standard form in Annex III (certificate concerning rights of access) only if: (a) where the judgment was given in default, the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defense, or, the person has been served with the document but not in compliance with these conditions, it is nevertheless established that he or she accepted the decision unequivocally; (b) all parties concerned were given an opportunity to be heard; and (c) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity. The certificate shall be completed in the language of the judgment."

[30]It is therefore apparent that in relation to a duly certified contact order there is no requirement to obtain a declaration of enforceability under Article 28. Moreover, the substance of the judgment may not be reviewed. It is the duty of the second court summarily to enforce the contact order without inquiring into its merits.

[31]In argument a possible Catch-22 was identified concerning the operation of the summary enforcement provisions. Imagine that an order had been made, as here, for the mother to bring the children to England for a week of contact. Assume that she failed to comply with the order. By the time that the father was able to approach the Austrian Court for summary enforcement the week had come and gone and so the order was a historical relic incapable of enforcement. On the horizon is another week of contact. But until she fails to comply with it the mother is not in breach and so there is nothing to enforce. On this scenario it was mooted that the enforcement provisions might be regarded as a dead letter. This was another reason why Mr Nicholls was anxious to press his fraud argument.

[32]I cannot believe that this is the case. If there has been a history of default I would expect the court of the second state which has been asked to enforce the order of the originating state to be able to enforce it in an anticipatory manner, namely to give a direction, capable of being implemented by the court's officers, to ensure that the children are delivered to the father in the originating state as prescribed in the order being enforced.

[33]Before I deal with the facts of this case I would deal with the extent of the powers of second court under Article 20, as this is very relevant to the matter in hand. Article 20 reproduces exactly Article 12 of the original Brussels II. That in turn was modelled on Article 24 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (Brussels I) (in its old form as adopted by the then six Member States in 1968) and in its modern replacement, namely Article 31 of Council Regulation No 44/2001. The scope of Article 12 of the original Brussels II was explained by the Court of Appeal in Wermuth v Wermuth No 2

[2003] 1 FLR 1029

. The relevant authorities of the European Court of Justice were examined. In summary it was explained that the provision could only be invoked in order to supply measures which are intended to preserve a factual or legal situation in one Member State so as to safeguard rights which are the subject matter of litigation in the court of another Member State which has jurisdiction as to the substance of the matter. Moreover, the Article can only be invoked in cases of genuine urgency where it is impossible to make an emergency application to the court having exclusive jurisdiction. In that case an application for maintenance pending suit did not satisfy the first criterion. On the facts of the case the applicant did not demonstrate the element of urgency. What is clear is that Article 20 cannot be used illegitimately to seize jurisdiction validly vested in the first court. As Thorpe LJ stated at Paragraph 34 "First, we must espouse Brussels II and apply it wholeheartedly. We must not take or be seen to take opportunities for usurping the function of the judge in the other Member State. Once another jurisdiction is demonstrated to be apparently first seised, the jurisdiction must defer by holding itself in waiting, in case that apparent priority should be disproved or declined. Secondly, one of the primary objectives of Brussels II is to simplify jurisdictional rules and to eliminate expensive and superfluous litigation."

[34]The Practice Guide for the application of the new Brussels II Regulation states "Article 20 enables a court to take provisional, including protective, measures in accordance with its national law in respect of a child situated on its territory even if a court of another Member State has jurisdiction as to the substance of the application. The measure can be taken by a court or by an authority having jurisdiction in matters falling within the scope of the Regulation (Article 2.1). A welfare authority or a youth authority may, for instance, be competent to take provisional measures under national law. Article 20 is not a rule which confers jurisdiction. Consequently, the provisional measures cease to have effect when the competent court has taken the measures it considers appropriate. Example: A family is travelling by car from Member State A to Member State B on their summer holiday. Once arrived in Member State B, they are victims of a traffic accident, where they are all injured. The child is only slightly injured, but both parents arrive at the hospital in a state of coma. The authorities of Member State B urgently need to take certain provisional measures to protect the child who has no relatives in Member State B. The fact that the courts of Member State A have jurisdiction under the Regulation as to the substance does not prevent the courts or competent authorities of Member State B from deciding, on a provisional basis, to take measures to protect the child. These measures cease to apply once the courts of Member State A have taken a decision."

[35]It is clear from the example given that Article 20 can be used in only very exceptional circumstances. I can envisage that another circumstance would be where there is evidence that the children are about to be removed from the second state in order to frustrate enforcement of a contact order there. In such an instance the court of the second state would be well justified in making an order under Article 20 preventing the removal pending enforcement of the contact order.

[36]I now turn to the events of this case since my order of 20 July 2006. As I mentioned in my previous judgment of 20 July 2006 at Paragraph 31 I was aware that the mother had 26 April 2006 made an application regarding contact to the District Court of Leopoldstadt for an emergency order suspending contact in reliance on Article 20. On 6 September 2006 this application was refused by Judge Dagmar Felhab. Judge Felhab held entirely correctly that this court had exclusive jurisdiction pursuant to Art 12 of Brussels IIr.

[37]Undaunted, the mother then proceeded to mount a further identical application before Judge Felhab on 18 September 2006, two days before the contact I had ordered was due to commence and the children were supposed to fly to London. For this purpose she changed her lawyers. This time she supported her application with two psychiatric reports. The first dated 8 September 2006 was from Dr Gabrielle Wortgotter. She is the examining or reporting psychiatrist. The second was dated 18 September 2006 and was from Dr Steinberger who is the psychiatrist treating the mother and the children. I append each of those reports to this judgment. Both reports are based on the statements of the mother and the children alone. I do not believe that any of the papers in this case were available to their authors. The father was not interviewed and no attempt was made to obtain any of his records from, or the views of, his own psychiatrist in London. Indeed I am told that a request by the father that he speak to one of the psychiatrists was turned down.

[38]Even a cursory glance at the mother's statements filed in these proceedings would have revealed to the psychiatrists that the allegations made by the mother were new and of questionable veracity. Had the new allegations been true they would undoubtedly have been included in her statements made in these proceedings when she was participating in them.

[39]The reports are utterly damning of the father. On the basis of the representations of the mother and the reactions of the children the father was condemned by Dr Wortgotter as presenting a "disturbed psychiatric condition, or at least a serious personality disorder" and by Dr Steinberger as "psychopathic, psychiatrically disturbed". Dr Steinberger's report categorically stated that he had been detained in a psychiatric hospital "on the grounds of his paedophilia". She said that the children have "never feared anyone or anything as much as their own father" and that it would be "absurd, inhuman and sadistic" for the English court to require them to be brought to England for assessment and contact. She suggested that contact be suspended for two to three years "since this represents an extreme risk to the children's welfare".

[40]It appears that Judge Felhab dealt with the application on paper and without an oral hearing. So far as I can tell he did not have my earlier judgments before him (only my orders) nor did he have any of the case papers. The judge adopted the conclusions of the reports as his findings. He said:

"The anxieties of the children are genuine. There is no indication of suggestion (by the children's mother). From a child psychology perspective, further visits to the father are currently most inadvisable since this would inflict (further) psychological damage on the children. There is a suspicion that there is a serious / psychopathic personality disorder, paedophilia and alcoholism in respect of the children's father "

On the basis of these findings Judge Felhab felt able to satisfy himself that the terms of Art 20 were satisfied. He suspended my order for contact. The effect of this "suspension" was entirely to overthrow the order, and the contact did not take place. The father was not even notified of the suspension in time to abort his trip to Vienna with his mother to collect the children.

[41]Judge Felhab made clear that his order was only a provisional suspension and that this court remained seised of the substance of the matter. He said "The court in England continues to have jurisdiction for the final ruling on the visiting rights of the children's father and any suspension of the same". It is implicit in his ruling that he expected this court to make substantive decisions at the hearing fixed for 27 September 2006. Notwithstanding this clear message the mother chose not to attend or to be represented before me. Instead, on 26 September 2006 the mother's new lawyers wrote to the Guardian stating that the mother had now applied for a transfer of parental responsibility/custody. Obviously such an application is wholly misconceived and must be struck out as this court has exclusive jurisdiction, as Judge Felhab has accepted.

[42]Before me I had the benefit of hearing the oral evidence of Dr Woolfson, who is the psychiatrist treating the father (who had submitted a further written report) , Professor Freeman, who is (or was) the jointly instructed examining psychiatrist and Dr Berelowitz who is (or was) the jointly instructed child psychiatrist. The transcripts of their evidence are appended to this judgment, together with the further written report of Dr Berelowitz.

[43]Each of them was extremely critical of the reports of Dr Wortgotter and Dr Steinberger. Dr Woolfson described them as "unprofessional, inappropriate, aggressive and irresponsible". He said that it was "inappropriate, wrong and unprofessional" to write such reports , without hearing both sides of the story, and that "any competent psychiatrist would want to hear the other side and examine in detail the person who was being vilified in that kind of way". He said I should approach them with great caution and scepticism. He said they were clinically incompetent. On the central issue namely whether the father suffered from any disorder which should prevent him from having contact to the children his evidence was:

"MR. GUPTA: Just to confirm your expert opinion, you do not see any reason why this gentleman should not spend time with his children? A. I can see no reason at all. Q Unsupervised? A. Unsupervised."

[44]In relation to the allegation that the father had been admitted to a psychiatric hospital on the grounds of paedophilia I would first refer to what I said in my judgment of 20 July 2006 at Paragraph 20 and 21 which I do not repeat here. The mother made no allegation of paedophilia against the father in her statements filed in these proceedings and by her leading counsel on 9 December 2005 she specifically disavowed any such allegation. Dr Woolfson was able to confirm to me that the allegation of admission on the grounds of paedophilia was entirely untrue. He said in answer to my questions: "THE DEPUTY JUDGE: There is the express statement here that he was admitted to hospital on the grounds of paedophilia. A. No, that is incorrect, and his psychopathic personality, that is incorrect too. MR. GUPTA: What were the reasons? A. I beg your pardon? Q What were the reasons? A. My initial diagnosis when I saw him first was that he was very agitated and clinically depressed and expressing suicidal thoughts. That was before I obtained the full history following his return when he admitted to sexual deviancy and that he had been drinking heavily in the setting of his feelings generally and specifically, and I admitted him for the treatment actually for his depression in the first instance and the fact that he was drinking heavily because he couldn't control his feelings, and that was his methodology for controlling the anxieties. THE DEPUTY JUDGE: We are being typically discrete (sic, recto discreet) here. Can you just be quite clear with me: the sexual deviancy that you referred to did not involve any paedophilic tendency? A. No. He has never, ever talked about paedophilia. I do not think he is a paedophile. All his sexually deviant behaviour was in other directions. Q We know this from other papers, he had been consorting with male and female prostitutes. A. Yes. Q That was the sum of it, was it not? A. That was the summary of it.

[45]Professor Freeman described the reports "very dogmatic" and said that he would never write a report on someone's mental condition without sight of their medical records. He said "an opinion is formed on the basis of evidence. If there is no evidence there can't be an opinion". He said that the authors did not have the material on which they could have responsibly said that that the father is psychopathic and psychiatrically disturbed or that he may present a disturbed psychiatric condition or at least a serious personality disorder, and that it was not professionally proper for them to have said that.

[46]In relation to the central issue his evidence was:

"The crucial question is: are the children safe with him? A. Well, it's a very serious matter to prevent a father from seeing his children except under supervision, and if one was to propose that, as a doctor, as a psychiatrist, there would have to be a strong psychiatric reason to propose it. You would have to have either severe mental illness, which the father has never had, or a significant ---- mood disorder which he has not had, or a disabling neurotic disorder which he has not had, or a personality disorder, a serious personality disorder. When I first saw him in my first report I thought there was evidence of quite a serious personality disorder. As time has gone on since then, and relying on the reports of Dr. Woolfson, it appears that this problem has substantially resolved. I think, in fact, the very regular contact Dr. Woolfson has had with the father has provided a sort of external superego, if I can use a bit of psycho-medical jargon, or external conscience, should we say, and from the information available to me that seems to have had a very beneficial effect. So, the conclusion that I read from this is that there is no significant psychiatric reason which would prevent from seeing his children without supervision. "

[47]Professor Freeman confirmed that in his examinations of the father he had discerned no paedophilic tendencies on his part.

[48]Dr Berelowitz said:

"Clearly [Dr Steinberger] thinks very ill of the father. I am very worried that the situation is now ripe for the development of false memories"

[49]Concerning the children's apparent high resistance to contact Dr Berelowitz said this:

"Contact with AL seemed to have been taken as a given. What we now seem to find, without mother being here to speak for herself or through her representatives, is a very high degree of hostility to contact with either child. A. Yes, and I am really puzzled by this. I had a number of conversations with the mother. I thought she was comfortable about confiding in me. She was troubled by some aspects of father's behaviour in his own right as an adult man, not particularly in relation to the children, the sort of thing that might cause many wives some discomfort. She seemed to think, like many women, that whatever she felt about him she had an ordinary mother's responsibilities and obligations to make an acceptable degree of contact work. That's what she conveyed to me. At the time I thought she was pretty sincere about the move to Vienna, she needed it at a personal level, but it wouldn't interfere with the contact because she needed the contact to work. We talked about finding a therapist for ML in Vienna if ML was anxious about seeing her father, how to help her be less anxious. That is the way we used to talk. What has changed? Well, the only thing that mother has said to me, and this is not nearly enough, is that on one occasion when father went to Vienna somebody saw him in a supermarket with a woman and a carrier bag full of alcohol. That's all. There have been arguments about money. Well, arguments about money, mother has not been happy about the money. I think the mother has also not been happy about the cost of flying the children to the UK and who is supposed to pay for that. Now that I remember, she said that there was at least one occasion where father was supposed to go for contact and didn't go. I don't know if that's true or not. But those are the things that she's said to me since going to Vienna"

[50]Concerning the professional quality of the Austrian reports Dr Berelowitz said this:

"Well, referring to the Steinberger report, in particular p.216M, it's very, very hard, it's slightly embarrassing really to read it, because the psychiatrists have got the idea not only that the father is the enemy but that the English child welfare system is also the enemy. Q And the court system? A. And the court system, yes, and she's clearly stuck an egg-cart on a mountain and is grossly misinformed. Then there is the use of the word "paedophilia" as well. … I doubt the English courts allow the use of protective tests but Austrian and French psychiatrists would probably be quite comfortable with those tests. That is just cultural differences there. I am a little surprised that Wörgötter didn't pick up the telephone to me. It's harder for the psychotherapeutic doctor to do that, but the assessing doctor could perfectly easily have picked up the telephone to me and said, "

What do you think?" I could have said, for example, that I've seen AL be absolutely lovely with his father, "Now that you are seeing the children, can you try and find out why this has changed in his mind". So I don't know, do I need to say more. I'm clearly not comfortable with these reports and I'm surprised that they're both saying such strong things on the basis of knowing that they are hearing only one side of the story."

[51]Each of the psychiatrists stated that they had not been approached by either of the Austrian psychiatrists for their opinions. Dr Woolfson went further and stated:

"He told me at the time that he'd approached [Dr Steinberger] and said, "

I'm prepared to see you with the children". She refused to do that, and he then said, "Would you like to see me alone?" and she refused to do that too."

[52]I have to say, with the greatest possible respect, that I too find these reports to be wholly unsatisfactory. I have the benefit of the case papers and I can tell that in numerous instances that allegations made by the mother to the Austrian psychiatrists are late inventions and are therefore almost certainly untrue. I have already expressed my views as to what is truly motivating the mother in her determination to thwart contact and I will not repeat it here. The content of her bizarre allegations to the Austrian doctors is wholly consistent with that motive. I am at a loss as to why her allegations were so uncritically accepted.

[53]With equal respect I have to say that Judge Felhab's adoption of the conclusion of the reports was precipitate and has resulted in great unfairness. Moreover I do not think that an order that has the effect of overthrowing the very substance of my 20 July 2006 order is a legitimate use of the Article 20 procedure. It does not safeguard the status quo – it has the directly opposite effect. The requirement of urgency was not demonstrated. The mother could so easily have obtained these reports a long time ago and have made an emergency application to this court for variation of my order. It was only because she delayed in obtaining them that she was able spuriously to put up a case of urgency.

[54]The result of Judge Felhab's order has been that the primary jurisdiction of this Court has been usurped. As I said at the beginning of this judgment the reaction of the Austrian judiciary to the fresh order that I propose to make will demonstrate whether the provisions of Chapter II of Brussels IIr are effective or whether they are written in water.

[55]In devising the fresh order for contact that I propose to make I have taken on board Judge Felhab's observation that my prior order did not suspend contact prior to assessment by the Guardian and Dr Berolowitz. Instead, it provided for such assessment on the third day of the contact visit. The fresh order that I will make is designed to accommodate Judge Felhab's concern and to ensure that the mother has no possible excuse for not complying with it. The contact will be so extensively managed and observed that the mother will be unable to say that the children are at any risk of any inappropriate behaviour by the father. I say this without derogation from my earlier view which I repeat here that, in my judgment, which is supported by the evidence of all three English psychiatrists, the father represents no threat to the children and there is no need for their contact with him to be supervised for their safety.

[56]In making this order I have paid close regard to the unanimous evidence of the English Psychiatrists and the Guardian that it is essential that exploratory assessed contact take place in England in order that the fractured relationship between father and children can be repaired. The continued denial of the relationship between these children and their father will be very damaging to them. As Dr Berelowitz stated:

"As I am increasingly saying in the witness box these days, though I think not in this particular court yet, to lose a parent through denigration is probably worse, more damaging psychologically, than to use a parent through premature bereavement. "

[57]The fresh order for contact that I make is as follows: 57.1. On Sunday 5 November 2006 the mother will fly with the children from Vienna to London. If the mother will not bring the children then they should be collected by the Guardian and the children's grandmother. The flights will be paid for by the father. 57.2. On arrival the mother and children will stay at a good hotel paid for by the father. The Hilton Hotel next to Lord's Cricket Ground has been mentioned. If the mother will not accompany the children then they should stay with their grandparents, where the father will not be present. 57.3. On Monday 6 November 2006 the mother (if she attends) and the children will be interviewed and observed by Dr Berelowitz and the Guardian at the rooms of Dr Berelowitz at the Royal Free Hospital in Hampstead. 57.4. On Tuesday 7 November 2006 the children either singly or together will have contact with their father for a short period. This will take place at the rooms of Dr Berelowitz at Royal Free Hospital and will be observed by him and the Guardian. Dr Berelowitz and the Guardian will have the discretion to curtail or even extinguish the contact if at any stage they judge it to be contrary to their best interests. 57.5. On Wednesday 8 November 2006 the professionals will write their reports and the parents will wish to consult their legal advisers and prepare statements. All paperwork is to be filed with me by 4.30pm on that day. 57.6. On Thursday 9 November 2006 there will be a half day hearing before me for me decide on future contact arrangements in the light of the paperwork filed. It may be that I will decide that further contact to the father can take place on Friday 10 November and Saturday 11 November 2006. If I do, and I do not in any way pre-judge this issue, then the children will return to Vienna on Sunday 12 November. If I do not then they will return on Friday 10 November. Nothing I say here is to be construed as a presumption that contact will take place on the Friday and Saturday. That issue is wholly at large.

[58]It will be apparent that the order that I make falls a long way short of the unsupervised normal contact that I have already found, and which is confirmed by the oral psychiatric evidence I have heard, to be in their best interests. But I have to be realistic. I have endeavoured to frame an order to which neither the mother, the Austrian psychiatrists nor the Austrian Court could possibly take exception on the ground of psychological trauma to the children. It meets the apparent concern of Judge Felhab that my previous order provided for contact to commence before the psychological and psychiatric examination of the children. As will be seen my new order provides for such examination to take place before the children see their father and give the professionals the power to curtail or extinguish the contact if they judge it to be harmful to the children. I entirely endorse Dr Berelowitz's evidence that:

"I just want to insert one note of caution about this visit. Obviously contact is terribly important from a legal point of view in terms of this order. If you're in therapy and are someone for whom ordinary advice doesn't work, it is perfectly possible that these children will come and see the guardian and myself, and the guardian and I, and perhaps even the children, will be confident that the children do not have any good rational reason for not seeing their father, nevertheless their irrational reasons might not be amenable on a single visit or even two visits to my and the guardian's advice and they may not be able to tolerate contact even though they accept that their reasons for not going don't really add up. It is the same as trying to get a child with a school phobia back to school. They may accept that they don't have any very good reason for not going, but it is very hard to get them to go. One of the options might be that the guardian and I think that the children ought to have contact but plenty of work will need to be done in order to get even the first supported contact to take place because of what has happened over the intervening few months. The successive steps in this proposal, the few day proposal prior to the next thing, the progression can't be taken for granted."

[59]My order will contain a number of declarations as follows: 59.1. That this court has jurisdiction as to the substance of this matter (both in relation to interim and final orders) pursuant to Articles 12 and 19 of Brussels IIr. 59.2. That both the mother and father have parental responsibility for the children within the meaning of Article 2(7) and (8). 59.3. That the order I have made constitutes a judgment on the exercise of parental responsibility for the purposes of Article 28 (although I think that this declaration is strictly unnecessary given the terms of Article 41). 59.4. That for the purposes of Article 23 the children have had the opportunity of being heard. 59.5. That the mother has been served with the documents that originated these proceedings and is aware of the date time and place of this hearing and has had sufficient time to arrange for her defence. 59.6. That the father represents no threat to the children and that there is no need for their contact with him to be supervised for their safety.

[60]This is a classic case to invoke judicial assistance and collaboration under the auspices of the European Justice Network which was adopted in May 2001 by Regulation 470/2001 following the decision of the Council in Tampere in 1999 and the subsequent Commission proposal of September 2000 (see http://ec.europa.eu/civiljustice/index_en.htm). As a delegate to the Anglophone-Germanophone Family Law Judicial Conference held in September 2006 in Dublin I received a paper on the Austrian position on judicial cooperation given by Robert Fucik of the Federal Ministry of Justice, Vienna. He pointed out that Arts 15(6), 55 and 58 of Brussels II specifically exhort judicial cooperation. He wrote "Of course, judicial cooperation has not only to be installed, but also to be done. Cooperation, trust and friendship between judges from different states have to be practised, not declared." He identified the relevant liaison judges for this case in Austria to be Dr Christian Rauscher of the Federal Ministry of Justice and Judge Robert Czedik-Eysenberg of the Oberlandsgerichtssprengel Wien. I intend to send this judgment and order together with my judgments of 9 December 2005 and 20 July 2006 to the liaison judges with a plea that the Austrian court system does everything in its power to ensure that my new contact order is complied with. I will also send the judgments to Lord Justice Thorpe as Head of International Family Law in this jurisdiction and to Dr Werner Schutz who is a leading figure in the development of European Family Law at the Austrian Ministry of Justice. My plea can be expressed no better than the words of Lord Justice Thorpe in the recent case of Prazic v Prazic

[2006] EWCA Civ 497

at Paragraph 28:

"…the whole force of developing European legislation in the family law field is to impose clear and simple rules to establish the primary jurisdiction and to ensure that once that primary jurisdiction is established it is given the fullest support in the discharge of its consequent responsibilities."

[61]There remains the possibility that notwithstanding the highly controlled, observed and therapeutic nature of my contact order the mother will continue to defy it and will not bring the children here. I was informed by Mr Nicholls that a contact order in Austria is only enforceable by financial penalty and that coercive measures cannot be used. He told me that coercive measures can only be used to enforce custody orders. I find this hard to believe. But if it is the case and neither the mother and the children arrive on Sunday 5th November 2006 then on Thursday 9th November 2006 I will give consideration to a change of residence (custody) in favour of the father. Such an order, after it has been declared enforceable in Austria under Article 28, will be implemented there, and according to Mr Nicholls' instructions, coercive measures may be used. I am not saying that I would make such an order – it would on any view be draconian – but the mother should be very clear that such an order would be within my powers and that I would entertain an application to make it. As Dr Berelowitz said "Q. The only other question is this: it may well be that the father makes an application at a later stage for the summary return of the children to this jurisdiction. What do you have to say if anything about what effect that could have as to the welfare of the children balanced against them being exposed to the current developing scenario? A. If the father is confident that the children are developing a story about him that he is a seriously mentally ill, consistently alcohol dependent paedophile and therefore they should never see him again, I don't think there is any sensible measure that he should stop at in order to try to protect them from these sorts of ideas"

[62]There is one final matter I must mention. At the beginning of his oral evidence Dr Woolfson said this:

"..it has been my practice to do spot checks on the father in terms of the usage of alcohol and drugs, and had done spot checks in February, April, May, June and July, they were all negative; and I did a spot check yesterday and that showed that showed that there was a trace of cocaine metabolite in his urine. That needs to be discussed in the sense that it is quite a serious departure from his former behaviour. There are two points of view that I considered. In the first instance I spoke to the father and he told me that he had been at a party on the Saturday evening and was in a state of considerable tension bearing in mind his forthcoming court appearance. He was with three or four Greek friends and they offered him some cocaine which he foolishly took. In that sense, he must have known, when I phoned him suddenly out of the blue yesterday morning ordering him to come for a spot check, that it was going to appear in his urine. He was in a position then where he could have said, "

I'm ill", or not answered my phone call or done something to prevent his attendance at the laboratory, but, in a sense, to his credit, he went to the laboratory and had the test knowing that it would be positive. That is the only other comment I have to make about that issue. … Q The most crucial question really for the judge to consider, and for Miss Vivian, who represents the children, is the question of whether this has in any way altered your view about whether the children are safe with the father? A. I've thought very carefully about it and I don't think it is significant. I think the father was foolish and he was "uptight and tense and anxious" and behaved immaturely, but I have not observed in the three plus years that I've seen him any evidence of outrageously antisocial, uncooperative behaviour or evidence that he could or would be physically violent or dangerous in terms of the handling or management of his children at all.

[63]In his oral evidence the father told me that on the occasion in question he took one line of cocaine.

[64]Professor Freeman did not express concern as to the father's fitness to have contact in the light of this revelation. I am told that Dr Berelowitz was informed of this episode and as he did not raise it in his evidence I can assume that he too has no concerns arising from it. For my part I have to express my disappointment that the father should have allowed himself to fall into temptation in this way. He has told me that he intends it never to recur. Given the regime of random testing he must know that his sincerity will be capable of being gauged. On the assumption that this will prove to be an isolated lapse I too place no weight on it in assessing what orders for contact are in the best interests of these children. Nicholas Mostyn QC Deputy High Court Judge 29 September 2006

Cited in 1 later judgment

AP v TD 2010