MCL & Ors v TI & Ors [2006] EWHC 3631 (Fam)
THE DEPUTY JUDGE:
[1]"The courts of a member state shall have jurisdiction in [and then I would add the words] all aspects of parental responsibility over a child who is habitually resident in that member state at the time that the court is seised [and then I would add the words] of any aspect of parental responsibility." Because otherwise if any other interpretation is put on it, then, as Mr. Nicholls points out, it would be impossible in this case for me, for example, to make a prohibited steps order because, at the time of the order of 28th July 2005, that was not specifically prorogued to this court. So I am satisfied that I would have jurisdiction to do it. Were I to make that order, I am also satisfied that in those circumstances the Austrian court would have the coercive powers available to it to enforce that order by delivering the children up to the father in Austria on the appointed day. 14 But that does not mean that the legal route is going to be without problem because I am satisfied, first, that were I to make such a residence order, then before it could be enforced in Austria, it would have to be declared to be enforceable there under Article 28. It is not clear to me what right of opposition the mother would have under a process for a declaration of enforceability, but I would imagine that she would be entitled to be heard on that. More significantly, she would, either on that occasion or perhaps on a separate occasion, be entitled to raise, under Article 23, objections on the grounds there set out. So one can see that even if I were to make an order for transfer of residence now, that there could be very lengthy litigation in Austria instigated by the mother in which that order is challenged. So that is a legal reason which militates against making such an order. 15 But there is a strong welfare reason why such an order should not be made. Both the guardian, in her report and orally through Mr. Gupta, and Dr. Berelowitz in the witness box are emphatic that a change of residence today would be inappropriate and that they could not support it. I am aware of cases where residence is transferred in the face of refusal of contact by an implacably hostile mother, but I am not aware of that having been done before the fitness of the father as primary carer has been assessed, or the views of the children have been taken, or, at the very least, the children interviewed. I believe it would be wholly unprecedented for me to make a change of residence order now on the available material. As Dr. Berelowitz said in his evidence, the consequences for the daughter might be dire and it is impossible to predict how she might react were she to be taken away from her mother and delivered into the care of her father. He said she might not eat, she might threaten suicide, she might make a beeline to the airport, she might make allegations against him. He said that the idea of court officers taking her from her mother as she gripped the banisters, as he put it, is almost too grim a picture to contemplate. 16 So I am satisfied at this stage that I simply do not have the material that would justify me making that order sought by Mr. Nicholls. 17 The second option is to recognise that this court is, in effect, impotent in obtaining the enforcement of its contact orders and to simply hand over the adjudication of the father's existing contact application to Austria under Article 15 of Brussels IIR. Were I to do that, it would of course be an admission of defeat on the part of this court and may well be regarded by the mother as a validation of her wholly improper defiance of this court's earlier orders, she having said, through her Austrian lawyers, that she wishes the matter to be adjudicated in Austria. Were I to make a transfer, I could, under Article 15(4), set a time limit by which the Austrian court should be seised, which I understand to mean should be deemed to have the application before it. 18 The original recommendation of the guardian, through Mr. Gupta, was that this choice should be taken by me, but it was during Mr. Nicholls' final submissions that a third course was discerned, which I am satisfied provides the solution to this case. I have explained in my previous judgments how, under Article 12, the parties here prorogued jurisdiction in favour of this court by virtue of the express agreement contained in the order of Wilson J. dated 28th July 2005. That agreement vested jurisdiction in this court exclusive jurisdiction until the final determination of the father's contact application. By virtue of Article 12(2)(b), the jurisdiction conferred on me by Article 12 will come to an end when I give a final judgment on the father's contact application. Final judgment in that context means an order for contact which is not an interim order for contact. 19 Were I to make a final judgment in relation to the father's contact application, then my jurisdiction will end and, the children being habitually resident in Austria, the Austrian courts would have sole jurisdiction in respect of any future applications. But there would nonetheless be, if I were to make a final order for contact, an order capable of being enforced under Article 41 and, more importantly, Article 48 would be available for the Austrian courts to make the practical arrangements for organising the exercise of the rights of access if this court has not made the necessary arrangements in its order or judgment. Article 48 expressly provides the obligation on the second court to respect the essential elements of the judgment. 20 Had the mother cooperated in the proceedings, I would not have made a final order today but I would have proceeded in the way that is set out in my previous judgment of 29th September 2006 and there would have been therapeutic and professional observation and assessment by Dr. Berelowitz and the guardian to enable me to determine what the practical arrangements for the husband's contact should be. I am pretty sure that, subject to anything that they may have said, I would have been striving to have resumed substantive, unsupervised contact at the earliest opportunity. 21 In circumstances where I am deprived of making the necessary enquiries with the benefit of expert evidence for this purpose, I believe that the time has now come for me to recognise that the role of this court is drawing to an end, and that it is appropriate for me to make the final orders so that this court's jurisdiction ends and the Austrian court's jurisdiction arises in respect of making the practical arrangements for the implementation of my order, or for variation of it should either party apply to vary it. 22 What I therefore propose to do is to make a final order for contact which is in these terms:(1) that the mother do afford the father reasonable, unsupervised contact in England, Greece or Austria, to include holiday contact.(2) Because I have not been able to determine what the extent of that reasonable, unsupervised contact should be or when it should commence, I leave it to the Austrian courts under Article 48 to make the necessary arrangements, including the necessary forensic and psychiatric assessments for that determination, but I expect those courts to respect the judgment that I have given, which is that in principle this father is entitled to, and these children's interests demand, reasonable unsupervised contact. 23 As I have mentioned, if I transferred the existing application for contact under Article 15 rather than determining it finally as I have, I would have the power to set a time limit under Article 15(4). I do not have an explicit power under Article 48 to set a time limit for the Austrian court to commence the process of making the enquiries to implement the necessary arrangements for the implementation of my final judgment. However, I would ask that within six weeks of the date of my order the Austrian court do hold a preliminary hearing to give the necessary directions for the assessment and observation that I have previously ordered to take place. I would also like to think that my colleague in Austria would consider drawing on the inestimable experience and wisdom of Dr. Berelowitz, whose evidence in this case, both on this occasion and on the previous occasion, has been of the utmost help to me. (Discussion followed) THE DEPUTY JUDGE: 24 I will say this. Were the grandmother to apply for contact in Austria, I can see no good reason why it would not be in the children's interests for them to see her. Nothing can be said against her.
Cited in 1 later judgment