SJ & Anor v JJ & Anor [2011] EWHC 3450 (Fam)

The Judge hereby gives leave for this judgment to be reported on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location. In particular the anonymity of the children and the adult members of their family must be strictly preserved.

Case No FD11P00072

[2011] EWHC 3450 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Wednesday, 16 th September 2011

Before

MR. JUSTICE BAKER

Between

SJ & AnorClaimant

JJ & AnorDefendant

IN THE MATTER OF COUNCIL REGULATION (EC) NO. 2201/2003 OF 27 TH NOVEMBER 2003 CONCERNING JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN MATRIMONIAL MATTERS AND IN MATTERS OF PARENTAL RESPONSIBILITY (BRUSSELS II REVISED)

AND IN THE MATTER OF THE SENIOR COURTS ACT 1981

AND IN THE MATTER OF THE INHERENT JURISDICTION

AND IN THE MATTER OF AJ (A MINOR)

B E T W E E N:

SJ Applicant

- and -

JJ 1st Respondent

- and -

(by his children’s guardian, Robert McGavin) 2 nd Respondent

Transcribed by BEVERLEY F. NUNNERY & CO

Official Shorthand Writers and Tape Transcribers

Quality House, Quality Court, Chancery Lane, London WC2A 1HP

Tel: 020 7831 5627 Fax: 020 7831 7737

info@beverleynunnery.com

Miss JACQUELINE RENTON (of counsel) appeared on behalf of the Applicant.

Mr. EDWARD DEVEREUX (of counsel) appeared on behalf of the Respondent.

Mr. DAVID BOYD (of counsel) appeared on behalf of the Guardian.

J U D G M E N T

[1]On 24th September 2010 a Polish appellate court rejected an application by a father for an order under the Hague Convention of the Civil Aspects of Child Abduction 1980 for the summary return to this country of his child, A, born 24th June 2009, who had wrongfully been retained in Poland by his mother. The father now applies to this court for an order for A’s return to England or, in the alternative, an order determining contact. That application is made under the provisions of Article 11(6) and (7) of the Council Regulation (EC) 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition of enforcement of judgments in matrimonial matters and the matters of parental responsibility repeating Regulation (EC) No.1347/2000 (commonly known as Brussels II Revised). For reasons explained below, however, I find that this court had already been seised prior to the non-return order and therefore already has jurisdiction under Brussels II Revised. Background

[2]The father was born in Kazakhstan on 23rd June 1978 and is therefore now aged thirty-three. His family come from Poland and, when he was about eighteen years old, the family returned to that country. The mother was born in Poland in 1980 and is therefore now aged thirty-one. The parties met at university in Poland and started a relationship in around 2002. They lived together for several years, but have never married.

[3]In 2004 the parties moved from Poland to Barnstaple in Devon. They found employment, first, in a hotel and later with a company called Tex Plastic Products Limited. The father continues to work for the same company as a shift supervisor. He acquired private rented accommodation in Barnstaple for the family and continues himself to reside at that address. On 24th June 2009 the mother gave birth to the parties only child, a son, A. Shortly after the child’s birth, the mother expressed a wish to return to Poland for a short visit. The father agreed and flight tickets were purchased for the mother and A to visit Poland for three weeks in September 2009.

[4]On 12th September 2009, however, there was an incident which led to the parties’ separation. There is a dispute between the parties as to the details of this incident. The father claims that he overheard the mother telling her parents over the telephone that she intended to stay permanently in Poland when she returned at the end of the month. He says that he made it clear to the mother that he did not agree to her going to Poland in those circumstances, and an incident occurred which led to the police being called. The mother alleges that in the course of this incident the father assaulted her on the back of the head on a number of occasions. The father denies any assault took place, and a police computerised record concerning the incident states, inter alia:

“Male has never been violent towards her”

. Following this incident, the mother and A left the property and went to stay at a refuge. Although some evidence has been put before me concerning the incident, I have not been asked to make any findings about it.

[5]The father was concerned about the risk that the mother would fail to return A from Poland. He therefore took advice and started proceedings in the Exeter County Court under the Children Act 1989 seeking a prohibited steps order preventing the mother from removing A from the jurisdiction and a contact order. On the same day, 16th September 2009, His Honour Judge Wildblood QC (sitting in the Exeter County Court) made an ex parte order preventing A’s removal from the jurisdiction until further order. He further directed that the matter be listed before His Honour Judge Tyzack QC in the same court two days later, 18th September 2009. He directed that both parties attend the hearing and gave directions as to the notice to be given to the mother.

[6]The father duly served a copy of the order on the mother. In addition, however, using a computer, he prepared a document which purported to be a further order by Judge Wildblood requiring the mother to attend the hospital for a “mental and physical check”. The document is a crude and obvious forgery. The father admits that he fabricated this document and says he did so in a state of mental distress and shock.

[7]The mother attended the hearing on 18th September 2009, but the father did not attend, claiming he was unwell. On that occasion Judge Tyzack discharged the prohibited steps order, made a residence order in favour of the mother and permitted her to remove A to Poland for the purposes of a holiday between 24th September 2009 and 14th October 2009 on the basis of an undertaking given by her that she would return A to the jurisdiction if required, and, in any event, by 12noon on 15th October 2009. In addition, as the Judge was shown the forged order, he directed that the papers be released to the Crown Prosecution Service. I have been informed, however, that to date no action has been taken concerning this forgery to date.

[8]The mother and A went to Poland on 24th September 2009. Between the hearing on 18th September 2009 and their departure to Poland, it seems that they returned to the family home for a brief period, but, subsequently, went back to the refuge and remained there until their departure. On 14th October 2009 the mother emailed the father saying that she and A were living with her parents and that she did not intend to return to this country.

[9]On 23rd October 2009 the father filed an application in the Exeter County Court on a form C2 (that is to say, the form to be used when seeking an order or directions in existing family proceedings) applying for a residence order and a contact order. On 12th November 2009, Judge Wildblood listed the father’s application for a hearing on 18th November 2009. However, on 18th November 2009, an originating summons - bearing the same case number as the existing County Court proceedings - was filed by the father in the Exeter Registry of the Family Division of the High Court seeking an order that the mother disclose A’s whereabouts and do forthwith return A to the jurisdiction, together with further ancillary orders. On the same day an order was made transferring the proceedings to the High Court and directing the matter be listed for a further hearing on 27th November 2009.

[10]On that date the matter came before Mr. Justice Coleridge who, by an order which again bears the same case number as the original proceedings in the Exeter County Court, directed the mother to return A to the jurisdiction forthwith declaring that:

“At the time of unlawful retention on 15th October 2009, or alternatively 24th October 2009, of the child, A...he was habitually resident in England and Wales.”

The learned Judge further declared that, pursuant to Article 3 of the Hague Convention, the father had rights of custody in respect of A. In addition the court signed a certificate pursuant to Annex 2 of the Brussels II Revised regulation certifying that the orders of the English Court were enforceable within the jurisdiction of Poland. The order concluded with the words: “costs in the application”.

[11]Meanwhile, in November 2009, the mother applied to a court in Szczecin in Poland formally seeking to limit the father’s parental authority over A. In December 2009 the father travelled to Poland and stayed with his own parents, also living in Szczecin, for about three weeks. During that period he had contact with A, although the parties dispute the details of the contact that took place. The father also had a number of conversations with the mother during which the possibility of her returning this country was discussed. On a date unknown but believed to be in December 2009, the father filed an application in the court in Poland under the Hague Convention seeking the return of A to this country. As a result, the mother’s application for an order limiting his parental authority was adjourned. Subsequently, the father returned to Poland in January and February 2010 and had contact with A on two occasions.

[12]On 16th February 2010 the Polish court hearing the application under the Hague Convention ordered the mother to return A to England and Wales. On 18th March 2010 the mother filed an appeal against that decision, and the return was therefore stayed pending the determination of that appeal. The appeal was heard in July 2010, but adjourned until 24th September 2010. On that date the appeal was allowed by the District Court in Szczecin. The mother then applied for the restoration of her application seeking to limit the father’s parental authority in respect of A, but, on 16th December 2010, the court in Szczecin dismissed that application determining that the Polish court did not have jurisdiction to hear the application pursuant to Brussels II Revised.

[13]Meanwhile, on 2nd October 2010 the Child Abduction Central Authority for England and Wales had notified the parties of the outcome of the appeal in the Polish Hague Convention proceedings. On 10th December 2010 the father filed an application in this court under Article 11(6) and (7) of Brussels II Revised seeking orders:(a) making A a ward of court;

(b) requiring that A be returned to this jurisdiction from Poland; and,

[14]After a delay of several months, the reasons for which are not entirely clear from the papers, the matter came before Theis J. who made directions for the filing of evidence. Her order recites that the court was “validly seised under Articles 11(6) to (8) of the Brussels II Revised regulation”. At a further directions hearing before Mr. Justice Roderic Wood on 26th May 2010 the learned Judge made an order joining A to the proceedings and appointing a Children’s Guardian from the CAFCASS High Court team to represent him, and made further directions for the filing of documentation. He listed the matter for a final hearing over three days in September 2011. On 23rd August 2010 Sir Peter Singer (sitting as a Judge of the Family Division) made a further directions order, and retained the case in the list in September as previously directed.

[15]Meanwhile the father had continued to have occasional contact with A in Poland, although the details of that contact are again disputed between the parties. However, a further contact visit took place in Poland in the summer observed by the Guardian (Mr. McGavin, of the CAFCASS High Court team) which I shall describe in more detail below. The Issues

[16]Thus the matter came before me for three days in September 2011. The issues at the hearing were as follows:(1) On what legal basis did the court have jurisdiction to make orders in respect of A?

(2) What orders, if any, should the court make as to A’s future care? (a) Should the court order the mother to return A to this country or, alternatively, order or permit A to remain living with the mother in Poland? (b) If the court ordered the mother to return A to this country, what order should be made for his future residence and contact? (c) Alternatively, if the court declined to order the mother to return A to this country, what order should be made for his future contact with his father and paternal grandparents?

(3) Should the court make a “final” order concerning residence and contact, which, under Brussels II Revised, would have the effect of terminating the jurisdiction of the courts of England and Wales to make future orders; or, alternatively, an interim order that enabled the court to retain jurisdiction to be followed by a further review hearing at a later date? The Law

[17]The primary jurisdiction in matters of parental responsibility in English law is now derived from Brussels II Revised (see section 2 Family Law Act 1986 as amended). Brussels II Revised contains a number of preliminary recitals of which the following are relevant to the issues in this case:

“…. (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. …. (17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of theMember State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained. (18) Where a court has decided not to return a child on the basis of Article 13 of the 1980 Hague Convention, it should inform the court having jurisdiction or central authority in the Member State where the child was habitually resident prior to the wrongful removal or retention. Unless the court in the latter Member State has been seised, this court or the central authority should notify the parties. This obligation should not prevent the central authority from also notifying the relevant public authorities in accordance with national law.”

[18]The relevant provisions of the Regulations governing jurisdiction are set out in chapter 2 of section 3 and of these provisions the following are relevant to this application:

“Article 8: 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.” “Article 10: Jurisdiction in cases of child abduction In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: i. within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; ii. a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); iii. a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7); iv. a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” “Article 11: Return of the child (1) Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of … the 1980 Hague Convention …, in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. …. (6) If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order. (7) Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit. (8) Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.” (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.” (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: i. within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; ii. a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i); iii. a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7); iv. a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” (1) Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of … the 1980 Hague Convention …, in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. …. (6) If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order. (7) Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit. (8) Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”

[19]The interpretation of the Regulation is assisted by the “Practice Guide for the application of the new Brussels II Regulation”, although it should be noted that the guide warns that it “is not legally binding, and does not prejudge any opinion given by the European Court of Justice, or any decision issued by national courts, concerning the interpretation of the Regulation.”. Nevertheless, the following passage in the Practice Guide is of some relevance to the questions in this case and, in particular, the proper interpretation of Article 11(7):

“The court of origin which takes a decision in the context of Article 11(7) is competent to deal with the substance of the case in its entirety. Its jurisdiction is therefore not limited to deciding upon the custody of the child, but may also decide for example on access rights. The judge should, in principle, be in the position that he or she would have been in if the abducting parent had not abducted the child but instead had seised the court of origin to modify a previous decision on custody or to ask for a authorisation to change the habitual residence of the child. It could be that the person requesting return of the child did not have the residence of the child before the abduction, or even that that person is willing to accept a change of the habitual residence of the child in the other Member State provided that his or her visiting rights are modified accordingly.”

[20]Article 11(7) has been considered in a number of reported cases in which the following four are particularly relevant to the current case.

[21]In Re A, HA and MB (Brussels II Revised: Article 11(7) Application)

[2007] EWHC 2016 (Fam)

;

[2008] 1 FLR 289

, after a French court had refused to order the return of a child who had been abducted to France from England by his mother, his Palestinian father, relying on Article 11(7), applied to the English court under section 8 of the Children Act 1989 for residence, contact and specific issues orders. The mother cross-applied for leave to remove or retain the child permanently in France. After a fully contested hearing, Singer J. refused to order the child’s return to England and instead made a residence order in favour of the mother and a contact order in favour of the father. At para.83 of his judgment, Singer J. made the following observation about Article 10:

“The scheme is cogent and comprehensive. The courts of the Member State away from which a child has been unlawfully removed or retained continue to have jurisdiction until the Article 10 conditions are met. Thus the ability of parents (and any institution or body having rights of custody) to seise the home court notwithstanding that the child has in fact acquired habitual residence in another Member State continues (absent acquiescence) for a minimum period of one year after the holder of rights of custody ‘has or should have had knowledge of the whereabouts of the child’, and the child is settled in the new environment. At what point, if at all, the parents' ability to seise the home court comes to an end depends upon the attainment of one of the conditions in sub-paragraphs (i) to (iv), which follow a logical progression.”

[22]In addition Singer J. made the following further decisions and observations relevant to the present case. First, he accepted the submission that the father was entitled to pursue his Children Act application for contact, even if the court made an order that did not entail the child’s return to this country, on the basis that once the court’s jurisdiction is validly engaged it remains seised even if the pre-conditions for the assumption of jurisdiction later cease to apply (see paras.87 to 90 of the judgment).

[23]Secondly, he held that the word “judgment” in article 10(b)(iv) means a document containing the terms of the Judge’s order which is issued by the court (see para.130).

[24]Thirdly, Singer J. drew a distinction between(1) cases in which proceedings in respect of matters concerning parental responsibility were not issued in this country before the foreign court made the order refusing the return of the child; and

(2) cases in which such proceedings were issued before the non-return order and, as a result, the English court at that time is already seised. Article 11(7) applies in the first category of cases, but not the second. Singer J. considered some of the consequences of the distinction in the following observations at para.142:

“In a case (not this one) where the English court is already seised by one of the parties, Article 11(7) does not apply. Thus the provisions for notification to the parties of information received from the Hague court and the obligation to invite them to make submissions do not appear to arise. If this reading is correct this may be an unintended consequence given that the obligation upon the court which made the non-return order to transmit documents is mandatory under Article 11(6). But it cannot however have been intended that in such a situation the home parent should be precluded from applying for the child's return after an Article 13 Hague non-return order made in another Member State. That (perhaps obvious) conclusion is reinforced by the fact that the Article 11(8) consequence of streamlined enforceability arises in the case of ‘any subsequent judgment which requires a return of the child issued by a court having jurisdiction under [BIIR]’, which is this situation.”

[25]In N v. T (Abduction: Brussels II Revised Article 11(7))

[2010] EWHC 1479 (Fam)

[2010] 2 FLR 1685

, Charles J, considering proceedings under Article 11(7) following a decision by a Lithuanian court not to return a child, observed at para.17:

“As to the jurisdiction and role of the court, it seems to me: first, that what the court is not doing is carrying out an appeal process in respect of a decision of a foreign court or anything akin to that. Secondly, it seems to me that the court is not itself applying Art 13 or a Hague jurisdiction as such. Rather, it seems to me, that what the court is doing is exercising the jurisdiction it always held under Art 10 which is a welfare jurisdiction and, therefore, it is a welfare approach that has to be applied. Within that approach applying English law, there is the ability of the court to order a summary return of a child to another jurisdiction. So it seems to me that the court in exercising its welfare jurisdiction has the power to make a summary order under Art 11(7) in an appropriate case (see by analogy to the decision of the House of Lords in Re J (A Child: Custody Rights Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, [2005] 3 WLR 14 sub nom Re J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802).”

[26]In Povse v. Alpago (C - 211/10)

[2010] 2 FLR 1343

, following the abduction of a child from Italy to Austria, the Italian court revoked an earlier prohibition against removal of the child from the jurisdiction, provisionally awarded joint custody to both parents and, pending a final judgment, stated that the child could reside in Austria with the mother. At a later hearing, however, the Italian court ordered the child to be returned. Meanwhile, the Austrian court had awarded provisional custody to the mother. Subsequently, however, the father’s application to a different Austrian court led to an order for the child’s return to Italy. On the mother’s appeal against the latter order, the Austrian appellate court asked the European Court of Justice for a number of preliminary rulings including:(1) whether in a case involving unlawful removal a provisional measure must be considered to be “a judgment of custody that does not entail the return of the child” under Article 10(b)(iv); and

(2) whether a return order issued by a court with jurisdiction fell within the scope of Article 11(8), even if the basis of that return order was not a final custody judgment by the same court.

[27]On the first question the European Court of Justice gave the following ruling: “(43) In that regard, it must be recalled that the regulation seeks to deter child abductions from one Member State to another and, in cases of abduction, to obtain the child’s return without delay. (44) It follows that the wrongful removal of a child should not, in principle, have the effect of transferring jurisdiction from the courts of the Member State where the child was habitually resident immediately before removal to the courts of the Member State to which the child was taken, even if, following the abduction, the child has acquired a habitual residence in the latter Member State. (45) Accordingly, the condition stated in Article 10(b)(iv) of the regulation must be interpreted strictly. (46) Therefore, in the light of the central role allocated by the regulation to the court which has jurisdiction and the principle that its jurisdiction should be retained, it must be held that a ‘judgment on custody that does not entail the return of the child’ is a final judgment, adopted on the basis of full consideration of all the relevant factors, in which the court with jurisdiction rules on arrangements for the custody of a child who is no longer subject to other administrative or judicial decisions. The fact that this ruling on the question of custody of the child provides for a review or reconsideration at regular intervals, within a specific period or in certain circumstances, of the issue of custody of the child does not mean that the judgment is not final. (47) That conclusion follows from the structure of the regulation and is also in the interests of the child. If the effect of a provisional measure were a loss of jurisdiction over the issue of custody of the child, the court which has jurisdiction in the Member State where the child was previously habitually resident might be deterred from making such a provisional judgment, notwithstanding the fact that the interests of the child required it. …. (50) Consequently, the answer to the first question is that Article (10)(b)(iv) of the Regulation must be interpreted as meaning that a provisional measure does not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of that provision, and cannot be the basis of a transfer of jurisdiction to the courts of the Member State to which the child has been unlawfully removed”.

[28]On the second question, the European Court of Justice held that a judgment of the court with jurisdiction ordering the return of a child fell within the scope of article 11(8), even if not preceded by a final judgment of that court, relating to the rights of custody concerning the child. In giving reasons for that ruling the court said inter alia at para.63:

“As regards the argument that such an interpretation might lead to the child being moved needlessly, if the court with jurisdiction were ultimately to award custody to the parent residing in the Member State of removal, it must be stated that the importance of delivering a court judgment on the final custody of the child that is fair and soundly based, the need to deter child abduction, and the child’s right to maintain on a regular basis a personal relationship and direct contact with both parents, take precedence over any disadvantages which such moving might entail.”

[29]In D v. N and D

[2011] EWHC 471 (Fam)

;

[2011] 2 FLR 264

, in which a Polish court had refused an order for the return to England of a child wrongfully retained by her mother, in subsequent proceedings under Article 11(6) to (8) it was ultimately ordered by the English court that the child should be returned and that order was supported by a certificate under Brussels II Revised which required recognition and enforcement of that order by the Polish court. In giving judgment, Theis J. accepted a submission presented by Mr. Edward Devereux on behalf of the Official Solicitor, which (by reference to the three authorities cited above) summarised the law as follows: “The position can be summarised as follows:(1) The interrelationship of Articles 10 and Articles 11(7) and (8) of BIIR permit the State of origin (from where the child has been wrongfully removed or retained to) to undertake an examination of the question of the custody of the child, once a judgment of non- return pursuant to Article 13 has been made by a State where a request has been under the Hague Convention 1980.

(2) Proceedings under Article 11(7) should be carried out as quickly as possible....

(3) In undertaking the examination of the question of the custody of the child, the Judge should be in a position that he or she would have been in if the abducting parent had not abducted the child. Thus the whole range of orders that would normally available to a Judge should be available when examining the question of the custody of the child....

(4) In undertaking the examination of the question of the custody of the child, the court exercises a welfare jurisdiction: the child's welfare shall be the court's paramount consideration....

(5) It may not be necessary or appropriate to categorise the jurisdictional foundation for such an enquiry as deriving from, or relying upon, the inherent jurisdiction. The foundation for any examination of the question of the custody of the child is simply through the gateway of Article 11(7).

(6) The court has a well known and historic ability to order the summary return of a child to and from another jurisdiction.

(7) As part of the court's enquiry under Article 11(7) the court does have the ability to order a summary return of the child to this country to facilitate the decision making process leading to a final judgment....

[30]On 2nd October 2010 the Central Authority gave notice on the outcome of the Polish proceedings to the parties. On 10th December 2010 the father’s English lawyers filed an application under Article 11(7). Miss Jacqueline Renton, on behalf of the father, submits that it is as a result of that process that this court has continued jurisdiction to make orders.

[31]As set out above, however, the father had seised the court on 16th September 2009 when he applied for a prohibited steps order and a contact order in the Exeter County Court. On 18th September 2009 Judge Tyzack made a residence order in favour of the mother and permitted her to take A to Poland for a holiday on her undertaking to return him by 15th October 2009. On 23rd October 2009 the father applied again in the Exeter court, this time seeking residence and contact orders. On 11th November 2009 he filed a third application, this time in the form of an originating summons in the High Court seeking inter alia an order for the return of the child. On 23rd November 2009 Mr. Justice Coleridge made a series of orders on that third application, bearing the same case number as the original proceedings in the Exeter County Court, including a declaration that the father had rights of custody and an order that the mother return A to England and Wales. Manifestly, this was not a final order as demonstrated by the fact that the learned Judge made an order for costs in the application.

[32]Thus the English court had already been seised by the father before the Polish court made its non-return order pursuant to Article 13 of the Hague Convention. Having been seised before the non-return order, the English court retains jurisdiction in this case until the applicable requirements of Article 10 are satisfied, namely:(1) A has acquired habitual residence in Poland;

(2) A has resided in Poland for at least a year after the father has or should have had knowledge of his whereabouts;

(3) A is settled in his new environment; and

(4) the English court has issued a judgment on custody (meaning, per Singer J. in Re A, HA v. MV, supra, a document containing the terms of the judge’s order) which does not entail a return of the child.

[33]Whilst the first three of these requirements appear to be satisfied in this case, the last requirement has clearly not been met. To satisfy that requirement, there must be a “judgment on custody” that (per the European Court of Justice in Povse, supra) amounts to a final order, as opposed to a provisional or interim order. The order made by Coleridge J on 23rd November 2009 was manifestly not a final order. In these circumstances, the court retains a discretion whether or not to continue the proceedings. The obligation imposed by the last sentence of Article 11(7) on the court of the Member State in which the child was habitually resident before removal to “close the case” only applies to cases where that court was not seised before the non-return order and the parties, having been invited to make submissions on the question of custody, fail to do so within the three month period. No such mandatory obligation to “close the case” arises when, as here, the court of the Member State in which the child was habitually resident before removal has been seised before the non-return order. In any event, the father made a prompt application to the court following receipt of notice of the order for non-return. In these circumstances the jurisdiction continues until, in the exercise of its discretion, this court makes a final judgment on custody that does not entail the return of the child.

[34]Whatever the basis on which the court of the Member State from which the child has been abducted exercises jurisdiction - either because it was seised before the non-return order in the other jurisdiction or because one of the parties has made submissions under the Article 11(7) procedure - the court’s powers are the same and are as summarised by Theis J. in D v. N and D. The judge should be in the position he or she would have been in if the child had not been abducted. The whole range of orders under the Children Act is available. In deciding what order should be made, the child’s welfare is the paramount consideration and the court must apply the welfare checklist. In appropriate circumstances the court may exercise its welfare jurisdiction by ordering a summary return.

[35]I therefore reach the following conclusions as to jurisdiction in this case.(1) This court has jurisdiction because it was seised prior to the non-return order of the Polish court and the court is therefore under no obligation to “close the case”.

(2) If I am mistaken about that, it continues to have jurisdiction by reason of the application made by the father pursuant to Article 11(7).

(3) In either case, the jurisdiction continues because the court has made no final order.

(4) Whatever the basis for the jurisdiction, it is a jurisdiction in which the child’s welfare is paramount and the court has all the powers available under domestic law.

(5) The court has the power under its welfare jurisdiction to order a summary return to England if it thinks that falls to be in his best interests. Should the court order A’s return to England?

[36]The father invites the court to exercise its welfare jurisdiction by ordering the summary return of A to England. His proposal is that he should move out of the home in Barnstaple and that the mother and A should move back in again when they return from Poland. He will then obtain rented accommodation nearby. The father’s wish is that there should be a shared care arrangement.

[37]In support of this position his counsel, Ms. Renton, relies on the following points: (1) As is manifestly clear from the evidence, the father loves A very much. In his oral evidence he spoke movingly of his feelings for his son:

“I do love my son. He’s everything to me and I want to be his father”. (2) As is also clear from the evidence, particularly in the report by the Children’s Guardian, Mr. McGavin, there is a close and loving relationship between the father and A. Mr. McGavin described how, from the outset of the contact visit he observed on 13th August, the father engaged with A quickly and with sensitivity. A responded immediately and appeared comfortable in the father’s care for the rest of the afternoon. It was evident that, despite the gap since their previous contact, A knew exactly who his father was: “The father and A (a very chatty and observant little boy) talked away happily to each other with the father engaging extremely well with him. The father was particularly good at patiently explaining to A what would be happening and what was expected of him. In this way he managed A’s behaviour competently throughout the afternoon.”

The Guardian further described how, when they went to the park A’s attention remained almost exclusively directed at his father, despite the fact that the mother was present. (3) The father has clearly demonstrated to the Guardian that he is sensitive to A’s needs and has the capacity to care for him. (4) On his behalf, it is pointed out that the father fears that his role in the child’s life will be greatly diminished if the child remains living in Poland. He does not trust the mother to comply with a contact order in light of her conduct to date. Even if there is full compliance with whatever contact order the court should make, the quantum of contact will be far less than if a return is ordered which will inevitably affect the father’s relationship with his son. (5) Finally, Ms. Renton submits that this is a father who has been denied a proper relationship with his child for the past two years, not as a result of his actions, but as a result of the mother’s abduction, her subsequent frustration of contact and the delays in the Polish courts.

[38]The father’s views on the issue of his son’s future residence are, perhaps understandably, rigid and effected by his own emotions. In his oral evidence he said at one point:

“I can’t envisage any circumstances in which A would stay in Poland. He is a British citizen, he was born here, I am living here and he should come home.”

[39]The mother opposes the application for a summary return and through her counsel, Mr. Devereux, invites the court to allow A to remain living with her in Poland. She says that she has always been A’s primary carer and that he is flourishing in her care. She describes A as settled in Poland, having lived there for nearly two years. He and the mother are living in the maternal grandparents’ one bedroom flat. Although small, it is sufficient for A’s needs, at least in the short term. The mother is able to rely on the support of her parents, who clearly have a close relationship with their grandson and contribute considerably to his care and wellbeing.

[40]If the court makes an order for the summary return to England the mother would, albeit reluctantly, come back here with A. She would be unwilling to move back into the former family home, which has (she says) unhappy memories for her. She says that she now has no friends in Barnstaple and would feel isolated here. At present she is working part time as an English teacher in two schools in Szczecin and hopes to work full time in due course. She says that if she was forced to return to England she would be unable to obtain employment as a teacher and, although she would be able to obtain some work, it would be at a more menial level and lower salary. On her behalf it is submitted by Mr. Devereux that a forced return to this jurisdiction would have a devastating effect on the mother, which would in turn severely effect A. The mother says that she is willing to facilitate contact as she has done in the past.

[41]In his report for this hearing the child’s Guardian, Mr. McGavin, describes A’s relationship with his mother as “warm and loving”. He observed that A appeared very much at home with the maternal grandparents and from his observation it appears that he appears content in the care of his maternal family in the very same way as with the mother. The Guardian describes A as being happy and secure and said that his outgoing nature and thirst for knowledge, which was particularly noticeable, suggested that his emotional needs are well met in providing him with a firm base to explore the world. I observe that, as A has spent nearly all of his life in his mother’s care, his emotional stability, as demonstrated to the Guardian, must be substantially attributable to the quality of her care and the strength of their relationship.

[42]The Guardian is concerned about the effect on A of an order returning him to England. He would, said the Guardian, risk losing the security of his home and routine and relationships, particularly with the maternal grandmother. If the mother returned with A it would, in the Guardian’s opinion, be a sad and difficult time for her which would be likely to have an adverse effect on A. The Guardian reaches this conclusion at para.108 of his report:

“I see as far more preferable an arrangement whereby A remains in Poland and an agreement is made between the parents with the authority and oversight, at least in the early stages, of the court for the father to play an increased role in his life. As well as there being contact with the father in Poland, I envisage the mother undertaking to visit England with A for contact several times a year if possible.”

[43]In reaching my decision I bear in mind all the relevant factors in the welfare checklist. I accept the Guardian’s analysis. In my judgment, it would plainly be against A’s best interests for the court to order a summary return. I think it likely that in the long term it will be in A’s best interests to remain in Poland with his mother, but that is subject to one important proviso, namely that he enjoys regular contact with his father. It is always important that whenever possible a child grows up with a close relationship with both parents. I accept the evidence that A has a close and loving relationship with his father. It is important that this is sustained by regular contact.

[44]The mother says that she is committed to contact. In my judgment, however, she has not always demonstrated that commitment in her actions. In particular her actions in retaining A in Poland in 2009 were not conducive to sustaining a close relationship between A and his father. In her oral evidence she displayed a lack of insight on the adverse impact which the abduction had had on A and, in particular, his relationship with his father. The court will now look to her to demonstrate that she means what she says and takes active and positive steps to nurture the relationship between A and his father. I do not think it would be in A’s best interests to make a final order (in the terms of Brussels II Revised), a final “judgment on custody” until it is satisfied that the mother will take all necessary steps to ensure that A has contact with his father. I therefore refuse the father’s application for summary return, but make no final order in respect of residence at this stage. A’s contact with his father and paternal grandparents

[45]I propose to make an interim order for contact between A and his father. In addition, although they are not a party to these proceedings, I propose to make an order concerning contact between A and his paternal grandparents. I do so for three reasons:(1) As the Guardian’s report makes clear, the paternal grandparents, who live close to the maternal grandparents’ home and therefore to where A is currently living, have a close interest in A and wish to be involved in his life.

(2) As the father is living in England, contact with the paternal grandparents is particularly important as a means of sustaining links between A and his paternal family.

(3) The evidence has shown that the paternal grandparents have a valuable role to play in facilitating the father’s further contact with A. In oral evidence both the father and mother stressed the practical difficulties in facilitating contact over the next few months. The father will be living and working Barnstaple in Devon, the mother living and working in Szczecin in Poland. Each told me that it would not be possible for them to take any further holiday before Christmas. The mother is working four days a week in two schools and there is (I am told) no further holiday or half term holiday in Polish schools before Christmas. The father states that he has used up all his holiday entitlement in previous visits to Poland and in attending court hearings, both here and in Poland. Reluctantly, I accept the father’s evidence on this point. Any contact before Christmas will therefore have to take place over a weekend. Initially, I thought it would be possible for the mother (who works Monday to Thursday) to bring A to England on a Friday and return to Poland on a Sunday thereby allowing A to have contact with the father on the Saturday, and perhaps briefly on the other days. But, on behalf of the Guardian, Mr. Boyd, argued that this course was not in A’s best interests. The journey from Szczecin to Barnstaple is not straightforward. The easiest route is a bus trip to Berlin taking two hours and then a flight either to London or perhaps Bristol. Once in this country, however, the mother and A would face a further journey by road or rail to Barnstaple. Mr. Boyd submits that this sort of journey would be very tiring for a little boy aged only two. It is submitted that this would not be the best circumstances for the next contact visit. Mr. Boyd submits that it would be much better for a weekend contact to take place in Poland. The travelling would be less arduous for the father than for the mother and A together, and the contact could take place in surroundings with which A is more familiar. I agree. It is reasonable, in my judgment, to expect the father to take a day or so unpaid leave for that purpose.

[46]Prior to the father’s visit it is proposed that there should be increased contact with the paternal grandparents. During the Guardian’s visit in August A had a contact visit with the paternal grandparents, which the Guardian observed and described as having gone very well. Since then the mother and the paternal grandfather have arranged one further visit and have had discussions about another. I find that it is very much in A’s interests to have regular contact with his paternal grandparents with immediate effect, progressing swiftly to staying contact.

[47]On behalf of the mother, Mr. Devereux expressed some concern about too swift a move to staying contact given A’s age. But, in my judgment, having regard to the Guardian’s observations and his overall assessment, it should be possible for this staying contact to start within a matter of weeks. I therefore order the mother to make A available for visiting contact once a week forthwith on dates to be agreed between the mother and the paternal grandparents; A to be delivered for contact at 10am and collected at 4pm. During those visits there will, I hope, be an opportunity for the father to have contact with A via Skype. From 1st November, that is to say in about six weeks time, I order that the mother should make A available for staying contact with the paternal grandparents on two occasions a month on dates to be agreed. The mother’s evidence concerning her recent conversations with the paternal grandfather lead me to be cautiously optimistic that they will be able to negotiate these arrangements without difficulty.

[48]That is the context in which I therefore propose to make an order for the father’s next direct contact. By November A will be more familiar with the paternal grandparents and their home. I direct that the mother should therefore make A available for contact with the father at the paternal grandparents’ home over one weekend in November 2011. That contact shall be visiting contact. One of the paternal grandparents should be present throughout the contact visit and the mother to attend the first visit. I direct that the dates for that contact shall be selected by the father and notified to the mother not later than 30th September 2011.

[49]A’s family are devout Catholics and Christmas is an important time for everyone in the family. The father will be able to take some holiday over the Christmas period and is able to travel to Poland. This provides an opportunity for further contact. I therefore direct the mother shall make A available for contact with the father on five days over Christmas 2011. The paternal grandparents (or one of them) should again be present throughout those visits and the mother should, again, attend the first visit. The first three days should be visiting contact only, but A should stay overnight between the fourth and fifth days. As with all other visits I direct that A be delivered at 10am and collected at 4pm. The precise dates should be agreed between the parties.

[50]Primary schools in Poland have a two week winter holiday over the second half of January each year. This provides an opportunity for contact to take place in England. In these circumstances it is reasonable to expect the mother to bring A to England and there will be sufficient time for A to recover from the rigours of the journey and have enjoyable contact with his father. The mother will, I find, be able to find affordable and comfortable bed and breakfast accommodation in Barnstaple in January. I therefore order the mother to make A available for contact over a period of five successive days in the second half of January 2012 in England. The mother should again be present during the first visit. The first three contacts should be on a visiting basis, but A should stay overnight between the fourth and fifth day. As before, the dates shall be agreed between the parties and, once again, A should be delivered at 10am and collected at 4pm.

[51]I direct the child’s Guardian, Mr. McGavin, should observe one of the contact visits in Barnstaple in January. Final Order or Further Review

[52]For the reasons set out above, I do not consider it appropriate that this should be a final “judgment on custody” within the meaning of Article 10(b)(iv) of Brussels II Revised. In view of the importance I attach to sustaining A’s relationship with his father, I regard it as appropriate that these proceedings should continue for the time being so that the court can ensure that satisfactory contact is arranged on a basis that allows that relationship to develop and flourish. It seems to me that it would be appropriate to review the matter after the January contact. I therefore direct that this case shall be listed before me for review for half a day in the week of 27th February 2012. I direct that the Guardian should file an addendum report for that hearing. I shall ask counsel for further submissions as to the details of the order, including any appropriate any undertakings to ensure compliance and further directions for the next hearing. The order should also include a recital that this is not a judgment on custody under Article 10 of Brussels II Revised and that this court, accordingly, retains jurisdiction in respect of matters concerning parental responsibility for A.

order

if it is more appropriately considered as akin to the inherent jurisdiction then - at least as to the question of summary return - it may not be necessary for the court mechanistically and slavishly to direct itself to the welfare checklist; that having been said, once the child has returned and the court is considering what order to make the court should direct itself to the welfare checklist. (9) Any summary return order is directly enforceable through the procedures in BIIR....”(1) The interrelationship of Articles 10 and Articles 11(7) and (8) of BIIR permit the State of origin (from where the child has been wrongfully removed or retained to) to undertake an examination of the question of the custody of the child, once a judgment of non- return pursuant to Article 13 has been made by a State where a request has been under the Hague Convention 1980.

(2) Proceedings under Article 11(7) should be carried out as quickly as possible....

(4) In undertaking the examination of the question of the custody of the child, the court exercises a welfare jurisdiction: the child's welfare shall be the court's paramount consideration....

(6) The court has a well known and historic ability to order the summary return of a child to and from another jurisdiction.

(8) In deciding whether to order a summary return or to carry out a full welfare enquiry, the court exercises a welfare jurisdiction.... It is not altogether clear whether the decision to order a return of the child on a summary basis is more appropriately considered as akin to that which might be ordered under the inherent jurisdiction or whether it is effectively a specific issue order under the Children Act 1989 order: if it is more appropriately considered as akin to the inherent jurisdiction then - at least as to the question of summary return - it may not be necessary for the court mechanistically and slavishly to direct itself to the welfare checklist; that having been said, once the child has returned and the court is considering what order to make the court should direct itself to the welfare checklist.

(9) Any summary return order is directly enforceable through the procedures in BIIR....” Jurisdiction in this case

SJ & Anor v JJ & Anor [2011] EWHC 3450 (Fam)

order

Cited in 4 later judgments