ET v TZ [2013] EWHC 2621 (Fam)

Case No.No. FD13P00926

[2013] EWHC 2621 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London.

Date 6 th August 2013

B e f o r e:-

THE HONOURABLE MR JUSTICE RODERIC WOOD

Between

ETApplicant

TZRespondent

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MISS S RENTON of Counsel appeared for Applicant.

MISS D BREESE-LANGHAM of Counsel appeared for Respondent.

MR R BARDA of Counsel appeared for Children.

The Applications

[1]There are before me two applications each brought by the mother of a boy (to whom I shall refer hereafter only as “B”) born on the [a date in] 2005 and thus now just eight years of age.

[2]The first application in time is made pursuant to the Convention on the Civil Aspects of International Child Abduction, commonly referred to as the “Hague Convention”, but hereafter as “The Convention”. That was initiated by the mother on the 5th November 2012 in Poland and accepted by the Polish Ministry of Justice some four months later on the 13th March of this year. It was finally transmitted to the English Central Authority on the 7th May and brought before the Courts on the 6th June for emergency relief.

[3]The second application is made pursuant to the provisions of Articles 23 to 39 of Council Regulation EC No. 2201/2003 commonly referred to as “Brussels II Revised” and hereinafter referred to as “The Regulation”. The application was issued as I have indicated on the 6th June. In this application the mother of “B” seeks a declaration of enforcement of a Polish order, dated 30th September 2010, when an interim residence order was made in her favour in respect of the boy.

Order of Consideration

[4]By virtue of Article 60(d) of the Regulations, this Regulation takes precedence over the relevant parts of the Convention. It follows that I should consider the submissions of all parties and give a ruling on the subject of the enforcement issue first.

[5]Only if that application fails should I go on to consider the issues under the Convention.

[6]All parties agree with this approach. I say “all parties” for not only are the mother and father represented but so is “B”, he having been made a party to the proceedings by Mr. Justice Jackson on the 6th June of this year.

[7]On that day also Mr. Justice Jackson refused an invitation to set up the trial dates for the two issues putting both matters over to this hearing. In her closing submissions, Miss Jacqueline Renton, Counsel for the mother, pointed out that a consequence of that order was that much time and endeavour, as well as considerable sums of mostly, but not exclusively, public money, had been spent in preparing for a hearing which might never take place, as indeed will occur here if I rule on the issue of enforcement in favour of the mother.

[8]She therefore asked me to consider giving guidance on this issue which has not, so far as she is aware, been the subject of any published views by my brothers and sisters or the Court of Appeal.

[9]I have thought about her invitation but am of the clear view that such matters as severance are essentially matters for the discretion of the Directions Judge in each case and are not appropriate for general guidance. As long as Judges and Advocates are alive to the cost (in every sense) implications of rolling the two issues up into one hearing, or separating them, the issue can conveniently be left to be considered at the case management hearings, the earlier the better.

Preliminary Issue

[10]There is no Annexe II certificate provided in this case as required by Articles 37(1)(b) and 39 of the Regulations. Is this fatal? Not necessarily, for Article 39(1) of the Regulations allows for judicial discretion so that I can set a time for their production, accept equivalent documents, or consider that I have sufficient evidence to dispense with their production. I have in this case in my view an abundance of information mostly emanating from litigation in Poland. For my part I see no reason not to exercise my discretion under Article 38(1) and do without the Annexe II certificate.

[11]One effect of the Annexe II certificate, where it exists, is that it provides some basic information about the Court, the parties, for example, their identities and contact details; whether or not the judgment is the subject of the procedure has been served on the person against whom enforcement has been sought, etcetera. Of particular note is that the certificate also provides in paragraph 9 attestation of enforceability and service imposes the question whether or not the Judgment is enforceable according to the law of the member state of origin.

[12]If such a statement by way of Annexe II is supplied duly completed that is the end of the argument so far as recognition is concerned subject to two points. The first is relevant to England and Wales and other United Kingdom Courts with which I am more concerned. By Article 28(2) the Judgment needs to be registered. See also the Family Procedure Rules 2010, Rule 31.8 and 31.11. Here it was so registered on the 16th July of this year by District Judge Gordon- Saker. The father has two months to appeal the decision to register, but has not to me indicated through Counsel any intention so to do. I have also heard no argument suggesting he has any grounds so to do either.

[13]The second point is that in this case it is argued that by virtue of Article 23(a) and (b) of the Regulation the Judgment should not be recognised. The two relevant subparagraphs read as follows:

“(a) If such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child or (b) if it was given, except in cases of urgency, without the child having been given an opportunity to be heard in violation of fundamental principles of procedure of the Member State in which recognition is sought.”

[14]Whilst Article 23 of the Regulation also sets out other qualifications to recognition none of them are relevant to this case.

The Background

[15]Before I further consider these issues I should set out something of the history. i) The father was born in February 1978 and is now 35. The mother was born in 1983 and is now rising 30. They were never married. As I have indicated earlier, “B” was born on the [a date in] 2005. There was much travelling backwards and forwards between England and Poland which does not matter for the purposes of this Judgment. It is said that the parents of “B” had business interests here and also rented homes. It appears from the documentation I have seen that both parties would have agreed, had they given evidence, which was not needed, that the relationship was a stormy one and from time to time there were separations of one sort or another and in whichever country they were based at any one time there were visits, not infrequently, from the local police forces because of domestic difficulties between them. ii) In December 2008 the parties separated and on that occasion the mother and “B” left England returning to Poland. In April 2009 the father obtained an ex parte contact order in Poland providing for him to have contact in Poland one weekend in four. The documents suggest that he was not particularly vigorous in keeping up with that permission, although I make no findings of a formal nature in that respect. In June 2009 the mother applied to the Court to vary that contact order. In September 2009 that application was refused and the Polish order for one weekend in four in favour of the father was sustained. Again, the mother suggests that the father, despite all this endeavour, did not take up the full measure of what was ordered. There were clearly between them, on both accounts, difficulties in the ensuing months. iii) It culminated on the 30th April 2010 when “B” was removed from the care of his mother. There had been an altercation, the mother says involving violence to her, at the nursery attended by “B”. At some stage the police were called and although those parents were due to attend upon the police later that day the mother says – and there is no serious disagreement to this – that the father drove away with his partner, with whom he still lives, taking “B” with him. I need not make formal findings in respect of each and every aspect of that day. Indeed, without hearing live evidence – and again I emphasise it was not needed for the purposes of consideration of the Regulation – it would be difficult so to do, but I have a flavour of it in one of the Judgments at the Polish Court. It is dated 15th February 2012 and it refers amongst other things to a judicial finding in that jurisdiction that the mother had multiple injuries after the events at the nursery suggesting by way of corroboration of her account that she was indeed the subject of violence. iv) On the 3rd May 2010 the mother reported “B” missing to the police in the region in which she lived. In that same month she instigated a police investigation, although in October of that same year the police closed it and said there was no public interest in prosecuting the father. v) Also in May of that year the mother issued proceedings for an interim residence order. Preliminary enquiries were made, including by a Guardian, and the matter came to Court on the 30th September of that same year. Just prior to that hearing, on the 11th September, the mother had her last sighting, until very recently, of her little boy. The evidence suggests that he was at the home of the paternal grandparents when the police attended with the mother in order to see her son. The grandparents held the little boy up to the window. Thus, her last sighting of him at that time was through the glass. I can only imagine what it must have felt like for both child and mother. vi) On the 30th September, as I have just indicated, the matter came to Court. The mother was granted an interim residence order in respect of “B” and I am told in the chronology, although I have seen no supporting document that I can recollect in this morass of paper, there was an order of security that was issued which was in effect a warrant for the return of the child to the mother. vii) On the 1st December 2010 the chronology also suggests that the Polish Court made a further order to return the child to the care of the mother by no later than the 6th December. The father did not comply with that order to return, just as he had failed to comply with the 30th September order. In recent documents the father suggests, although there is no objective proof of this, that he brought “B” into England in the footwell of his car. He accepts that he did not have the consent of the mother. Indeed, she did not even know of this flight. For my part I am quite unable on the material before me to determine whether indeed he came at that time or not, but happily that does not fall for consideration at this hearing. viii) On the 6th December the Regional Court in Wroclaw issued summonses and a warrant for the return of the child. Once again I have not, as I understand it, been supplied with those documents either. The short point was that the father failed to comply again. It was almost a year before the next event when, on the 25th October 2011, the District Court of Wroclaw removed the father’s parental responsibility and dismissed his application to remove the mother’s parental responsibility. ix) Early in the New Year, in either January or February of 2012, “B” was enrolled with a school in England. He had not attended one in England prior to that time after his father had taken him in April 2010. On the 15th February 2012 the father’s appeal against the order of the 25th October of the previous year, striking out his parental authority, was dismissed. In April of last year a criminal investigation into the father’s actions was initiated after a further complaint by the mother. On the 29th April the mother was informed by the Polish prosecutor that “B” was no longer in Poland and therefore the criminal investigation was ceasing. On the 25th May the mother contacted the London Metropolitan Police who were unable to locate either father or child in England. On the 11th July of last year the mother appealed against the decision of the Polish prosecutor not to pursue criminal proceedings against the father. It is not clear to me whether the arrest warrant for him – for there is indeed one issued in Poland – arose from that occasion or some other time. The short point is that I am informed that that warrant remains extant. x) In November of last year – as I have indicated earlier – the mother made her approach to the Ministry of Justice in Poland and the inexorable progress of this litigation began. I need not trouble to set out various formal statements which have led to the two day hearing before me, commencing yesterday, on the 5th August. I add just one further detail to the chronology. xi) On the 19th February of this year an appeal hearing in relation to the mother’s appeal against the decision of the Polish prosecutor not to pursue criminal proceedings in Poland took place. The mother did not succeed. So much for the bare bones. xii) On the basis that the Court may have to consider the application under the Convention a very large quantity of documentation has been filed by both parties addressing their different versions of the past. Although there is almost no agreement between them as to many of the events described, the bare facts of the stark cruelty of “B’s” kidnap by his father, and the father’s partner, in April 2010 and that apart from the sighting of him through the paternal grandparent’s window later in 2010, he was kept unlawfully from his mother by his father until she saw him for a contact visit arranged by his Guardian in these proceedings. I shall say more of that meeting between mother and son later.

The Order of the 30th September 2010

[16]As Miss Renton points out in her skeleton argument, a number of points should be noted about it. The proceedings were inter partes. Both parties were legally represented. Although the order was for interim residence a Guardian (what I suspect in this jurisdiction would be called the Family Court Reporter rather than a Guardian representing the child with full party status) made some essential preliminary welfare enquiries and made recommendations to the Court. The order was duly made in favour of the mother. The father’s cross-application for interim residence was refused. The father had 14 days to appeal. He did not do so. It should be noted that he was both able and permitted to litigate these issues even though he had the child in hiding. He continued to keep “B”, as I have mentioned earlier, quite unlawfully, despite the orders for him to hand the child over to the mother.

Subsequent Litigation in Poland

[17]The Polish Courts have been seized of the issues relevant to “B” since the father’s first ex parte application for defined contact. The father has taken a full part in the litigation. He has not only responded to appeals made by the mother, he has also instigated applications and appeals which the Court has considered despite his grievous abduction of “B”, and failure to return him to his mother. He has never protested jurisdiction in those proceedings. Indeed, quite the contrary. He has been represented there throughout. There is no record of his challenging any decision on the basis that the voice of child was not heard and, most relevant to me, he did not do so on the occasion of the making of the interim residence order on the 30th September 2010.

[18]There are a number of Judgments provided in the papers including the Judgment in respect of that hearing, and one of the 15th February 2012, to which I have adverted already. That latter Judgment concerned the dismissal of the father’s appeal against an order of the 25th October 2011 which deprived him of his parental responsibility, save for the limited permission granted to him to receive general information about the boy’s development. It is, if I may respectfully say so, a masterly “tour d’horizon” by that Court setting out findings of fact made by the lower Courts at earlier hearings and their own evaluation of some of the material.

[19]There is emphasis upon the mother’s close relationship with “B”, not only by her interest in his development, her patience with him, and her evident love for him, but all of those pieces of information coming from objective sources as well as on her own account. The Court also emphasises that the father’s actions have been made in his own interest and to the detriment of “B”.

The Guardian’s Report of the 25th July 2013

[20]Miss Julian, of the CAFCASS High Court Team, made enquiries of “B’s” school and saw the father and his partner and “B” with them. She saw the mother also and facilitated her first meeting with "B” for over three years. She also spoke to “B” when he was on his own.

[21]“B” wanted his parents to be friends, “Be good to each other”. He knew his mother wanted to take him to Poland but he did not want to go there, “Because I would never see my dad again.” He was not happy about returning to Poland based largely on his perception of the comparative hardships of life there, as he understood them to be in his child-like way, coupled with his fears referred to above of not seeing his father again.

[22]But he wanted his mother to visit him here and he would tell her that he had missed her and he would hug her.

[23]The meeting between mother and son on the 19th July itself followed on from a 20 minute phone call between the mother and son a few days before the 19th. Miss Julian said this:

“He hugs his mother but with no obvious or apparent emotion and sat next to her on the sofa. I had asked the mother to speak in English during the contact but “B” preferred Polish and she responded likewise. . . . .The mother had brought some photographs of “B” and their family and “B” also brought some of his school friends, birthday and Halloween party. They enjoyed looking at these photographs and returned to them a number of times during the contact. . . . . They remained in conversation throughout the contact. The mother presented in a relaxed manner and spoke with a soft, soothing voice. “B’s” presentation was generally guarded although he did appear to relax a little as the contact progressed and he smiled on a number of occasions. He responded to the mother’s further hugs but in the same emotionless manner. The mother had a camera and I took photographs of them together. Towards the end of contact the mother was seen stroking “B’s” hand. . . The mother suggested a telephone conversation on the following Friday. “B” was agreeable but presented as unsure about the best time for the mother to call. I said I would speak with his father to arrange it. I returned “B” to the father. It was agreed the mother would call “B” at 2 p.m. on Friday.”

[24]It is worth noting “B’s” real and continuing knowledge and experience of Polish ways. He speaks Polish at home, as he did from preference to this mother on the 19th July. He attends a Polish Roman Catholic Church and is taking his Communion next year, involving tuition conducted by the priests in Polish. There are thus clear links with the wider Polish community. It seems to me, in so far as I need to evaluate such matters, that the father’s suggestion that “B” would be disadvantaged in Poland because of language difficulties simply cannot on this evidence be sustained. Miss Julian was impressed with how the mother contained her emotions at the period of contact I have referred to and was able to concentrate upon B’s needs described by Mr. Barder, Counsel for “B”, as the mother’s empathic responses to her son.

The Relevant Authorities on Recognition and Enforcement

[25]Miss Renton has drawn my attention to in Re S (B 2: Recognition : Best Interests of the Child) No. 1

[2004] 1 FLR 571

. Although this relates to an earlier Regulation its ratio is applicable to this case under BRII. She refers in particular to paragraphs 32 and 33 of Mr. Justice Holman’s Judgment from which may be drawn a number of propositions which have subsequently been followed by me in Brussels II Revised cases and which have received the approval of Lord Justice Munby (as he then was) see below.(i) The relevant wording (here Article 23a) does not refer simply to recognition being contrary to the best interests of the child. It goes further and refers to recognition being contrary to public policy, taking account of the best interests of the child.

(ii) It is not open to this Court to review the substance of the original state’s welfare based decision (Article 26).

(iii) To find something contrary to public policy is a high hurdle. To find it ‘manifestly’ contrary is higher still and should be so found only in exceptional cases.

(iv) An international convention, in this case regulation, must be applied purposively.

(v) The provision must be interpreted strictly for it is, if made out, an article for one of the fundamental objects of the regulation.

(vi) He recognised that there might – I emphasise might – be circumstances in which a foreign Court’s order might be so strongly contrary to the child’s welfare that it would be possible to make out the exception without attempting in any way to illustrate the proposition but nevertheless being acutely aware of the prohibition in Article 26 to which I referred above.

[26]In W v W (Residence) (Enforcement of Order)

[2005] EWHC 1881

Family, Mr. Justice Singer was concerned with enforcement of issues of contact under a different Convention from the instrument I am here considering, but certain propositions arise from that case of equal relevance to this one. They include, but are not limited to:(i) A high onus lies on a parent seeking to reopen welfare issues which would normally (and I interpolate but not always) have been litigated relatively recently.

(ii) The child’s interests as perceived by the Judge in the Court of recognition and enforcement are one part of the equation.

(iii) Save in the most exceptional circumstances the foreign judgment should not be subverted.

(iv) There must be a very high degree of disparity between the orders effect, if now enforced, and the child’s current welfare interests, and the disparity must arise from the changed circumstances.

(v) One way of testing the exercise of a manifest disparity is to look at the immediate enforcement of the order without delay, review or alteration.

[27]In Re D (Brussels II Revised: Contact)

[2007] EWHC 822

Family, Mrs. Justice Black (as she then was) pointed out that new welfare issues could be dealt with in proceedings in the Court which made the earlier order, for example by way of appeal or application to vary existing orders.

[28]In Re L (Brussels II Revised) (Appeal)[2013] 1 Family Law Reports 430 the Court of Appeal, the constitution comprising Lords Justice Thorpe, Munby and Sir Stephen Sedley, Lord Justice Munby cited with approval (and the other two members of the constitution agreed) a passage from the case before the CJEU, reported as Krombach v Bamberski (KC-7/98) [2000] ECR 1 1935. In paragraphs 46 to 48 Lord Justice Munby set out his views in relation to Article 23a. The relevant passages I shall read in full into this Judgment:

“46. Article 23(a) in my judgment contains a very narrow exception inconsistently with the entire scheme of BIIR with the underlying philosophy set out in recital 21 sets the bar very high. 47. I can start with Krombach v Bamberski (citation as above) where the CJEU had to consider Article 27(1) of the original Brussels Convention which provides, ‘A judgment shall not be recognised if such recognition is contrary to public policy in the state in which recognition is sought’. It will be noticed that this differs in two respects from Article 23(a) of BIIR. It does not contain the word ‘manifestly’ which in BIIR appears immediately before the word ‘contrary’ nor unsurprisingly given the subject matter of the earlier convention does it contain the concluding words ‘taking into account the best interests of the child’. 48. Two short passages from the Judgment of CJEU suffice for present purposes. In the first (paragraph 21, citation is omitted) the Court said: ‘So far as Article 27 of the Convention is concerned the Court has held that the provision must be interpreted strictly in as much as it constitutes an obstacle to the attainment of one of the fundamental objectives of the Convention. With regard more specifically to recourse to the public policy clause in Article 27(1) the Court has made it clear that such recourse is to be had only in exceptional circumstances.’ The Court continued (paragraph 37): “Recourse to the public policy clause in Article 27(1) of the Convention can be envisaged only where recognition or enforcement of the Judgment delivered in another contracting state would be at variance to an unacceptable degree with the legal order of the state in which enforcement is sought in as much as it infringes a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the state in which enforcement is sought or a right recognised as being fundamental within that legal order.”

The Court continued (paragraph 37):

[29]I have applied the above principles in considering the case before me. I have also asked myself the question Mrs. Justice Macur (as she then was) posited when at first instance in Re L she asked herself was the situation “so obviously and extremely abusive to qualify as to the exceptional case?”

Decision and Conclusion

[30]I do not find the recognition and enforcement of the interim residence order of the 30th September to be in the category identified in the speaking phrase of Mrs. Justice Macur (referred to above) and would therefore make the necessary declaration of enforcement. Whilst there may be some difficulties in enforcement they do not individually, nor collectively, cross the very high hurdle set by the regulation and the authorities referred to above. I am reinforced in that view by the information that not only have both parties continued to litigate these issues in Poland over the years, they each also have lawyers ready to bring any necessary applications before those Courts. For example, any application arising from the consequences of enforcement including, but not limited to, application by the father for permission to permanently relocate “B” back to England, and/or to determine contact issues, for it would be naïve of me to assume that for the foreseeable future this mother and father will be able to agree on such issues between themselves.

[31]I turn now to the issue arising from Article 23(b) of the Regulation. Miss Renton in an admirably succinct sentence says this:

“The child did not need to be heard in the Polish proceedings given his age at the time.”

He was of course but five years old. I note in passing the Court did have a report from a Guardian dealing with the issues arising at that time. That, in the Courts of England and Wales, may seem something of a luxury at an interim private law hearing. In my view this objection to recognition and enforcement is not made out either for the above reason.

Enforcement

[32]There have in the course of yesterday’s hearing been some unfocussed exchanges about what powers, if any, the Court has to make orders to bring about a phased return of this child to Poland in the event that the Court so decided, as indeed I have.

[33]The question arose because in passing in a paragraph of Miss Renton’s skeleton argument No. 2 there was some reference to the “timing and way in which the child is handed over”. There was some talk of phasing a regime of contact before actual handover but in the end the mother so feared some act or acts by the father designed to sabotage the return that she appeared to be seeking an immediate return.

[34]Miss Renton nevertheless overnight carried out further indefatigable researches into the Court’s powers, if any, to make such orders. The issue has not been argued by any other Counsel before me, nor indeed I think put forward as something I must decide, although again there is said to be a paucity of decision on the subject. But in the light of the new planning for a return it becomes wholly irrelevant to me to give any views, and I decline to do so save for a very provisional view that in such cases orders are unlikely to fall in my judgment within the terms of the Regulation, and in particular Article 20. That is my Judgment. This is to certify that pages 1 to 11 have been produced according to the procedure set out in the AVTS Quality System. Signed: (Christine Kriehn) 5669/H4338