A v D & Ors [2014] EWHC 3851 (Fam)

[2014] EWHC 3851 (Fam)

Case No BH12P00148

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 9/12/2014

Before

THE HONOURABLE MR JUSTICE BAKER

Between

AApplicant

D (1)Respondents

ED (2)Respondent

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2009

AND IN THE MATTER OF ED (A CHILD) (NO.2)

Edward Devereux (instructed by Brethertons) for Applicant

The First Respondent was not present nor represented

Victoria Green (instructed by Cafcass Legal) for Second Respondent

Hearing Hearing dates: 2 nd October 2014

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

THE HONOURABLE MR JUSTICE BAKER

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Introduction and Background

[1]These proceedings concern a small girl, E, born 28th December 2011 and therefore aged rising three. The history of the family and these proceedings are set out in an earlier judgment delivered by me on 31st July 2014 and reported under neutral citation number

[2014] EWHC 2731 (Fam)

[2]In short the history can be summarised as follows. E’s father is English and was born in 1981. Her mother is Polish and was born in 1985. Their short relationship ended before E was born. The mother registered the child in her name only with the result that the father does not have parental responsibility. There were cross-allegations of domestic violence during the relationship and the father was subsequently made the subject of a two-year restraining order.

[3]In April 2012, the father, concerned that the mother might remove E to Poland, issued proceedings in the Bournemouth County Court seeking a prohibited steps order preventing her from removing the child from the jurisdiction, together with a parental responsibility order. After two preliminary hearings, the matter came before District Judge Dancey on 3rd May 2012. A transcript if that hearing is now available. The mother, who was represented, gave evidence on oath stating that, if she were permitted to take the child to Poland for a visit between 14th May 2012 and 16th July 2012, she would return E to this jurisdiction at the end of that period. The father, who was acting in person, indicated that he would not oppose the mother taking E to Poland for a holiday, although he expressed some unhappiness at the length of the proposed visit. On the basis of the mother’s undertaking, the District Judge made an order permitting the mother to remove E to Poland for the purposes of a holiday between 14th May and 16th July 2012.

[4]Shortly after arriving in Poland, the mother applied to a court in that country for a custody order and subsequently wrote to the Bournemouth County Court stating that she did not intend to return. On 24th July 2012, the father filed an application with the Central Authority for England and Wales under the Hague Child Abduction Convention 1980 and Council Regulation (EC) 2201/2003, (hereafter referred to as Brussels II Revised), seeking the summary return of E to this jurisdiction. On 10th August, the father’s application in the county court was adjourned generally with liberty to restore. The father’s application under the Hague Convention was pursued via the Central Authorities but on 17th December 2012, it was dismissed by the district court in Ruda Slaska in Poland. The father’s appeal against that decision was subsequently dismissed on 24th October 2013.

[5]On 30th April 2014, the father made an application in the existing English proceedings seeking an order committing the mother for contempt of court, an order for parental responsibility and a contact order. The application was transferred to the High Court and listed before me in July 2014 to consider as a preliminary issue whether or not the court had jurisdiction to entertain the application. In the reserved judgment delivered 31st July, I held that this court had jurisdiction to entertain the father’s application for orders concerning matters of parental responsibility. In the course of legal argument at the hearing, however, I indicated to Mr Edward Devereux, counsel for the father, that I proposed to consider whether the court should exercise its power under Article 15 of Brussels II Revised to transfer the case to Poland. Mr Devereux thereupon submitted that the court had no power to transfer proceedings under Article 15 because no party to the proceedings accepted the transfer, but seeing that this argument did not initially find favour with the court, he asked for further time to consider the issue, having regard to the fact that it had only arisen in the course of argument.

[6]I therefore adjourned the matter to a further date at the start of the Michaelmas term and gave directions(a) that the mother must attend the hearing;

(b) that the child be joined as a party and be represented by a member of the Cafcass High Court team and Cafcass Legal;

(d) that the Central Authority obtain a Polish translation of the judgment delivered 31st July to be submitted, together with a copy of the court order, to the Polish Central Authority with a request that it be brought to the attention of the mother; and

(e) giving the father permission to obtain an expert report as to the legal procedures and principles that would determine an application for the equivalent of a parental responsibility order and child arrangements order in Poland.

[7]The judgment and order were duly translated into Polish and served on the mother but no response has received from her and she has continued to play no part in these proceedings. A Cafcass guardian has, however, been appointed and has made some preliminary enquiries, as a result of which he has discovered that there is safeguarding information on the Cafcass files in respect of the father arising out of two previous sets of proceedings, the first concerning E and the second concerning another child. In addition, pursuant to my direction, the father’s solicitors have obtained a report from a Polish lawyer, Dr. Joanna Kosinska-Wiercinska, a specialist in all areas of family law, as to the relevant legal procedures and principles in Poland.

[8]No further evidence was filed for the hearing, but the court has had the benefit of written and oral submissions from Mr Devereux, instructed again on behalf of the father, arguing against a transfer under Article 15, and Miss Victoria Green, on behalf of the guardian, setting out the pros and cons on each side of the argument but remaining strictly neutral on the issue. I am grateful to both counsel for their clear and succinct legal analysis.

The Law

[9]Article 15 reads as follows: “Transfer to a court better placed to hear the case 1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5. 2. Paragraph 1 shall apply; (a) Upon application from a party; or (b) Of the court’s own motion; or

(c) Upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3. A transfer made of the court’s own motion or by application of a court of another Member State must be accepted by at least one of the parties. 3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State: (a)Has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or (b) is the former habitual residence of the child; or (c) is the place of the child’s nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property. (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that Member State in accordance with paragraph 4; or (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5. (a) Upon application from a party; or (b) Of the court’s own motion; or (c) Upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3. (a)Has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or (b) is the former habitual residence of the child; or (c) is the place of the child’s nationality; or (d) is the habitual residence of a holder of parental responsibility; or (e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property. 4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1. If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14. 5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seizure in accordance with paragraph 1(a) or 1 (b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14. 6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.

[10]In AB v JLB Brussels II Revised Article 15

[2009] 1 FLR 517

at paragraph 35 Munby J (as he then was) identified the three questions to be considered by a court when deciding whether to make a request under Article 15:

“First, it must determine whether the child has, within the meaning of Article 15(3), ‘a particular connection’ with the relevant other member State. . . . .Given the various matters set out in Article 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual residence of the child (see Article 15(3)(b)) or the place of the child’s nationality (see Article 15(3)(c))? Secondly, it must determine whether the court of that other Member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case. Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

[11]Further guidance as to interpretation on an application under Article 15 is set out in a series of recent cases – in chronological

[12]On behalf of the father Mr Devereux conceded that the first question arising under Article 15 was satisfied. E is a Polish citizen, his mother is Polish and he has lived in Poland for the past two and a half years. Plainly he has a particular connection with that country.

[13]The issue is whether the second and third questions are satisfied. Mr Devereux submitted that they were not and advanced a number of interlinked reasons.

[14]First, Mr Devereux informed me that this case presents a factual situation which, so far as counsel have been able to discover, has not been considered before in any reported case, that is to say a proposal, arising in private law proceedings following the unlawful retention of a child, to transfer the proceedings under Article 15 to the country in which the child has been unlawfully retained. Mr Devereux stressed the fact that E is only in Poland as a result of a wrongful act perpetrated by her mother. On any view this is a blatant case of child abduction and it is not right for a court to reward a party who has acted unlawfully. Furthermore, the mother appears to have committed perjury before the English court. A transcript of the proceedings before District Judge Dancey has now been obtained and demonstrates clearly that the mother gave a promise on oath that she would return E to the jurisdiction of this court in July 2012 at the conclusion of the holiday. The father has launched committal proceedings for contempt of court arising out of the mother’s breach of her undertaking and it is asserted on behalf of the father that he will continue to press this application. In those circumstances, proceedings will in any event be continued in this jurisdiction. Mr. Devereux submitted that it would therefore be undesirable for proceedings to be continuing in both countries.

[15]Mr Devereux further contrasted the respective abilities of the parties to participate in proceedings in the two countries. The mother was able actively and properly to engage in proceedings in this country. She has a good understanding of the English language, as is plain from her oral evidence before District Judge Dancey. She was able to give a promise on oath which the judge felt able to accept. In contrast, the father asserts that he has no knowledge of the Polish language and no understanding of the procedures of the Polish courts. He does not have the means to travel to Poland and stay there to participate in proceedings. Poland has a system of legal aid but, as demonstrated in he expert report from Dr Kasinska-Wiercinska, there are in practice a number of difficulties facing a litigant in the father’s position who wishes to apply for such assistance.

[16]Mr Devereux further submitted that, all things being equal, E’s best interests would be served by having a relationship with her father and her father being involved in her upbringing. This court can ensure that this happens speedily by making a child arrangements order for contact and issuing an Annex III certificate which could be automatically enforceable in Poland. In contrast, if the case is transferred to Poland there is, submitted Mr Devereux, no guarantee that any application made by the father would be heard expeditiously nor, if and when it was heard, that he would be granted contact with his daughter.

[17]Finally, Mr Devereux renewed his submission made at the earlier hearing that the court has no power to transfer the proceedings of its own motion unless the transfer is “accepted” by at least one of the parties – see the last sentence of Article 15 (2). Mr Devereux strongly resisted the court’s suggestion that it could be assumed that the mother would accept the transfer. His submission was that there had to be a positive and express acceptance by one the parties.

[18]From her neutral standpoint on behalf of the guardian, Miss Green identified a number of points of each side of the argument on this issue.

[19]In favour of a transfer under Article 15, Miss Green highlighted the fact that the Polish courts have already rejected the father’s application for the summary return of E to this jurisdiction, both at first instance and on appeal. The mother is a Polish national and has clearly stated that she does not intend to return to this country. E and her mother will continue to be habitually resident in Poland. The Polish courts therefore have the very real advantage of the child’s presence within the jurisdiction, facilitating all enquiries and investigations as to E’s welfare to be carried out there. They have already carried out a social background check in the course of the earlier Hague proceedings. In the event that there were proceedings in Poland, Dr Kasinska-Wiercinska suggested in her report that it would be “highly probable that … evidence concerning [the] opinion of the Family Diagnostic and Consultation Centre would be taken”. This seems to envisage a range of psychological and social tests, observations and conversations involving the child and the parties. Miss Green submitted that the reality is that, whatever the views of the English court regarding the lawfulness of the child’s removal or retention, the fact is the child will not be returned and as a result the child’s best interests may demand a pragmatic approach.

[20]On the other hand, Miss Green submitted that, set against the realities of the circumstances of the mother and child in Poland, there are what Miss Green characterised as the “very significant difficulties” which the father will face if he is required to pursue his applications through the Polish courts. He would have to attend the hearing and somehow obtain the services of an interpreter. As Dr Kasinska-Wiercinska’s report makes clear, legal aid in Poland, although in theory available, is often in practice hard to obtain. Miss Green submitted that, in circumstances where the father is likely to be effectively prevented from pursuing his application by virtue of his inability to engage properly with proceedings in Poland, then it is arguable that the Polish courts may not be best placed to hear the matter and thus it would be contrary to E’s best interests to transfer the proceedings. Miss Green acknowledges the force in the submission made by Mr Devereux that, whereas the father faces very grave difficulties in engaging in proceedings in Poland, the mother would face less difficulties were she to be required to litigate in this country, given her familiarity with this country and the English language.

[21]Having taken instructions from the guardian, Miss Green indicated that, were the court minded to direct a transfer, the guardian on behalf of the child, who is a party to the proceedings, would “accept” the transfer. As a result, Mr. Devereux’s final submission, that the court has no power to transfer the proceedings of its own motion unless the transfer is “accepted” by at least one of the parties, falls away.

Discussion and Conclusion

[22]As both Mr Devereux and Miss Green acknowledge, the first question arising under Article 15 is plainly satisfied. E is a Polish national (as well as a British national) with a Polish mother and has been living in Poland for 2 ½ years. Manifestly, she has a particular connection with Poland. As is invariably the case, the more substantial issues are whether the second and third questions arising under Article 15 should be answered in the affirmative.

[23]When considering whether the Polish or English courts will be better placed to hear the application, it is necessary to consider what the hearing will involve. Here it is important to recall that there are cross-allegations, as yet unresolved, of domestic violence. The mother has alleged in the past, and in all probability will continue to allege in the future, that the father has been violent and as a result E is at risk of harm if there is direct contact. The father has also made allegations against the mother, although these have not been sufficient to lead him to seek to challenge the arrangements for E’s care and residence. As a result, the hearing of the father’s application for a child arrangements order and parental responsibility order will in all probability involve not merely a welfare analysis but also, as a preliminary step, a fact-finding hearing to determine the truth of the cross-allegations. No court in this jurisdiction is going to order contact without investigating the allegations against the father. Importantly this process requires both parents to participate in the proceedings.

[24]Mr Devereux contends that for the English court the process will be relatively straightforward and involve the making of an order which could then be enforced by the issuing of an Annex III certificate. In my judgment, however, it is unlikely that the English court would make any order for contact without a thorough investigation of the allegations of violence. For such an investigation to take place, both parties have to engage in the process. It does not follow that the court would make any order for contact by default if the mother refuses to engage in the English proceedings. On the contrary, an English court would only make an order for the father to have contact with E if(1) it holds a fact-finding hearing as to the allegations of violence and

(2) includes, having regard to the findings made at the conclusion of that hearing, and all the other circumstances, that contact is in the interests of E’s welfare. It is likely that a Polish court will take the same approach.

[25]It follows, therefore, that, without the mother’s cooperation and participation in the proceedings, it is highly unlikely that any court will make any order for contact in this case. All the evidence suggests that the mother does not intend to take part in these English proceedings, and without her co-operation the father’s application for contact cannot be resolved by the English court. The fact that the father is intending to pursue his application in this jurisdiction to commit the mother for contempt makes her participation in any English proceedings concerning parental responsibility and contact even less likely. She may also be reluctant to take part in proceedings in Poland, but crucially the Polish court would have the power, should it choose to exercise it, to oblige her to participate. Although the father would be at a considerable disadvantage were he required to participate in proceedings in Poland, it is reasonable to expect him to do so to the best of his ability. It may be possible, however, for ways to be found to assist his participation in Polish proceedings.

[26]When one turns from the fact-finding hearing to the welfare stage of the proceedings, it is plain that the balance of the evidence on welfare matters lies in Poland. I agree with Miss Green’s observation that the Polish courts have a very real advantage by reason of the child’s presence within their jurisdiction. This makes it possible for all necessary enquiries and investigations as to her welfare to be carried out there. E is living in Poland. Her life centres round her mother and friends and family in that country. Any contact will inevitably have to start in Poland. There would of course have to be some investigation of the father’s circumstances, which would involve consideration of his home and life in this country. But the preponderance of evidence as to welfare matters will arise in Poland.

[27]Mr. Devereux submitted that, as the father was intending to pursue his application to commit the mother for contempt for breach of her undertaking, it would be undesirable for proceedings to be continuing in different jurisdictions. But the fact that the father may insist on bringing his committal application forward to a hearing does not put the court in any better position to determine his applications for parental responsibility and child arrangements orders. Indeed, as I have already observed, the father’s committal application makes the mother’s participation in English proceedings about E’s future welfare even less likely.

[28]When identifying which court is better placed to hear the case, the court must adopt an essentially pragmatic approach. It seems to me plain that in this case the Polish court is manifestly better placed to hear the father’s application. Indeed, when a summary return under the Hague Child Abduction Convention has been refused, the courts of the country to which the child has been removed, or in which the child has been retained, will for pragmatic reasons almost invariably be the best forum to determine issues as to the future exercise of parental responsibility, notwithstanding the fact that the child is only in the country following an unlawful removal or retention.

[29]I turn finally to the third question – whether a transfer of jurisdiction to the Polish courts is in E’s best interests. I agree with counsel that the fact that the child has been wrongfully retained in Poland is a relevant consideration when considering this question. This was a blatant breach of an undertaking given on oath and it can be argued that it is not in E’s best interests for such conduct to be “rewarded” by the transfer of proceedings to Poland. But, as Miss Green observes, in circumstances where the reality is that, whatever the views of the English court regarding the retention of the child in Poland, the child will not be returned, then the child’s welfare and best interests again require a pragmatic approach. E’s best interests require that the father’s application for a child arrangements order and parental responsibility order be heard and determined. As the mother is not going to participate in the English proceedings, the application cannot be determined here. I acknowledge that it will be difficult for the father to prosecute his application in Poland, but in my judgment it will not be impossible.

[30]Recognising that a transfer under Article 15 is by way of an exception to the general rules as to jurisdiction, I nonetheless conclude that all three questions arising under Article 15 should be answered in the affirmative in this case. This court will therefore request the Polish court, which I assume should be the district court in Ruda Slaska, to assume jurisdiction in accordance with Article 15(5) in respect of the father’s application. The request will be formally made via the Central Authorities, on the date on which this judgment is formally handed down and the order sealed. It is on that date that the period prescribed by Article 15(5) will start.

[31]Article 15(6) requires the courts of the respective countries to cooperate for the purposes of the Article either directly or through the Central Authorities. In my judgment, this imposes an obligation on both courts to take whatever steps. This court stands ready to assist the Polish court in ensuring that the father’s application is given full and fair consideration. In addition, I respectfully request the Polish court, in the event that it agrees to assume jurisdiction, to indicate the case management directions it would be minded to give for the determination of the father’s application and in particular to identify the procedural steps which must be taken by the father to bring his application before the court. It would also assist the father to know the arrangements that are available for the provision of an interpreter in the Polish proceedings.

[32]There will also inevitably be ancillary directions which the parties may require, including for the translation of this judgment and order and other material documents. I would be grateful if counsel would discuss these matters and agree the terms of a draft order which could be made when judgment is handed down.

order

Re K (A Child)

[2013] EWCA Civ 895

, Court of Appeal; Re E (A Child)

[2014] EWHC 6

Fam, Sir James Munby P; Nottingham City Council v LM

[2014] EWCA Civ 152

Court of Appeal; and Leicester City Council v S & Ors

[2014] EWHC 1575

, a decision of Moylan J. In Re IB

[2014] EWFC 16

, I attempted to summarise the principles to be derived from these authorities, and Pauffley J has recently summarised them more succinctly in her judgment in Re A and B (Children: Brussels II Revised: Article 15)

[2014] EWFC 40

. In short, the principles are as follows .(1) The power to transfer a case or part of the case to the courts of another Member State is an exception to the general jurisdictional rules under the regulation.

(2) The Article 15 power may only be exercised where all three questions identified by Munby J in AB v JLB are answered in the affirmative.

(3) The question of whether a court or another relevant Member State would be better placed to hear the case (or a specific part of the case) is an evaluation to be performed on all the circumstances of the case. It is intimately connected with the question of the best interests of the child.

(4) The starting point for the enquiry into the second question is the principles of comity and co-operation between Member States of the European Union.

(5) The child protection services and the judicial services of other Member States are to be taken as no less competent than those in this jurisdiction. As Pauffley J observed in Re A and B (at paragraph 41), “there is no room for ‘chauvinism’ under Article 15”.

(6) The different approach taken by Member States to measures designed to meet the needs of children – for example, as to non-consensual adoption – is not relevant to the determination of an application under Article 15.

(7) Questions that might inform an evaluation of whether a court is better placed to hear a case include the availability of witnesses of fact, whether assessments can be conducted and if so by whom, and whether one court’s knowledge of the case provides an advantage, for example through judicial continuity.

(8) The child’s welfare is not the paramount consideration when considering whether to transfer a case under Article 15. The evaluation of a child’s best interests under Article 15(1) is limited in its extent to the issue of forum. It will not depend upon a profound investigation of the child’s situation and upbringing but upon the sorts of considerations which come into play when deciding upon the most appropriate forum

(9) The question of whether there should be a request under Article 15 should be considered alongside other jurisdiction issues at the earliest opportunity. The longer the delay the more damaged the child’s situation will become.

(10) In any case with a European dimension the Court should set out quite explicitly, both in its judgment and its order (i) the basis upon which, in accordance with the relevant provisions of Brussels II Revised, it is either accepting or rejecting jurisdiction, and (ii) the basis upon which it either has or has not decided to exercise its powers under Article 15. Although this principle as expounded by Sir James Munby, P, in Re E, supra, at paragraph 35 was in the context of public law proceedings, there is no logical reason why it should not also be applied to all cases involving the exercise of parental responsibility. Submissions