M v B [2016] EWHC 1657 (Fam)

[2016] EWHC 1657 (Fam)Case No. FD16P00133/132
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Friday, 10 th June 2016
Before
MR. JUSTICE BODEY(In Private)
B E T W E E N:
Between
MApplicantBRespondent
Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers25 Southampton Buildings, London WC2A 1ALTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MR. M. HOSFORD-TANNER (instructed by A & N Care Solicitors) appeared for Applicant.THE RESPONDENT appeared in Person. for in person__________

J U D G M E N T (As approved by the Judge)

[1]This is a father’s appeal against orders made by District Judge Robinson at the Central Family Court on 17th March 2016 directing the registration and enforcement of a French residence order regarding the parties’ two sons, which order was made in the mother’s favour on 28th October 2008. The court which made that order was the court of first instance, in Brittany, France. The necessary certificate under Article 39 of Council Regulation (EC) no. 2201/2003 (“B2R” or “The Convention”) enabling those orders of recognition and enforcement was signed by the court in Brittany on 7th March 2016. On 17th March 2016, the same day as the mother issued her notice of application here for recognition and enforcement of the French order, she also issued an application here under the Hague Convention for the summary return of the children to France. However, that has stood in abeyance on the basis that the recognition and enforcement issues should be resolved first.[2]The father faces the difficult task of showing that the case falls within the exemption from recognition and/or enforcement contained in Article 23(a) of the Convention, which provides that:
“A judgment relating to parental responsibility shall not be recognised: (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 ….”
The other exemptions in Article 23(b) to (g) do not apply here.[3]The father’s case is effectively that the circumstances have now changed so much with the passage of time since the French order was made in 2008 (if only because the two children are now so much older) that in all the circumstances Article 23 is made out. The mother strongly opposes the father’s appeal. She maintains that, as the 2008 French order remains extant (despite its obvious age) it should be enforced in this jurisdiction in line with the philosophy of reciprocal enforcement which underpins the Convention, as is exemplified by recital 21 of the Convention which provides: “The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required”.[4]The father has represented himself, assisted by a French interpreter. He, the father, asked if a lady companion could be in court for the hearing, to which there was no objection from the mother’s side. I proffered that the lady could sit beside him to help him, but he was content that she should sit at the back of the court, as she did and as she is now doing during the delivery of this judgment. The mother, who is publicly funded (and has been assisted by a French interpreter) has been represented by Mr. Hosford-Tanner of counsel who was accompanied by his instructing solicitors. It is not easy to provide a level playing field when there is an ‘inequality of arms’ such as this; but I tried my best to explain things to the father as we were going along and to assist him by formulating some of the questions which he wanted to put to the mother. I have read all the relevant parts of the bundle, including statements by both parties setting out their cases and an attendance note by CAFCASS officer dated 23rd May 2016 setting out her discussions with both children at court on 18th May 2016.[5]Normally, in an application such as this, oral evidence would probably not be necessary. Here, however, there is a profound dispute of fact on the statements as to the circumstances in which the children were transferred in 2013 from the mother in France to the father who brought them to England. The mother says that the father has wrongly retained them here since 2013 and the father says that he has had them here with him since 2013 with the mother’s consent. It seemed to me that this was an important, if not pivotal, issue as regards the overall justice of either recognition and enforcement or non-recognition and non-enforcement of the 2008 order. I considered that I ought, therefore, to hear the parties, so as to be able to make a factual finding on the issue. It could have been done by inferences (as is so often done in Hague Convention proceedings); but with both parties here with interpreters it could have left a sense of grievance in the party against whom I made findings on the factual issue in question, if he or she had not been given a chance to give his or her explanations in an attempt to rebut those possible inferences.[6]To take one possible finding, if the father is right and the mother voluntarily relinquished residence of the children to him for good three years ago in 2013, it would hardly be appropriate or fair now to enforce the 2008 order against him. It would not be difficult on that factual hypothesis to find that recognition and enforcement would be manifestly contrary to the public policy of this jurisdiction. But the same would not apply if the factual finding were the other way about, namely that there has been a wrongful retention in this country by the father.

B Background

[7]The mother is aged 34, having been born on [date stated] in Kinshasa, Congo. She is a French citizen. She lives near Bordeaux in the same property as that to which she moved after the parties separated in 2007/2008. She works as a domestic carer, although she is on unpaid leave of absence since 1st June 2016 to enable her to attend to this case. The father is aged 42, having been born on [date stated], also in Kinshasa. He too is a French citizen. He lived in Rennes in France following the parties’ separation until 2013, when he moved to England in the interests of finding employment. He is now living in [town in England named] and working as a kitchen porter. The two children the subject of the French order of 2008 and therefore of these proceedings are A, a boy, born in 2004, who is aged 12 and B, a boy born in 2006, who is 10. Both are French citizens. In 2001 the parties were married in the Congo. They subsequently moved to France where both children were born. In 2007 the parties separated. The mother and children moved from Brittany to Bordeaux. The father later moved from Brittany to Rennes.[8]On 28th October 2008 when the children were aged four and two respectively the French court, namely the Court of First Instance, in Brittany, pronounced a divorce. The divorce order had an agreement between the parties dated 8th September 2008 whereby the parties agreed and the court approved that the residence of the children should be granted to the mother with such contact to the father as the parties might agree, but in default of agreement then for half of each school holiday. It was further agreed and, accordingly, ordered that the father should pay the mother maintenance at the rate of €120 per month per child. The mother’s case is that that was not often paid. Other than that, the order of 28th October 2008 took effect and seems to have worked satisfactorily in most respects for the next five years or so until 2013. In 2009 the father applied to the court in Bordeaux and achieved the suspension of the maintenance which I have just mentioned on the basis that he was out of employment. He was ordered to provide the mother with six monthly evidence of his income and his efforts to find employment, but the mother’s case is that this never happened. That, however, is not a point which has been explored at this hearing. Nevertheless, it meant that she was responsible, on any view, both for bringing up and providing financially for the children.[9]In 2011 the father made complaints to the police and social services in Bordeaux about the mother’s care of the children and about their alleged treatment by her alleged then partner. She was, accordingly, summonsed before the social services and before the court in Bordeaux. Those documents are in the bundle. Following investigation of the issues raised about the safety and the welfare of the children, they were returned to her or else allowed to be retained by her. She thereafter continued to care for them under the 2008 residence order and the father’s contact continued likewise under that order. However the mother’s case, which I accept, is that bringing up two children and having to work to support them, sometimes extremely long hours, was exhausting and that she became seriously run down and eventually unwell.[10]As a result, it is her case that in the summer of 2013 she asked the father to take the children and care for them until she could resume their care. The children were then nine and seven respectively. The mother accepts that the father said at that time that he was relocating to England and she accepts that she agreed to the children going with him until she was better. She obtained certificates from the school (which the father relies on) which are headed “Certificat de Radiation”, which means “striking off”, signed by the school dated 3rd July 2013. By my translation, the certificates say in respect of both children that they were struck off the register as from 2nd September 2013. The mother also gave the father the children’s relevant health books. He relies on having been given those books and the school certificates as showing that the children were handed over to him for good. The mother says that the certificates were simply the way the school expressed the fact that she had told the school that there was a risk that they would not be back in September 2013 if she was not well enough to resume caring for them.[11]At the end of 2013 it is the mother’s case that she asked the father by telephone (she being in France and he being in England with the children) for the return of the children. By that time she felt well enough to resume their care. She says that the father refused. From then on it is her case further that she could only speak to the children over the telephone with difficulty and she could only ascertain the fact that the father and the children were living in London, but not any precise address. She says she tried many times to negotiate the children’s return to France, but without success, including consulting his relatives in Africa which the father accepts she did do. The father, on the other hand, says that the mother refused to accept his calls when he tried to telephone her, because he considered that she was not wishing to agree to share with him the French child benefit of which he believes she was in receipt in France and which he had earlier asked her to pay over to him.[12]In June 2014 it is the mother’s case that she spoke to the father’s then ex-partner over the telephone, following which he was cross with her and told her that she would not see the children again, nor that she would be able to find the children in London. That allegation has not been investigated in the limited time available at this hearing and I make no specific finding about it. At some point the father applied for what is described as a modification of the 2008 residence order. However, on 7th October 2014 the Tribunal de Grande Instance de Bordeaux dismissed those proceedings on the basis that they were not being progressed. That is confirmed in a letter from the French Central Authority dated 4th November 2015 and by the French version of the order made by the court.[13]On 3rd February 2015 the mother made a report to the police at Bordeaux. In it by way of background she maintained that in September 2013 she had “temporarily entrusted” A and B into the care of their father whilst she recovered from what she described as some form of anaemia. She told the police that she did not know his address in London and that he was not giving her permission to speak with the children. She said, “I have tried to negotiate with him the return of the children to my home, but he has refused”. The police referred her on to some other authority which is not easy to identify, but it may have been the French Central Authority, because on 23rd April 2015 the mother wrote a letter, probably to that authority, again maintaining that in September 2013 when she was exhausted she had given the boys to the father in order to ‘re-establish’ herself and that “….if I feel better I will take them back”.[14]On 20th October 2015 the mother completed a Hague application form to the French Central Authority and at some point her current English solicitors were instructed. In December 2015 when the mother personally approached the French court in Brittany for an Article 39 or “Annex 2” certificate, she was told that it would not be necessary. Thereafter her English solicitors made arrangements for the court in Brittany to look into the question of such a certificate and on 7th March 2016, as I have said, that court did issue that certificate.[15]On 17th March 2016 District Judge Robinson made an order registering the French order of 2008 in this jurisdiction and granted permission for it to be enforced. On the same day at the Royal Courts of Justice an ex parte application was made to Mostyn J. He made a location order and disclosure order. The latter was necessary, because the mother was unaware of the father and the children’s precise whereabouts in London. On 5th April 2016 and 4th May 2016 further disclosure orders were made in an effort to locate the whereabouts of the children.[16]On or about 10th or 11th May 2016 the mother came to this jurisdiction and through relatives was able to locate the school attended by one of the children. That led to an ex parte application to Wood J on 13th May 2016 when he made a collection order. The reason he did so even though it was without notice to the father, was that at that point in time it was understood through the Tipstaff that the father had provided the Tipstaff with a false address. The father strongly denies ever having done that and I make no finding one way or the other, since the point was not capable of being adequately investigated in the time allocated for this hearing. However, it led to the decision that a collection order from the children’s schools was ‘the only way that the court could achieve the necessary control over the matter’ given the then understanding that the father had not been frank with the Tipstaff. I mention all this simply to explain why the children were collected from school in the way they were on 13th May 2016 and given over to the mother. I have no doubt that this was alarming and bewildering for both the boys.[17]On 18th May 2016 Holman J took the return day of the collection order. The father appeared with counsel. Amongst other things, the father’s counsel accepted that the father had not given the mother his address in London. The Judge took oral evidence from CAFCASS officer Ms Y who saw the boys here at court. I will deal with her discussion with them separately at part C. Ms Y recommended to Holman J that the children should not be separated. Under para.4 of the order of Holman J of that date it was directed that neither party should cause or permit the children to leave England and Wales, repeating a previous order of Wood J. One aspect of the judge’s order was that the parties were to try to agree contact for the father to the children, the order being premised on the basis that the children would live with the mother until such time as the question of recognition and enforcement of the French order had been resolved. Unfortunately, the parties were not able to agree contact and Holman J heard that issue of contact on 20th May 2016. His order was to direct interim supported contact for the father at a local contact centre in south west London every Saturday between that date and this hearing, together with a particular Tuesday, for two hours on each such occasion. The court directed that the children were not to leave the contact centre during periods of contact.[18]So it is that the matter comes on for hearing before me on the father’s appeal against (or wish to get discharged) DJ Robinson’s orders for recognition and enforcement of the 2008 French order. C The boys’ wishes and feelings as expressed to the CAFCASS officer Miss Y at court on 18th May 2016[19]On 18th May 2016 the boys had been with the mother for five days after having had nothing but telephone contact with her for nearly 2 ¾ years, namely from September 2013 to May 2016. The contents of Miss Y’s discussions with the respective boys (firstly separately and then together) are set out in an Attendance Note by Ms Y running to seven pages dated 23rd May 2016. She saw B first for reasons of convenience. When she asked his understanding of why he had come to see her, he replied that it was “about who can look after me, my mum can look after me”. He told Ms Y that his mum had not been able to look after him any more “… cos she was really sick … like when your body’s tired and stuff and you need someone to look after you”. He continued that the father had come to take A and him ‘like when they used to go on holiday’. He said that he used to speak to his mother “all the time, she called me”. He said, “We told each other what we were doing, how stuff is going at school, good news and stuff”. When he spoke to the mother on the telephone, he said that he had not told her where he was living, but had just described the accommodation to her. When he was asked why he had not visited the mother B said, “I couldn’t. At that time my dad told us stuff, that she was evil. He said that she abandoned me and stuff, that she didn’t love me”. He went on to say that he was missing his friends (in France) and was wanting to go back to school in France. He described it as “where I belong”. He said he would like to go back to live there forever. In a letter which he wrote to the Judge, B said, “I want to go back to France because I miss my school and my friends and my home. I feel more welcome in France than I am in England …”[20]When Ms Y saw A, he said that living in England with his father and brother had been “good”. When asked why he was not living with the mother A told Ms Y that “… she said that she was sick. She said that’s why she gave us to our dad. That’s what I don’t understand. She said something that I don’t agree to it (sic). If it was for the holiday, why did she cancel us going to school in France”. He told Ms Y that he had only had phone contact with the mother. He said he was unhappy when he was collected under the collection order because he wanted to stay with the father. When asked how he felt now (i.e. 18th May 2016) A remained silent. Ms Y says that she detected sadness in his demeanour. He denied that he was sad, angry or confused, but agreed with her that he was worried because he might have to go back to France and wanted to remain in this country. He said, “I want to stay here and I want to stay with him” (his father). He did not want to write a letter to the judge. Asked why he wanted to stay in England, A described it as being better than France with better education and less racism:
“You can do any job you want”
. He said that this was not the case in France “because of your skin colour”. He told Ms Y he did not believe his mother when she said she was sick. A asked Ms Y if B wanted to stay here and Ms Y responded by asking him if that would make him rethink his own wishes, to which A replied, “Maybe … (but) I might still want to be here”. He told Ms Y that he thought his father was “telling the truth”. Asked whether, if it turned out that the mother had really been unwell (in 2013) it would make him rethink his wishes, A said, “… maybe … (but that) she knew we were in London. I was there when dad called her”. Ms Y refers to A as having a sad presentation whilst talking about that.[21]Thereafter Ms Y met with both boys together. The main reason for A wanting to stay in this country was “the good education [here] and racism [in France]”. B repeated his wish to go back to school in France. When asked by Ms Y what he thought it would be like living with his mother, A said it would be okay, but that he wanted to live in England with his father. When asked if he would go to France if the judge said he should, he said, “No”. Asked how the boys would feel not being together, B said he would not feel upset as he could still talk to A and see his face as he was growing. A said that he would feel the same way, although Ms Y did not sense that he was as sure about this as B.[22]Ms Y spoke to both boys’ schools. A’s school said that he was doing very well. They reported that he had expressed a wish to remain in England because of what he referred to as the racism in France. The school regarded his maturity to be at least commensurate with his chronological age, with which Ms Y found no reason to disagree.[23]B’s school referred to a major shift in B’s thinking. On 13th May 2016 when he moved to the mother’s under the collection order, the school reported that “…he feared for his life. His heart was pounding. He said his mother would kill him. He would not eat anything as she would poison him”. They reported B saying that “… she tortured him in France and that he looked like a tramp when he was with her. He wore charity clothes that were dirty”. They mentioned B saying that he felt he would be unsafe with the mother, including his saying this to the police when they arrived to execute the collection order. They reported him being afraid that the mother would kidnap him and kill the father so that he, the father, could not have A and himself. He said he did not want to go to France and that the mother was “…ruining my life by turning up”.[24]However, on 16th May 2016, the Monday after the Friday when the collection order was executed, B’s teacher saw him and B gave her a thumb’s up. When she spoke to him, he told her that it had been “really good” at the mother’s. He understood or had come to believe (the teacher told Ms Y ) that the father had told him things about the mother that were not true. The school assessed B to be somewhat of a rigid thinker who has a strong sense of justice, fairness and right and wrong. He is described as “a little bit more immature” than a child of his chronological age.[25]Since the time when Ms Y saw the boys and subsequently completed that Attendance Note, the children have been living with the mother. It is her (the mother) case that her relationship with both of them has become good, although with B quicker than with A. She says at para.13 of her statement of 7th June 2016:
“When the children were handed to me they were very frightened of me. They had been told by the respondent that I was evil and meant to harm them. We have now resumed our good relationship, more quickly with B than A, even though we have been staying in difficult circumstances with very little money”
. D The factual issue about the circumstances of the children being transferred from the mother’s care to the father’s care in or about September 2013[26]I have already touched on the parties’ competing cases. The mother says that the arrangement was to be until she was better. The father says that the mother’s request was for him to care for the children for good. It is effectively one word against the other.[27]The mother’s evidence was internally inconsistent as to when she felt better enough to take the children back, whether in September 2013 or later in the year when she says she asked the father in December 2013 and he refused. On an issue between the parties about whether the father had the children for all the summer holidays during the years 2008 to 2013 whilst the parties were in France (as he maintains) or only for half the holidays (as she maintains) the father produced, in the dying moments of the hearing, various train tickets which he believes support his case. It has been difficult, especially in the extremely limited time which I have had with other commitments since the hearing finished, to do a very meaningful analysis of the tickets. For one thing I have not been able to find the years stated on them. But I will accept for the sake of this judgment that there were years between 2008 and 2013 when the father had the children for the whole of the summer holidays as he claims.[28]I acknowledge that the French school certificates would tend to suggest that the children were being removed from the school completely and it would require me to accept the mother’s evidence that she told the school that the removal from school was only going to be, if it was necessary at all, until she got better. Further, the mother raised for the first time at this hearing the alleged existence of a note which she says she wrote and gave to the father (which he denies) stating that the arrangement was of limited duration. One would have expected such a note to have been mentioned in her statement since it would be an important document; but it was not.[29]The mother told me in her oral evidence that in July 2013 she was ill. She said she asked the father to look after the children until the start of the school year (September 2013) whilst she was getting herself better. She denied that she was pregnant (the significance of which will appear in a moment). She said she told the school in July 2013 that she was not feeling well and that there was a chance that the children would not go back to school in September 2013. The certificates which the school gave to her are those which she passed to the father. She went on to tell me that at the beginning of September 2013, as she was still not well enough to care for the children, she accepted they would be going to school in England. She was clear in her evidence that she had asked for the children back towards the end of 2013.[30]When the father asked the mother some questions with which (as I say) I endeavoured to assist him, she reiterated that she had been asking for the children back. She said that she had tried to broker an arrangement (my words, not hers) through friends and family, but that there was never any resolution possible. When the father put to her that she had said to him in the summer of 2013 words to the effect “… take the children, they want to live with you”, the mother denied that absolutely. She accepted that the father told her that if he was going to have the children it would be in England where he was planning to go to live.[31]The father’s evidence too was internally inconsistent. He told me that the mother had abandoned the children in 2013. He said that she did not want to take care of the children, asserting that she was ill; that is to say, the mother asserting that she was ill. He referred to the certificates from the school and to her having given him the children’s health books. He said that when she gave him the children she told him that she was ill, but he commented that she had not shown him any proof of any illness. He expressed the view that she had never been ill. He went on to assert that she had given him the children because she was pregnant by her new partner and that the children were not getting on with him (her new partner). He supported this by saying that when he (the father) had lived with her, the mother had had anaemia when she had been pregnant. He described the mother as having been in very good health at the time when she (the mother) gave him the children in 2013. However, he then asserted that she said nothing to him about being ill, a statement wholly inconsistent with what he had told me earlier in his evidence (see earlier in this paragraph) and with his comment that she had not shown him any proof of illness.[32]In a nutshell, the father’s description of how it was the children came to be with him was put by him like this, or words to this effect:
“I went to pick up the children for the holiday and it was a surprise when she said “… you can take the children and here’s certificates from the school”
. She told me I could take the children because she was not able to keep them”. He denied Mr. Hosford-Tanner’s assertion that in December 2013 the mother had asked for the children back, claiming that the mother had kept her phone switched off and never ever phoned him to ask him to return the children. He accepted that he had been on holidays to France with the children over the last three or four years and had not told the mother that the children were there.[33]I have considered this evidence from both parties and have borne in mind the following factors in deciding whose evidence I prefer.(a) I take account of the mother’s late reference to a note given to the father in 2013. It may be an embellishment, since it is not in her statement, and I apply caution to her evidence for that reason.(b) I take account of the inconsistencies in the father’s evidence which go to the core of how and why the children came to be transferred to him.(c) I bear in mind the relative inherent unlikeliness of the father’s case compared to the mother’s. Even if the mother had been pregnant in 2013, as the father seems to be suggesting (but which she denies) it would be surprising for an otherwise fit and healthy young mother (as per the preponderance of the father’s case) suddenly to relinquish to the father care of two sons, whom she clearly loves and for whom she was caring at least adequately (as per the 2011 Bordeaux safeguarding finding). The mother’s case seems inherently the more likely that she was worn out and unwell with having to care for the children and to support them financially and needed some respite help from the children’s father until she had recovered sufficiently to resume their care.(d) I take account of the fact that compared with the father’s evidence the mother’s evidence on the key issue has been consistent throughout.(e) I take account of the fact that the mother made a sizeable concession against her interests in that she accepts that she agreed to the father bringing the children to England. This was something she could quite easily have denied.(f) I take account of the father’s two concessions: (i) that the mother did not know his address in London (as is also demonstrated by the disclosure orders which she had to get from this court in trying to locate the children); and (ii) that on the three or four occasions when he has taken the boys on holidays to France since 2013, he did not tell the mother that he and they were there. These factors do not have a flavour of there having been an agreed and consensual arrangement for him to bring up the children for the rest of their minorities, as per his case.(g) I take account of the fact that both boys told Ms Y that their mother had been unwell in the summer of 2013, which would support the mother’s case. Everything the boys said to Ms Y is, of course, hearsay, but, in my view, there is no reason not to regard it as likely to be accurate.(h) I take account of my impression of the parties. The father came over as being by far the stronger personality. He was forceful of speech and demeanour and keen to get his points over. The mother, by comparison, was much quieter, more restrained and even a little diffident. It is not difficult to visualise the problems which she maintains she had in getting through to the boys on the telephone or trying to talk reasonably with the father.[34]Weighing up all these considerations, and assuming for the sake of argument that the burden of proof falls on the mother to establish her case rather than on the father to prove his, I am satisfied that she has discharged that burden. I find as a fact that she was ill in 2013 and told the father so; and that the agreement was as she claims it was, namely for the father to take the children (and also to take them to England) but only until she was better and asked to resume their care. I reject the claim that the arrangement was for the father to keep the children for good and I find that his keeping them since late 2013 was a wrongful retention of them in this jurisdiction in the face of the 2008 order giving residence to the mother. This finding means that the 2008 order is, on any view, still extant (the father’s application to change residence in the court at Bordeaux having been dismissed in October 2014 as above). The only reason that the boys have been in this jurisdiction so long (nearly 2 ¾ years) is that the father refused the mother’s requests, as I find, to return them to her in France and that she did not know their address in London.[35]Those are my findings of fact which dispose of the disputed issue as to what was agreed in 2013. The findings form the basis for the question of recognition and enforcement (or not) of the 2008 French order.

E Should the French order of 2008 be reciprocally recognised and enforced?

[36]The law on this topic has been examined in a number of authorities to which Mr. Hosford-Tanner has referred me, including in particular LAB v KB (Abduction: Brussels II Revised) [2010] 2 FLR 1664 (Wood J); Re L (Brussels II Revised: Appeal) [2013] 1 FLR 430 (Court of Appeal); ET v TZ (Recognition and Enforcement of Foreign Residence Order) [2014] 2 FLR 373 (Wood J); and Re N (Abduction: Brussels II Revised) [2015] 1 FLR 227 (Holman J).[37]Mr Hosford-Tanner incorporates extracts from those authorities at paragraphs 42 to 52 of his Skeleton Argument of 8th June 2016, which I adopt. I note that there have been cases where substantial periods of time have elapsed between the making of the foreign court’s order and the request here for recognition and enforcement, but where the Article 23 exception argument has failed and, therefore, the foreign order has been recognised and the children returned to that jurisdiction. For example, in LAB v KB the mother obtained recognition and enforcement two years after the original Spanish order and three years after the father’s wrongful removal of the children to England. Even though both children aged nearly 11 and 9 ¾ wished to remain in this jurisdiction, Wood J enforced the Spanish order. The passage of time was not without more sufficient to avoid recognition under the philosophy of the Convention. Similarly, in ET v TZ the 8 year old child had not seen his mother for three years and said that he did not want to be returned to Poland; but Wood J (again) enforced a Polish order in the mother’s favour made three years previously.[38]In Re N, Holman J summarised the situation like this:
“As it is now so well established in authority, I can summarise the jurisprudence very briefly … There are two distinct stages (i) recognition; and (ii) enforcement. In relation to each stage, recognition or enforcement is mandatory unless the ground or test for non-recognition or non-enforcement applies. In the case of both recognition and enforcement there is only one possible ground for non-recognition or non-enforcement in the present case; namely, that it would be ‘manifestly contrary to the public policy’ of this state ‘taking into account the best interests of the child’. The test is stringent. The bar is a high one. The test is public policy not welfare as such, still less the paramountcy of welfare itself.”
Later in the judgment in Re N Holman J repeated something which Wood J had said in LAB, namely:
“Here it is the filtering lens of Article 23 of the Regulation which must be looked through to see whether or not delay in combination with other powerful and exceptional factors might have led to a change in a child’s life of such significance that the new scenario would amount to a reason for non-recognition of the kind identified in Article 23.”
[39]In that case of Re N Holman J took account of the fact that the delay which had occurred there had been substantially caused by one of the parties, namely the mother. Here it may also be said that the delay lies at the door of the father, as I have found.[40]So far as B is concerned, there is no welfare difficulty in recognition and enforcement of the 2008 French order and thereby a return to France, because he clearly wishes to be cared for by his mother in that country. There is nothing at all to suggest that her care of the children would not be perfectly adequately, as witness the fact that on any view it was only when she asked the father to take the children that they were transferred to him.[41]The situation of A however is more difficult in view of his expressed wishes and feelings. I have considered carefully whether he should have a Children’s Guardian to argue his particular case against a return to France. However, it is necessary to balance the advantages of that against the fact that it would cause delay. Such delay would be particularly unfortunate when the boys’ lives are in limbo and when the mother is living away from her home in France with no income, spending her modest savings and borrowing money from friends. She has very considerable accommodation difficulties. Her solicitors have themselves funded her accommodation here, reliant on reimbursement from the public funding authorities. In the end I have decided that a Children’s Guardian is not necessary for A. As I have said, his opposition to living with his mother in France was not absolute when he spoke to Ms Y and I am fully cognisant of the arguments which can and would be put before me were he separately represented. I am fortified in this view(i) by the fact that such an experienced judge as Holman J, having heard Ms Y report about the children’s wishes and feelings on 18th May 2016, did not appoint a Children’s Guardian for A; and(ii) by the mother’s evidence, which I accept, that her relationship with A is much better now that he has actually been with her. That, I might add, is by no means counterintuitive. It seems clear from what B originally told Ms Y (above), from the school’s observation of B’s demeanour and from the school’s record of things he subsequently said after spending time with the mother, that the father must have been saying negative things about the mother from time to time, which (although he denies it) I find he was. Even if he had not been, the boys were clearly very conflicted, caught up in the dynamics of very obvious acrimony between their parents whenever they (the parents) communicated by telephone and they (the boys) were doubtless of the mind-set that, by not seeing them for such a long time, their mother had abandoned them. All this would be likely to have set A against the mother in a way which would be equally likely to be ameliorated once reunited with her, especially since he knows that his brother B wishes to be cared for by the mother in France.[42]So the question regarding A comes to this. Can it be said that the passage of time since 2008, coupled with his (A’s) expressed wishes and feelings to Ms Y, amount to such a serious welfare consideration, i.e. such a negative and detrimental welfare consideration, that Article 23 is met so as to require me not to recognise and not enforce the French order? For the reasons just set out, there is in my judgement every likelihood that A will settle with the mother, if he has not done so already, and will settle back to the home in Bordeaux, where the family lived (that is, the mother and the two boys) prior to her being unwell in 2013 and asking the father to help out. He would be there with his younger brother, and I agree with both the mother and Ms Y that it would clearly not be in their interests to separate them one from the other. That is what would happen if the French order were recognised and enforced regarding B but not regarding A. It would leave B in France with the mother; but where would it leave A? The current contact order is for supported contact to the father, specifically at a contact centre. Unless there were to be a complete reversal of that approach today, as to which there has not been evidence or debate, it is difficult to see how A could just be returned to the father’s care, even though that might turn out to be perfectly appropriate on further examination.[43]I recall and repeat A’s own words to Ms Y that, although he wants to live with his father in England, it would be “okay” with his mother. That, together with his obvious sadness when talking to Ms Y, suggests to me a lad who was conflicted when he spoke to Ms Y and it is easy to see why. Last, whilst Art. 23 provides that a foreign order shall not be enforced if the child was not given an opportunity to be heard at the time it was given, these two children were respectively aged only 4 and 2 in 2008, when the consent order was made in France. So I cannot see that that provision realistically applies on the facts so as to mean that the French order is not to be enforced here.[44]In all these circumstances, A’s expressed preference to stay in England with the father is not something, in my judgment, which means that his welfare would be so compromised by a return to France that it can be said to be “manifestly contrary to the public police of the member state in which recognition is sought (this jurisdiction) taking into account the best interests of the child”. True it is that the 2008 order is a very old one, much older than in the previous cases to which I have been referred; but the age of the order is not per se a reason for its non-recognition and enforcement. It is all a question of considering the overall circumstances. It is a matter of fact and degree. Here the order was, on any view, ‘actively’ effective until September 2013, three years ago, and only ceased to be effective ‘on the ground’ (of course it remained in force in law) because the mother temporarily relinquished the children to the father, as I have found, and the father retained them. Further, the father himself took advantage of the French legal system by way of his application there to change residence which, although it was not pursued and was dismissed for that reason in 2014, had as its very subject matter the 2008 order.[45]In the result, I am satisfied that the father’s appeal against the order of District Judge Robinson dated 17th March 2016 fails. Accordingly, recognition and enforcement of the 2008 French order must follow. Currently the mother remains, or might be said to remain, subject to para.4 of Holman J’s order of 18th May 2016 not to remove the children from the jurisdiction. However, when that is discharged, as it must be, she will be at liberty to take the children with her to France pursuant to the French residence order in her favour dated 28th October 2008. _____________________