FE v MR & Ors [2017] EWHC 2298 (Fam)

[2017] EWHC 2298 (Fam)Case No FD16P00550
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF COUNCIL REGULARTION (EC) 2201/2003
AND IN THE MATTER OF AE AND JE (CHILDREN) (ARTICLE 15 BRUSSELS IIA)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/09/2017
Before
THE HONOURABLE MR JUSTICE BAKER
Between
FEApplicantMR (1)RespondentsAE (2)RespondentJE (3)Respondent
The Applicant and Respondent appeared in person for in personAlistair Perkins (instructed by Covent Garden Family Law) for Second and Third Respondents by their children’s guardian, Jacqueline RoddyHearing Hearing dates: 4 th September 2017
Judgment ApprovedThis 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.MR JUSTICE BAKER :
[1]The principal issue to be considered in this judgment is whether this court should submit a request to the courts of Spain under Article 15 of Council Regulation (EC) 2201/2003 for the transfer of proceedings concerning two children, hereafter referred to as A and J.

Background

[2]The children’s parents are Spanish and now aged forty-nine years old. The father is an osteopath by profession, the mother a cardiologist. They were married in Barcelona in 2002 and moved to Pamplona two years later where the older child, A, was born on 14 October 2003. In 2006, the parties moved to Kent, England, where the younger child, J, was born on 1 December 2006. In July 2011, the family moved back to Pamplona but a few weeks later moved to Tenerife. In July 2012, the father moved back to Pamplona, the mother and children remaining in Tenerife. At that stage, it seems that the parties’ relationship was continuing, but it broke down in the course of 2013.[3]On 3 September 2013, the mother started divorce proceedings in Spain, in the course of which she sought an order for custody of the two children. The mother had by that stage obtained employment as a cardiologist in Sussex, England, and therefore applied for interim custody and permission to remove the children from Spain. A psychological assessment of the children carried out in October 2013 concluded “there are indicators of abuse within the family sphere resulting from the behaviour and educational style of the father. Therefore, it is our opinion that the maternal family environment is the most appropriate, safe and comfortable for the minors.” The Spanish court granted the mother’s application and shortly before Christmas 2013 the mother and children arrived in England. At all times since that date, the children have lived with the mother in this country, but until 2016 they have, in accordance with the interim order of the Spanish court, spent one month each summer and one week at Christmas with the father in Spain. Under the interim order, the father was also permitted to have contact for one weekend a month in England, but according to the mother he has only occasionally taken up this contact.[4]Meanwhile, the divorce proceedings were continuing in Spain. In March 2014, there was a hearing before a judge in the Court of First Instance No 3 in Pamplona over two days, in the course of which the judge interviewed the children. Subsequently, the judge decided that the children should be seen by a court-appointed psychologist. Her interview with the children took place in the presence of the judge on 31 July 2015. The psychologist saw both children again on two occasions in August 2015 and saw A for a further interview on 8 January 2016. The mother asserts that she was unaware of this latter visit which took place when the children were in Spain for contact with the father over the Christmas period. On 5 February 2016, the psychologist prepared a written report in which she recorded that the both children had expressed a wish to be with their father and family in Pamplona. She reported that both children had close relationships with each parent but was concerned about the high level of conflict between the parents and the impact of the conflict on the children. With regard to A, she concluded that both parents “are reference and significant figures for A. Her belonging feeling is placed in the family from Pamplona and [she] has expressed her wish to come to live in Pamplona and she is also currently settled and integrated in England at school level.” With regard to J, the psychologist concluded:
“J is integrated in the school environment in England and is focused on interests corresponding to his age. Both parents are important persons for J. The child has safe emotional bonds with both parents and has not stated any preference in relation to the cohabitation with one or the other parent.”
[5]A further hearing took place before the court in Pamplona in May 2016. Eventually, on 27 June 2016, the judge in Pamplona delivered her judgment and decision. She awarded guardianship and custody of the children to the father and directed that thereafter the children should spend one half of the school summer holidays and Christmas holidays, the whole of the Easter holidays, and other half term holidays, with the mother, the contact to take place in London unless the mother travelled to Spain on those dates.[6]From the translation of the Spanish judge’s judgment included in my papers, I identified the following key findings:(1) “the individual capacity of both parents for the exercise of parental functions is not questioned”;(2) there was no evidence that the mother had suffered abuse;(3) the children wanted to live in Pamplona;(4) J has a close bond with his father;(5) the parental conflict had impinged upon the children’s welfare;(6) the father had found it difficult maintaining relations with the children mainly because the mother had been in control and caused difficulties about his contact - “it is necessary to achieve a balance between the situation of both parents by preventing the current empowerment of the mother because this is considered detrimental for both children”;(7) “the cohabitation of the children with the father in Pamplona will bring some quiet to the children and will allow for a more normalised access to them by both parents”. The judge further ordered the mother to pay the father the sum of €500 per month for each child. She further directed that the case should be monitored by the psychologist to assess the children’s stability and adaption “and to assess if a suitable and peaceful access to both parents has been achieved.”[7]In September 2016, the mother filed a notice of appeal against the Spanish judge’s decision and brought the children back to England. On 20 September 2016, the Spanish judge ordered the mother to hand over the children to the father’s care and to pay a daily fine of €100 for each day that passed when she failed to hand the children over to the father. On 5 October 2016, the father filed an application in this court for a location order under the court’s inherent jurisdiction and also for registration and enforcement of the Spanish orders dated 27 June 2016 and 20 September 2016. On the same day, a location order was made by Roberts J and orders for the registration and enforcement of the Spanish orders were made by District Judge McGregor. The location order was executed and on 14 October the matter came back before MacDonald J who gave a series of case management directions within the inherent jurisdiction proceedings. On 7 November, the mother filed a notice of appeal against the district judge’s order for the registration and enforcement of the two Spanish orders. In her statement in support, the mother stated that the children did not want to leave England where they were settled living with her and in their current schools. She stated:
“the children need stability and we intend to remain in England long-term”
. She exhibited to her statement a letter written by A stating that she wished to stay living in England with her mother. At a further hearing on 9 November, Francis J refused an application by the mother for the children to be interviewed by Cafcass and gave further case management directions for the filing of evidence. On 24 November, an application was made by a solicitor on behalf of A for an order joining her as a party to the proceedings. In her statement in support of the application, the solicitor recorded that she had been contacted by A’s mother and had subsequently spoken to A by telephone who had confirmed that she wished to remain living in England with her mother.[8]On 28 November 2016, after a contested hearing, Holman J made an order(1) setting aside the orders of District Judge McGregor dated 5 October 2016 “on the ground that the district judge had not been informed that there was (and still is) a subsisting appeal in Spain, which has not yet been determined, from the order made on 27 June 2016 so that the district judge was unable to exercise a discretion under rule 31.9 of the Family Procedure Rules 2010”;(2) staying the father’s application for recognition and enforcement of the Spanish orders until further order;(3) joining A as a party to the proceedings and directing that an officer of the Cafcass High Court team be allocated to represent her as her child’s guardian;(4) directing the allocated Cafcass officer to interview J to ascertain his wishes and feelings with regard to whether he lives in this country or in Spain and as to contact with the non-residential parent and as to whether he should also be joined as a party as represented by a guardian; and(5) restoring the matter for a further directions hearing on 3 February 2017.[9]Around the time of the hearing in November 2016, and subsequently over Christmas, the father had contact with the children in England, although the arrangements were to some extent frustrated as a result of medical appointments during which A underwent a lumbar puncture procedure. The evidence suggests that the father was not informed or consulted about this procedure. Meanwhile, the father had filed an “enforcement claim” in the court in Pamplona seeking enforcement of the order of 20 September 2016 for the “handover” of the children to the father. The mother opposed the enforcement claim on the grounds inter alia that the children did not want to return to Spain. On 19 January 2017, the court in Pamplona made an order that the mother’s objection to the enforcement claim be “dismissed in its entirety”, holding that her arguments based on the children’s current wishes were “utterly insufficient”, and declared that it was appropriate for the enforcement to proceed and for the custody regime established by its earlier judgment to be immediately and effectively complied with by handing over the children to the father. A further fine of 100 euros per day was imposed on the mother for each day that the provisions of the enforcement order were not complied with.[10]Pursuant to Holman J’s order dated 28th November 2017, Ms Jacqueline Roddy of the Cafcass High Court team was duly appointed to act as guardian and she filed a report on 20th January 2017 in which she recorded details of her interviews with the parents and children. She reported that A had told her:
“I want to stay here, in England. We have all our friends here and our home and everything. We have never really lived in Spain and we don’t want to go there because we are happy here.”
She told the guardian that, although she loved her father, she believed that a move to Spain would mean that she and J would be largely in the care of the paternal grandparents because her father works long hours. The guardian reported that J had a negative view about a move to Pamplona, and about his relationship with his father, although, with encouragement, both children spoke about good things they had enjoyed during contact with him. The guardian reported that both children had told her, individually, that their father persuaded them to tell the Spanish court-appointed psychologist that they wanted to live in Spain. In contrast, they said that their mother had encouraged them to say what they really wanted.[11]The Guardian reached the following conclusions:
“It is legitimate to question whether the Spanish court was best placed to make welfare decisions for these children, when they were habitually resident in the UK. From the information available to me, the Spanish court took no account of the life in [Sussex], nor obtained the view of the school and other support services involved with the children in the UK, which I consider is a gap in the welfare consideration for these children. The court appears to have been largely influenced by the Spanish court-appointed psychologist, who expressed real doubts about [the mother’s] ability and willingness to ensure the children’s psychological and emotional well-being by promoting contact with their father. Regrettably, [the mother’s] actions in taking the children to the UK, and the failed Christmas contact provide some evidence of what the psychologist predicted. It is my view that the court’s focus should be on making a decision as to what is right for the children at this juncture. The children have made their views very clear. [The mother] is the children’s primary attachment figure and they want to be with her. A’s current key developmental challenge has been the delicate process of rebuilding a relationship with her dad while ‘owning’ that she does not want to live with him in Spain. I fear that – if the children are ‘forced’ to go to Spain at this juncture – there is a real risk that they will be resentful towards their dad which will get in the way of their ability to truly establish the relationship with them he is so keen to recapture.”
Attached to the Guardian’s report were letters from the children to the judge saying in strong terms that they wanted to stay in England with the mother and visit their father in school holidays. A’s letter concluded: “please, please let me stay in England”.[12]The next hearing took place on 3 February 2017 before Mostyn J. At that hearing, the father was represented by leading counsel, the children by junior counsel, and the mother appeared in person. After hearing argument, Mostyn J refused “at this stage” the father’s application to lift the stay of the recognition and enforcement proceedings imposed by Holman J in November 2016. Both parties undertook that they would seek to expedite the appeal before the Spanish court. In the interim, Mostyn J ordered that the father should have contact with the children in England over the February half term holiday and in Spain over the Easter holiday. The terms of the order were carefully defined. Thus, in respect of the Easter holiday, the judge directed, under paragraph 7 of the order, that the mother should ensure that the children had contact with the father:
“for fourteen nights (fifteen days) of the Easter school holidays from Sunday, 2 April 2017 to Sunday, 16 April 2017… The father shall collect the children on the afternoon of 2 April at Gatwick airport… and escort them to Spain for their holiday with their father and paternal family. The father will then put them on a flight on 16 April (for them to travel back unescorted on the ninety minutes flight unless the mother decides to collect them from Spain at her own cost) .…”
Both parents gave undertakings to facilitate the contact. The father undertook into alia that he would “ensure that both children… returned properly to the care of the mother in England at the end of the period of Easter holiday contact in Spain provided for in paragraph 7 below and that he will not make any attempt to retain them in Spain in reliance upon any existing order of any Spanish court and will not, while the children are in Spain, make any application in relation to them to any Spanish court”.[13]Contact between the father and the children over the February half term duly took place in England and the children subsequently told the guardian that it had been “fun”. A told the guardian that, although she had enjoyed being with her father, and look forward to seeing her paternal family in Spain over Easter, she was apprehensive about the prospect of her father not returning her and J to the UK at the end of the holiday.[14]On 2 April, in compliance with the order of 3 February, the mother took the children to Gatwick airport where they were met by the father and taken by plane to Spain. Some of the details of what happened thereafter are a matter of dispute between the parties but, in summary, the following facts are established. The father and the children stayed with the paternal grandparents in North Spain for about ten days. On about 13 April, they flew to Dubai and then on to Bangkok. After a few days, they flew to Indonesia. According to the mother, on 16 April, she received an email from the father via his former solicitor stating that he was going to start a new life away from the UK and Spain. According to the guardian, on the same date the father sent an email informing her that the children had been taken to another country and that he was “prepared to stay abroad and not return”. On 18 April, the mother made an emergency application to the High Court in London where Francis J made the children wards of court, and ordered the father to immediately return them to England. The mother then flew to Bangkok and on to Jakarta where she met the Spanish Consul. With his assistance, the children were located and in due course, in the presence of the Consul, they stated that they lived in England and wanted to come back home. The children were returned to the care of the mother and flew via Singapore back to the UK, arriving at Heathrow on 26 April.[15]For the hearing before me on 4 September, the father filed a lengthy statement headed “Events of Easter 2017”, setting out his version of what happened. As this court is not in a position at this stage to make findings on this issue, it is unnecessary to set out his account in any detail. In summary, however, it is his case that the children enjoyed their time in Spain with him and his family until he observed a man following them and taking photographs. Believing the man to be a private detective instructed behalf of the mother and her family, he decided to take children to Thailand to visit a nanny who had looked after them for some years in England. While in Thailand, he received news of efforts by the mother to take proceedings in Spain and England to recover the children and he therefore decided to take them to Jakarta. He says he told the children that they were going to “extend the holidays a few more days and since we were in Asia for the first time we could do something to remember.” He was surprised when the mother and the Spanish Consul arrived at the hotel in Jakarta but says that at that point he and the mother “for the first time in five years… tried to make an agreement. I was prepared to share custody with her, if we stopped all court procedures in Spain and the UK and we could have the children one year each. This way no exchange of money was necessary and we just each cover the children expenses the time we had them. She was happy with this, and we wrote the agreement on the iPad in Spanish and English and send a copy to our solicitors.” Although the children were reluctant to leave Indonesia, he told them that, since the mother was there, it was better for them to go back with her, adding “after a lot of convincing and tears this was done.”[16]After their return, the children were seen by the guardian who recorded what they said in a further report dated 5 May 2017. She confirmed that the children continued to express a clear wish to live with their mother in England. She described how the children had expressed their anxieties about their experiences in Thailand and Indonesia, although they remained positive about some aspects of their time with their father. In conclusion, she made these observations:
“It is clearly regrettable that these children were exposed to such a frightening experience that I consider has served to undermine any confidence that their father is able to view the world from their perspective. I have some sympathy with [the father’s] sense of frustration and grievance that he has not been able to play anything like the involved role in his adored children’s lives that he hoped to, but his actions in flagrantly disregarding the promise he made to this court, and to his children, will have long-lasting consequences. His actions have raised a real doubt as to whether he can be trusted to prioritise the children’s needs above his own. Despite what must have been a horribly unsettling episode for the children (who at least were able to find some comfort in each other’s company), the children are able to identify the positive features of having recaptured something of the essence of their relationship with their dad. They do not wish to lose that, which confronts those planning for the children with a dilemma.”
[17]On 17 May, Holman J made a further order listing the matter for a hearing on 4 September 2017 to determine the following issues(1) the jurisdiction of the courts of England and Wales to make orders concerning the children(2) the future care arrangements of the children;(3) the status and continuation of the father’s proceedings to recognise and enforce the orders in his favour made on 27 June 2016 and 20 September 2016 in the courts of Spain;(4) whether an application should be made under article 15 of Brussels IIA of its own motion or pursuant to any application made on behalf of one or more of the children; and(5) costs. The judge made a series of further case management decisions, including joining J as a party to the proceedings alongside A, and also, pursuant to the court’s jurisdiction under Article 20 of Brussels IIA, made orders preventing the father from removing the children from the jurisdiction or from the care of the mother save with her agreement.[18]On 10 August 2017, the solicitor acting on behalf of the children instructed by the guardian filed an application inviting this court to submit a request to the Spanish court under Article 15 of Brussels IIA for the transfer of the proceedings to this court. In a statement dated 21 August 2017, the mother, having said out her account of the events over the Easter period 2017, proposed that the children should remain in her care living in England and attending their current schools. In respect of the application under Article 15, the mother stated:
“International children law is complex and I don’t have the knowledge to have an opinion about this point. Having said that, from my point of view, ideally this court and the Spanish appeal court could work together with the help of the Spanish international liaison judge… to speed up a final decision on the best interests of the children as soon as possible. If the above is not possible, I would support an application to bring the case to this jurisdiction. Unfortunately, Spanish courts have been so far very slow and inefficient and I don’t think they are dealing well with this matter.”
[19]On 28 August 2017, the father filed an application in Spain seeking the mother’s arrest for failure to hand over the children. Meanwhile the mother’s appeal against the order of 27 June 2016 is still proceeding. At the hearing, I was told that further interviews of the children have been arranged to take place in the next few days with both the psychologist and the appeal judge in Spain, but the mother is unwilling to take the children to Spain to be interviewed because she is concerned that, if she takes them to Spain, they will not be allowed to leave again and she will be arrested.

The hearing on 4th September 2017

[20]At the hearing, the mother and father both attended in person without lawyers. The father had not been expected to attend but in the event he flew into this country for the hearing. The children were represented by Mr Alistair Perkins instructed on behalf of the guardian. Unfortunately, because of an administrative error, and because the father need to fly back to Spain that evening, the time available for the hearing was curtailed to only two and half hours. I am satisfied, however, that it was possible for the court to conduct a fair hearing on the issues arising because, in the event, only one issue was fully contested.[21]As stated above, at the hearing on 17 May 2017, Holman J had identified several issues to be determined at this hearing. The first was the jurisdiction of the courts of England and Wales to make orders concerning children. In his earlier judgment delivered on 20 November 2016, Holman J had referred to the “somewhat unusual situation… that the courts of Spain have continued to make welfare decisions in relation to two children long after they ceased to be habitually resident in Spain.” Earlier, in his order dated 18 April 2017, Francis J had included a recital that he “was satisfied on the basis of the evidence… that the courts of England and Wales have primary jurisdiction in matters of parental responsibility over the [children] pursuant to article 8 and 10 of Brussels IIA”. In his written submissions, Mr Perkins submitted that the children had become settled and integrated in England, probably during the spring or summer of 2014 and certainly long before any of the Spanish orders were made during the course of 2016. He conceded, however, that, as a consequence of the divorce proceedings which it is assumed have continued seamlessly and remain the substantive application currently before the Spanish courts, the court in Pamplona was “first seised” within the meaning of Article 19(2) of Brussels IIA. Accordingly, he accepted that this court is “second seised” and, subject to any transfer made under Article 15 considered below, is therefore obliged under Article 19 (3) to decline jurisdiction in favour of the Spanish court.[22]I agree. It follows that this court has no jurisdiction to consider the second question identified by Holman J in his order of 17 May 2017 – the future care arrangements of the children – save under Article 20 of Brussels IIA which empowers the court to take “provisional, including protective, measures” in respect of the children. Orders made by other judges sitting in this court earlier in the proceedings were plainly “protective measures” made lawfully under Article 20. I shall consider whether any further measures under Article 20 need to be taken by this court at this stage at the end of this judgment.[23]The third question identified by Holman J in his order of 17 May 2017 was the status and continuation of the father’s proceedings to recognise and enforce the orders made in his favour on 27 June 2016 and 20 September 2016 by the court in Pamplona. As to this, both the mother and Mr Perkins on behalf of the guardian submitted that there was no justification in lifting the stay on the recognition and enforcement proceedings imposed by Holman J in November 2016 until the determination of the mother’s appeal in Spain. The father, whilst not conceding that the order should not be registered or enforced, did not invite the court to lift the stay immediately. In my judgment, given the mother’s pending appeal before the Spanish court, and in view of the clear evidence of the children’s strong opposition to being returned to Spain, it would not be appropriate to lift the stay on the registration and enforcement process imposed by Holman J at this stage. The father may, however, if and when the circumstances so warrant, renew his application for the stay to be lifted and the issue of registration and enforcement of the Spanish orders determined by this court.[24]Accordingly, the only substantive issue for determination by this court at the hearing on 4 September was the application made on behalf the children for this court to submit a request to the Spanish courts for the transfer of the case under Article 15.[25]All three parties filed written statements or position statements and the court heard brief oral evidence from the guardian, the mother and the father, followed by oral arguments from all sides.

The law

[26]Article 15 of BIIA provides 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. 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. (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 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. (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. 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. 6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.”
[27]In applying Article 15, the court must have regard to the Recitals to the regulation, in particular Recitals 12 and 13:
“ 12. The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility. 13. In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another member state if this court is better placed to hear the case ….”
[28]Guidance as to the interpretation and application of Article 15 is set out in the Practice Guide for the application of the Brussels IIA Regulation published by the European Commission. Paragraph 3.3.1 provides inter alia:
“The Regulation contains an innovative rule which allows, by way of exception, that a court which is seised of a case, and has jurisdiction on the substance, can transfer it to a court of another Member State if the latter is better placed to hear the case. The court may transfer the entire case or a specific part thereof. According to the general rule, jurisdiction lies with the courts of the Member State of the child’s habitual residence at the time the court was seised (Article 8). Therefore, jurisdiction does not shift automatically in a case where the child acquires habitual residence in another Member State during the court proceedings. However there may be circumstances where, exceptionally, the court which has been seised (‘the court of origin’) is not the best placed to hear the case. Article 15 allows in such circumstances that the court of origin may transfer the case to a court of another Member State provided that this is in the best interests of the child. … The child must have a “particular connection” with the other Member State. Article 15.3 enumerates the five situations where such connection exists according to the regulation …. In addition, both courts must be convinced that a transfer is in the best interest of the child. The judges should cooperate to assess this on the basis of the ‘specific circumstances of the case’. They should do this either directly or through the respective central authorities.”
[29]Paragraph 3.3.3 of the Practice Guide further provides inter alia that the assessment of what is in the best interests of the child “should be based on the principle of mutual trust and on the assumption that the courts of Member States are in principle competent to deal with the case. The central authorities can play an important role by providing information to the judges on the situation in the other Member State.”[30]Paragraph 3.3.4.2 of the Practice Guide, headed “How should the judges communicate?” provides “Article 15 states that the court shall cooperate, either directly or through the central authorities, for the purpose of the transfer. It may be particularly useful for the judges concerned to communicate to assess whether in the specific case the requirements for a transfer are fulfilled, in particular if it would be in the best interests of the child. If the two judges speak and/or understand a common language, they should not hesitate to contact each other directly by telephone or email. Other forms of modern technology may be useful, such as conference calls. If there are language problems, the judges may rely, so far as resources allow, on interpreters. The central authorities will also be able to assist the judges. The judges will wish to keep the parties and their legal advisers informed, but it will be a matter for the judges to decide for themselves what procedures and safeguards are appropriate in the context of the particular case.”[31]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.”
[32]Article 15 has been considered in a number of subsequent cases within this jurisdiction, notably Re K (A Child) [2013] EWCA Civ 895, sub nom Re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2014] Fam 140, Court of Appeal; Re E (A ,Child) (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 Fam, [2014] 2 FLR 151, per Sir James Munby, President; Re M (Brussels II Revised: Art 15) [2014] EWCA Civ 152 [2014] 2 FLR 1372 Court of Appeal; and most recently Re N [2016] UKSC 16, Supreme Court. It has also recently been considered by the Court of Justice of the European Communities (“CJEU”) in Child and Family Agency v D (Case C-428/15) 27 October 2016. From those authorities, the following points are relevant to the present case. (1). An exception[33]First, “the power to transfer a case or part of the case to the courts of another Member State is an exception to the general principle as the opening words of Article 15(1) make clear” (per Lewison LJ in Re M, supra, at paragraph 50). “An exception does not necessarily require that the circumstances be exceptional. Nevertheless, it is an exception to the general rule, that the future of children should be decided in the courts of the member state where they are habitually resident. In general, it is expected that exceptions will be narrowly construed and applied” (per Baroness Hale of Richmond, with whom the other judges agreed, in Re N, supra, at para 40). (2). When should the request be made?[34]Secondly, “the question of whether there should be a request under Article 15 should be considered alongside other jurisdiction issues at the earliest opportunity” (per Ryder LJ and Sir James Munby P in Re M at paragraphs 47 and 58 respectively). Although a transfer request may be made at any time, it will rarely be the case that another court would be better placed to hear the case when a judge has already heard and considered the evidence (per Baroness Hale of Richmond in Re N, supra, at para 50). (3). The first question – “particular connection”[35]Thirdly, so far as the first question is concerned – the “particular connection” question – “in order to establish the existence of such a connection in a given case, reference must be made to the factors that are listed, exhaustively, in Article 15(3)(a) to (e) …. It follows that cases where those factors are lacking are immediately excluded from the transfer mechanism” (per CJEU in Child and Family Agency v D, para 51). (4). The second question – “better placed”[36]Fourth, so far as the second question is concerned – the “better placed” question – in deciding whether another court is better placed to hear the case, or a specific part thereof, the CJEU observed in Child and Family Agency v D, para 57, that “the court having jurisdiction must determine whether the transfer of the case to that other court is such as to provide genuine and specific added value, with respect to the decision to be taken in relation to the child, as compared with the possibility of the case remaining before that court. In that context, the court having jurisdiction may take into account, among other factors, the rules of procedure in the other Member State, such as those applicable to the taking of evidence required for dealing with the case. However, the court having jurisdiction should not take into consideration, within such an assessment, the substantive law of that other Member State which might be applicable by the court of that other Member State, if the case were transferred to it. If the court were to take that into consideration, doing so would be in breach of the principles of mutual trust between Member States and mutual recognition of judgments that are the basis of [the] regulation” As Ryder LJ observed in Re M at para 19, “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”.[37]Ryder LJ in Re M added this observation at para 20: “Questions of fact that might inform the court’s evaluation of whether a court is better placed to hear a case … might include the availability of witnesses of fact, whether assessments can be conducted and if so by whom (i.e. not a comparative analysis of welfare perceptions and principles but, for example, whether an assessor will have to travel to another jurisdiction to undertake an assessment and whether that is a lawful and/or professionally appropriate course), and whether one court’s knowledge of the case provides an advantage, for example by judicial continuity between fact finding and evaluation and so on”. (5). The third question – best interests[38]Finally, it is now clearly established that the best interests question is a separate question which must be satisfied in addition to the other two. As Baroness Hale of Richmond in Re N, supra, at para 43 “It is the case … that the “better placed” and “best interests” questions are inter-related. Some of the same factors may be relevant to both. But it is clear that they are separate questions and must be addressed separately. The second one does not inexorably follow from the first”.[39]In deciding the “best interests” question, “The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different, but it is wrong to call it “attenuated”. The factors relevant to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no reason at all to exclude the impact upon the child’s welfare, in the short or the longer term, of the transfer itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child’s best interests. It is deciding whether it is in the child’s best interests for the court currently seised of the case to retain it or whether it is in the child’s best interests for the case to be transferred to the requested court” (per Baroness Hale of Richmond in Re N, supra, at para 43).[40]In Child and Family Agency v D at paras 58-9, the CJEU stated: “the requirement that the transfer must be in the best interests of the child implies that the court having jurisdiction must be satisfied, having regard to the specific circumstances of the case, that the envisaged transfer of the case to a court of another Member State is not liable to be detrimental to the situation of the child concerned …. To that end, the court having jurisdiction must assess any negative effects that such a transfer might have on the familial, social and emotional attachments of the child concerned in the case or on that child’s material situation”.[41]Whether to transfer a case or a specific part thereof is a decision for the court having jurisdiction. It is for that court to evaluate whether the three conditions are satisfied. But before the court of another Member state submits a request for a transfer under Article 15, it should assess for itself whether the conditions are met. It would be wrong for a court of another Member State to submit a request in circumstances where it was not satisfied that the conditions were met.

The parties’ evidence and submissions

[42]In her oral evidence, the guardian said that the events over Easter had done little to reassure A. In her mind, Spain represented something scary. The position is complicated because she loves her father. When speaking to the guardian, however, A was very clear that she did not want contact in Spain. She fears that she will be retained there. The guardian reported that A had left a message on her phone on the previous evening which the guardian described as heartfelt. She wanted the guardian to ensure the court was aware of the strength of her feelings about wanting to remain in England. She was also concerned that the process had taken so long. The guardian thought that A would appreciate the opportunity to talk to the Spanish judge and psychologist, but did not want to go to Spain to do so and in the guardian’s view could not be forced to get on the plane. The guardian’s view is that to compel her to go to Spain would be counter-productive and would not assist in restoring relations with her father. With regard to J, the guardian thought that if he was forced to go to Spain the effect would be more profound. A, being older, has an understanding of the process of having her voice heard. J does not have that understanding and in the guardian’s view would be scared. The guardian’s opinion is that the fear is getting in the way of the children remembering the positive features of their relationship with the father.[43]In cross-examination, the father asked the guardian why the children were so anxious about going to Spain. She replied that they had had some anxiety about going there before Easter but, since the events of Easter, that anxiety has increased, in the guardian’s phrase “to the power of ten”. She added that it should have been an opportunity to restore relations with the paternal family and build a trusting relationship with the father as a person they could rely on and on whom they could depend. Instead, they were exposed to a frightening experience. In answer to a further question by the father, the guardian acknowledged that the were obviously aspects of the trip that they enjoyed but they had been concerned about the circumstances of not being able to maintain contact with the mother and knowing that they should be back at school. In response to the father’s assertion that A had been able to speak to her mother via her iPod when in the Far East, the guardian said that A had not felt able to talk freely.[44]The guardian added that the passage of time has enabled the children to settle with the mother in this country. The guardian stated that she understood the father’s grievance but that is the children’s reality. If the threat of being forced to live in Spain is removed, they would be able to have more enjoyable contact with the father and his family.[45]In her evidence, the mother described the contact she had had with A while she was away over Easter as “very weak”. It was sufficient to enable the mother to find out where the father had taken the children but A was not allowed to speak freely to her. The father challenged this when cross-examining the mother, pointing out that he had allowed A to use her iPod and arranged for WiFi to be available. The mother said that J was now keeping everything to himself and had not said anything about what had happened over Easter. At present he is having weekly counselling sessions. The mother described the children’s experiences over Easter as very traumatic and difficult.[46]The father asked the mother why he was not having telephone or Skype contact at present. She replied that it had been very difficult to get A to speak to him. The mother accepted that it was her responsibility to ensure that contact takes place, but added that it was up to the father re-establish trust. She said that sometimes A had been in tears because the father had blamed her for what happened in Indonesia.[47]The mother indicated in oral evidence that she thought it better for the proceedings to be transferred to this court. She was concerned about the delays in the process and thought that they would be completed more quickly here. Another advantage of a transfer of proceedings, in her opinion, was that the children have their own guardian and legal representatives in this country. In her closing submissions, the mother said that she thought it positive that the Spanish judge and psychologist wanted to speak to the children again, but only if this could be achieved without the children going there. If the children travel to Spain, she thought that the Spanish orders would be enforced so that they would be unable to return here. Overall, she thought it would be easier for this court to assess the evidence.[48]As stated above, the father filed a lengthy document setting out his account of the events over Easter. In his oral evidence, he accepted that the children had said that they do not want to live in Spain, but expressed the opinion that this was because of the pressure they have been under. He thought that their views would be different if they had the chance to see what it is like living in Spain. He did not accept that the children had said they were frightened about the events over Easter. They had been neither anxious nor concerned about being taken to the Far East. The “scary” experience had been when they were followed in Spain.[49]In his evidence, the father did not see that a transfer of the proceedings would be beneficial to the children. The proceedings have been going on for 4 years and have generated a large number of documents – considerably more than have been generated in the proceedings in this country. In saying this, I understood the father to be making the point that the Spanish courts have had more extensive experience of the case because it has been going on for much longer than the proceedings in this country. In closing submissions, he responded to the mother’s complaint about the delays in the Spanish proceedings by observing that the responsibility for the delay lay with the mother herself. He thought it was in the best interests of the children for the proceedings to remain in Spain which he described as a Catholic country where “family is all”. Although they would lose friends by moving there, they would be with their family “for life”.[50]On behalf of the guardian, Mr Perkins submitted that the children plainly have a “particular connection” with England and Wales within the meaning of Article 15 because the children and the mother are all habitually resident here. The test for habitual residence, as established by the CJEU in Proceedings brought by A (Case C – 523/07) [2010] Fam 42 and adopted and confirmed by the Supreme Court in this country in a series of cases, including A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60, [2014] AC 1 and Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 [2016] AC 606, is “the place which reflects some degree of integration by the child in a social and family environment”. Mr Perkins submitted that that test is plainly satisfied in this case.[51]Mr Perkins further submitted that this court is better placed than the Spanish courts to determine the welfare issues involving these children. He acknowledged that the starting points in evaluating this question are the principles of comity and cooperation between Member State and the assumption that all courts are equally competent. He submitted, however, that, as a consequence of the father’s actions in seeking to enforce the current orders and invoke the criminal jurisdiction in Spain, the mother will be arrested if she returns to that country and as a result is unlikely to be able to participate in person in proceedings there. In contrast, Mr Perkins pointed out that the father had travelled to this court for the purposes of the hearing on fourth September and it could therefore be assumed that he would be able to travel here again to take part in further proceedings in this country. He further submitted that the courts of this country are better placed to evaluate the issues now in dispute between the parties, namely the disputed events of Easter 2017, and the various factors relevant to determining the future arrangements for the children, in particular their wishes and feelings. Mr Perkins acknowledged that the proceedings had been continuing in Spain for a number of years, but submitted that the circumstances now are very different from what they were at the start of those proceedings. Now, the issue is how the father’s relationship with the children can be managed going forward. Given the strong reluctance – indeed, the refusal – of the children to return to Spain, which Mr Perkins on behalf of the guardian argued has been significantly strengthened as a result of the father’s actions over Easter 2017, it was submitted that it will be much harder for the Spanish court to investigate and evaluate the children’s wishes and feelings which, given the ages of the children, are a central feature of the welfare analysis in this case. In addition, Mr Perkins submitted that the children have the advantage of separate legal representation in this jurisdiction which puts this court in a better position to determine the issues.[52]Mr Perkins relied substantially on the same points in submitting that it is also in the best interests of the children for the arrangements as to their future care to be determined by this court. He further submitted that, once a request has been made by this court pursuant to article 15 (2) (c), the process of assessing the children’s best interests can be the subject of ongoing discussions between the judges in the two jurisdictions.

Further discussion and conclusion

[53]I accept the submission made on behalf of the guardian that the children manifestly have a “particular connection” with this country because they and the mother are, and have been for some time, habitually resident here. The test for habitual residence adopted by the CJEU and the courts of this country is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. As Baroness Hale of Richmond observed in A v A , supra, this is an essentially factual enquiry which depends on numerous factors, including the reason for the family’s stay in the country in question. In this case, the children have been in England for over four years. They are well settled in schools here with many friends and are involved in various activities. It is notable that the family moved here in 2006 when A was aged three, that J was born in this country, and that the family remained here until 2011 when they moved to Spain, staying there for two years until the breakdown of the parents’ marriage. It follows, therefore, that both children have lived in this country for the majority of their lives. In all the circumstances, it is manifestly clear that the children – and their mother – are now habitually resident here and therefore have a particular connection with this country within the meaning of Article 15 (3).[54]A more difficult question is whether this court is better placed to hear the case, or a specific part thereof.[55]At first sight it might seem that it is far too late to transfer this case. As Baroness Hale observed in Re N, supra, although a transfer request may be made at any time, it will rarely be the case that another court will be better placed to hear the case when a judge has already heard and considered the evidence. In this case, the hearing at first instance concluded over a year ago and the hearing currently in preparation in Spain is in respect of an appeal against that decision. Although the English court has now acquired a considerable amount of information concerning the case, I accept the father’s assertion that the Spanish proceedings have generated considerably more documents, not surprisingly as the proceedings in court have been continuing for over four years in contrast to these proceedings which have been ongoing for less than twelve months. It is accordingly likely that Spanish court has acquired more information concerning the history of the case and the background of this family.[56]In addition to historic evidence, however, a court making decisions as to the children’s future care will have to consider evidence about more recent matters, including(1) the events of Easter 2017, when the father took the children to Thailand and Indonesia in breach of the order of this court dated 3 February 2017,(2) the capacity of the parents to look after the children in the light of all the evidence, including the events of Easter 2017,(3) the impact of those events on the children’s emotional well-being, and(4) the wishes and feelings of the children about their future care. These issues must in my judgment be assessed by whichever court exercises jurisdiction to make decisions about the children’s future care arrangements.[57]In respect of the first two of those issues, I consider that the courts of Spain and England and Wales are equally well placed to carry out the necessary assessment. In my judgment, however, this court is probably in a better position than the Spanish courts to evaluate the impact of the events of Easter 2017 on the children’s emotional well-being and, in particular, the wishes and feelings of the children.[58]I accept the evidence of the guardian that the children now have a strong antipathy to returning to Spain, an antipathy that has increased as a result of the father’s actions in taking them to the Far East over Easter in contravention of the terms of the order of this court dated 3 February 17. They fear that, if they travel to Spain, they will not be permitted to return. Although it would in theory be possible for this court to make an order forcing the children to travel to Spain to be interviewed by the judge and psychologist in that country, such an order is likely to cause them very considerable anxiety and also emotional and psychological harm. In theory, it would also be possible for the Spanish psychologist and judge to interview the children by Skype or some similar method, but that does not seem a satisfactory way of carrying out what is bound to be a sensitive conversation. If, on the other hand, the case is transferred, the children can be interviewed by their guardian – and if appropriate by the judge in this court – to ascertain their wishes and feelings. In this way, a transfer of the proceedings to this court would provide a “genuine and specific added value” in the form of a thorough analysis of the children’ wishes and feelings based on face-to-face interviews of the children which would not be possible if the case remains in the Spanish courts.[59]The CJEU in Child and Family Agency v D stresses that it is impermissible to draw comparisons as to the substantive law to be applied in the two countries, because to do so would be in breach of the principles of mutual trust between Member States which underpin the Regulation. But at the same time the CJEU accepted that it may be appropriate to compare the rules of procedure in the two courts when assessing which court is better placed to hear the case. It is recognised that the courts of England and Wales do have the advantage of being able to join children as parties to the proceedings and allocate a professional specialist to act as guardian in the proceedings. This is particularly valuable in complex cases and situations which call for a thorough analysis and exposition of the children’s emotional needs and their wishes and feelings. Without in any way disparaging the Spanish family justice system, I do consider that the fact that the children can be represented by a guardian in these proceedings in England is a significant advantage, given the issues that have now arisen.[60]On balance, therefore, given the children’s strong antipathy to travelling to Spain, and the fact that they will be parties to the proceedings in this country and represented by a guardian, I conclude that this court is in a better position to evaluate the emotional needs and the wishes and feelings of the children and to carry out a comprehensive analysis of all the issues impinging on the children’s welfare.[61]For similar reasons, I conclude that it would be in the best interests of the children for the case to be transferred to this court. The question at this stage is whether the transfer of the proceedings is in the children’s best interests, not what eventual outcome would be in their best interests. They are likely to suffer very considerable anxiety and emotional and psychological harm if forced to travel to Spain to see a judge and psychologist. Refusing to transfer the case would, in my judgment, have a negative effect on the children’s family, social and emotional attachments to their mother and on the other attachments they have formed in this country since 2013. If the proceedings are transferred, the children’s wishes and feelings, and their overall welfare needs, can be assessed by professionals and the court in this jurisdiction without the children having to travel to Spain. The immediate consequences of a transfer in the short term would therefore be the lifting of the anxieties in the children’s minds that they will be sent to Spain before a thorough analysis of the issues relevant to the decision as to the future care arrangements, including their own wishes and feelings.[62]For those reasons, I conclude that the circumstance of this case justify this court submitting a request to the Spanish court under Article 15. As required by article 15 (2), this request is supported by one of the parties, namely the mother. I recognise that it is highly unusual for such a request to be submitted after the conclusion of the hearing at first instance and at a point when the case is before the appeal court in the Member State with jurisdiction. For the reasons set above, however, I conclude that the criteria that must be satisfied in order for transfer under Article 15 to take place are indeed satisfied in this case.[63]A transfer of the case can only take place, however, if the Spanish court, as the Court of the Member State having jurisdiction as to the substance of the matter, concludes that the three criteria in Article 15 are satisfied. I have expressed my view in this judgment, but the ultimate decision rests with the Spanish court.[64]Whatever the conclusion of the Spanish court on that matter, I regard it as imperative that the judges of the two courts work together to resolve the unhappy dispute which has blighted the lives of these children for too long. Article 15 (6) expressly provides that the courts shall cooperate for the purposes of the Article, either directly or through the Central Authorities. The Practice Guide, at paragraph 3.3.1, specifically provides that the judges should cooperate to assess whether a transfer is in the best interests of the children. Paragraph 3.3.4.2 suggests that it may be particularly useful for the judges concerned to communicate to assess whether in the specific case the requirements for transfer are fulfilled, in particular if it would be in the best interests of children. I therefore propose to send this judgment, and my consequent order, to the International Family Justice Office for England and Wales for onward transmission to the Spanish network judge, with a view to facilitating communications between the two courts in accordance with a duty to cooperate imposed by the Article. Both courts must work together to do everything possible to ensure that the issues concerning the children’s future care arrangements are determined fairly and as quickly as possible.[65]The final issue is whether this court should make any further orders under Article 20. As stated above, on 17 May 2017, Holman J made orders preventing the father from removing the children from the jurisdiction or from the care of the mother save with her agreement. The mother invited the court to continue those interim orders made by Holman J in May 2017. The father, on the other hand, did not see the point of the orders, nor did he see the point of any order for interim contact. He did not see the point of taking time off work and coming to this country for supervised contact. He described the current situation as a “nightmare”.[66]In view of the father’s behaviour over Easter 2017, I do consider it necessary at this stage for this court to renew the order preventing him from removing the children from the jurisdiction, or from the care of the mother save with her agreement. I also think it necessary for this court to direct the mother to make the children available for contact with the father via Skype or FaceTime not less than once per week, and also for supervised contact in this country in the event that the father is able to return here. I make those orders under Article 20 until such time as the Spanish court has decided whether to accede to this court’s request to transfer the proceedings.

Cited in 1 later judgment