Mr Justice Singer:
Introduction
- The issues for determination in this case arise as a result of articles 10 and 11 of the compendiously entitled 'Council Regulation (EC) No 2201/2003 (Brussels II) of 27th November 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, repealing Regulation (EC) No 1347/2000'. I will refer to this as 'BIIR'. Unlike its repealed predecessor, BIIR applies to all children who fall within its jurisdiction and scope, although no maximum age is prescribed so that this is left to national law.
- These issues involve consideration of as yet unplumbed depths (certainly in English jurisprudence and, as far as the admittedly non-comprehensive enquiries of counsel could establish, elsewhere) sounded by those and other articles of BIIR; and of their inter-relationship with the Hague Convention on the Civil Aspects of International Child Abduction 1980 (to which I will refer simply as 'Hague') as interpreted and applied in England and Wales; and their interface with our own domestic law and procedure in relation to questions concerning a child's welfare, primarily founded on the provisions of the Children Act 1989 and of the Family Proceedings Rules 1991 (and their counterpart for use in Family Proceedings Courts).
- So far as I am aware the only reported case in this jurisdiction to date on such an application is my judgment in Re A (custody decision after Maltese non-return order), [2006] EWHC 3397 (Fam), (2007) 1 FCR 402.
- BIIR took direct effect from 1st March 2005 (with the exception of some articles earlier in force but not relevant for present purposes). By article 72 the Regulation is 'binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.' 'Member States' include all the existing and subsequently acceding countries, with the exception of Denmark which opted out. It is in this slightly restricted sense that I use the term Member States in this judgment.
- Before BIIR's entry into force the European Commission Services published the first version of a 'Practice Guide' to assist with interpretation and implementation of the revised Regulation. The Practice Guide makes it plain that it does not have the force of law, which ultimately (and 'ultimately' may be the right word) must be for the European Court of Justice to decide. In June 2005 the European Commission published an updated version of the Practice Guide.
- Our domestic procedure has to an extent been modified by Amendment Rules and internal Regulations in an attempt to accommodate the requirements of BIIR but, in my view and that of others, does not as yet provide a complete and coherent code to meet the requirements which the Regulation imposes on Member States. See, for instance, the decision of Black J concerning the provisions in relation to the registration and enforcement in this jurisdiction of foreign judgments which are supposed to be recognised and enforced with little ado: a judgment in the case of D v D [2007] EWHC 822 (Fam), handed down on 20th April 2007 and as yet unreported:
- The Family Proceedings Rules 1991 and the Family Proceedings Courts (Children Act 1989) Rules 1991 are in course of comprehensive revision. I should in the interests of transparency make it clear that both Michael Nicholls, leading counsel for the mother in this case, and I are members of the Child Abduction Working Party constituted to operate under the aegis of the Family Procedure Rule Committee which oversees the overall Rule overhaul.
- The intended composite Family Procedure Rules are, as I understand it, unlikely to come into force before October 2008 at the earliest. In the interim I shall suggest at the foot of this judgment that some degree of uniform approach should be adopted for applications seeking the return under BIIR of children in relation to whom an article 13 Hague non-return order has been made in a Member State.
- Information which I have obtained from the statistical records for recent years maintained by the Central Authority in London indicates that the volume of refused outgoing Hague requests to EU member states for children's article 12 return is as set out in the Annex to this judgment. I am grateful to Mr Wood and Miss Marsh of the International Child Abduction and Access Unit ('ICACU', which now performs the function of Central Authority for England and Wales for both Hague and BIIR purposes in place of the former Child Abduction Unit) for extracting the information, but it must be noted that a small number of these refusals will have been made for reasons outside the scope of article 13 of Hague, whereas it is only non-return orders based on article 13 which trigger an article 11 application under BIIR. So it can be expected that the annual volume of such applications is unlikely to exceed single figures. In my view they should be heard by a High Court judge of the Family Division, and cannot or should not be assimilated with domestic Children Act applications, all this for reasons which I will advocate later.
An outline of the history of the marriage and its breakdown
- The child A is a two-year-old boy born in England on 12th May 2005. His father (F) is a Palestinian national born in Gaza and now aged 44. F left Gaza and lived for a time in Greece before coming here on a six-month visitor's visa in 1996. In 2001 he met the mother (M) a French national now aged 27 who was then working and living in London. In June 2001, within a very few months of meeting, they were married at a Register Office. A consequence of the marriage was that F was then granted the right to reside here until August 2008, a permission revocable in certain circumstances. In October 2004 they celebrated a Muslim marriage. F worked nights in casinos but lost his employment in about April 2004 after his employers discovered that he had assumed a false identity, and since then has apparently not worked full-time until recently. M until shortly before A was born in May 2005 continued to work in S. They maintained separate accommodation until 2002 and then lived together (with some separations) in a succession of flats in the London area.
- M's view of their marriage is that it was a very troubled relationship from the beginning, with difficulties caused by F's restrictive, indeed oppressive, attitude and behaviour towards her, aggravated by his tendency to depression. Each party has given a detailed account from their viewpoint in the extensive written evidence, supplemented by their oral testimony. F denies most of M's account, and appears not to recognise that there were already significant difficulties between them before A's birth. The experienced CAFCASS officer Mrs BH, in her capacity as A's guardian, formed the view that H continues to harbour what (having heard him and M at some length) I regard as the entirely unrealistic hope that M will return to live with him and that their relationship can be salvaged.
- In June 2005 when A was a month old M took him for a two-week break to her parents in France, and again a month later in July 2005. By the time of the second visit the family was about to become homeless in London. They were due to vacate their flat while M was in France. F was not working and was without visible sources of finance, but while M was away he took on a flat at a rental which virtually consumed M's maternity pay.
- M became unwell in France and needed hospital treatment so that the earliest date for her return had to be put back until 23rd August 2005. She says that in that period F made extensive and threatening phone calls and in particular that he threatened to take A to Gaza. He denies that.
- By the time of her return to England M had become very alarmed about F's behaviour. She decided to end the marriage. She came back to England on 23rd August 2005 and presented him with a prepared document (which he refused to sign) agreeing to a divorce, assigning reasons for it (his abusive behaviour and lack of participation in the household), vesting 'complete care' of A in M, and effecting a financial separation. She proposed fortnightly supervised contact exclusively in France. In fact to date F has been unable to obtain the necessary permission to visit France, at least in part because he has not been able to demonstrate that he has informed the Home Office here of his separation from M.
- In September 2005 M took the first steps to launch divorce proceedings at the Tribunal de Grande Instance at Vannes in France. They seem to have made little progress since, but are still on foot.
The Hague proceedings in France
- On 14th October 2005 F, through the English Central Authority the ICACU, requested the institution in Rennes of proceedings under the Hague Child Abduction Convention seeking an order under article 12 for A's return to England. That request was duly transmitted to the French Central Authority in Paris.
- The French practice is for applications received by its Central Authority (a section of the Ministère de la Justice) to be prosecuted by the state, represented at court by the local Procureur who receives information and takes instructions only through the French Central Authority. The consequence is that the aggrieved parent in such a case will not normally have any direct communication with the Procureur, whereas our own practice in a reverse situation is that English lawyers are instructed to act directly for the left-behind parent, and to seek their instructions from him or her. Thereafter ICACU normally takes no further part in the court proceedings.
- The task of seeking information from F was therefore dealt with between the Central Authorities in London and in Paris. This has clear practical drawbacks, and also (as in this case) ICACU risks finding itself in the position that it is in effect advocating the left-behind parent's version of events, and thus performing a representative rather than a purely referral role. In this case, for instance, ICACU supported some of F's representations which on any view (in the light of the evidence before me) were at best only partial. For example, by fax dated the 24th January 2006 ICACU passed on from F the statement that 'his casino employer did not report F [to the police] because he was a terrorist, but rather to do with the fact that he is Palestinian and from the West Bank' whereas in his written evidence in these proceedings F accepts his dismissal came about after his employer discovered that he was working under a false identity and in breach of his visa requirements.
- F was not able to participate in person in the French proceedings. He was denied a visa both in December 2005 and in July 2006 until he had produced a number of documents to the French Consulate in London. Apart from financial information which he might have found difficult, he was asked to produce evidence that his permission to stay in the United Kingdom had been re-issued and/or extended by the Home Office in the light of the information which it was suggested he would need to furnish, that he was no longer living with M. This was said to be a 'compulsory document'. At that stage, and indeed until latterly, the Home Office has not been aware of the separation which has now endured for over two years.
- It must not be thought that I am in any way critical of the procedures adopted in France, clearly a matter for the French authorities, nor of the provisions of article 7 of Hague which are designed to 'promote co-operation' between the respective states' Central Authorities. Indeed article 7(d) expressly provides that to that end Central Authorities should 'exchange, where desirable, information relating to the social background of the child'. But it is important that those involved, the lawyers and courts of each country and those who act for their Central Authorities, should be aware of the difficulties which can arise in obtaining and transmitting information in this indirect manner, quite apart from the likelihood that delays will result, as they did here, in the pursuit of the Hague 'hot pursuit' remedy.
- I should perhaps add that, as I understand is the position in France as here, and in accordance with article 29 of Hague, nothing precludes direct application to the courts of the receiving state without recourse to either Central Authority. That however, in the case of an incoming application to the High Court (which has exclusive jurisdiction in Hague applications made in England and Wales) will deprive the applicant of automatic public funding so that they will either have to finance the case themselves, or make what can be a time-consuming application for public funding as a litigant living abroad. Article 29 is in these terms:
This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Art 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.
- Indeed I understand that in France it is permissible for the left-behind parent to be separately represented at the Hague hearing by his or her own avocat by way of 'intervention volontaire', and that the French equivalent of legal aid ('aide judiciaire') is available for that purpose in a qualifying case. That procedure was not adopted in this case.
- It was not until 12th July 2006 that the French court heard the application and refused to order A's return. The basis for the non-return order was that although wrongful retention in France was established, so was the 'defence' under article 13(b) that there was a grave risk that A's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The French Court therefore exercised its discretion against ordering return. F sought to appeal, but seems to have been frustrated in that attempt by the French Central Authority's inability to take the steps requested by ICACU until the time for appealing had expired. The correspondence makes unhappy reading.
- Towards the end of those Hague proceedings, for a period of some weeks from mid-June 2006 A was in fact living in England in the care of M, and M's own mother when M was working in France during the week. No-one informed F or the French Court of this situation. M says that it was on her French lawyers' advice, to begin to establish a home in England if A's return to this jurisdiction was ordered. When the outcome was known they all moved back to France. F makes much of this, relying particularly on M's failure to offer him the opportunity to see A during this period when she was renting a flat on the south coast. I have to say that although I am surprised at the advice she was given I am not surprised that she did not tell F about it.
- F is aggrieved at the manner in which his Hague application was processed and determined in France. Whatever sympathy I might have with him on this count is tempered by the consideration which I feel able to express, having heard the evidence including that of A's guardian, that had an order for return of A to England been made it would have prompted an application to our courts for M to have permission to remove A permanently to France to live with her there, and that such an application would have succeeded.
BIIR articles 11(6) and (7) and the proceedings in England
- The French non-return order set in train the procedures set out in articles 11(6) and (7) of BIIR which are in these terms:
6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.
7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.
Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.
- The documents transmitted through the French Central Authority did not in fact include 'a transcript of the proceedings before the [French] court', but it appears that the non-return decision was made on the basis of written and oral submissions without direct evidence from the parents.
- As I read article 11(7) the three-month period which the parties have within which 'to make submissions to the court in accordance with national [i.e. English] law ... so that the court can examine the question of custody of the child' starts to run from the date when 'the court or Central Authority that receives the information … notif[ies] it to the parties and invite[s] them to make submissions to the court. …'
- I emphasise in passing that the obligation, to notify the parties and to invite them to make submissions, only arises '[u]nless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties.' That is not the case here, assuming as I do that A can have been habitually resident only in England at the date of M's wrongful retention of him in France, given his birth here and the emergency circumstances (M's hospitalisation) which initially prolonged his second visit to France. As at that time no proceedings concerning A had been commenced in any English court.
- The English court was first seised of an application concerning A on 18th October 2006, on any view within three months after the English Central Authority notified the parties, to the extent that it was in a position to do so in compliance or partial compliance with Article 11(7). I say that because the requirement is to notify 'the parties'.
- I do not know whether in fact M was so notified: I simply point that out as something to be noted in future cases if indeed it was overlooked in this. The same obligation, to notify both parties, would be incumbent upon the court receiving the article 11(6) documentation if, as envisaged, it was transmitted to 'the court with jurisdiction' here rather than to the Central Authority. These last observations are by the by in this case, having regard to the process issued by F in the Principal Registry in London on 18th October 2006. But I make them because an application for the court 'to examine the question of custody of the child' under article 11(7) is an innovation introduced by the BIIR Regulation in relation to which neither domestic Rules nor consistent practice have yet been established here. This is a topic to which I will revert.
- The process which F issued on the 18th October 2006 was a conventional domestic application under section 8 of the Children Act 1989 for residence, contact and specific issue orders. F made it plain (at least by necessary implication) that what he sought from the English court was an article 11(7) examination of A's custody. The residence order sought was that A should reside with F forthwith, and the specific issue order requested was that M should return A to England forthwith for that purpose.
- One reason why (as I shall suggest) a section 8 Children Act application appears to be inappropriate in an article 11(7) case, and why some specific procedure should be set in place for such cases, is that the court's response (in accordance with the Family Proceedings Rules) was to give notice of a conciliation appointment, a process unlikely to be productive having regard to the preceding litigation, unless it be of delay. And so it was. A District Judge at the Principal Registry adjourned the conciliation appointment on 29th November 2006, the date first appointed, until 22nd January 2007. Then the case was transferred to the High Court for directions to be given by a High Court judge on 31st January 2007. So F's application made no progress in the first three and a half months of its life.
- The case therefore first effectively came before Coleridge J on 31st January 2007, when M was neither present nor represented. He made A a party to the proceedings and as a result CAFCASS Legal nominated his guardian, Mrs BH. Coleridge J listed the case (albeit at risk) for hearing over two days on 13th April 2007, with an intervening directions appointment on 9th February 2007. As yet neither party had filed any evidence whatsoever.
- On 9th February 2007 all parties were represented before Bodey J. He laid down a programme for evidence to be filed and for the guardian to report. He adjusted the final hearing date to 2nd May 2007 and its estimated duration to three days, still potentially at risk. M's counsel had raised issues of violence and physical and emotional abuse by F against her. She had through her advisers intimated her intention to invoke article 15 of BIIR, and to invite this court to take the view that the French courts would be better placed to hear the case, and to request those courts to assume jurisdiction. In the event that application though launched was not pursued, and rightly so.
- M also forecast an application for permission to remove (or, in the circumstances, to keep) A permanently from England. That application, which was also issued but not pursued in submissions, is in my view otiose, as it is of the essence of the article 11(7) custody examination that the court will decide whether or not the child should be returned here notwithstanding the non-return order made in the proceedings in France, and that unless return is ordered by the English court then the child remains where he or she is.
- Bodey J also gave leave and laid down a timetable for F to adduce evidence from three experts as to aspects of English immigration law; similar aspects of French immigration law should A remain living in France; and as to aspects of French child law.
- The case first came before me for a further directions hearing on 22nd March 2007 when I ordered that I should take all future hearings. By then, M had issued her applications for an article 15 transfer to the French courts, and for leave permanently to remove (or retain) A abroad. She had on the same day as the hearing subscribed to a statement which (with exhibits but ignoring translations) extended to 300 pages. All parties were now represented by leading counsel: F by Mr Marcus Scott-Manderson QC and Mr David Williams; M by Mr Michael Nicholls QC and Miss Marie-Claire Sparrow; and the child through his guardian by Miss Kate Branigan QC. It was apparent that the factual and in particular the legal issues had expanded, even though only one expert had by then provided her opinion. It became necessary to reschedule the disposal hearings and the evidence filing dates. Having regard to the availability of others involved and my own, I scheduled the hearings in tranches for dates which then appeared available between the very end of April and mid-June. These hearing dates were necessarily 'at risk' having regard both to the general pressure of court business and my pre-existing commitments to other reserved or part-heard cases. I was also able to make provision, by agreement, for the guardian to arrange two occasions of supported contact in London.
- By 30th April, the first day fixed for the final hearing, F had filed his 70-page statement (including 50 pages of exhibits), and the experts between them had put in 100 pages of opinion. The case was not reached then or (save for further directions) on 2nd and 3rd May because another case overran. The time spent waiting outside court had produced the resolution of only one issue, for F abandoned his application for sole residence, asking instead that a shared residence order should be made. For that purpose he at that stage continued to seek A's return to England. I was able to approve arrangements for supported contact at a contact centre in mid-May and June. Two days to replace those lost were found for the case at the end of June and the hearing was adjourned, to recommence on 14th June.
- I have set out the course of the proceedings in France and in this country because by the time this judgment is handed down in final form it will have been 22 months since F's request for assistance was made to ICACU, seeking what still remains his quest: A's (if only intermittent) return to reside with him here. A was then 5 months old and is now over two years old. It will soon be 10 months since F launched proceedings in this court.
F's immigration status in this country
- I was also in May invited to request information from the Immigration and Nationality Department of the Home Office to clarify F's immigration position, through the conduit of the President's Office in accordance with the Protocol which has been established for that purpose.
- The hearing (which took place on 14, 15 and 28 June) was conducted on the basis of a response from the Home Office dated 31st May 2007, the contents of which had not I believe been anticipated by any of the lawyers. It contained the following passages:
[F] currently holds a residence card valid until 1 August 2008 confirming that he has a right of residence in the United Kingdom with his wife [M], an EEA national exercising a Treaty right in the United Kingdom. However if his wife is not living in the United Kingdom ... she cannot be exercising [that] Treaty right. Consequently [F] will no longer have a right of residence and we will be looking to revoke his residence card. If we do proceed with this course of action [F] will have a right of appeal against the decision.
... Regulation 10(5) of the Immigration (European Economic Area) 2006 Regulations does make provision for a retention of right of residence following a divorce subject to certain criteria. This may be an option for [F] if he and his wife divorce and provided that we have not revoked his residence card but he would have to meet the criteria.
As regards [F]'s likely immigration status after August 2008 it is difficult to give specific answers as it will depend on whether his residence document has been revoked or whether he meets the criteria to retain a right of residence.'
- By the time of the commencement of this hearing in the light of the 31st May response further opinion had been sought on behalf of F from counsel instructed as the expert on English immigration issues. But I must assume that no response was received, because none was referred to in the relevant paragraphs (34-40) of the written closing submissions submitted by F's counsel which were expanded on 28th June. These submissions included the following passages (taken from paragraph 35 and 37):
'The Father's claim for residence [in England] based on Article 8 [of his European Convention of Human Rights] rights will be stronger if he has shared residence of A as it presumes a continuing involvement with and responsibility for A. A contact order specifying contact in the UK will also make clear his residence in the UK involves his continuing family life with A here. A shared residence order is a useful enhancement to his Article 8 family life claim for residence in the UK but not a critical component.
In the light of the Home Office response it appears that F's ability to maintain a family relationship with A may be much more dependent on the orders of this court than was believed to be the case [when evidence was given] at the last hearing. If the Home Office is currently looking to revoke his right of residence not only does he or A [sc: 'no longer'] have the luxury of time, but the nature of the order made by this court might have a significant bearing on A being able to maintain a relationship with F as his ability to remain in England may to some degree depend on the order this court makes.'
- As I have said, on 14th and 15th June both parents and the guardian gave evidence and were cross-examined. The hearing resumed on 28th June when I heard one and a half days of submissions. I had made it clear that I would reserve my judgment having regard to the scope and scale of the issues raised. It has been circulated in draft to the parties and this final version incorporates their comments and editorial corrections, and takes account of the changed immigration position of F as it has transpired, but only since oral submissions were concluded, to be.
- On 13th June 2007 the Home Office wrote a further letter to the President's Office, enclosing a copy of a formal but undated 'Reasons For Refusal Letter' addressed to F. The covering letter states that 'after careful consideration we have decided to revoke [F's] right of residence as he has ceased to be a family member following [M's] departure from the UK with their son. F has been notified of our decision and given a right of appeal against this decision'. The refusal letter sets out the history and records that the Secretary of State is satisfied that F does not qualify for a retained right to residence under Regulation 10(5) of the 2006 Regulations already referred to and that accordingly the decision has been taken to revoke his Residence Card. The Refusal Letter informs F that 'If you appeal you do not have to leave the United Kingdom while the appeal is in progress. However if your appeal is unsuccessful and you do not leave the United Kingdom voluntarily, you will be removed to Palestine. '
- In fact (as my subsequent enquiries have established) the original Refusal Letter did not reach F as it was sent to an address which he had left. It is a matter of considerable regret and of no less irritation that, although that communication appears to have been received at court on 15th June 2007, copies of it did not reach the parties until on or about 5th July nor me (via the parties) until 9th July.
- On 9th July I also received a Note from F's counsel which anticipated that he would exercise his right of appeal, and continued:
'In the light of this development F would reiterate the potential importance to A's future welfare of his father being present in England to enable the family life to be preserved. The stark position posited by F has come into being and the court is urged to make a shared residence order in order to do all it can to promote A's best interests in being able to enjoy a relationship with his father. If a shared residence order does anything to preserve F's position in England it has the more important effect of promoting A's welfare.'
- I will explain my response to this submission in due course. I am in the circumstances completely unable to form any soundly-based view on the question how long F may cling on to his tenuous presence in this country. But it follows that I must consider the evidence and the form of the orders which (subject to jurisdiction) I can and should make on the alternative bases that F may be in England for an indefinite or even potentially permanent period, or that his continued presence here will be tenuous and terminable by administrative removal.
The evidence
- I now pass to what need be only a brief review of the material evidence and of my findings.
- The factors which led to the breakdown of the marriage and M's move from London are set out in her extensive evidence. She gave oral evidence clearly and in a composed and careful manner. She accepts that she was in low spirits during her pregnancy but indicates clearly factors within the marriage relationship which led to this. The guardian's view of her is that by the time of A's birth she probably felt intimidated and lacked self-esteem and decisiveness, but that since the separation she has developed confidence in her own abilities and has become able to stand up for herself. She is certainly both confident and competent in her handling of A.
- As I have said, F denies the allegations made in relation to his behaviour. He says they are trumped up, and that M has been encouraged to make them in response to what he says is her mother's malign attitude towards him. They are the product of M's overactive imagination and her creative mind. He gave oral evidence with the intermittent assistance of an interpreter. He was emotional and verged on tears. Important aspects of his evidence were extremely vague, particularly in relation to his work pattern and proposals, his plans to rehouse himself, and his finances present and prospective. As to the latter he claimed to earn only £360 per month as a part-time driver, but to spend £90 a week on the rent of his single room in a multi-occupancy house. He appeared very confident of his ability to remain living in England, even when the contents of the 31st May Home Office letter were known.
- His proposals changed during the course of the hearing. Initially he had invited me to order A's return to England to reside with him full-time. He abandoned that stance by the beginning of May. At the time when he started his evidence his objective was that M should be ordered to return A to England, but that she should make her home here too. Thus F would be able to enjoy either shared care or extensive contact. He said that he could find her a job here, and that she and A could initially move into his room while he would move elsewhere. If she had a day job, he would try to find night work, so that A need not be left with others. He would contribute financially. These proposals self-evidently lack realism.
- Then at the start of the second day, after F had concluded his evidence, Mr Scott-Manderson told me that F now accepted that A should live most of the time with M and in France. For a moment I thought that that signalled the end of F's article 11(7) application that I should order A's return to England. But Mr Scott-Manderson then made it clear that he would submit that an order whether for contact, and more particularly staying contact, here (or, as F would prefer, a shared residence order providing for him to live with F on his visits here) both fall within the scope of what BIIR envisages the court may order when it examines 'the question of custody of the child' under article 11(7). Therefore, he submitted, an order (in either form) constitutes within article 11(8) a 'judgment which requires the return of the child' to the state where the child was habitually resident immediately before the wrongful removal or retention. These are submissions which I will consider below.
- The guardian formed the view, having interviewed F (assisted by an interpreter) for the purposes of her Report and having seen both parents give their evidence, that F remains passionate about his relationship with M. He did not accept that that relationship was over, and indeed asked the guardian to speak to M about them resuming living together. The guardian questioned whether F would be able to remain focused on contact issues. At paragraphs 84 and 85 of her Report she wrote:
'The father still states that he loves her and desires reconciliation. Yet in interview his feelings, understandably, range from hurt to rage. Although he presented subdued and passive there were distinct times during our meeting when he was verbally aggressive in asserting what he viewed as the role of the woman. He took no responsibility for what occurred in the relationship leading me to believe he either lacked insight or was simply arrogant. I found the father's attitude towards things he did not like menacing.
The mother has made it clear that the relationship is over and confirmed this by making an application for divorce. However, she still harbours high levels of apprehension and anxiety about the father. I am of the opinion that if she were to be confronted by the father she would feel intimidated and unable to assert her wishes. This was confirmed in my conversation with her when she refers to the number of occasions she left the father but then returned...'
- The guardian described these as unresolved issues between the parents. When I consider the future arrangements for the child's custody, the reality that they are unresolved and that they run so deep is more potent than would be detailed findings of fact one way or the other about past events real or fabricated, glossed over or exaggerated.
- In short, for my part I am persuaded that a much more realistic view of their life together has been presented by M, and agree with the guardian's analysis of the dynamic as it now is between these parents.
The parents' proposals for the pattern of A's life
- M plans to continue living with A in Nantes in a modest but well-presented flat they have occupied since September 2006. It is about 75 minutes away from her parents' home. They offer her support including (in connection with the cost of these proceedings) financial support. She is in stable employment, and has about €1,550 (including government allowances) to live on each month after paying her rent. There is little slack in her budget. She is entitled to five weeks' annual leave. The guardian has no concerns about A's care, development or health while living with her.
- She says that she is prepared to foster A's relationship with F and, amongst other things, to travel with him to London for a weekend every six weeks, but that could only be feasible on the basis F regularly meets half the expenditure involved. She puts that at up to £800 for each visit, whereas F suggests that realistically it could be achieved for an average of about £305. His calculation assumes that she can stay with friends in London for half the visits, and that she would travel by public transport rather than taxi to and from the airport and the contact venue. His budget excludes the £280 which is the cost of four hours of supervised contact and which he says should cease. On any view long-term financing of these meetings will be a considerable burden for these parties, and one which they will need to share as they go along if it is to be more than temporarily affordable. M maintains (as seems inevitable on her figures, wherever within the range quoted the cost falls) that she will have to increase her debts to achieve six-weekly contact visits to London, but says that she is prepared to do so as she recognises that it is the only manageable way for A and his father to maintain contact.
- F currently lives in a single room in West London. He says that he will find a flat further from the centre for which he anticipates he would need to pay £400 to £450 each month. Later he produced a letter from a Greek friend who lives in R and who offers F a room in his three-bedroom house, apparently free of charge, and in addition to pay him £300 per month 'pocket money' from his own salary of £500 per week. The letter does not say how long he might be willing or able to afford such generosity. F would also be able to rely on other friends who have an empty bedroom for staying contact purposes.
- F spoke in his evidence of feeling now well and motivated enough to extend his working hours and to enhance his earnings from their current stated level of £360 per month. Later, when submissions were being made, he produced a draft contract of employment as a warehouse manager for a firm in North London. He would work full-time five days a week for an annual salary of £18,500, presumably gross. If he were to pay tax on this his net income would be about £14,400 p.a., or £1,200 each month. After some considerable hesitation F confirmed through counsel that he would indeed take up this job offer, and would start on 9th July 2007. He will be entitled to four weeks' holiday each year. F made a generalised assertion that in any event he had many friends to whom he could turn for loans in case of need.
- F recognises that he should pay half the cost of M and A's travel to England for contact, which he suggests should be fortnightly. He opposes a contact centre as the venue, and supervision as a necessary safeguard. He would like A to reside/have contact with him for increasing periods of time, to commence with a period of 'intensive relationship building' with F for, he suggests, a month. During that month contact would be built up rapidly so that within the fourth week he would have A with him for two complete days, and then to stay with him twice overnight for 24-hour periods.
- Thereafter he requests that staying contact should in principle take place fortnightly from Saturday morning to Sunday afternoon. Looking further ahead F seeks three days over the Christmas holidays in 2007, five nights at Easter 2008, and two separate one-week periods next summer. Thereafter he seeks to have A with him for half his French school holidays, in addition to continuing fortnightly overnight visits in England during term.
- The guardian observed the first two contact periods in England. Father and son had not seen each other since July 2005. The guardian felt that these occasions went well and that F presented and conducted himself sensitively given that A can have no recollection of him. The guardian favours the idea of an initial intensive period during which she would hope a firm basis could be built for an ongoing contact relationship. She accepted the difficulties M would have in coming with A to England for so long as four weeks. M explained how she could, and was prepared to, bring A to England for one week in August. The guardian's preference would have been for A to make monthly visits from France, but again she recognised that this was not financially feasible.
- All parties would like me to make orders regulating future contact (or, as F would prefer it to be termed, for me to regulate the conditions under which a shared residence order would operate). But that must depend upon whether I have the jurisdiction to make such orders in the context of or after deciding the article 11(7) application. If not, then I would be obliged to leave these questions for decision by the French courts if (as seems sadly very likely) the parents cannot agree.
- The advantages of making such orders, if I can, are obvious. I have seen both parties in person, an advantage which a French juge aux affaires familiales is unlikely to have in the case of F given his (now no doubt reduced if not eliminated) likelihood of obtaining a French visa. I have heard detailed representations from the guardian whose duty on behalf of the child is to make submissions as to what is in his best interests. The contact in question will be in England rather than in France, and future review and fine-tuning of it would more easily be achieved by an English court, if the jurisdiction exists. Moreover the expense and delay of re-arguing contact issues in France would thus be avoided. Another factor is that any security arrangements necessary or desirable to safeguard A's return to M after meetings with F (such as regulating by undertaking to the court the deposit of passports during contact, injunctions restraining removal from this jurisdiction save between here and France or, in case of real and imminent risk, the imposition of a Port Alert) could more realistically be policed by and with the wider powers of the English court.
BIIR issues
- However straightforward the outcome of the broad practical issues in this case may appear (whatever the legal terminology apt to express them), the arguments addressed to me give rise to a number of interconnected questions concerning the interpretation scope and effect of various provisions of BIIR. I will attempt to address them logically in the following order:
• The nature and scope of an article 11(7) application
• Jurisdiction in cases of child abduction: BIIR article 10
• The effect of F's continuing ability to seise the English court
• Does an order for contact in England amount to a judgment requiring the return of the child for the purposes of article 10 (8)
• The effect of a shared residence order
• The autonomous meaning of 'judgment' for the purposes of BIIR
The nature and scope of an article 11(7) application
- BIIR 'supplements' or 'complements' Hague in a number of aspects in relation to Hague article 12 applications for return orders where the requesting and receiving states are both BIIR Member States. The objectives, and the nature of the changes, are signalled by recitals (17) and (18) to BIIR, which read:
(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.
(18) Where a court has decided not to return a child on the basis of Article 13 of the 1980 Hague Convention, it should inform the court having jurisdiction or central authority in the Member State where the child was habitually resident prior to the wrongful removal or retention. Unless the court in the latter Member State has been seised, this court or the central authority should notify the parties. This obligation should not prevent the central authority from also notifying the relevant public authorities in accordance with national law.
- The focus of the second half of recital (17) is the 'replacement' of a Hague non-return order by a subsequent judgment which 'entails the return of the child', made by the courts of the state where the child was habitually resident prior to the wrongful removal or retention. In this broad preview of what in the body of the Regulation are the article 11(6) and (7) innovations there is no reference to 'custody'.
- Article 11 is headed 'Return of the child'. Paragraphs (2) to (5) introduce specific requirements where a Hague application falling within BIIR is made 'to obtain a return of the child'. Quite what constitutes 'return' in this context falls for interpretation in this case, but has no impact on this analysis of what 'custody' entails in article 11(6).
- Paragraph (8) sets out the means whereby the objective described in the last sentence of recital (17) is achieved. Were I to order A's return to England and Wales I would sign a certificate in the form of Annex IV to BIIR as required by article 42, and the return order would then fall (pursuant to article 42(1)) to 'be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition'. France would in this case be the country of enforcement, but (as was helpfully pointed out in a new paragraph added to the end of Part VII of the Practice Guide in its June 2005 updated version) if the child were in the meantime moved to a third Member State, the decision as evidenced by the certificate would be enforceable there with the same facility, without any need to commence any exequatur procedure for the child's return from that third country.
- The Annex IV certificate does not include any reference to 'custody'. It requires confirmation (paragraph 9) that 'the judgment entails the return of the child', and (paragraph 3) the insertion of details of the 'person to whom the child has to returned (to the extent stated in the judgment)'.
- It is within this framework that must be construed the meaning to be attributed to 'custody' in the phrase 'the court can examine the question of custody', which is the exercise upon which I am embarked.
- Articles 1(b) and 2(a), delimiting the scope of BIIR's application 'in civil matters relating to the attribution, exercise, delegation, restriction or termination of parental responsibility' draw a distinction between 'rights of custody' and 'rights of access', which are by article 2(9) and (10) defined respectively so as to include 'rights and duties relating to the care of the person of the child, and in particular the right to determine the child's place of residence' and 'in particular the right to take a child to a place other than his or her habitual residence for a limited period of time'.
- Article 2(7) of BIIR defines the term 'parental responsibility' for the purposes of the Regulation in terms which again reflect the distinction between 'rights of custody' and 'rights of access':
The term 'parental responsibility' shall mean all rights and duties relating to the person or the property of the child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access.'
- This distinct categorisation between 'rights of custody' and 'rights of access' is also reflected in article 1(2)(a) of BIIR where its scope in relation to parental responsibility is clarified by the inclusion 'in particular' of those two rights amongst a non-exhaustive list of aspects of parental responsibility which are within the scope of BIIR.
- Definitions in identical terms also apply to 'rights of custody' and 'rights of access' for the purposes of Hague: see article 5 thereof. So there can be no lack of congruity between the two instruments on this point. The definitions are also reflected in article 3(b) of another Hague Convention, the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children ('the 1996 Hague Convention'). That Convention awaits implementation by the European Union, and when in force will cover many of the same topics as BIIR. The inter-relationship of these two international instruments is not however for now.
Jurisdiction in cases of child abduction: BIIR article 10
- Against that background what are the aspects of parental responsibility upon which the court can rule when undertaking an article 11(7) examination of the question of the custody of the child?
- Consideration of the scope and effect of an article 11(6) examination of the 'question of custody of the child' must commence with the framework for jurisdiction applied by Section 2 of BIIR (articles 8 to 15) in relation to matters of parental responsibility. (Section 1 of BIIR lays down a distinct code in respect of jurisdiction for divorce, legal separation and marriage annulment which does not impact on the questions raised in this case.)
- The fundamental rule is set out in article 8 which prescribes that 'general jurisdiction' lies with the courts of the Member State where a child is habitually resident 'at the time the court is seised'. Article 16(1)(a) provides (for present purposes) that a court 'shall be deemed to be seised ... at the time when the document instituting the proceedings ... is lodged with the court'.
- That general jurisdiction is however expressly subject to articles 9, 10 and 12: see article 8 (2). Article 9 provides for a three-month period of retention of jurisdiction in the courts of the country where the child was habitually resident before the move (to which I shall refer as the 'home court') after a lawful move of a child from that Member State to another, for the limited purpose of 'modifying a judgment on access rights' where the person with those access rights continues to be habitually resident in the original country. Article 12 provides rules for the 'prorogation of jurisdiction' which do not impact on the present question.
- Article 10 is of the greatest relevance for present purposes, as it deals with jurisdiction in cases of child abduction. It reads as follows:
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.
- The rule in child abduction cases displaces the general rule by reserving jurisdiction (save obviously in relation to Hague applications for the child's return) to the home country. The home country continues to have jurisdiction if the court there becomes seised. That jurisdiction endures until the child both acquires habitual residence in another Member State and one of the conditions satisfied in paragraphs (a) or (b) of article 10 is satisfied. If at that point no court in the child's home country has been seised, the jurisdiction to determine matters of parental responsibility passes to the courts of the country of the child's acquired habitual residence.
- The scheme is cogent and comprehensive. The courts of the Member State away from which a child has been unlawfully removed or retained continue to have jurisdiction until the article 10 conditions are met. Thus the ability of parents (and any institution or body having rights of custody) to seise the home court notwithstanding that the child has in fact acquired habitual residence in another Member State continues (absent acquiescence) for a minimum period of one year after the holder of rights of custody 'has or should have had knowledge of the whereabouts of the child', and the child is settled in the new environment. At what point, if at all, the parents' ability to seise the home court comes to an end depends upon the attainment of one of the conditions in sub-paragraphs (i) to (iv), which follow a logical progression.
- As Mr Nicholls observed, article 10 presupposes that a child can acquire a changed habitual residence without the consent of both parents. The obiter dictum of Lord Donaldson MR in Re J (a Minor) (abduction: custody rights) [1990] AC 562 at 572, a Hague case concerning unmarried parents, must now be read in the light of this. Lord Donaldson said:
'in the ordinary case of a married couple, in my judgment, it would not be possible for one parent unilaterally to terminate the habitual residence of the child by removing the charge from the jurisdiction wrongfully and in breach of the other parent's rights.'
- In A's case I have already stated why I find his habitual residence during the first two months of his life to have been in England where he was born. But that is now two years ago, and in factual and practical terms he is now resident, and habitually so, in France. He has had no home in England nor in the period prior to the commencement of these proceedings had he visited England, save for the few weeks spent here temporarily with M and his grandmother in the summer of 2006. He appears well settled in France.
- If I order A's return to live in England (or, if F is right in this contention, were an order that he be brought here to spend time with F pursuant to either a shared residence or contact order to constitute an article 11(8) order requiring his return here) then his habitual residence will at some point revert to England. But if I do not order his return then jurisdiction will thereupon pass to France as all the conditions of article 10(b)(iv) will be fulfilled. Such a decision would be 'a judgment on custody which does not entail the return of the child'. At that point the parents would need to seise a French court to determine matters of parental responsibility, pursuant to the general rule in article 8. That court could indeed be the TGI at Vannes within the French divorce proceedings if F would be regarded by the French court as having accepted its jurisdiction 'expressly or otherwise in an unequivocal manner' and if that court held that it would be in 'the superior [which means the same as 'best'] interests of the child' to deal with parental responsibility issues there: see article 12(1).
The effect of F's continuing ability to seise the English court
- Clearly F has not acquiesced in A's removal or retention. The general situation described the first part of article 10(b) is, in my judgment, established. None of the additional conditions set out in article 10(b)(i) to (iii) which would bring to an end England's retention of jurisdiction has been satisfied. As for paragraph (b)(iv), 'a judgment on custody that does not entail the return of the child' has not yet been issued by the English court. It is of course the result for which M contends.
- It follows that until such an order is issued F remained and remains able to seise the English court under the general jurisdictional rule set out in article 8, as read subject to article 10. F in October 2006 launched the applications under the Children Act which I have described. Lodging and serving those applications with the court satisfied the requirements of English domestic law and of article 16(1)(a), so that the English court became validly seised.
- Mr Scott-Manderson submitted that F is still entitled to continue to pursue his Children Act applications notwithstanding that if I make an order which does not entail A's return to England jurisdiction will pass to France pursuant to article 10(b)(iv). On reflection I believe that contention is well founded. That reading is consistent with the position as it is now well-established in English law, that once the court's jurisdiction is validly engaged it remains seised even if the pre-conditions for the assumption of jurisdiction later cease to apply. The classic authority is Leon v Leon [1967] P 275 where the proposition is to be found enshrined in the phrase 'once competent, always competent'. There divorce jurisdiction was founded on domicile at the date of the petition, and continued notwithstanding a subsequent change of domicile.
- For these reasons I hold that I do retain power to make contact orders even if I do not order A's return to England. A's Children Act applications included a request for a residence order and for contact to be regulated, and at the time of the hearing this court remains seised of those applications.
- It follows that I agree with the first two sentences of a new paragraph which has been added to the June 2005 version of the Practice Guide. It is contained within Section VII, The Rules on Child Abduction, and reads:
4. The court of origin is competent to deal with the substance of the case in its entirety
Articles 11 (7) and 42
The court of origin which takes a decision in the context of Article 11(7) is competent to deal with the substance of the case in its entirety. Its jurisdiction is therefore not limited to deciding on the question of the child, but may also decide for example on access rights. The judge should, in principle, be in the position that he or she would have been in if the abducting parent had not abducted the child but instead had seised the court of origin to modify a previous decision on custody or to ask for authorisation to change the habitual residence of the child. It could be that the person requesting return of the child did not have the residence of the child before the abduction or even that that person is willing to accept a change in the habitual residence of the child in the other Member State provided that his or her visiting rights are modified accordingly.
The words which I have italicised should be understood, in my view, as though they read 'the judge should, in principle, be in the position to exercise the jurisdiction that he or she would have been in if the abducting parent had not abducted the child ...'
- The concomitant of BIIR's article 10 jurisdiction rules in cases of child abduction is that if the country where the child is removed or retained is a Member State, then that country's courts have no jurisdiction at all in matters of parental responsibility. So if a child is brought or retained here in circumstances which make that wrongful within the definition ascribed for BIIR purposes (which is not identical in its terms with the corresponding definition in article 3 of the Hague Convention), practitioners and judges must be astute to take the point that (and to investigate whether) an application to an English court, for instance for residence and an order restraining the other parent from removing the child from the applicant's care and/or from England and Wales, is impermissible and should be dismissed for want of jurisdiction. Scope does exist under article 20 for an English court in an urgent case in such circumstances to take 'provisional, including protective, measures. But that is clearly intended only to be a stopgap measure to have effect only until the home court exercises jurisdiction as to the substance of the matter. For ease of reference, article 20 is in these terms:
1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.
2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.
- The position is therefore quite distinct from the duty (which persists in the case of a Hague application involving England and Wales and a non-BIIR country) automatically to stay certain domestic applications upon the filing of the Hague application with the High Court: see article 16 of the Hague Convention and section 9 of the Child Abduction and Custody Act 1985.
- I therefore, on reflection, part company with Mr Nicholls when he submits that a court examining the question of the custody of the child after an article 13 Hague non-return order is ipso facto limited to examining the question of custody and (by necessary implication, given the terms of article 11(7)) whether an order entailing the child's return should be made notwithstanding the precedent Hague non-return order.
Does an order for contact in England amount to a judgment requiring the return of the child for the purposes of article 10(8)
- In my view, emphatically not. 'The return of the child' in this context is to be read with article 11(7), and will be ordered where the examination of the question of custody results in a decision that the child should live with the parent who is here, not just an order in effect requiring M to make A available here for the purposes of meeting F. It is in this connection that the dichotomy to which I have referred between 'rights of custody' and 'rights of access' has significance. A custody decision relates to the care of the child, and where he shall live (article 2(9)). The article 2(10) description of rights of access distinctly refers to 'the right to take the child to a place other than his or her habitual residence for a limited period of time.' In this context, I suggest, it is the 'place' rather than the 'country' of habitual residence which is indeed meant, for of course rights of access do not necessarily imply cross-border access. If A is to remain living with M and in France, the orders which F seeks fit that access definition precisely both in the short and in the longer term.
- The autonomous meaning to be ascribed to the two categories of rights is a matter of domestic English law, albeit construing them in the contexts of BIIR and Hague. As to this see Hunter v Murrow (Abduction: Rights of Custody) [2005] EWCA Civ 976, [2005] 2 FLR 1119 and Re D (Abduction: Rights of Custody) {2006] UKHL 51, [2007] 1 FLR 961. Each of these cases in a different way exemplifies the importance of maintaining a distinction between the twin concepts of custody and access in this international arena.
- To elevate an order for contact here to an article 11(8) judgment requiring a child's return here would render the scheme of BIIR unworkable. The child would remain subject to this Court's jurisdiction indefinitely, it would seem, as none of the article 10(b) pre-conditions would be met. The general jurisdiction provision of article 8, affording jurisdictional priority to the court of A's habitual residence would be suspended indefinitely. I cannot accept that the drafters of the Regulation envisaged this, or that its words require such an interpretation.
The effect of a shared residence order
- It seems clear that the jurisdictional framework of BIIR in matters of parental responsibility envisages that a child can be habitually resident in only one country at a time.
- Certainly contemporaneously-pursued competing proceedings in the courts of two Member States are regulated by Article 19(2) and (3): the court second seised must stay its proceedings until the court first seised has established whether it has jurisdiction, and if it does so the court second seised must then defer to the court first seized and decline jurisdiction. Whereas that procedure would indeed effectively regulate a forum dispute on the basis of 'first off the starting-block' if a child could for BIIR purposes be habitually resident in both the jurisdictions simultaneously, that could only arise in a case where the child spent agreed or at least considerable time living in a home in each jurisdiction. Such a case was Re V (abduction: habitual residence) [1995] 2 FLR 992 which is authority for the proposition, in relation to Hague, that that Convention operates on the basis that a child can have only one habitual residence at any point in time. In such a situation I tend to the same view, that for BIIR jurisdiction purposes the child should be treated as habitually resident in the country in which he lived at the time when a court became seised with a parental responsibility dispute.
- That different principles, in relation to an adult, can apply in domestic law has been decided by the Court of Appeal in Ikimi v Ikimi [2001] EWCA Civ 873, [2002] Fam 72 where Thorpe LJ held that a person might be ordinarily resident (or, which means the same, habitually resident) in two countries at the same time. But although (at [32]) he expressed the opinion that it is essential that the same meaning be given to 'habitual' wherever it appears in domestic family law statutes, he said he 'would not however necessarily make the same extension to [the Hague 1980 Convention] which is an international instrument, the construction of which is settled and developed within the wider field of international jurisprudence'.
- Were I therefore to cloak what look like conventional visiting and staying contact orders with the apparent solemnity of a shared residence order (as Mr Scott-Manderson contends I should), it would not in my view amount to a judgment which requires A's return to this country for the purposes of article 11(8) and the automatic enforceability provisions which that would entail. Whether under the aegis of a contact or a shared residence order, I will of course be requiring that A should return to England to spend time here with F, but that is only for temporary purposes and 'for limited periods of time' as envisaged by article 2(9). Moreover, were such an order to be held to entail the 'return of the child' to England, the effect would be that the English court's jurisdiction would not be brought to an end by article 10(b)(iv), nor by any other provision of Article 10, but would continue indefinitely notwithstanding that the child would continue predominantly to live in France with M.
- I therefore reject Mr Scott-Manderson's submissions on this point.
Contact/shared residence: the order
- I do not believe that it will be possible, now that F's right of residence in the United Kingdom has been revoked, for F to obtain a French visa so that contact to A can take place there. In fact, were F to secure the right to go to France it must be questionable whether he would be readmitted to the United Kingdom. Contact must therefore take place in England while F remains here. The frequency of contact is constrained by financial considerations. That is not to say that I disregard the undesirability of F's proposal for fortnightly visits, bearing in mind the wear and tear on M and on this young child which that would involve. I accept M's evidence that six-weekly contact is barely affordable (and that subject always to F bearing half the cost), whereas the four-weekly frequency recommended by the guardian is not.
- The proposal from F that he should have overnight staying contact is untenable as matters now stand, and would not in my view be in A's best interests. F has no home suitable for him to stay, even overnight. The guardian is against staying contact until such time as F's immigration status is resolved in his favour, as now seems less likely than when she gave her evidence. She regards his current accommodation as in any event unsuitable for overnight stays. F may or may not move from where he now is, but I am not persuaded that taking A to stay in a spare room at a friend's house is satisfactory enough. It would undoubtedly raise M's anxieties, and the continuation of contact makes it imperative that her feelings on topics such as this are not completely disregarded at this stage, where the relationship between father and son is so fragile and tenuous and so dependent on her continuing co-operation.
- A major issue between the parents is for how long, if at all, these meetings should be supervised and at a contact centre. F is strongly opposed to both constraints. The guardian is not prepared to discount M's abduction fears. She shares with M the anxiety that if it became apparent to F that he might be obliged to leave England and thus that his meetings with A were likely to cease, then the emotional pressure upon him and therefore the risk would be increased. The guardian does not therefore regard the risk as fanciful. Neither do I. It was for instance rather chilling to read, at paragraph 28 of his affidavit, how easy F says it would be for him to obtain a false passport were he so minded. The same would presumably be true of a passport or other travel document for A, although F may well be right when he says that A would not be entitled to a Palestinian travel document. F regards it as 'exquisitely ironic' that M should say she harbours this worry, in the light of her own removal of A to France. He seemed only belatedly to recognise that A should have a stable life, based in France, with his mother. An arrangement for the deposit of F's passport while meetings take place would offer M (and the court) some security.
- At the end of counsel's submissions I outlined what I proposed as the arrangements for F and A to spend time together in the immediate future. I invited the parents to use that as a basis for discussion, and agreement if they can achieve that between them. I have not while preparing this judgment been told that anything has been agreed.
- I have determined that I have jurisdiction to make contact orders as the court has been and remains validly seised of that issue at present, notwithstanding that I do not order A's return to England. Those arrangements are to be as follows. M should make A available for contact for not less than one and a half hours on two successive days every sixth weekend, subject to F continuing regularly to meet half the incidental costs (which should not inevitably assume that M will always be able to stay overnight for his friends). The meeting should be supervised and the venue should be a contact centre for the time being.
- In August M will bring A to England for seven days. During the course of that week contact should gradually be extended in length, and by the end of the week there should be one unsupervised meeting away from the contact centre. All meetings from the commencement of that week shall be subject to the pre-condition that F deposits his passport by some safeguarded procedure through an agreed intermediary, for M should not have to deal with F face-to-face on this or indeed generally. I expect the parties to agree the details. There is a weekend in November when M will have the chance to spend longer away from France. She should take it and F should then have more extended contact.
- I have said that there should be no overnight stays with F in present circumstances. Those circumstances have changed (at least in relation to F's immigration position) and maybe in other ways, and the parties may wish me to define that more specifically.
- I also agree with the guardian's suggestion that telephone communication between F and A should take place weekly while he is with M in France, but initially for short periods only having regard to his age and the language difference between them.
How should the arrangements for meetings be designated?
- These arrangements instinctively appear to me to be for contact, rather than to amount to any species of residence in F's favour. Miss Branigan and the guardian agree. M opposes a shared residence order, as does the guardian.
- Mr Scott-Manderson puts forward a number of considerations which he suggests militate in favour of designating these arrangements as a specific residence order. He grouped his arguments under a number of headings. A shared residence order would avoid F being marginalised by M in relation to his rôle as a decision-maker for A and in the development of his relationship with him. He criticises M's reaffirmed intention to seek an order in the French proceedings suspending his ability to exercise 'autorité parentale', but that must be a matter for her and her French legal advisers, and I have no evidence to suggest that to make a shared residence order would enhance F's position if M pursues that application.
- Next Mr Scott-Manderson suggests that a shared residence order will help to sustain and emphasise A's ability and need to maintain a relationship with F, and that an order in that form will or may therefore carry increased weight in the balance of decisions to be taken about F's immigration situation. But those decisions are within the jurisdiction of the immigration authorities, and not of this court.
- At [43] and at [47] above I have reproduced the essence of F's argument on this point. In this connection Mr Scott-Manderson invites my attention to Re A (care proceedings: asylum-seekers) [2003] EWHC 186 (Fam), a decision of Munby J. That was a case where care proceedings were dismissed the intention of which had been to avoid the removal abroad of children with their parents by a determination that the children would be at risk of significant harm if the family were not allowed to remain here. Mr Scott-Manderson placed reliance on a passage at [53] where the judge emphasised that one effect of the authorities he had reviewed was the proposition that 'the court when exercising its powers under the Children Act 1989 is not entitled to have regard to immigration policy. It must be guided by the interests of the child'. Mr Scott-Manderson's submission boils down to this: if there is a chance a shared residence order will strengthen F's hand qua the immigration authorities, it must be in A's interests that I should make that rather than a contact order, as a shared residence order may help to preserve the father-child relationship. If I adopted that proposition I would not be applying the first half of Munby J's summary: I would indeed be paying regard to what might be immigration policy when exercising Children Act powers.
- I remind myself that at [67] Munby J said of that case:
It is perfectly obvious that the parents' only purpose in seeking to persuade the court to continue these proceedings is simply to frustrate the removal process and to prevent for as long as possible, and if possible indefinitely, the family's return to Country X. They are not necessarily to be criticised for this, for desperate people will understandably resort to desperate remedies. But that is the stark reality. The fact is, as [counsel for the Secretary of State for the Home Department] asserts, that the parents are seeking to use these proceedings impermissibly as a means of challenging or influencing the Secretary of State's decision.
I do not believe that it is necessary for me to express my own conclusion on the proposition, strongly advanced for M, that F's changing stance as this case has progressed represents a series of retreats in the face of the immigration threat from behind one defensive position to the next, and has been formulated by him very much with his immigration status in mind rather than being based upon genuine understanding of his young son's needs and welfare requirements.
- But whatever be the force driving F's insistence upon seeking a shared residence order to achieve what plainly a contact order would, Mr Scott-Manderson submits that recent developments in the approach to shared residence orders are exemplified in authorities which make clear that such orders may be appropriate more often and in more diverse situations than was previously the case upon application of the then prevailing conventional wisdom. I accept that proposition, but do not think it necessary to delve into the detail of all the cases he relies upon, some of which relate to factual situations far removed from A's. I accept that a shared residence order is within the range of powers available to the court on F's residence application, and thus an outcome which I should consider when applying the Children Act 1989 section 1(2) checklist, as I do.
- That these parents will be living in different countries presents no embargo. In Re F (Shared residence order) [2003] EWCA Civ 592 Thorpe LJ said at [21]:
As this court has said recently, a shared residence order must reflect the underlying reality of where the children live their lives. The fact that the parents' homes are separated by a considerable distance does not preclude the possibility that the children's year will be separated between the homes of the two separated parents in such a way as to validate the making of a shared residence order.
The factual background to that order envisaged that the one parent might live in England and one in Scotland. In a subsequent decision reported only shortly at [2006] Fam Law 1006 as Re D (leave to remove: shared residence) Hedley J (to whom I am grateful for a copy of the full transcript) said at [44]:
Neither Mr. Henry Setright QC, nor Mr. Stephen Cobb QC could advance any argument as to why a joint residence order should not span more than one jurisdiction; nor did either wish to do so on the basis of their instructions. Although, perhaps a little surprising in concept, I am fortified in the view that I may make such an order if, as here, it is otherwise right to do so, by the judgments of the Court of Appeal in Re F (Shared Residence Order), especially at paras. 38 and 39 of the judgment. I acknowledge that, of course, this case is different in that leave to relocate is required if the children as well as the mother are to move, this being to the United States rather than Scotland. But whatever is decided the children will, over a year, spend significant amounts of time in the United Kingdom and the United States. I do not see that as effecting a jurisdictional or procedural bar to a shared residence order and for those reasons it is one that I propose to make.
- The only other reference I will make is to the dictum of Wall J (as he then was) in A v A (shared residence) [2004] EWHC 142 (Fam), [2004] 1 FLR 1195 at [119] where he said in relation to an earlier decision of the Court of Appeal that:
... a shared residence order is an order that children live with both parents. It must, therefore, reflect the reality of the children's lives. Where children are living with one parent and are either not seeing the other parent or the amount of time to be spent with the other parent is limited or undecided, there cannot be a shared residence order. However, where children are spending a substantial amount of time with both their parents, a shared residence order reflects the reality of the children's lives. It is not necessarily to be considered an exceptional order and should be made if it is in the best interests of the children concerned.
- My conclusion is that to make such an order will not reflect the reality of A's life and would not advance his interests beyond what a contact order can achieve. The amount of time for which it may include any form of staying contact is uncertain in view of F's immigration difficulties, and will at best be limited in current circumstances. There is a risk that such an order might encourage F to advance again before a French court the argument (which I have rejected) that a shared residence order amounts to an order for A's 'return' to this jurisdiction, so that pursuant to article 10 (it might be re-argued) the French courts lack article 8 jurisdiction, A having required habitual residence here as a result of the supposed 'return'. Quite what a French court might make of a shared residence order is, so far as I am aware, untested. Although perhaps remote, such a potentially complex legal status would not be in A's interests.
- I will decline to order A's return to this jurisdiction, in the sense that I decline to make an order that he should live here with either parent. Instead he should remain living with M in France. I will make a residence order in her favour, that being my view of the outcome appropriate at the conclusion of this article 11(7) examination of the question of A's custody.
- I will also in due course make a contact order regulating A's contact with F, the detailed terms of which I will ask the parties to attempt to agree in the light of this judgment, failing which I will make rulings. My intention is that that contact order should be framed to continue until further order or until F may cease to reside in England and Wales, whereupon it should be replaced by formulated provision for indirect contact (to include, if and when practical, contact via webcam) plus such other direct or indirect contact as the parties may agree in writing. Any questions arising upon the form of the contact order are to be referred to me for decision after position statements have been prepared by each party on the points in issue. An order will then be drawn to reflect the detail of the decision.
The autonomous meaning of 'judgment' for the purposes of BIIR
- I am satisfied that the English court remains seised of the contact and other issues at least until that order is issued. This is because England retains jurisdiction (in this case) until, in terms of article 10(b)(iv), 'a judgment on custody that does not entail the return of the child has been issued'. At that point, as the rights of access which I shall order will 'involve a cross-border situation at the time of the delivery of the judgment' I will be required by article 41(3) to deliver a certificate using the standard form in Annex III appropriate in relation to judgments concerning rights of access.
- Issuing 'a judgment on custody that does not entail a return of the child' will thus, in the circumstances of this case, be the triggering event for the transfer of jurisdiction to France under article 10(b)(iv). At what point is this court to be regarded as issuing its judgment, for the purposes of BIIR? Article 2(4) provides that:
'the term "judgment" shall mean a divorce, legal separation or marriage annulment, as well as a judgment relating to parental responsibility, pronounced by a court of a Member State, whatever the judgment may be called, including a decree, order or decision.'
- In the analogous domestic context determining when, for instance in ancillary relief proceedings, a court makes its order is a question which has given rise to difficulty, not least because the word is commonly used to denote a document such as this. The modern approach is exemplified, for example, by the decision of Black J in McMinn v McMinn (ancillary relief: death of party to proceedings) [2002] EWHC 1194 (Fam), [2003] 2 FLR 823, applying Xydhias v Xydhias [1999] 1 FLR 683 and Rose v Rose [2002] EWCA Civ 208, [2002] 1 FLR 978, both decisions of the Court of Appeal. In accordance with those decisions, Black J decided that the absence of a document did not mean that no order had been made. At [36] she said:
Taking together the decision in Rose and the tenor of Xydhias it is clear that it is not a necessary prerequisite for an order that the order has been formally typed up, stamped and/or issued by the court or that every last detail of the arrangements should have been resolved by the court. The philosophy at work is plainly to achieve finality in ancillary relief litigation as soon as the fundamental provisions have been resolved without making this dependent upon drafting which, in dealing with the detail, will obviously cover further arrangements, which, although important, are essentially subsidiary (or complementary) to the broader financial disposition between the parties.
Looking at the decision of the district judge in this case in the light of these principles, it is plainly not prevented from being an order by the fact that no document embodying the terms had yet been typed up formally by the court and issued or even by the fact that counsel had not finished their drafting. As for the argument that the absence of a date for payment of a lump sum and transfer of accounts and/or provision for interest is fatal, I would place these matters firmly in the category of dotting the legal i's and crossing the legal t's and I do not consider that the absence of provision for them by the district judge in any way prevents his written judgment from amounting to an order.
- It would in my opinion be unsatisfactory were the English court to adopt the same sort of approach to the meaning to be ascribed to 'judgment' for the purposes of BIIR article 2(4). The courts of other Member States should be able to tell when a judgment takes effect and what is its effect without detailed inquiry into what was said or done in the course of the proceedings, and without having to scan (maybe in more or less satisfactory translation) the judge's spoken written or transcribed extempore or reserved summary (but maybe an extensive summary) of the facts and evidence, his findings thereon, his reasons for reaching his conclusion, and a statement of the order (in full or in outline terms) which he proposes should be drawn.
- Furthermore, if and when any of the certificates stipulated in Annexes II, III or IV of BIIR in relation to judgments on parental responsibility are produced to the courts of the Member State where one party seeks to enforce the judgment, under article 45(1)(a) that certificate must be accompanied by 'a copy of the judgment which satisfies the conditions necessary to establish its authenticity'. An English court's issued order, rather than a record of how the judge arrived at the decision encapsulated in the order, seems far more suited to the enforcement of, for instance, contact provisions.
- The interpretation which would resolve all doubts and ambiguities is that the 'judgment' for BIIR purposes is the written order issued by the court. Such an interpretation is moreover consistent with the reality in cases of divorce, legal separation and marriage annulment. In the case for instance of divorce and marriages declared void, it is the written decree absolute which records and gives effect to the change of personal status.
- It also seems likely that a parallel position applies in at least some of the other Member States. The words used in the French version of the BIIR text to correspond to 'decree, order or decision' are 'arrêt, jugement, ordonnance'. My understanding is that in France these words are apt to describe the document signed by the judge or judges which the court issues, rather than the reading of all or part of its contents which customarily precedes its formal issue.
- I wish also to acknowledge the assistance afforded me by Professor Nigel Lowe, Professor of Law and Director of the Centre for International Law Studies at the University of Cardiff Law School, who (so far as his reasonable but not necessarily exhaustive researches go) has found no relevant European jurisprudence upon the meaning to be ascribed to 'judgment' in this context, nor in relation to the cognate (but not always identical) definitions contained within the now repealed BII Regulation nor in the 1968 Brussels I Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, or indeed the Civil Jurisdiction and Judgments Act 1982 (as amended).
- For my part I would therefore hold that the autonomous meaning the English courts should ascribe to 'judgment' for BIIR purposes is a document containing the terms of the judge's order which is issued by the court. This court therefore retains jurisdiction for the time being over the matters of parental responsibility which have been raised.
- That then constitutes my judgment, in an English law sense of the word.
Domestic procedural considerations
- What follow are my own conclusions, not canvassed with counsel at the hearing, but prompted by the procedural limbo (pending the introduction of the Family Procedure Rules) which exists in relation to applications for the return of a child from a Member State where an article 13 Hague non-return order has been made. This arises because there are no provisions specifically relating to such an application within the extant Family Proceedings Rules 1991 (as amended). I have shown the President of the Family Division this judgment in draft and am authorized by him to state that he approves the observations that follow as to the appropriate practice to be adopted in such cases, pending the entry into force of the Family Procedure Rules.
- The starting-point should be to consider at what level in the judicial hierarchy such an application should be conducted. The application can arise in two distinct situations (as I shall explore below): where it falls within the terms of article 11(7), or where the application for return falls outside article 11(7) because 'the courts in [England and Wales] where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties'. If the English court subsequently renders a 'judgment which requires a return of the child' then Article 11(8) provides that that judgment is enforceable to secure the return of the child, and articles 40(1)(b) and 42 should lead to the English judge certifying by use of the standard form in Annex IV (inter alia) that 'the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention': see article 42(2)c).
- The importance with which we treat our international treaty obligations (both under Hague or BIIR) was underlined in the Court of Appeal decision in Vigreux v Michel [2006] EWCA Civ 630, [2006] 2 FLR 1180, together with the need to initiate administrative and listing procedures to meet the strict but short time limits imposed, in particular, by BIIR upon Hague cases between Member States. That time limit does not apply to an application launched after the Hague application has been determined, such as that with which I am concerned. But there is still an obvious need for such expedition as can be achieved given that the child and parents will already have undergone the insecurity which the precedent Hague application must necessarily have engendered.
- One aspect of the importance with which we regard Hague applications for the speedy return of children to their country of habitual residence is that they are dealt with exclusively by the numerically limited (currently 20) High Court judges of the Family Division. In part, this also recognises the comity considerations inherent in reaching conclusions here, which potentially may conflict with orders of competent courts abroad. It would be consistent with this approach for an application which may result in a return order on the face of it at odds with a non-return order made in another Member State to be dealt with here by the same judges who regularly hear Hague applications for the return abroad of children and who are well versed in this very specialised jurisprudence. Again as a matter of comity, it is preferable that the English judge who arrives at a conclusion other than that reached by a foreign court should have experience, in the reciprocal situation, of deciding whether or not to order under Hague the return of children to other jurisdictions.
- The Practice Guide encourages judicial communication. In the passage in Chapter VII 'What happens if the court decides that the child will not return' there appears this passage:
It is necessary to establish co-operation between the two judges in order for the judge of origin to be able properly to take account of the reasons for and the evidence underlying the decision on non-return. If the two judges speak and/or understand a common language, they should not hesitate to make contact directly by telephone or e-mail for this purpose. If there are language problems, the central authorities will be able to assist.
Such communication will be more constructive if the English judge participating has practical experience of Hague applications.
- My own experience indicates that the case management of such applications can be complex, and can indeed give rise to questions of interpretation of the detailed provisions of BIIR. Such questions should be settled at High Court level where decisions are more readily reported than if dealt with in the county court or (as might now occur in the absence of any approved practice) in the family proceedings court. The High Court judiciary are very hard-pressed, but from the statistics for recent years it does not appear that any 'floodgate' fears would be justified.
- It is therefore desirable that, pending the new Family Procedure Rules, cases where a parent seeks an order for return here after an earlier article 13 Hague non-return order made abroad should be transferred to the Family Division in London for hearing before a judge of the Division.
- Where (as in this case, because the first proceedings here were issued after the non-return order) article 11(7) does apply, then the parties have three months after they have been notified of the information received by the court or central authority here pursuant to article 11(6) 'to make submissions to the court, in accordance with national law, ... so that the court can examine the question of custody of the child'.
- The obligation upon the court to carry out that examination arises as a matter of indirect jurisdiction, and it is at least questionable whether it can be encompassed within the remedies envisaged in the Children Act 1989 or whether a distinct form of initiating process would be preferable. In any event, to treat such an application simply as a Children Act application involves the risk that it will not immediately be recognised for what it is, that a pointless conciliation appointment will lead to delay, and that the application may proceed in the county court or the family proceedings court. If the parties and their advisers apply using Children Act forms and procedures then, pending the Family Proceedings Rules, they should mark all forms and other documents lodged in connection with the application 'In the Matter of the Children Act 1989 and/or in the matter of an application pursuant to article 11(7) of the Brussels II Revised Regulation for the return of the child[ren] from [the member state in question]'. Judges and Court Service staff will therefore immediately be alerted to the nature of the case and its international dimension. Internal procedures should be put in place to transfer the application at the earliest opportunity from the court of issue to the Family Division in London, to be listed as soon as practicable for directions before a judge of the Division, who will then be in a position to manage the application as appropriate.
- Pending the introduction of the Family Proceedings Rules setting out the procedure thereafter appropriate, all such applications should as a matter of practice be made by way of originating summons issued out of the High Court in London (or should be transferred there forthwith if issued outside London), and specifically headed 'In the Matter of an application pursuant to article 11(7) of the Brussels Revised Regulation for the return of the child[ren] from [the Member State in question]'
- In a case (not this one) where the English court is already seised by one of the parties, article 11(7) does not apply. Thus the provisions for notification to the parties of information received from the Hague court and the obligation to invite them to make submissions do not appear to arise. If this reading is correct this may be an unintended consequence given that the obligation upon the court which made the non-return order to transmit documents is mandatory under article 11(6). But it cannot however have been intended that in such a situation the home parent should be precluded from applying for the child's return after an article 13 Hague non-return order made in another Member State. That (perhaps obvious) conclusion is reinforced by the fact that the article 11(8) consequence of streamlined enforceability arises in the case of 'any subsequent judgment which requires a return of the child issued by a court having jurisdiction under [BIIR]', which is this situation.
- The appropriate procedure in such a case, where the home parent wishes to pursue an application for a return order in or as an adjunct to domestic proceedings already in train, is that application should be made in the existing proceedings and to the issuing court seeking 'directions in the light of the order made in [Member State] on [date] declining in reliance upon article 13 of the Hague Convention on Child Abduction to order the return of the child[ren] to England and Wales '. Unless the subsisting application is already before the Family Division in London, similar steps promptly to transfer it there should be taken, and the case should be listed for directions before a judge of the Division as a matter of priority.
Annex
Outgoing EU/Hague applications refused by court abroad
(includes article 13 and other non-return orders) |
| Cases concluded during 2004 |
Number
of judicial refusals |
Cases concluded during
2005 |
Number of judicial refusals |
Cases concluded during
2006 |
Number of judicial refusals |
| 80 |
11 |
101 |
15 |
84 |
19 |
