M (Children) (Rev 1)

This is an appeal from an order made by Mr Justice Moylan (as he then was) on 11 May 2016. The proceedings concerned two girls, one of whom is now aged 12 and the other aged 13. The father is Estonian and lives in Estonia. The mother is British and has lived in England with the children since August 2013. The father obtained an interim contact order from the Estonian court in June 2015 and sought to enforce it in this country. Moylan J declared that the order was an enforceable order but made no order in respect of it because he found that it was incapable of practical enforcement in this country in its current terms. In essence, this was because the order provided for the father to have contact “in the presence of a third party being a competent child welfare authority of the UK” but there was no child welfare authority or child care professional willing to supervise the contact and Moylan J concluded that there was no order he could make to compel this.

In the course of this judgment, I will sometimes refer to “contact” and sometimes to “access”. There is nothing to differentiate between the two concepts, both of which are to be found in the materials to which I have reference. Similarly, at times I refer to the Estonian court’s decision as an “order” and at times as a “judgment”. In the domestic context, we would draw a rigid distinction between orders and judgments but in the international context, the distinction is not so clear and it is sometimes necessary to term a “judgment” that which the courts of this country would call an “order”.

The mother and father married in 2002. The mother already had two children from a previous relationship who are now in early adulthood. The family lived together in England until 2008, during which time the two girls to whom the present proceedings relate were born. They then moved to Estonia, where they lived together until August 2013, when the mother secretly brought all four children to England. The father applied under the 1980 Hague Convention for the return of the younger two children to Estonia. In response, the mother relied upon Article 13(b) of the Convention, asserting that she had been the victim of domestic violence perpetrated by the father and that he had sexually assaulted her eldest daughter (the allegations including rape) and had frequently physically assaulted her second child. Roderic Wood J, who heard the Hague application in July 2014, decided that having regard to the protective measures available in Estonia and the undertakings offered by the father, grave risk/intolerability under Article 13(b) was not established. However, he found that the children objected to being returned and declined to order their return.

Meanwhile, in Estonia, on 22 July 2014, the father had submitted an application for custody to the Estonian court. The proceedings involved a number of orders and appeals before, in June 2015, the Estonian County Court granted the interim contact order to which I have already referred and which is at the heart of this appeal. The material part of the order provided (as translated):

The Estonian County Court’s ruling, in which it gave reasons for the order, is available. The court there explained that its decision was guided by the interests of the children and that “In the best interests of [the children] is the securing of a stable living situation and communication with both parents.” It is not easy to make complete sense of the translated document but the court appears to acknowledge “the reluctance” of the children “who have not met with [the father] over a year and could be alienated from” him and to conclude that it would endanger the children’s interests if they were required to come to Estonia to spend time with the father “since it would be a sudden and radical intervention to the children’s current life situation and could create new uncommon situations for them.” It then went on to deal with restoring communication between the children and the father through indirect means before turning to direct contact (D45). Given the difficulty posed by attempting to read the ruling in translation, I will set out the whole paragraph although not all of it is material to the present issue:

Counsel for the father have provided us with the Estonian family law provision there referred to, which it seems is §143(3) of the Estonian Family Law Act, which reads:

After the making of the June 2015 interim contact order (hereafter simply “the interim contact order”), there were further proceedings in Estonia. In February 2016, the father made a separate application to the court for contact, which was dismissed by the Estonian court on the basis that the children were by now habitually resident in England. On 3 May 2016, the Estonian court dismissed an application by the mother for the variation or annulment of the interim contact order, which was specifically stated still to remain in force. As for the father’s original custody application, that had not been determined by the time of the hearing before Moylan J, the expectation being that it would be decided later in 2016. When the matter was before us, the position was that directions had been given concerning evidence in November 2016 and it was thought that there would be a final decision some time during 2017. We have not been informed of any developments since then.

I should explain that the Hague abduction proceedings were not the only proceedings that have taken place in England. The father was prosecuted for criminal offences, it seems relating to an alleged sexual assault upon the mother’s older daughter. The trial concluded in February 2014 with the jury unable to agree. The CPS decided not to proceed with the planned retrial and dropped all charges against the father in July 2014.

The father’s application for enforcement of the interim contact order was made under Council Regulation (EC) No 2201/2003 (“Brussels IIA” or “the Regulation”). Chapter III of the Regulation deals with recognition and enforcement. The Regulation is designed to provide for particularly straightforward enforcement of judgments granting rights of access, such as the interim contact order in this case. The material provisions are contained in Section 4 of Chapter III (comprising Articles 40 – 45), which applies by virtue of Article 40(1)(a).

Article 41 provides, so far as is material:

The present case falls within Article 41(1) because the father’s rights of access were “granted in an enforceable judgment” and he has an Annex III certificate from Estonia (see Article 41(2)). In accordance with Article 41(1), the interim custody order is to be recognised and enforceable in this country, as another Member State, without the need for a declaration of enforceability and without any possibility of opposing its recognition. The enforcing court is not free to interfere with the substance of the order. If the order is short on practical arrangements, Article 48(1) (set out below) entitles it to fill the gap, “provided the essential elements of [the] judgment are respected”, but changes of substance are for the courts of the Member State with jurisdiction, as is clear from the ring-fencing of the “essential elements” of the judgment, and as I think is underlined by Article 48(2) which provides for the practical arrangements to give way to any later judgment of the courts with primary jurisdiction.

If reinforcement is required as to the inviolability of the substance of the order, Article 26 provides it. It features in an earlier Section of Chapter III of the Regulation but indicates very clearly the thrust of the recognition and enforcement provisions, providing, uncompromisingly, as follows:

Section 6 of Chapter III of the Regulation contains additional provisions which are relevant in the present case. Article 47 deals with the enforcement procedure, providing:

The effect of the various provisions is, in essence, that the Estonian order is to be treated as if it were a judgment given by the domestic courts here and “enforced in the same conditions” as a domestic judgment with there being no interference with the substance of the decision. Moylan J observed quite rightly in his judgment (§37) that the easier part of his determination was to hold that the Estonian order was enforceable, given that it concerned rights of access, the requisite certificate from the Estonian court was in place, and there was no room for any argument that the order should not be recognised. There is no debate about that part of his decision. The difficult question was, as he said, whether the order was in practice enforceable or, putting it another way, whether our law provides any means of enforcing it. That is where the debate before us has focussed.

It might be convenient to note here that counsel for the father invited our attention not only to the body of Brussels IIA but also to certain of the recitals to it. These reflect the importance placed on maintaining access between parent and child, and record that an aim of the Regulation was to ensure that access orders were swiftly and easily enforceable. Prominent amongst the recitals referred to is recital (23) which reads:

The position at the hearing before Moylan J was that Children’s Services of the relevant English local authority had been asked whether they would supervise contact but, after carrying out an assessment, had concluded that it was neither safe nor in the children’s best interests for them to have contact, so declined to participate in supervision. Mr Khan, then representing the father without Mr Williams QC, who has been involved during the appeal only, sought orders directed against either the local authority or CAFCASS to compel them to provide supervision. He made various proposals in this regard, shortly summarised here together, with the judge’s responses:

An order against the local authority under section 17 of the Children Act 1989; Moylan J did not consider that the general duties imposed on local authorities by that section provided a route to making the order (§38 of the judgment).

An order under the inherent jurisdiction; Moylan J did not consider that he would be entitled to make the order under the inherent jurisdiction, but even if there were power to do so, he considered that it would not be appropriate to use it when the local authority had concluded that supervised contact was not safe or in the children’s best interests (§38 ibid).

An activity direction under section 11A of the Children Act 1989 with supervision by, say, CAFCASS; Moylan J did not consider that the section gave him any such power and identified as an obstacle, in any event, that section 11A(9) requires that in considering whether to make an activity direction, the child’s welfare be the court’s paramount consideration (§39 ibid).

Supervision by an independent social worker or contact at a contact centre providing supervision; Moylan J pointed out that, even if it was appropriate to go down that route, no independent social worker willing to supervise in the circumstances of the case had been identified, and nor had any contact centre (§§6 and 40 ibid).

A direction that the parties and children should attend the Anna Freud Centre for the purposes of an assessment or a report; this was the main thrust of Mr Khan’s submissions and was dealt with by Moylan J at greater length so I will deal with it further below.

The Anna Freud Centre proposal seems to have been something of a moving target, as the judge described in §§41-45 of his judgment. It began as an application for expert evidence to “assist with the most appropriate method of implementation” of the Estonian order but it transpired that the Centre would not be willing to accept such an instruction. The father therefore proposed that the Centre should undertake “a discrete piece of work solely limited to the issue of conducting a few introductory sessions with the children in order to get the children used to the idea of seeing their father in a supervised setting”, but whether the Centre would be willing to do that remained unknown.

Having rejected the argument that supervision by the local authority or CAFCASS could be ordered under the various provisions proposed by Mr Khan, Moylan J concluded that the Estonian order could not practically be enforced in its current terms. He therefore went on to consider whether it was for him to explore alternative forms of contact or whether it was for the Estonian court to undertake this or indeed to consider the issue of contact more generally. He decided that what he was being asked to do went beyond the sort of practical arrangements or enforcement procedures that were the proper province of the enforcing court and amounted to what was “effectively a welfare investigation for the purposes of determining what contact order should be made” (§51). He added:

The father submits that the judge should have concluded that Article 48 of the Regulation, taken together with Articles 41 and 47, required the court to “make it happen” and that the scope of Article 48 permitted an implementation or phasing-in process of the type proposed by the father. Indeed, counsel for the father submit that Moylan J had no choice but to enforce the order, relying if necessary on the inherent jurisdiction of the High Court, which is flexible and far-reaching and well suited, they submit, to the situation of a court seeking to enforce a foreign judgment in rather different circumstances to those which would arise in relation to a domestic order. They argue that the course that Moylan J in fact took was contrary to Article 26 of the Regulation because, by accepting the welfare assessments made by the local authority and the guardian as to the risks for the children that would flow from contact, he reviewed the substance of the Estonian order.

Mr Williams QC and Mr Khan support their arguments by emphasising the importance placed internationally on maintaining access between a parent and a child, to which end Brussels IIA aims to ensure that access orders are swiftly and easily enforceable. They invite attention to the recitals to the Regulation, the European Union Charter of Fundamental Rights, the United Nations Convention on the Rights of the Child, and Article 8 of the European Convention on Human Rights. They also invite attention to decisions of the CJEU which spell out the fundamental nature of a child’s right to maintain a personal relationship and direct contact with each parent and emphasise the special scheme in Brussels IIA for enforcement of access rights, see particularly Povse v Alpago C211/10/PPU, [2010] 2 FLR 1357 and Bohez v Wiertz (Case C-4/14)(EU:C:2015:563)[2016] 1 FLR 1159. Counsel submit that the interpretation of Brussels IIA must be purposive and must be carried out having in mind the importance of access and the best interests of the child. This should, in their submission, drive the court to a broad rather than a narrow interpretation of the enforcement provisions in the present case.

Two High Court decisions feature particularly in the argument about the court’s powers of enforcement. Both are called Re S. The first, a decision of Mr Justice Holman, is reported as Re S (Brussels II: Recognition: Best Interests of Child)(No 2)[2003] EWHC 2974 (Fam), [2004] 1 FLR 582 (hereafter “the Holman J decision”). The second, a decision of Mr Justice Roderic Wood, is reported as Re S (Brussels II Revised: Enforcement of Contact Order)[2008] 2 FLR 1358 (“the Wood J decision”). It is argued that in so far as Wood J took a more restrictive approach to the court’s role in enforcing a foreign order than Holman J, Holman J is to be preferred. From this, counsel for the father draw support for their argument that Moylan J’s approach, which they categorise as akin to Wood J’s approach, was wrong.

I do not think it is unfair to say that the presentation of the father’s case has evolved over time. I have recorded above at §16 the proposals advanced at the hearing before Moylan J. Counsel’s written submissions for the appeal were very much focused upon the use of the inherent jurisdiction as the means by which the English court could - indeed must – make an order requiring either the local authority, the guardian or an independent social worker to supervise contact. Oral submissions provided an opportunity expressly to abandon certain suggestions but also to expand upon others in addition to the inherent jurisdiction. It was made clear that it was no longer being argued that the court could make an order under section 17 of the Children Act 1989 requiring the local authority to provide supervision. Similarly, any suggestion that the court might directly require the guardian to supervise contact was abandoned, but the possibility of contact supervision being achieved by means of an order under section 11A-P of the Children Act 1989 was pursued. The proposal to involve the Anna Freud Centre was still pursued, but as a second string to the submission that the local authority could be directed to provide supervision. Because of the lack of clarity as to whether, as a matter of practicality, the Anna Freud Centre could provide relevant services in this particular case, the argument was that the judge should not have ruled the Centre out but adjourned to allow the possibility to be explored further. In the course of argument, the notion that, with some assistance from the inherent jurisdiction, a family assistance order under section 16 of the Children Act 1989 might provide a route by which to require local authority supervision was explored and gained sufficient momentum for us to require further written submissions on the point after the conclusion of the oral hearing.

In light of my own difficulty in keeping track of the possibilities that are actively being pursued by the father, it may be helpful to the reader to preface my consideration of the arguments with a list of the possibilities which it seems to me he has on his list:

An order under the inherent jurisdiction requiring the local authority or (possibly) an independent social worker to supervise the contact;

An activity direction under sections 11A-P of the Children Act 1989;

An order under section 16 of the Children Act 1989, assisted by the inherent jurisdiction;

A remittal of the proceedings for further exploration of the Anna Freud Centre option because Moylan J should have adjourned for further enquiries about this rather than rejecting it as a course which was not open to him.

It is quite clear from the terms of Articles 26, 47 and 48, and from the general scheme of Brussels IIA in relation to access judgments, that the domestic court is not entitled to vary the “essential elements” of the judgment it is requested to enforce. This would be an impermissible review of its substance. A sensible starting point may therefore be to identify the essential elements of the Estonian judgment.

I do not propose to define its essential elements exhaustively. It is enough to state that, to my mind, the provision for contact to be supervised by a “competent child welfare authority” was an essential element, albeit that that competent child welfare authority might assign someone to do the supervision. A local authority is obviously a “competent child welfare authority” and I do not think there is much debate between the parties about the proposition that CAFCASS is too. Someone assigned by either of those two bodies to do the supervision would come within the Estonian order, in my view. I do not, however, consider that the supervision element of the order would be respected if the court were, for example, to permit an independent social worker to be instructed directly by the parties or to entrust the supervision to the Anna Freud Centre, without the Centre being assigned to the task by the local authority or CAFCASS.

Mr Williams invites us to go behind the wording of the order itself and to work upon the basis that what the Estonian court was seeking to do by imposing supervision was to ease the process of reintroducing contact for the children, who are presently opposed to seeing the father. In that way, he seeks to widen the category of those who could legitimately carry out the supervision beyond what I might loosely call government agencies concerned with child welfare, by eliminating any need for the supervisor to protect the children from such risk as there might be thought to be to them were there to be any truth in the allegations that have been made against the father.

I readily recognise the need to be flexible in attempting to further the Brussels IIA scheme for simple and quick enforcement of access judgments, and acknowledge that this requires the enforcing court to be constructive in isolating the essential elements of the judgment in question as well as in considering how they may be worked out in practice. I also acknowledge that there is some support in the Estonian judgment for Mr Williams’ interpretation of the concerns of the Estonian court. However, where the order requires supervision by a government agency, I think the enforcing court should be very cautious about doing anything other than taking that requirement at face value. In this particular case, I would not be prepared to deviate from what was imposed, even in the name of attempting to make the Estonian order work.

I turn then to Article 47 (supra) which provides that the “judgment…shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State”. I think it is uncontroversial that that is an instruction to the enforcing court to proceed to enforcement as if the order had been one of its own welfare orders. However, I do not read it as circumventing the domestic law of the enforcing court as to the available means of enforcement. In so far as the father is submitting that the duty of the enforcing court is to enforce the foreign order willy nilly, finding a way by hook or by crook, or even inventing one if domestic law falls short, I cannot accept that. Enforcing the judgment “in the same conditions as if it had been delivered in” the enforcing state must, in my view, be read as importing the domestic law as to enforcement. That domestic law might need to be applied with a degree of flexibility so as to accommodate the slightly different concepts involved in the foreign order, but that does not mean that there can be a wholesale departure from it. The position is underlined, I think, where the order imposes an obligation upon a third party who was not a participant in, or consulted during, the foreign litigation, as was the case here with the local authority and CAFCASS. It is underlined further if the proposed means of enforcement would put a burden upon public resources for which provision has not been made in domestic legislation.

Accordingly, it is necessary to turn to the domestic law and to ask how the courts of England and Wales would enforce an order requiring supervision by a government agency. The short answer, in my view, is that they would not enforce it because, once one has reviewed the various legislative provisions and considered also the scope for the use of the inherent jurisdiction, it becomes clear that such an order cannot be made in this country. An application for enforcement would therefore founder because there would be a successful challenge to the substantive order imposing the requirement in the first place. If the courts here cannot require a government agency to supervise in a domestic order, they have no means to enforce a foreign order obliging a government agency to supervise, and the enforcement application, which operates “in the same conditions” as if the foreign judgment had been delivered here, would necessarily fail.

Before I go on to explain why I have reached the conclusion that there are no provisions in domestic law by which to oblige a government agency to supervise contact, it is worth pointing out that a conclusion that there is no practical means of enforcement will not normally strand the parent without a remedy. If the order is not capable of enforcement in its current form, there will be a court which can modify the terms of it. Here, the order is an interim one and the Estonian court appears to be seised of the proceedings still. There is a degree of uncertainty as to the precise position in Estonia but this might entitle the father to return to the Estonian court to ask for an order in a modified form which would be enforceable here. Alternatively, although it is difficult to know precisely what the position would be without having more information about the circumstances relevant to jurisdiction, the Estonian courts might now consider it appropriate for their jurisdiction to be transferred to the English court or new proceedings might even be possible here.

Finding a way in which to provide supervision for contact between a parent and a child has been a challenge over the years. I am not talking here about children who are in the local authority’s care, or in relation to whom a supervision order is made; the local authority will have a role in relation to those children under Part III of the Children Act 1989 which may include supervising contact with their parents. It is in relation to children who are the subject of private law proceedings that the difficulty arises. It is a reflection of that difficulty that the National Association of Child Contact Centres, founded in 1991 and now an established charity, exists and plays an important role in the provision of supported and supervised contact centres.

The local authority would be an obvious place to start when looking for supervision and if they are willing to provide it, all well and good. But the local authority in this case is not willing, and the question therefore is whether they can be ordered to do so. Mr Williams expressly disavowed any attempt to rely upon section 17 of the Children Act 1989 which sets out the local authority’s general duty to safeguard and promote the welfare of children in need and it was not argued that this is a case in which a care or supervision order could be made under section 31 of the Act. This approach reflects the realities as an argument based on section 17 or section 31 could not possibly have succeeded.

The logical next port of call is section 16 of the Act. This provides:

In so far as is relevant here, therefore, a family assistance order is an order requiring a CAFCASS officer or local authority officer to advise, assist and befriend a parent or parents and/or the child. By section 16(4A), the order may direct the officer to “give advice and assistance as regards establishing, improving and maintaining contact to” a person named in the order. The court may direct the officer to report to the court on such matters relating to a co-existing section 8 order as the court may require, including whether the section 8 order should be varied or discharged. PD12M of the Family Procedure Rules 2010 provides that where the court is considering making a family assistance order, it must first obtain the opinion of the appropriate officer about whether it would be in the best interests of the child in question for a family assistance order to be made and, if so, how the order could operate and for what period.

In Leeds City Council v C[1993] 1 FLR 269, Booth J considered the means by which supervision of contact could be ordered under the Children Act 1989. By the time the matter came before the judge, it was entirely academic, but she nevertheless ruled upon the various issues. The acting stipendiary magistrate, who turned out not to have had jurisdiction at all, had sought to achieve local authority supervision of contact by means of section 11(7)(d) which provides that a section 8 order may make such incidental, supplemental or consequential provision as the court thinks fit. That was held to have been impermissible because the section only allowed obligations to be imposed on the people referred to in section 11(7)(b), which did not include the local authority. Booth J took the view that supervision could be ordered, however, under section 16. She considered that making an officer available to assist with regard to contact must include the supervision of such contact (see page 273). It is noteworthy that the local authority had not argued against this; their complaint was that the order should not have been made under section 11(7)(b), not that the order should not have been made at all. The guardian ad litem, although supporting the use of section 11(7)(b), had also accepted that section 16 provided a means by which the court could direct supervision. The mother was represented at the hearing but is not recorded as having made any submissions on this point, which is perhaps not surprising given that it was irrelevant to her in view of the changed circumstances.

I accept the submission made by Ms Perrins and Mr Hinchliffe for the guardian that the key issue in the case was whether the appropriate gateway to the local authority’s services was section 11(7) or section 16. There appears not to have been any real argument about the propriety of making an order under section 16 requiring an unwilling local authority to supervise contact. In the circumstances, I do not find Booth J’s decision a compelling authority in favour of such a power existing.

In Re C (Family Assistance Order)[1996] 1 FLR 424, the court made a family assistance order directed to a local authority with the intention of establishing contact between a boy and his mother. The local authority came before the court to say that it did not have the resources to carry out the order. Johnson J said:

Again, this authority does not provide a great deal of help in determining the ambit of section 16 and, in particular, on the specific question of whether it contains a power to order a local authority to provide supervision.

In Re E (Family Assistance Order)[1999] 2 FLR 512, the mother had killed the father and was in a psychiatric unit, and the child was living with relatives. An order was made for the mother to have supervised contact five times a year, supervised and paid for by the local authority. The local authority provided these facilities, but then the child moved to a different local authority area and the second local authority applied to be discharged from their responsibilities under the order. The mother and the Official Solicitor sought a family assistance order. Bennett J held that the original order had been made without jurisdiction as the court had no power in private law proceedings to order a local authority to supervise contact. However, he held that the court could make a family assistance order requiring a local authority to advise, assist and befriend a child and made such an order against the second local authority. He said:

This case is interesting in that the judge spoke in what were essentially public law terms about the duty imposed upon the local authority by the order. Far from ordering them to pay for and supervise the contact, he expressly said that it was for them to consider whether that was to be part of the assistance they would give, although he did give his clear view that he did not see how they could reasonably exclude providing facilities for supervised contact. This does not amount, in my view, to a decision by Bennett J that section 16 empowers the court to require a local authority to provide contact supervision.

Counsel for the father refer us to more recent examples of family assistance orders in Re L and M[2014] EWHC 939 (Fam), ZM v AM (Stranded Spouse)[2014] EWHC 2110 (Fam) and T v S [2012] 1 FLR 230 but none involved supervision of contact.

I do not find in the three authorities that I have examined more fully any substantial support for section 16 as an instrument by means of which supervision by a local authority can be ordered. What is extraordinary, to my mind, is that there are not more examples in the case law of attempts to compel local authorities to supervise by this means. I doubt that this reflects, as Mr Williams suggests, that local authorities are generally amenable to supervising wherever asked to do so by the court; local authorities are unlikely, particularly in these days of scarce resources, to provide services unless they are obliged by law to do so. It seems to me more likely that it reflects a general acknowledgment of the limits of the court’s powers, although of course I may be wrong. Be that as it may, I do not consider that section 16 empowers the courts to require contact supervision by local authorities. The general advising, assisting and befriending which is referred to in the section does not obviously translate into “supervising”. Even when one takes into account the provisions of section 16(4A), to the effect that the court may now direct the officer to give such advice and assistance as regards establishing, improving and maintaining contact as may be specified in the order, I do not consider that the words should be interpreted to include supervision. Perhaps I might have been more inclined to accept supervision as a form of assistance were it not for the need to consider section 16 as part of the whole scheme of the Children Act and to consider the ramifications for local authorities if they face a significant number of orders requiring them to supervise contact, even if only for 12 months (the maximum period under section 16(5)). Supervising contact is likely to require resources in terms of accommodation and of personnel, both to be present during contact and probably also to write up notes of the session. Further resources would be consumed in reporting to the court, and possibly attending to give evidence. Generally speaking, under the Act, it is for local authorities to determine how to fulfil their duties to children in need and in respect of child protection. They have to take strategic decisions as to how to make their limited funds and staff stretch to cover all the demands upon them. It seems to me that counsel for the mother are right to submit that if it had been intended to place upon them the significant burden on carrying out contact supervision, at whatever frequency the court might order, that would have been spelled out expressly in the Act, which has been the subject of amendment on a number of occasions which would have provided the opportunity so to provide.

Sections 11A-P include provisions enabling the court to make an “activity direction” (section 11A) or “activity condition” (section 11C) The court may ask a CAFCASS officer to monitor compliance with an activity direction or condition and to report any failure to comply to the court (section 11G) or to monitor compliance with a contact order (section 11H). An activity direction is a direction requiring a party to the proceedings to take part in an activity that would in the court’s opinion help to establish, maintain or improve the involvement in the life of the child concerned of that party or another party (section 11A(3)). An activity condition is a condition to like effect made in the context of a child arrangements order (section 11C(3)).

The direction or condition specifies the activity and the person providing the activity (section 11A(4) and section 11C(4)). When considering making an activity direction, the court must have the child’s welfare as its paramount consideration (section 11A(9)). The court has also to satisfy itself about the appropriateness of the activity and of the suitability of the provider of the activity before making the direction/condition (section 11E).

The argument for the father is, as I understand it, that these provisions could be used to require CAFCASS to set up supervision of contact. I do not accept that is so. It is the individuals involved in the child’s life who are the primary target of the provisions of section 11A-P; they can be required to participate in activities. In so far as the provisions impose obligations on CAFCASS, those obligations are as to monitoring and reporting. Otherwise, the role of CAFCASS is as outlined in Guidance to CAFCASS practitioners on their roles in supporting the courts in their use of s11A-P provisions. On behalf of the guardian, it is submitted that essentially what CAFCASS does is to provide the referral route so that the parties can take part in activities; I accept this. Furthermore, the activities in question are not activities like supervised contact. A flavour of them can be gleaned from section 11A(5) which says that they include, in particular, programmes, classes and counselling or guidance sessions, and sessions in which information or advice is given as regards making or operating arrangements for involvement in the child’s life, including making arrangements by means of mediation. In short, there is nothing in the sections that would entitle the court to oblige CAFCASS (or indeed a local authority) either to provide supervised contact or itself to supervise contact.

Mr Williams and Mr Khan argue that the inherent jurisdiction can be used to require supervision to be provided. They acknowledge that the inherent jurisdiction must not be used in a way which would cut across a statutory scheme, but submit that its use in this case would be permissible, being an appropriate supplementing of statutory provisions. They cite examples of the courts drawing upon the inherent jurisdiction to supplement statutory schemes, including in relation to child welfare, but no case in which a local authority has been ordered to supervise contact. That, it seems to me, is revealing given the difficulties in obtaining supervision for contact sessions. The situation which faced Baker J in Health Service Executive of Ireland v Z [2016] EWHC 784 (Fam)[2016] Fam 375, a case which features in argument, was a very different one. He took action under the inherent jurisdiction to protect the safety and welfare of an anorexic girl who needed to receive life sustaining treatment in a specialist unit in this country. There was an urgent need for recognition and enforcement of an order made by an Irish court, pending completion of the normal registration process.

The father places reliance also upon In re A(Children)(Abduction: Interim Powers) [2010] EWCA Civ 586. This case did not, in fact, involve the use of the inherent jurisdiction but rather an exercise of statutory construction and I do not think it is of great assistance in relation to the present problem, but I will deal with it specifically as counsel put some weight on it. It was an abduction case in which the question was whether, under section 5 of the Child Abduction and Custody Act 1985, the court could require a local authority to accommodate a mother and the children she was alleged to have abducted, pending the final hearing of the father’s 1980 Hague application. Section 5 provides that where a Hague application is pending, the court may give such interim directions as it thinks fit for the purposes of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application. It was interpreted as wide enough to permit the court to direct the local authority to provide the accommodation. Mr Williams and Mr Khan argue that there is no distinction between the wide interpretation of a statutory power which is not targeted at the local authority and the use of the inherent jurisdiction to oblige the local authority to act as they seek here, but I do not accept that there is much more than a passing resemblance between the two situations.

The scheme of the Children Act is tightly drawn and great care has to be taken not to introduce the inherent jurisdiction into the picture in a way which would undermine or run counter to its design. There was room within the Act for provisions which would expressly have empowered the courts to order local authorities to supervise contact in private law cases but, according to my analysis of the Act, such provisions were not included either in the original Act or as part of the subsequent amendments to it. This is so even though an overhaul of the contact provisions occurred, resulting amongst other things in the inclusion of section 11A-P. I am driven to conclude that this omission was by design rather than accident. Particularly given the carefully regulated relations between the courts and local authorities/CAFCASS, each with their clearly defined province, I find it impossible to contemplate introducing, by the route of the inherent jurisdiction, what might prove to be a significant additional obligation on these child welfare agencies.

I have left until last the question of the Anna Freud Centre and the option of an independent social worker supervising contact. It would have been possible in a domestic case to leave room for these options to be explored further and for the Centre to be instructed to assess or invited to provide other assistance, or for an independent social worker involved in the equation. The problem in relation to these possibilities is a rather different one: taking this road would, in my view, involve the court stepping outside the role allocated to it by the Regulation as the enforcing court and stepping into the welfare arena. I will turn to this again shortly.

I need now to look again at the nature of task entrusted to the enforcing court by the Regulation and to consider the two Re S decisions and other authorities touching on the interpretation of the enforcement provisions.

I will look at the several authorities touching on the interpretation of the enforcement provisions in Brussels IIA in chronological order. The first two deal with provisions which preceded Brussels IIA but are nonetheless of relevance. The first of the two concerns the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (“the European Convention”) and the second, the Holman J decision, concerns Brussels II (the precursor to Brussels IIA).

In In re G (Children)(Foreign Contact Order: Enforcement)[2003] EWCA Civ 1607, [2004] 1 WLR 521, a father sought to enforce a French order for staying contact pursuant to the European Convention. Wall J ordered that the father should initially have only supervised visiting contact. It transpired on the subsequent appeal to the Court of Appeal that matters were in fact governed by Brussels II, making the father’s application for enforcement under the Convention a nullity. Furthermore, the English court had become free to assume substantive jurisdiction anyway, the French court’s exclusive jurisdiction in relation to parental responsibility having come to an end. However, despite this unexpected turn of events, the Court of Appeal considered the provisions of certain articles of the Convention which bear some resemblance to the enforcement provisions in Brussels II and Brussels IIA. The articles in question were:

Thorpe LJ said, at §25, that at first blush the contrast between the French order and Wall J’s order was “so extreme as to demand classification as a substantial review”. How, he asked, could an order for at most three brief meetings in London, probably all assessed by the CAFCASS officer, be said to be the implementation of an order for the children to spend half their summer holidays in Italy? However, he went on to conclude that Wall J’s ultimate objective in making the order that he did was clear, namely to bring about what the French court wanted to achieve but to do it in a way that would benefit the children and restore the father’s relationship with them or, putting it another way, to bring about full implementation of the order but in a gradual way. His order was therefore permissible, being an exercise of his discretion under Article 11(2) and not a review of the substance of the foreign court’s order contrary to Article 9(3). Thorpe LJ commented at §27 on the need to construe Article 11(2) liberally, saying:

In this case, the Belgian court made an order granting a father regular staying contact in Belgium for periods of up to a fortnight. The father applied to the English court for the recognition and enforcement of the order under Brussels II. The mother, with whom the child lived in England, opposed his application on the basis that the contact regime was contrary to the best interests of the child, now 2 years old. He had been less than a year old at the time of the separation, had never been apart from the mother and had only ever had visiting contact with the father, in her presence, roughly once every 2 months.

It is necessary to note that the provisions relating to the enforcement of access orders were materially different under Brussels II from those in Brussels IIA which introduced a simplified scheme for their enforcement. Under Brussels II, access orders were simply one species of judgment on the exercise of parental responsibility and, as can be seen from Article 21 (ibid), the first step towards enforcement of such a judgment was an application for it to be declared enforceable and recognition of the order could be opposed. In contrast, as Article 41(1) of Brussels IIA (supra) makes clear, there is no preliminary recognition stage and, if the judgment has been certified in the Member State of origin, it is automatically recognised and enforceable.

In Re S, Holman J granted recognition of the order and it is his subsequent judgment in relation to enforcement which matters for present purposes. I will set out below the articles of Brussels II with which he was particularly concerned, pointing up the similarities and differences between them and the Brussels IIA provisions. First, Article 21:

Article 23 of Brussels II was headed “Procedure for enforcement” and Article 23(1) provided:

Article 24 was headed “Decision of the court”. Article 24(2) provided:

Article 24(3) provided:

At §12 of his judgment, Holman J came to consider the question which is also at the heart of the present appeal. It is worth quoting the paragraph in full:

Having expressed the view, in §13, that in a purely domestic case, the welfare of the child must be paramount, even in the enforcement process, and pointed out that in that situation the court would have a power to vary the original order, Holman J went on:

The judge then went on to decide, by way of enforcement of the Belgian order, that it would be a grave mistake to proceed immediately to the one week stay which the Belgian order provided would take place imminently, over the Christmas holiday, noting that this was not actually something the father himself sought (see §16 of the judgment). Holman J was equally not prepared to order that the stay for which the Belgian order provided in February should take place. But he set up a modified programme of stays thereafter leading to the order being followed to the letter from the end of August onwards.

A father applied under Brussels IIA for the enforcement of a Polish contact order which provided for him to have staying contact every other weekend and during the school holidays. By the time of the proceedings before Wood J, the English court had jurisdiction by virtue of Article 8 of Brussels IIA and litigation to vary or discharge aspects of the Polish order was to take place in England. That, I think, was the context in which he declined to enforce the Polish order, having taken the view that the child’s circumstances required a completely fresh approach and assessment of her welfare, and it is important also to note comments he made subsequently upon the case in his later decision in LAB v KB (Abduction: Brussels II Revised) [2009] EWHC 2243, [2010] 2 FLR 1664 (see below). Wood J had received submissions from Mr Harrison of counsel on behalf of the father that he should enforce the Polish order and that there was very little room for doing anything else in so doing. In the course of summarising those submissions, Wood J commented upon the ambit of Article 48. He said, at the end of §27 of his judgment, that:

He reverted to the Article in the following paragraph commenting:

At §45 he underlined his view of the limited scope of the Article as follows:

This case is mentioned briefly in the skeleton argument for the mother, but I am not sure that it takes the issue of the ambit of Article 48 a great deal further. It does show the English court making practical arrangements for organising the exercise of rights of access granted under a foreign order, here the order of a Spanish court. Munby J, as he then was, had made provision for a steady increase in contact when the father first sought to enforce his access rights then later, when the matter returned to court because of further problems, Mr Jonathan Baker QC, as he then was, again exercised the powers under Article 48 to make practical arrangements for organising access in the short term, whilst the father’s enforcement application was adjourned so that the Spanish court could be requested to transfer jurisdiction in relation to parental responsibility to the English court.

This is the case in which Wood J commented upon his earlier decision in Re S, stressing that the course he had taken there was “wholly exceptional” and “entirely specific to [the] facts” and, indeed, went so far as to say that the case was so wholly exceptional that it “had fallen into the category of one of the grounds in Article 23 leading to non-enforcement on public policy grounds” (§36).

Counsel for the father rely upon Holman J’s concept of making the foreign order happen, phasing in the arrangements where necessary. Counsel for the mother argue that, even taking the Holman J approach, the court’s room for manoeuvre is narrow and there is nothing in the authorities to support the steps proposed by the father here. For my part, although it has been educational to look at the earlier authorities, I am doubtful that ultimately they contribute greatly to the resolution of the issues in the instant case, not least because the situation that faced the court here was rather different from that in the Holman J decision and, indeed, in the earlier case of In re G(Children)(Foreign Contact Order: Enforcement) (supra), relating to the European Convention. Those cases involved phasing in contact at a rate slower than that contemplated by the foreign court, in order better to achieve full implementation of it; the present case involves deviating from one of the core elements of the foreign decision. Holman J’s decision is a salutary reminder not to be inflexible in attempting to enforce a foreign order, but I would certainly not draw from it any support for the proposition that the court is obliged to utilise the inherent jurisdiction to secure the supervision that would make the Estonian order happen, whatever the position in domestic law, or even for the argument that the Anna Freud Centre and independent social worker options should have been explored on the particular facts of the present case.

In my view, there is no alternative but to return to first principles and to be guided by the provisions of the Regulation and of the Estonian order, which is what I have attempted to do earlier in this judgment.

I have approached the question of the enforcement of the Estonian order having well in mind the importance of contact and the need to enforce foreign judgments in relation to it with the greatest possible expedition wherever feasible. To that end, it may be necessary to interpret the order without domestic blinkers, being sure to get to the essential elements of the foreign judgment and to consider ways in which they can be enforced. This can include making practical arrangements for the exercise of the rights of access as Article 48 makes clear. However, as I have already explained in the section commencing at §24 above, whilst the enforcing court has no role in relation to welfare because the decision in relation to the children’s best interests in respect of access has already been taken, I do not consider that Brussels IIA requires it to abandon its domestic law concerning enforcement. The present situation contrasts with the situation in which the only actors in the piece are the parents and the child, the parties to the foreign litigation. Here, leaving the Anna Freud and independent social worker options to one side for a moment, enforcing the order would place obligations on the local authority/CAFCASS. In my view, that cannot be done unless there is power to do so under the domestic legislation and I have found that there is no such power under the Children Act and that the inherent jurisdiction cannot be used to order an authority to supervise contact.

It might be worth saying that, had I concluded that there was a power in the Children Act which could have been used in a domestic case but could not be used in a foreign case, as for example in relation to section 16 which empowers the court to make an order “in any family proceedings”, which might not include enforcement proceedings, that is the sort of situation in which I might well have been disposed to use the inherent jurisdiction to fill what I think might fairly be described as a lacuna. I think it would have been incumbent on the court to do so in furtherance of its duties in the Brussels IIA context, rather than to adhere slavishly to the terms of the section, which was almost certainly drafted without an eye to the possibility that there may be cases, coming from abroad, where the welfare decision had already been taken in foreign proceedings rather than in family proceedings here, and the proceedings before the English court were therefore for enforcement. But that is not this case because there are more fundamental reasons why the Children Act does not provide remedies here.

There being no domestic route to ordering the supervision by a government agency that the Estonian judgment required, and that I have found to be an essential element in that decision, it seems to me that Moylan J was right to reach the decision that he did. There was indeed no practical way to enforce the Estonian judgment. I have not forgotten the submission that, absent supervision by a government agency, it was incumbent on the judge to explore further the Anna Freud and independent social worker options. I do not think that it was, in fact, incumbent on him to take those possibilities further because they strayed too far from the essence of the Estonian judgment. The process which was contemplated was a different one. The Estonian court had decided that the way to get contact established was by supervised contact of the type it imposed. If that was not feasible, it was for the Estonian court to reconsider and decide whether it would be appropriate to involve an independent social worker, or an organisation such as the Anna Freud Centre to assist or to undertake a piece of work as described ultimately to Moylan J (see §17 supra).

In the circumstances, I would dismiss the appeal.

I agree.

I also agree.