LAB v KB (Abduction: Brussels II Revised)

These proceedings concern two children: T (born on 25th August 1998 and thus almost 11 years of age) and J (born on 31st December 1999 and thus approaching 9¾).

They are the subject of orders made in Family Proceedings in the Kingdom of Spain to which I shall make more detailed reference in due course, although it is necessary here to refer to only one of them. On 30th July 2007 the court of first instance in Torremolinos in Spain gave a judgment and made consequential orders governing issues of the divorce of the children's parents, what we would call residence, contact issues, and financial support.

By an originating summons issued in this country on 7th May 2009 the mother of the children, in whose favour the order for residence had been made, sought to register it pursuant to the provisions of Art 28(2) of the Council Regulation EC 2201/2003, commonly referred to as Brussels II Revised. I shall hereafter simply call it “the regulation”.

The senior district judge, the order having been certified in Spain on 2nd June 2008 pursuant to the provisions of Art 39 of the regulation, registered it as enforceable in this jurisdiction on 15th May 2009.

The father of the children, who had been living with them in this country for almost four years, sought, by application dated 18th June 2009, to have the order for enforcement stayed and to appeal against the registration/recognition of it. It is this appeal which is before me.

The mother, KB, was born on 21st April 1971. She is now aged 38. She was born in the country of Estonia. The father, LAB, was born on 4th February 1948 in England and is now 61 years of age. I believe from the papers, although there is not much information about it, that he may have been married before and had possibly one child, and possibly more than one child, by that marriage. There is a suggestion that such a child may be living in Spain. The parties met in Estonia in or about 1995 and began their relationship. The birth of T and J followed on the dates given above. Between the births of those two children, on 5th September 1998, the parties were married in the Register Office at Kidderminster in England. After the birth of those two children the parties moved to live in Spain. The marriage between the parents deteriorated and on the day when the mother was finally moving out of the family home and was taking chattels to the new accommodation, which she had prepared for herself and the children, the father, in her absence, wrongfully removed the children unilaterally from Spain to England. The date of that event was 24th September 2005. He accepts that this removal was without notice to the mother, and in breach of her rights to custody (as they would be called under the Hague Convention - I shall call that instrument “the Convention” simply for shorthand purposes.)

Three days later on 27th September 2005 the mother issued proceedings in the Spanish courts. On 6th and 9th February 2006 the court of first instance considered the matter on an interim basis, and, as an interim measure, allowed the children to remain in the care of their father in England pending further enquiries and a final hearing. On 30th July 2007 the court of first instance in Torremolinos made the orders to which I earlier referred. The father did not return the children to the care of the mother as required. There was a subsequent application to stay the order, but he was specifically ordered to return the children to their mother in Spain. The father continued and continues to be in contempt of those orders, I am told by his counsel that he was never served with the relevant order. Even if that is correct he knew, or must have known, of his obligations.

I have already referred to three dates, but it is necessary to set out in more detail a little of the history of those proceedings. Hearings took place, as earlier noted, on 6th February when there was preliminary examination of the mother's claim for residence. On 9th February there was the full inter-partes interim hearing concerning the father's claim for divorce, residence, contact and what we would call ancillary relief, both as between the spouses and in relation to the children. I have been supplied with a copy of the judgment of the Spanish court which I have read. It appears in the bundle. I invite attention by any other reader in particular to pages B98 and 99 of that bundle. As I have mentioned above, at that interim hearing the father was allowed to retain the children in England. On or about 23rd May 2006 the public prosecutor became a party to the proceedings concerning the children, and represented their interests in that litigation. On 4th January 2007 there was a further full inter-partes hearing concerning all matters. A court-appointed psychologist had been required to see the children and had done so. On the occasion of the interview with the children it appears that, certainly in respect of T and possibly in respect of J, the mother acted as their translator, although it is suggested that some of the interview may have been conducted in Spanish. If it was not the mother who acted as translator for J, it may have been her then partner, M. Subsequent to that hearing, all parties were allowed to file written submissions on all of the evidence filed and the oral evidence heard. The mother and the public prosecutor did so, the father did not. On 30th July the order the subject of the appeal was made. On 29th October of that same year, the father issued a notice of appeal against the judgment and orders of 30th July. On 2nd February 2008 the mother made application in Spain for the return of the children, which was ordered and again. On 21st May 2008 a further order was made for the return of the children to Spain. On 2nd June 2008 the order of 30th July was certified under the terms of the regulation. On 11th September 2008 the Spanish courts sent a certified copy of the order to the Kidderminster County Court. I regret to say they received no reply. Further enquiries were made by the Spanish court later that year on a date or dates unknown to me, and approaches were made to the British Liaison Judge in Madrid by the court in Torremolinos. Ultimately, this led to the order referred to above being registered. I have not referred to each and every aspect of the intermediate stages of this litigation, for to do so is unnecessary, but it gives the flavour of the timetable.

I have been supplied with and read a number of transcripts of the judgments from time to time of the Spanish courts. It is noteworthy, in my judgment, that, as can be gleaned from those Spanish judgments, the English and Spanish courts approach litigation concerning children in a way which corresponds with each other's principles and practice. Those correspondences include the principle that the welfare of the children the subject of the litigation is of the greatest significance, (here, we would say of paramount significance) and that their wishes and feelings, although not determinative, should be taken into account in deciding on arrangements for their future. So should their age, their needs, and the ability of their parents to meet those needs.

As to the ascertainment of the children's wishes and feelings, I have earlier described how they were elicited and that the public prosecutor, as party to the litigation, brought the material to the notice of the court. On 30th July the Spanish court said this of that material:

“In the report made by the psychologist of Torremolinos courts (sic) after interviewing the parents and children, considered especially relevant because of its impartiality, exhaustivity (sic) and objectivity and because its take (sic) into account children's wish, it is recommended to grant care and custody order to the mother.”

As is also clear from that judgment, the court, in hearing all of the oral evidence and considering the written material, paid considerable regard to the psychologist. The psychologist's interviews with the children were, as they note in their judgment (see pages C6-8 of the bundle), carried out as the psychologist deemed to be appropriate, with the minors and with their parents. They regarded the psychologist's evidence as “particularly relevant because of its impartiality, thoroughness and objectivity, and because it states the wishes and desires of the minors, is considered of interest, amongst other matters, to the resolution of the issues with which we are concerned.” That judgment went on to make certain observations about the father's physical care of the children, the way in which (as they found) the father had been controlling and not interested in encouraging communication between the children and the mother, and that he had used the minors as a means of pressurising the mother to return to him. Those findings were based, as I understand the judgment, particularly on the analysis of the psychologist. There was evidence, and indeed findings, to the effect that once he realised the reconciliation with the mother was not going to go ahead, he decided not to cooperate with her. He did not encourage contact and “there is evidence that he had been speaking ill of the mother and blaming her for the situation and separation”. They went on to recite other aspects of the psychologist's report to the effect that there is a strong emotional link between the mother and the children, as to her methods of raising them based on affection, communication and encouragement of independence, etc. They also noted the expressed wishes of the children. In respect of T it was suggested that she had not fully adapted to life in England and she was sad, and she can “be seen to be very worried about the family situation”. At that time J was clearly stating that his desire was to live in Spain with his mother. I do not set out in elaborate detail their findings on this material. Suffice it to say that in summary, as appears from the judgment C8, they found, consistent with the evidence of the psychologist, and on an examination of all of the material, that the position was indeed as the psychologist had reported, and for those reasons (and others which I need not recite) they transferred the residence of the children to their mother.

At no point so far had the father suggested that the children were now habitually resident in England. Nor, apparently, did he make any written submission in 2007 that the children's wishes and feelings had been misrepresented by their mother to the psychologist. Nor did he challenge the jurisdiction of the Spanish court. Indeed, he embraced it, though declining to obey their orders when he did not like the outcome.

On 5th November 2007, four months after the order granting residence to the mother, the father, as I earlier noted, filed a notice of appeal in so far as it related to evidence. For the full text of that notice see pages B93 et seq of the bundle. A substantial part of the notice is devoted to:

Unhappily, for reasons which are not explained, it took until 1st July 2009 for the appeal to be heard in Spain. When heard, it was dismissed. The judgment of the Appeal Court appears at C29 et seq of the bundle. Whilst not pretending to do justice to the discussion entertained by that court as therein set out, it seems to me that the crux of their reasoning appears at pages C34-36 where they make a number of observations which I summarise as follows:

So far it seems to me that these considerations mirror the relevant statutory provisions which operate in domestic proceedings in this country in relation to children as set out in the Children Act 1989 and in particular Section 1(1) and (3), commonly referred to as the “welfare principle” and the “welfare checklist”, and, in respect of (i) above mirrors the approach of our Court of Appeal.

The court went on to apply those principles to the facts of the case in analysing the judgment of the lower court, and in their summary they note factors in the evidence that the children have been found to be well cared for by their father, integrated into their schools, expressed (they found) a “fervent” wish to live in Spain with their mother, and that the father's failure to facilitate the mother and child contact, and his manipulation of the children, as part of his endeavour to win the mother back. In other words, they found no reason for overturning the findings of the lower court in respect of these matters.

In respect of the children's wishes and feelings they say this:

“The evidence in question clearly revealed the minors' fervent wish to live in Spain with their mother with whom they have a greater emotional tie than with the father. This despite the time that has elapsed since they were separated from their mother by the father who has in no way facilitated mother/child contact.”

Later, of the psychologist's report they say:

“Despite the objections which the appellant formulates in respect of the expert evidence furnished by the psychologist registered at the Family Court, there is no doubt that both procedural law as well as case law subjects such an evidential measure to the rules and fair criticism …” (sic)

Finally they say this:

“The objections formulated by the appellant cannot be taken into account because there is neither any evidence which invalidates the contents of the conclusions reached by the expert nor any indication that the children's mother, on interpreting for her daughter, by her express wishes [that means T's express wishes] has stated any falsehoods or exerted pressure of any kind on the child who was able to express herself completely freely, and if she had any reservations these were not due to the presence of her mother as translator but more of a defence mechanism of the minor since it causes T anxiety to choose between her parents. This is no doubt due to the family and personal situation experienced by the minor because of the breakdown of her parents' relationship. The evidence in question is of undoubted evidential value and possesses full guarantees of objectivity …” (see pages C35/36 of the bundle).

It is suggested also, from passages which follow later at page C36, that the children may well have been speaking Spanish although, as I shall later record, the children now cast some doubt on this proposition.

Before going further, let me touch on proceedings in this country. It would appear that in January 2006, and then a few days later in February 2006, the father brought proceedings respectively for Children Act relief and divorce in the Worcester County Court. It is thought that he has now withdrawn both. Indeed, he gave undertakings to Sir Mark Potter in the course of litigation to which I shall, in a moment, refer that he would indeed withdraw those proceedings.

Through the central authority of Spain the mother sought relief under what I have (for shorthand purposes) called the Hague Convention, which proceedings came before Sir Mark Potter in May and then for judgment in June 2006. For reasons I need not advert to, but which I have read in a copy of that judgment, being published under the heading of Re T and J (Abduction)(Recognition of Foreign Judgment) [2006] 2FLR 1290, those proceedings for summary return of the two children to Spain were dismissed.

The proceedings before me by way of appeal have led to a directions hearing before Pauffley J. at which, for reasons I shall explain below, the father requested that CAFCASS prepare a report on the children, particularly in relation to their wishes and feelings as to where they want to live, although not exclusively devoted to that subject. That application was refused, but liberty was given to renew it, as it has been, before me. There were other standard directions of no particular note.

I need only refer to one other set of proceedings which were issued by the father towards the end of July 2009. They were issued in Spain following the failure of his appeal against the order of 30th July 2007. Once again it seems to me, this issuing of proceedings in Spain implicitly recognises that the habitual residence of the children remains Spain and that Spain is the appropriate jurisdiction in which to litigate, although I shall make a further comment about that in due course. In those proceedings he has applied to vary the order of 30th July 2007 to bring about the continued residence of the children with him in this country.

For the first time, in the skeleton argument prepared on his behalf by Miss Lorna Meyer QC and Mr. Bradley, it was submitted (the date of that document being 19th August) that I should request the courts in Spain to transfer those Spanish proceedings to this country pursuant to the provisions of Art 15 of the regulation, perhaps on the basis that England is the country of birth of the children, they hold English nationality, and that he, as a holder of parental responsibility for each of them, resides here. Nowhere in the bundle of papers relevant to proceedings in either country has it been suggested, as far as I know, that the children are habitually resident here.

It is necessary, in order to make sense of the arguments put forward by the mother and the father, that I should set out some aspects of the regulation with, at this stage, limited comments upon some of the points raised in these extracts.

Miss Meyer draws my attention, from the preamble to the regulation, to paragraph 19, which I set out in full:

“The hearing of the child plays an important role in the application of this regulation, although this instrument is not intended to modify normal procedures applicable.”

Miss Meyer says that the children's voice should be heard throughout these proceedings, including, crucially here, the recognition and, separately from that, the enforcement stage if the latter becomes relevant. It is thus necessary to order, she says, a CAFCASS report with specific reference, but not exclusive reference, to the wishes and feelings of the children now, two years having passed since the making of the operative residence order in Spain before I refuse the appeal, if indeed I do refuse it, and/or if I refuse it in relation to registration, before ordering enforcement.

I turn next to Art 23 of the regulation and set out only limited passages from it.

“Grounds of non-recognition for judgments relating to parental responsibility. A judgment relating to parental responsibility shall not be recognised: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child; (b) if it was given, except in cases of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedures of the Member State in which recognition is sought; (e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought; (f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State … provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.”

Art 26 has the title “Non-review as to substance” and reads as follows: “Under no circumstances may a judgment be reviewed as to its substance.” In other words, I should not be examining the Spanish rulings as to their substance and substituting my own views.

Art 27 Stay of Proceedings: “A court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against judgment has been lodged.” It seems to me that the relevance of this Article has, in this case, now disappeared, given the failure of the father's appeal in Spain.

Section 2 of the regulation relates to issues of enforcement. Article 28 reads, as required, as follows:

“(1)

A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable.

(2)

However, in the United Kingdom such a judgment shall be enforced in England and Wales, in Scotland or in Northern Ireland only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.”

Art 31 reads:

“(1)

The court applied to shall give its decision without delay. Neither the person against whom enforcement is sought nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application.

“(2)

The application may be refused only for one of the reasons specified in Arts 22, 23 and 24.

“(3)

Under no circumstance may a judgment be reviewed as to its substance.”

This latter point repeats the injunction contained in Art 26 which was relevant to the consideration of recognition. Thus, it appears from this last passage of Art 31 that I must consider this issue afresh in the sense of not seeking to review substance of the foreign court's judgment and avoiding that trap.

Article 47(1):

“The enforcement procedure is governed by the law of the Member State of enforcement.

(2)

Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Art 41(1) or Art 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to Art 41(1) or 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.”

That too is a repetition of a consideration which is relevant to the issue of recognition.

She says this:

“The father therefore seeks: (1) adjournment of the appeal/enforcement process pending the preparation of the report directed to the welfare implications of immediate enforcement and the current wishes and feelings of the children and pending a decision in the Spanish court on the issue of jurisdiction/Art 15 transfer. Alternatively, (2) an order for non-recognition of the order of 30th July 2007. Alternatively, (3) an order for non- enforcement of the order of 30th July 2007.”

The heart of Miss Meyer's submission lies in the wording of Art 23(a) and (b) set out above at paragraph 24 of this judgment. Her arguments may be crudely summarised in this way.

In Re S (Brussels II Recognition – Best Interests of Children) No 1 [2004] 1 FLR 571 Holman J. in considering the regulation's predecessor, known colloquially as Brussels II, and in connection with issues relating to contact, said this when referring, as I understand it to what is now Art 23 in the regulation I am considering:

“[32] The Article does not refer simply to recognition being contrary to the best interests of the child. It refers, rather, to recognition being contrary to public policy, taking into account the best interests of the child. Merely to reconsider the best interests of the child would be to review the Belgian judgment (which is clearly welfare based) as to its substance, which is forbidden …. I have to take into account the best interests of M, but ultimately to consider whether recognition is manifestly contrary to English public policy. To say that something is contrary to public policy is a high hurdle, to which the Article adds the word 'manifestly'. This is an international convention and I must apply it purposively, giving appropriate weight to the word manifestly. Indeed, the judgment of the European Court in the case of Krombach v Bamberski [2001] 3 WLR 488, … although given in a very different context, affords some guidance. At para [21] the court said in relation to a similar provision of a similar convention, although not employing the added qualification of 'manifestly':

'… the court has held that this provision must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of the Convention … With regard, more specifically, to recourse to the public policy clause … the court has made it clear that such recourse is to be had only in exceptional cases …'

“[33] I accept the submission of Mr Everall that it is possible to contemplate a situation in which an order of a foreign court is so strongly contrary to the welfare of the child concerned that it would be possible to conclude that its recognition was manifestly contrary to the public policy of our State …”

“[36] As I have already made plain during the course of argument, it seems to me that Brussels II draws a clear distinction between recognition and registration on the one hand and enforcement on the other hand. I am conscious that Art 21(1) [now Art 28 of the regulation I am considering] is in mandatory terms in that it provides that a judgment on the exercise of parental responsibility 'shall be enforced in another Member State', when it has been declared enforceable there; and that the process of registration amounts within the UK to declaring the judgment enforceable. Nevertheless, all issues of enforcement are for another day, and, provisionally, it seems to me that the English court, as the enforcing court, will have similar discretions as to the extent to which and terms upon which it enforces the order, as it would have when deciding how far to go in actual enforcement of an order of its own.”

I find these passages, if I may respectfully say so, persuasive, subject to one matter appearing in paragraph 33 of this judgment, in the course of which, as I shall relate, Holman J. retreats in part of his commentary from the position contained in paragraph 36 above set out. Further, I would venture the comment that whilst Holman J. accepted that there might be circumstances where the “order of a foreign court is so strongly contrary to the welfare of the child that its recognition was manifestly contrary to the public policy of our state” I consider that such cases would be extremely rare, and that the consequences for the children of recognition and enforcement, though these are separate stages from each other, would have to be of the utmost seriousness. I do not consider it necessary, appropriate or wise to attempt to give examples.

In Re S (Brussels II: Recognition: Best Interests of Child) (No 2) [2004] 1 FLR 582 Holman J. further considered, in the course of examining the same case as above reported, issues of enforcement. In paragraph 9 he says this:

“Article 21 [I believe that to be Art 28 of the regulation I am considering] is unqualified and employs the word 'shall': 'shall be enforced'. Article 24(3) [the current equivalent in the regulation I am considering being Art 31(3)] repeats, specifically in relation to the enforcement stage, that 'under no circumstances may a judgment be reviewed as to its substance'. So that embargo is as emphatic in relation to enforcement as to recognition. [I have made the same point already when setting out the relevant provisions of the regulation I am construing.] Article 24(2) [that is Art 31(2) of the regulation I am considering] imports into the enforcement stage the 'reasons' in Arts 15, 16 and 17. [that is now Arts 22, 23 and 24] Note, however, that whereas Art 15 employs imperative language ('shall not be recognised'), Art 24(2) is permissive: 'may be refused', although refusal may only be for one of the reasons specified in the stated Articles. It is, however, significant that reference to the Art 15 reasons is repeated in Art 24. The whole of section 2, Enforcement, only comes into operation when a judgment has been already recognised/registered and, accordingly, that it has been concluded that none of the Art 15(2) reasons apply. So the fact that Art 24(2) imports again the Art 15(2) reasons into the enforcement stage must indicate that a decision in relation to those reasons at the recognition/registration stage is not conclusive for the enforcement stage. Paragraphs (b), (c) and (d) of Art 15(2) all relate to past events and, essentially, to matters of fact and it is difficult to see how the reasons in those paragraphs could fall for reconsideration. Clearly, however, the facts under paras (e) and (f), which refer to a later judgment, could change if such a later judgment was given; and it seems to me at least possible that facts could change between the recognition/registration and enforcement stages such that enforcement would be manifestly contrary to public policy even though recognition/registration was not.

“[10] Article 23 [current Art 30] is, in my view, strictly procedural … I agree that the Article clearly requires that procedure be governed by the law of the State in which enforcement is sought, but I cannot accept that Art 23 imports also the 'principles' of that State. To do so would be, in effect, to undermine the whole thrust and purpose of Brussels II and to substitute at the enforcement stage local 'principles' for the principles and decision of the State of origin. It would infringe the embargo in Art 24(3) against review as to substance, and would substitute local 'principles' as a reason for non- enforcement for the much more stringent reasons under Art 15.

“[11] Finally, I comment briefly on Art 29, [Art 36 in the instrument I am considering] partial enforcement … where the applicant has requested enforcement of the whole, the scope of Art 29(1) is strictly limited. It applies where enforcement 'cannot' be authorised for all of the matters. Its effect is, in my view, to relieve a court from seeking to enforce that which is impossible, …

“[12] What, however, does 'enforce' and enforcement' mean in the context of section 2 and Brussels II as a whole? It does not, in my view, carry the narrow meaning of 'apply sanctions', rather it means to give force or effect to the underlying judgment or, in plain language, to make it happen.”

In the next paragraph of his judgment Holman J. says this:

“[13] Applying these considerations to section 2, Enforcement, I now consider that I expressed myself too widely in para [36] of Re S (Brussels II: Recognition: Best Interests of Child) (No 1) [2003] EWHC 2115 (Fam), [2004] 1 FLR 571 where I said that 'provisionally, it seems to me that the English court, as the enforcing court, will have similar discretions as to the extent to which and terms upon which it enforces the order, as it would have when deciding how far to go in actual enforcement of an order of its own'. When the court enforces an order of its own, one of the powers it may exercise, actually or implicitly, is the power to vary. That power is not available when enforcing under Brussels II. Further, within a purely domestic case the welfare of the child must be paramount even in the enforcement process, although consideration of obedience to court orders is important too.

“[14] Under section 2, Enforcement, of Brussels II, however, the duty of, and discretion in, the court are different. Under Art 21 there is an overriding duty to enforce. There can be no review as to substance and only limited discretion under Art 24(2). There is no variation power. The duty is to make the foreign judgment happen and there is only such discretion as fulfilment of that duty requires. … The position of the child, and of the adults, and the well-being of the child are all relevant. … But welfare is not paramount or even the primary consideration.”

I find once again, if I may respectfully say so, these arguments to be persuasive.

Of relevance to the father's position in this case are the observations of Singer J. in the case of W v. W (Foreign Custody Order: Enforcement) [2005] EWHC 1811 Fam. In that case in the course of a lengthy paragraph numbered 40 I select only this extract:

“A high onus rests upon a parent who seeks to reopen welfare issues which, normally, would have been relatively recently the subject of investigation and decision in the courts of the country where the order was made, and to avoid that outcome as a matter of policy 'under no circumstances may a judgment be reviewed as to its substance'. The importation of these Regulations into English domestic law has the effect, as it seems to me, that our own public policy must enshrine and give credit to the concept that the child's interests (as the judge in the court of recognition and enforcement may perceive them) are but an element in the equation, and thus that the policy must be save in the most exceptional of circumstances not to allow the foreign judgment to be subverted.”

In paragraph 50 of the same case, in the context of considering enforcement of a foreign order relating to contact under the European Convention, if I may so call it for shorthand, he said (again only extracting one small passage from the relevant paragraph):

“The use of the word 'manifestly' connotes a very high degree of disparity between the order's effects if now enforced and the child's current welfare interests, and that disparity must be wrought by the changed circumstances. Whether or not such manifest disparity exists is to be tested against the immediate enforcement of the order, without delay, review or alteration.”

I find these comments also to be persuasive, and in so finding I do not fail to remind myself that Singer J. was referring to the majority of the cases where “normally” they would have been decided “relatively recently”. I note further that Singer J. does not, however, restrict the nature of his observations solely to that category of cases normally recently decided. Further, I note and agree with his comment that it would only be in the most exceptional circumstances that the policy of the regulation would be allowed to be subverted by non-recognition and/or non-enforcement.

In the case of Re D (Brussels II Revised: Contact) [2008] 1 FLR 516 the headnote to the decision of Black J. in that case, under the subheading “Per Curiam”, reads as follows:

“In enforcement proceedings the English court could not defeat the purpose of the European court order on the basis of 'welfare considerations', even if welfare considerations were paramount in certain proceedings which was not at all certain. New welfare issues could be dealt with in proceedings in the European court that had made the earlier order.”

In the body of her judgment this proposition is set out in the following way:

“[53] Mr. Nicholls argues that the court considering enforcement could and should approach the question of enforcement with the welfare of the child as its paramount consideration. He submits that were this not the case there would be no process by which to deal with issues such as passage of time, changed circumstances, and wishes and feelings of the child, given that these matters cannot enter into the question of registration.

“[54] The first point to make in relation to this submission is that it is incorrect to say that a welfare-based enforcement process in the UK is the only way in which to deal with issues such as the passage of time and change in circumstances. As this case shows, proceedings in the court which made the order by way of an appeal or an application to vary provides an alternative and one which, in my view, is a great deal more consistent with the provisions of the regulation.

“[57] I am far from convinced that welfare is necessarily paramount in enforcement proceedings in England and Wales. If it is not, Mr. Nicholls' argument falls away on that basis. Even if it is, I am far from convinced that the phrase to which he draws attention is to be construed in such a way as to enable the English court to defeat the purpose of the European court order on the basis of 'welfare considerations'. If that were to be the case it would run completely contrary to the very clear statements in the regulations that the substance of the foreign judgment must not be reviewed, and to the purpose, as I understand it, of the regulation.”

I again find those observations of my sister, Black J., persuasive, although for my part I respectfully go a little further than her when, in paragraph 57, she appears possibly to have held the door open to future arguments that welfare is necessarily paramount in enforcement proceedings by using the expression “I am far from convinced”. For my part, I do not regard welfare as paramount in enforcement proceedings for the reasons which appear on the face of the regulation itself, and which I have set out above.

In Re S (Brussels II Revised: Enforcement of Contact Orders) [2008] 2 FLR 1358 I was considering issues of recognition and enforcement under the regulation of a Polish court order in circumstances vastly different from those operating in the case I am now considering. Without going into elaborate detail, the differences between the two may be illustrated by just one reference to the order that was there being sought to be enforced, I having decided that it should be registered. It was a consent order made by a Polish court on the basis of what they were told was the full consent of the mother and the father to the arrangements therein proved by that court. In fact, the mother was entertaining a grotesque fraud on the father and the court and was only ostensibly consenting to the order decree-ing, amongst other things, extensive contact between father and daughter on the basis that it would give her opportunity, which she quickly availed herself of, of fleeing the country with the child and disappearing for as long as she could. I shall, despite the factual differences, nevertheless take the liberty of citing a brief passage from it to illustrate the all too obvious point that there may come a time when an order of a member state is so stale (Miss Meyer's submission here) that, coupled with a variety of other powerful factors, a court would have to take a view in the light of welfare considerations as to whether or not that order should be recognised and/or enforced. Yet such a court would, in my judgment, remain powerfully constrained in so considering such an order by the necessary consideration of those matters set out in Art 23 of the regulation, and would not readily or easily depart from the underlying principles of the regulation. In that case I said, amongst other things, this:

“29 Mr. Harrison argued that the Art 23 grounds for non-recognition are not made out in this case. He quite rightly points to the test applicable to that regulation or any of its provisions and submits, again rightly in my judgment, that the test is a very high one … Mr. Harrison also warns me that I should eschew the temptation to be drawn into welfare consideration too far to 'as to allow them in any sense to drive my approach to the application of the escape route provision'.”

At paragraph 38 I said this:

“Mr. Harrison declined to answer the point I raised in argument, namely that if he is correct and I am bound to enforce the Polish order whatever has occurred since it was made, unless of course an Art 23 issue is found to be in play, is the Polish order to be regarded as immutable during the minority of the child? He agrees with me that that clearly cannot be so, for to so assert would mean that an order made when a child is but an infant or of tender years would or might be wholly inappropriate to a teenager and becomes a 'straitjacket', but he declines to grapple with the underlying point behind this area of the debate, namely when does the court assume powers to vary or discharge an earlier order?” I add, made by another member state.

I fear that in that case it seems to me, on re-reading my judgment, it was not made sufficiently clear by me that the course I adopted, namely recognising the Polish order but declining to enforce it, was a wholly exceptional course to take in proceedings under the regulation and was, in that instance, entirely specific to its facts. It also seems to me, and perhaps I was in error in one of the passages I have read out is not emphasising that because it was so wholly exceptional a case it had fallen into the category of one of the grounds in Art 23 leading to non-enforcement on public policy grounds.

Although the context is again vastly different, and the Judicial Committee of the House of Lords was considering the provisions of the Hague Convention rather than the regulation, I shall quote two paragraphs of the opinion of Baroness Hale of Richmond in the case of Re M (Abduction: Zimbabwe) [2008] 1 FLR 251.

“43 … In cases where discretion arises from the terms of the Convention itself it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy alongside the circumstances which give the court the discretion in the first place and the wider considerations of the child's rights and welfare. I would therefore respectfully agree with Thorpe LJ in the passage quoted in paragraph 32 above, save for the word 'overriding', if it is suggested the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

“44 The Convention itself defined when a child must be returned and when he need not be. Thereafter, the weight to be given to Convention considerations and to the interests of the child could vary enormously. The extent to which it would be appropriate to investigate welfare considerations will also vary, but the further away one gets from the speedy return envisaged by the Convention the less weighty those general Convention considerations must be.”

I warn myself that in considering those passages the structure of the Hague Convention is significantly different from the instrument, in many respects, including as it does specific provision for defences such as settlement, Art 12, and the tests of harm, Art 13, to be deployed. Here it is the filtering lens of Art 23 of the regulation which must be looked through to see whether or not delay in combination with other powerful and exceptional factors might have led to a change in a child's life of such significance that the new scenario would amount to a reason for non-recognition of the kind identified in Art 23.

Miss Meyer has argued that in these proceedings, as part and parcel of my consideration, I must, by virtue of the provisions of the Human Rights Act 1998, have regard to Arts 6 and 8 of that Convention. I agree, and I do so.

She argues that were I to refuse the appeal and then go on to consider enforcement without hearing afresh the children's wishes and feelings I would be depriving them of a fair trial. Indeed, it seems to me that it is her requirement that their voice should be heard at the recognition stage as well. She bolsters this submission by reference to paragraph 19 of the preamble to the regulation which I set out earlier, and in effect weaves it into her central stance of the need for a full welfare enquiry before I consider whether or not to allow or refuse the appeal, but at the very least, if I refuse it, before I go on to consider enforcement.

As to her Art 8 submission in relation to the 1950 Convention she reminds me that each of these individuals: the mother, the father, T and J, have rights to respect for their private and family life pursuant to the provisions of Art 8(1) of the Convention and that in the event of a conflict between each individual's rights, consistent with domestic legislation and authority and Strasbourg jurisprudence, the rights of the children take precedence over those of their parents. I agree with that proposition and have applied it.

I have referred to the way in which the Spanish court received those wishes and feelings in 2007. Here, there has been provided to me a number of documents in support of the father's application to the Spanish court made as recently as the end of July to vary the order of July 2007. I am told and accept, although I have not read the material, that it contains a number of letters from those who know the children well, including professionals, not just family members, who attest to the children's expressed wishes and feelings to the effect that they wish to remain living in England with their father.

In addition, I have received and read (the mother's counsel, Mr. Henry Setright QC, not objecting, but reserving the right to comment upon it) a letter written by T but co- signed by J. I consider it both necessary and appropriate to read the entirety of that letter into this judgment and shall do so.

“Private. Dear Judge, 19th August 2009. My brother and I have talked between ourselves and we want to live in England because we have enjoyed living in England with our Dad. The statement that my mother has given is totally untrue. We did not speak Spanish to the psychiatrist. I was asked who I wanted to translate for me. I said my mother because I didn't really like her ex-boyfriend, M. She sat with me and translated what I said. I was asked who I wanted to live with. I said my Mom because I was worried of hurting her feelings. We would like someone to listen to us as we want to stay in England with our Dad and our friends, family. This is our home. We have spoken to Mom about staying in England but she is not listening to us. I have told her lots of times. We do love our Mom but we do not want to live with her, and we do not want to live in Spain. We want to stay in our home. I am looking forward to going to my new school in England. We have lots of hobbies in England we don't want to give up: horse riding (horsemanship), trampolining, Guides. My brother would like to continue his karate and swimming. Please listen to us and help us.

Signed T and J.”

There are, I consider, a number of points to be made about this letter.

This section of the judgment will be short. I have set out above the relevant aspects of the Regulation and such passages of earlier authorities as seem to me to be illuminating of the issues raised.

As for the appeal against recognition of the July 2007 order, I find no features of this case of sufficient gravity or cogency to establish the gateway to escape from the recognition of the order of the kind set out in Art 23 of the regulation. The passage of time, without substantially more, since the making of the 2007 order is not, in my judgment, sufficient to avoid recognition.

As for the argument that the children were in effect given no real opportunity to be heard in the July 2007 proceedings, I consider this to be an unsustainable submission given the material before the Spanish court and given the careful findings of both the court of first instance and that of the Court of Appeal. The children's letter to me (see paragraph 42 above) further undermines the father's submission, for T makes it clear that what was reported to the Spanish court was what she said in fact, namely that she stated she wanted to live with her mother in Spain, an assertion of wishes and feelings examined carefully by the psychologist and the court, even though T now seeks to put a gloss on the circumstances. I emphasise that in making these observations I have not been in person conducting the exercise of reviewing the substance of the judgment; simply recording what they found and making a comparison with the material currently before me.

The father has accordingly failed to establish either of the necessary conditions required before succeeding on the appeal against recognition of the July 2007 order and I will dismiss his appeal for those reasons.

Turning now to the issue of enforcement, the mother having achieved recognition of the relevant order, seeks enforcement of it. I have directed myself, in terms of the necessary considerations of the Articles when considering enforcement issues and as expatiated upon in the sections of the authorities I have read into this judgment. I am, as I understand Mr. Setright's position (although I shall be corrected if I am wrong) invited to permit a short period for the father to make necessary arrangements with the children for their transfer to Spain before going on to consider more formal methods of enforcement. I shall do so. I make it clear that in my judgment the facts and matters which have been raised before me cannot amount to a gateway to escape from the terms of the order of July 2007 as considered in the light of the underlying principles of the Convention and the relevant specific Articles of it.

As to the invitation of Miss Meyer to order a CAFCASS report before dismissing the appeal, or, in default, before considering enforcement, as is by now abundantly clear, I have rejected those applications, having considered them carefully.

To so order would, in my judgment, be opening the door to a full welfare enquiry which I do not consider to be permissible under the regulation in construing its Articles in relation to Section 2 enforcement proceedings. Even if I am wrong about that, I would not have so ordered in any event. In particular, it seems to me that at the heart of the submission is the need to hear the views of the children, consonant with the terms of paragraph 19 of the preamble to the regulation. But I have already received that information in the form of the letter set out in full in paragraph 42 above and thus that alleged deficiency in the material available to me falls away. I express no opinion one way or the other but leave it to another case on another day to decide the issue of whether or not Miss Meyer's submission that in default of that letter of information from the children, I would have been obliged to order a welfare report on wishes and feelings (at a minimum) before considering enforcement. These children have unquestionably had their voice heard. But, as the English and Spanish courts agree, such wishes and feelings are not of themselves necessarily determinative.

I now go on to consider the submission of Miss Meyer that I should invite the Spanish court to transfer consideration of the father's July 2009 application to vary the order of July 2007 to the English courts for hearing pursuant to the provisions of Art 15(2)(c) of the regulation. The reasons for such a transfer are, as I understand it, those set out in Art 15(3)(b), (c) and (d), as well as arguments about the convenience of a substantial number of witnesses based in England.

I decline the invitation. The father has chosen the courts of Spain to litigate this issue. He may have done so as a default position in the event that he lost his appeal here and the children were returned to Spain. He may have done so for other reasons which it would be idle of me to speculate upon. It is open to him to apply to the Spanish courts for such a transfer, pursuant to the provisions of Art 15(2)(9) and to seek to persuade the Spanish court to transfer relevant aspects of the case under Art 15(1)(b). I do not give him my imprimatur. This is a matter particularly within the discretion of the Spanish court and I express no view either way upon the issue.