SH v MM & Anor

This case concerns a child FH who was born on [a day in] September 2010. Since June 2011 she has lived with her maternal grandparents in Italy. The mother is Mrs. MM, who was at the material time married to Mr RM. She asserts that he is the father of FH, he is named on the birth certificate, and of course, given their marriage there is an evidential presumption in support of that contention. Mr SH asserts that he is the biological father of FH and these proceedings were instituted by him to establish that fact and, if successful, to pursue proceedings under the Children Act 1989.

The applicant and the mother certainly know each other. Indeed the mother makes no secret of her animosity towards him based on how she says that he has treated her. The applicant contends that he was in a sexual relationship with the mother at the time of FH’s conception; the mother does not accept that though it is a matter that has not yet been investigated. In those circumstances the applicant instituted proceedings as indicated on 21st December 2010 in the Cambridge County Court which were subsequently withdrawn.

The proceedings were issued in Cambridge on 23^rd December 2010 and were applications for parental responsibility, contact and a Prohibited Steps Order. There was no application for a declaration of parentage and no application for leave to apply for the Children Act orders. However, such proceedings were issued in York on 15th June 2011. On the same day the matter was considered by DJ Wildsmith whose order appears at pp 51-2 of the trial bundle. In particular at paragraph 1 he ordered:

On or about 18th of June 2011 the mother travelled with the child to Belfast to stay with a friend GP. A few days later he travelled with the child via Dublin to Italy and delivered the child to the maternal grandparents. The mother could not travel to Italy because she holds only a Russian passport and did not have the requisite Visa although the child has her own British passport. Thus an issue arises as to the lawfulness of the removal of the child from England. I should add that I make no finding that Mr. GP was knowingly involved in a wrongful removal if indeed that is what it was.

Unsurprisingly the matter was transferred to the High Court and came before Moylan J. on 17th October 2011 who gave directions and listed the matter for hearing before me identifying the one factual issue for determination viz: ... ' the mother's knowledge of the existence of the order date of 15th June 2011 before removal of [the child] to Belfast ... by her mother ...’ . It was also anticipated that other issues would arise for argument and skeleton arguments and bundles were ordered and have been made available to me which have significantly assisted me.

With the agreement of the parties the factual issues were tried first as it was potentially dispositive of the case. Having heard evidence and argument, the court gave judgment holding that the mother had been properly served with the order of 15th June 2011 on that date and had been informed that it contained a Prohibited Steps Order (PSO) preventing the child's removal from the jurisdiction. Accordingly at the time the mother left for Belfast she had knowledge of the order.

It is important to remember that absent that order the mother was quite entitled to act as she did. She and Mr. Maxwell held parental responsibility and each agreed to this course of action. At the material time the applicant had no rights or responsibilities in respect of the decision as to where the child should live. It follows therefore that the only issue relates to the effect of the order. The mother's stance is that, once her passport has been returned to her, she wishes to move to Italy to live with the child and her parents. Mr. Maxwell consents to such a course, the couple having separated permanently. Accordingly it is seriously arguable that, if the removal was lawful, the child’s place of habitual residence might now be in Italy.

It is undoubtedly the case that the applicant required permission to make an application under Part II of the Act for a Section 8 order. His application accepts that and there is accordingly a live application for such permission. It is also the case that the District Judge never adjudicated upon the question of permission nor indeed is there any evidence that he addressed his mind specifically to that question. Indeed his subsequent directions orders appear predicated on the basis that permission is either not needed or has been obtained. However, the question for me to decide relates only to the order made on the first hearing on 15th June 2011.

I am satisfied that the District Judge was on this occasion entitled to make the order that he did. It was an ex-parte hearing and so he had to (and did) fix a return date. Not only would the mother be entitled to be heard on the substantive issues but both on the question of a PSO and also on the question of permission to apply. Although a judge could have granted permission and invited the mother to apply to set it aside, he was entitled to proceed as he did. Whether he made the PSO on the basis of an application or of his own motion under Section 10(1)(b) of the Act is not apparent from his order nor perhaps did the judge at that moment specifically address the question. However, that in my judgement does not abrogate his discretion or power to make the order. All that the judge was seeking to do was to hold the ring until the return date. He was entitled to do that just as the mother after service would have been entitled to apply to set it aside. In my judgement that order was at the moment of its service on the mother a valid and effective PSO of which she is ostensibly in manifest breach.

That then brings me to Ms Allman's second point namely whether every PSO if breached remains effective to maintain jurisdiction under the European Regulation known as Brussels (II) Revised (B(II)R). Italy and England are of course both subject to B(II)R. It would inevitably be a surprising consequence were it to be the case that by deliberately breaching an order a parent could bring about the very result that the order had been made to forestall. Nevertheless the question requires consideration and is not entirely straightforward. It is necessary to start with an overview of the relevant part of B(II)R.

A perusal of Article 1 raises an immediate problem: whilst issues relating to parental responsibility are included within B(II)R by virtue of paragraph 1(b), the undoubted effect of paragraph 3(a) is to exclude a paternity issue. Both are raised in this case and thus both need to be considered. I start with the assumption that the Regulation is engaged.

In those circumstances the court needs to consider the scheme of Articles 8-19. Articles 16-19 can be put aside for the moment (save as to 17) on the basis both that the English court is in fact seised of the matter and that no application has been made elsewhere. It follows that the key question is where the child is habitually resident; if the removal were lawful that might well be in Italy and the court would have to consider its obligations under Article 17 to decline jurisdiction. If, however, the removal is wrongful, jurisdiction under Article 10 remains for the time being with the English court. The applicant says it was wrongful because it was in breach of the PSO whereas the mother contends that it cannot be wrongful because the effect of the PSO was not to confer rights of custody whose breach alone would render the removal unlawful.

I reject the mother's analysis. In my view the correct analysis is as follows. The English court was (as I have held) entitled to make the PSO. The effect of the PSO (once validly served as I have held it was) was to restrict the mother's exercise of parental responsibility and in particular to deprive her during the currency of the Order of the right to determine the question of whether the child should live outside the jurisdiction. Thus when she removed the child she had at that time no right to do so as that particular exercise of her parental responsibility had been lawfully restricted by the PSO. Accordingly her removal was wrongful and thus pursuant to Article 10 the child remains for the purposes of B(II)R habitually resident in this jurisdiction and thus subject to the jurisdiction of the English court. In my judgment this analysis will also hold good on the assumption that B(II)R does not apply to this case by reason of the operation of Article 1(3)(a). Accordingly the Court may now deal with the outstanding applications.

A further hearing before me will be necessary. First the court should determine the question of permission to apply and the mother must have the opportunity to be heard on that issue. If permission is refused that is an end of the matter. If permission is granted, then the court needs to consider the provisional directions given by DJ Wildsmith and central to that is a question of scientific tests. The judge purported to make orders under Section 20 of the Family Law reform Act 1969 (as amended).

Neither the mother nor Mr. RM can be compelled to give a sample although a sample may be taken without consent from the child if it is in her interest so to do. If a sample is refused without good reason, an adverse inference can be drawn on the basis that there is something to hide. The evidential presumption standing alone is unlikely without more to outweigh that but I have not heard full argument on that point. If samples are to be taken, I am sympathetic to the child remaining in Italy until the test results are known in case the applicant is excluded and thus to avoid unnecessary disruption to the child given the mother's plan to relocate to Italy herself.

The provisions of Article 10 remind me that I should order the return of the child in order to maintain jurisdiction. The Italian courts will then be bound to enforce that order. I am at present minded to do that. However, I am sympathetic to staying that order pending the outcome of DNA testing if satisfied that there would be compliance in Italy with such an order. That return order would, however, not be appropriate unless the applicant were granted the requisite permission under Section 10 of the 1989 Act.

This case should accordingly be re-listed before me in the last full week of term. At the very least the question of permission must be resolved but if possible it should also include the issue of DNA testing. If it is sought to argue that these issues should be considered in reverse order, that may be done at that hearing