JRG v EB

Today there was listed before me a two-day Hague Convention case concerning three male children J, aged 7, B aged 4 and N aged 2. The application was issued on 8 May 2012 by their father (“F”) and alleges that the children were wrongfully retained in this country from 23 April 2012 by their mother (“M”), she having agreed in writing on 5 April 2012 that they would be returned to France “during the week-end of 21 and 22 April” following a two week holiday here.

On 4 April 2012 the Tribunal de Grande Instance de Argentan (Judge Pochon) heard cross-applications by M and F for residence of these children. Judgment was reserved. On 12 April 2012 a reasoned written judgment was provided which awarded residence to F and which provided for contact to M. A certificate pursuant to Annex II of Council Regulation No. 2201/2003 (“B2R”) was signed and sealed by the Tribunal on 7 May 2012.

The judgment of Judge Pochon records:

“J and B lived in England until the summer of 2008. Since then they have lived in France. N, who was born on 24 December 2009, has always lived in France”

Although the words “habitual residence” are not actually used and there is no specific reference to Art 8 of B2R it is perfectly obvious that the Tribunal was satisfied that the jurisdictional requirement under this provision was met. Thus at the time that the application was made to the tribunal it was the court first seised under Art 16. Under Art 10 the exclusive jurisdiction of the Tribunal endures irrespective of even a prolonged period of wrongful removal or retention. And the Order of 12 April 2012 is entitled to recognition and enforcement throughout the EU under Chapter III (Arts 21 – 36), subject to very limited exceptions.

By Art 21(1) “a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required”; by Art 21(3) “any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised”; and by Art 21(4) “where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue”.

By Art 28(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 there”. By Art 31 “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.” The procedure for registration is prescribed in FPR 2010 rule 31.8 and PD31A paras 2 and 3. By FPR 31.8(2)(b) “the court will not accept submissions from either the person against whom registration is sought or any child in relation to whom the judgment was given”. It can be seen that the registration process is purely administrative.

By Art 33(1) “the decision on the application for a declaration of enforceability may be appealed against by either party”. The appeal must be made within one month, and no extension may be granted on account of distance (Art 33(5)). The appeal will be as of right to a High Court Judge, and there is a right pursuant to Art 34 to seek a second appeal (with permission) to the Court of Appeal: Re S (Foreign Contact Order) [2010] 1 FLR 982. Thus the first appeal is the effective forum in which a challenge to recognition (by registration) and enforcement may be mounted.

The grounds on which a challenge may be mounted are narrow indeed as the basic principle, by Art 26, is that “under no circumstances may a judgment be reviewed as to its substance”. For the purposes of this case the only conceivably relevant grounds of challenge are those in Art 23(a) and (b) which provide:

“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 case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought …..”

There is a wealth of authority both from the Court of Appeal and the European Court of Justice that emphasise that it will only be in the most exceptional circumstances that the policy of B2R could be subverted by a refusal to recognise and enforce a parental responsibility order from a fellow member state. Mr Williams has accepted that the only realistic arguments that might be mounted by M on any appeal would be (1) that the brevity of both of the proceedings in, and the judgment of, the Tribunal is contrary to our public policy, and (2) these small children were not “heard” by the Tribunal either directly or through a welfare officer. I sensed that he was realistic enough to accept that there was, to say the least, only a very slim chance of either argument succeeding. I am convinced that any appeal would have been disposed of, on argument alone, in no more than two hours.

It can therefore be seen that had F, as soon as the Annex II certificate become available, applied for registration that would unquestionably have been granted, and that by now, in all probability, the appeal process would have concluded, very likely in his favour, with an order that the children be returned to France.

But F did not take this route. Instead he applied under the Hague Convention. He did this notwithstanding that by Art 60 it is provided that:

“In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:

…

(e)

the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”

M’s defence to the Hague Convention application is framed thus:

“(a)

The children never became habitually resident in France. Their presence in France was caused by events beyond the mother’s control and she only ever agreed to J and B remaining temporarily until their schooling in England had been resolved. In respect of N, he has always remained in her care, has spent the majority of his life in England and his presence in France was only temporary whilst the mother cared for S [their elder half-sister], J and B.

(b)

The father consented to the removal of the children or their retention. The father had always accepted that S, J and B would return to live in England when school places became available. He had always accepted N would remain in the mother’s care and would live where she lived. In the circumstances of this case it was not open to him to withdraw such consent.

(c)

J objects to returning to France.

(d)

Grave risk of harm or intolerability. A return of the children would separate them from their mother who has been their primary carer for most of their lives. The mother is pregnant and cannot travel for at least 6 months after the birth. They would be separated from their sister S with whom they have lived all their lives. They would also be separated from their unborn sibling. The children have health problems.”

In order to investigate the merit or otherwise of these defences there have been three directions hearings before High Court Judges (Eleanor King J on 8 May 2012; Holman J on 18 May 2012; and Ryder J on 18 June 2102). Pursuant to these orders a Cafcass report was directed, and Mr John Power travelled to Leeds, at considerable expense, and produced a full report. The burdens on Cafcass at this time hardly need to be spelt out. Arrangements were made for M to give evidence by video-link as she is pregnant by her new partner and cannot travel to London. Both parties have been represented by experienced junior counsel on legal aid. The cost to the tax-payer must be very high, and of course two days of precious court time has been allotted to deal with it.

None of the defences mounted by M in the Hague proceedings would be available to her in an appeal against registration of the French order.

If M were to succeed on her defences there would be nothing to stop F the very next day mounting an application to register and enforce the French order, which would, as I have explained above be highly likely to succeed, thus overreaching M’s successful Hague defence. Indeed, F could alternatively seek a subsequent order from the French court requiring return notwithstanding M’s success here under Art 11(8) and, if granted, that would be automatically enforceable here without having to invoke the registration/appeal procedure mentioned above (see Arts 40(1)(b) and 42). So, an adjudication at great expense, and over a considerable period of time, of these Hague defences is shown to be utterly pointless.

FPR 2010 rule 1.1 sets out the familiar overriding objective. This provides:

“(1)

These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2)

Dealing with a case justly includes, so far as is practicable –

(a)

ensuring that it is dealt with expeditiously and fairly;

(b)

dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c)

ensuring that the parties are on an equal footing;

(d)

saving expense; and

(e)

allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.”

(emphasis added)

Section 49(2) of the Senior Courts Act 1981, re-enacting section 43 of the Judicature Act 1925) provides that:

“Every ... court shall ... so exercise its jurisdiction in every cause or matter before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided”.

Having regard to (i) the primacy of the French court in making the welfare adjudication; (ii) the precedence of B2R over the Hague Convention; (iii) the clear route laid down for recognition and enforcement of the French order, which will only be withheld in most exceptional circumstances; (iv) the probability that were I to find the M’s defences proved that decision would soon be overreached under B2R either under Chapter III or Art 11(8)/Chapter IV; (v) the terms of the overriding objective paras (d) and (e); and (vi) the terms of s49(2) Senior Courts Act 1981, I have declined to adjudicate on the Hague application. Instead I have adjourned it to abide the following steps which will now be taken:

It is my opinion that where there is a residence or other relevant parental responsibility order made in a fellow member state the route of registration/appeal should normally be adopted. Time and again I have been confronted with a similar state of affairs where Hague proceedings have instead been taken. The cost to the tax payer and the demands on court time is heavy indeed. And, as I have sought to explain, the time and money is likely completely wasted.