N (A Minor), Re

This case concerns the recognition and enforcement under the EU Council Regulation known as Brussels II or Brussels II Revised of a judgment of a court in Spain relating to parental responsibility. In the case of Re L, to which I will refer below, Thorpe LJ said at paragraph 85: “At first sight, this appears to be a complex appeal but in reality there are but two points.” The present case was also described by counsel as “complex”. Their respective skeleton arguments each extended to over 25 pages and ranged far and wide, and about 20 authorities were collectively assembled. In my view, however, the case is a short and straightforward one.

The case concerns the impact and effect of a regulation of the European Union, emanating from Brussels. It is therefore of obvious public interest since the reach and impact domestically of European law is a matter of continuing public debate and interest. I therefore decided, without any opposition or resistance on behalf of either parent, that I would sit throughout robed and in public, and I have done so. I have directed, pursuant to section 39 of the Children and Young Persons Act 1933, that no report of these proceedings shall name or identify the child concerned or his whereabouts, nor his family, and no picture shall be published of him or them.

The essential facts may be relatively shortly summarised. The father is aged 35. He was born in Morocco and is a citizen of Morocco and no other state. (He himself is not, therefore, a citizen of the European Union). However, he has lived for many years in Spain. He lives in a small village in southern Spain where he is a labourer or handyman, and is of very modest means.

The mother is aged 34 and is British. She already had one son, J, who was born in 2006 and will soon be eight. J’s father is British and lives in England.

These parents met in Spain in 2007 and soon began to live together. The mother’s own parents, although British, also live in the same village as the father in southern Spain. The mother and father have one son, N, who was born in Spain in April 2008 and is now almost six. The father is named on his birth certificate. N is a British citizen, for I have seen his British passport. There was some question raised at the hearing (irrelevant to the outcome of this case) as to whether he is or may be entitled also to Spanish and/or Moroccan citizenship.

During the summer of 2009 the parents separated. There is some dispute as to how, immediately after that, N divided his time between his father and his mother, who was then staying with her parents in the same village. In March 2010 the mother travelled to England to attend a rehabilitation clinic. J came with her, but not N. After leaving the clinic, the mother did not return to live in Spain. She began living in a town in southern England with a man by whom she now has a third child, a daughter, L, who was born in March 2011 and is now aged just three. The mother no longer lives with the father of L. She now, therefore, has three children, aged eight, almost six and just three. They have the same mother but three different fathers and are genetically half siblings to each other. N’s father is a Moroccan, living in Spain. The fathers of J and L are Englishmen living in England.

Throughout the period March 2010 to May 2012 N remained resident in the village in Spain, although he was brought by his grandparents on a visit to see his mother in England for a few weeks in the summer of 2010. There is some dispute as to how much in the period March 2010 to May 2012 he was actually living with his father or actually living with his grandparents in the same village. Their homes are very close to each other and it seems clear that his father was very involved in his care and upbringing and he saw his father a great deal.

During 2011 there were custody proceedings before a local court of first instance in Spain. On 10 October 2011, after a contested hearing, that court granted custody to the mother with permission for him to live in England with her; joint parental authority to be shared between both parents; and regular staying contact to the father in Spain during the school holidays.

Although the judgment of the court of first instance has not been translated into English, the reasons for that decision are summarised in the later judgment of the Spanish appeal court, to which I refer below. The reasons are recorded as follows (bundle C100):

The father promptly appealed from that decision to the relevant provincial court (which I will call the appeal court). As he was appealing the order of the court of first instance, the father did not permit N to travel to England to start living with his mother here. So pending the hearing of the appeal the mother applied to the court of first instance for “provisional enforcement” of its order. The father strongly resisted that, and it is clear from that court’s later judgment dated 23 April 2012 that the basis of the opposition was that if, pending the hearing of the appeal, the child was allowed to travel to live or stay with his mother in England, it would be “impossible or extremely difficult to restore the situation” in the event of the appeal being successful.

With hindsight, it can be seen that the father and his lawyer were very accurate and prescient in making that prediction and argument. However, it was rejected by the judge of first instance on 23 April 2012. He said in his judgment (now at bundle C149 to 150):

It is crystal clear from that passage that the judge of first instance ordered “provisional enforcement” and permitted the child to come to England because in his judgment there was no basis for believing or presuming that the mother would not obey the order of the appeal court if it later ordered, as it did, that the child should live, not with the mother but with the father in Spain. There were two reasons for that. First, “there is no precedent [i.e. previous behaviour by the mother] that permits us to presume behaviour of that kind”. It was “a mere hypothesis”. Second, there was “a public commitment” by the mother to comply with whatever the appeal court may order. The mother indeed accepts that during the hearing on 23 April 2012, while being questioned by the public prosecutor and also by the judge himself, she did clearly and expressly personally say that if the appeal was later allowed she would comply with the order of the appeal court.

Although the term “undertaking” may be peculiarly English and does not feature in the translation of the Spanish judgment (where the phrase “public commitment” is used), both counsel before me treated what the mother had said directly to the Spanish court as being the equivalent of an undertaking or promise to that court.

Further, the above passage refers to “notwithstanding the responsibilities of all kinds which she could incur in the case of non-compliance”. A transcript (in English) of a short extract of the mother’s evidence at that hearing clearly reveals that she was warned and accepted that criminal punishment (viz “responsibilities”) could follow if she broke her “public commitment”. The short extract also records the mother herself as saying, “the father is not a bad father”.

So, provisional enforcement was ordered and in obedience to it the father permitted N to travel to England to stay or live with his mother here in late May 2012. In obedience to the then underlying order of the court of first instance as to custody and contact, the mother returned N to Spain for about six weeks’ holiday in July/August 2012. N has not been permitted to visit his father since then, and has not seen him face to face at all, although he does do so by Skype.

On 20 December 2012 the Spanish appeal court (consisting of three judges) upheld the father’s appeal and ordered that custody of the child is granted to the father with shared joint parental authority (as before). The child “shall have his domicile at” the father’s address in Spain. The mother was given contact “whenever she comes to Spain” and also, in summary, for half each Christmas and summer school holidays and the whole of each Easter holiday.

The judgment of the appeal court is now at bundle pages C100 to 102. It is clear that their decision showed appropriate respect for the judge who had also heard and assessed the evidence, and that they gave “precedence” to the welfare of the child. Their reasons for allowing the appeal were:

It can be seen, therefore, that in this case the divergence of judicial outcome between the lower and the higher court revolved around the weight to be afforded to a range of issues of a kind very familiar to every family judge here as well. Before the lower court, a view that a child of that age should be looked after by his mother and living with his siblings outweighed living alone with his father. Before the higher court (of three judges), continuity of care with a parent whose care had “not been shown at any time to be detrimental” in an environment in which the child was integrated and supported by other residents prevailed. The factors appear to have been relatively evenly balanced and, just as in Spain, the decision could probably have gone either way here.

The mother has never obeyed the order of the appeal court and has, since December 2012 (or at latest since January 2013 when her time for appealing to an even higher court had elapsed), been in continuous breach of her promise, undertaking or “public commitment”. Further, since the order of the appeal court, the mother has refused to permit N even to visit Spain to stay with his father in any of the several school holidays between then and now. She has made no attempt to appeal from the order of the appeal court to a yet higher court, nor to apply for the order of the appeal court to be later varied or stayed.

The father could and, from the perspective of any experienced international family lawyer, should have immediately taken steps to enforce the subsisting Spanish order here. But this relatively uneducated and unsophisticated man inevitably reposed confidence in his local lawyer in Spain; and, as so often in cases of this kind, that lawyer tried instead to achieve enforcement by steps taken in Spain. He made further applications to the local court of first instance which made orders, first on 17 April 2013 and again on 21 May 2013. These both ordered the mother to comply with the judgment of the appeal court and return the child to the father. The mother has ignored them, but the significance of them is that they show that the father was doing his very best, if inadequately or ineffectively, to enforce the custody order, as she knew perfectly well.

Later, the father or his lawyer learned of the Hague Convention on the civil aspects of international child abduction and there was communication between the central authorities of Spain and England for the purpose of that convention. On 11 December 2013, just within the period of one year referred to in Article 12 of the convention, the father’s application for an order for summary return pursuant to the convention was issued. It is based on the proposition that the child was still habitually resident in Spain on 20 December 2012, the date of the appeal court’s order, and that he has been “wrongfully retained” from Spain since then.

Ms. Clare Renton, who appears on behalf of the father, has explained that the initial application to this court was limited to one under the Hague Convention only, because non-means tested and non-merits tested legal aid is automatically available for such an application and the English lawyers had to act fast because the significant deadline of one year since the order of 20 December 2012 was fast approaching. The lawyers appreciated that the father might be able to apply also, or alternatively, for registration and enforcement of the Spanish order under the provisions of Council Regulation EC No.2201/2003 (Brussels II), but before they could do so they would need to wade through a much more lengthy and bureaucratic process to obtain legal aid for the purpose.

By the preamble to his order of 20 December 2013, and by the preamble to, and paragraph 7 of, my own order of 17 January 2014, Mostyn J and I, myself, respectively highlighted the importance of any application under Brussels II for recognition and enforcement to have been made, and to be fully publicly funded, in good time for the present hearing.

In the upshot, the father did issue on 18 February 2014 an application in the prescribed form for recognition of the Spanish order under Brussels II. A formal order for recognition was made on the same day by a district judge. The effect is that the issues, whether the Spanish order of 20 December 2012 should be recognised under Article 21 and enforced under Article 28 of the Brussels II regulation, are now squarely before me.

The mother has countered by issuing on 3 March 2014 an application in prescribed form for a residence order under the provisions of the Children Act 1989. At section 7 of the prescribed form she says, foreshadowing the argument of Miss Jacqueline Renton on her behalf:

In my view, and at any rate on the facts and in the circumstances of this case, the application for recognition and enforcement under the Brussels II regulation clearly requires resolution before consideration of that under the Hague Convention. If I do recognise and enforce the Spanish order, then that of course renders consideration of the application under the Hague Convention unnecessary and otiose. But if, applying the test in Article 23(a) of the Brussels II regulation (which is imported also into the enforcement stage by Article 31.2), I do not recognise or enforce the order, then, realistically, there could not be an order for return under the Hague Convention on the facts and in the circumstances of this case.

That follows for two reasons. First, the proposition that there has been a wrongful retention in this case is founded upon the fact and terms of the order of 20 December 2012 itself. It would be perverse to hold that that order is not recognised or directly enforceable in England and Wales, and yet to hold that the child is being wrongfully retained here because of disobedience to it.

Second, the only ground for non-recognition and non-enforcement of the Spanish order is (in the words of Munby LJ at paragraph 52 in Re L, see below) “stringent” and “the bar is set high”. Although the so-called “defences” under Article 13 of the Hague Convention are also relatively strict ones, they are not, speaking generally, as stringent, limited or setting quite so high a bar as that under Article 23. Again on the facts and in the circumstances of this case, it would, frankly, be perverse to hold for the purposes of Articles 23 and 28 of the regulation that recognition or enforcement is “manifestly contrary to … public policy … taking into account the best interests of the child” so as to preclude recognition and enforcement under the regulation, and yet to order the return of the child under the Convention.

Similarly, it would be perverse on the facts and in the circumstances of this case to refuse recognition and enforcement under the regulation and yet to order the summary return of the child in the exercise of the inherent jurisdiction of the court, being the fall-back position of Ms. Clare Renton on behalf of the father.

It is for these reasons that I stated at the outset of this judgment that in my view this case is, in reality, a short and straightforward one. The short and straightforward questions are:

In my view, the provisions of Chapter III of the regulation plainly apply to the order of the Spanish appeal court of 20 December 2012. Article 16 of the regulation provides that a court shall be deemed to be seised at the time when the document instituting the proceedings is lodged with the court. Although the precise date when the document instituting the appeal was lodged has not been identified, there is no doubt that it had already been lodged and served upon the mother before the provisional enforcement proceedings in April 2012, since the judgment in those proceedings is firmly predicated upon the existence of the appeal. The child continued to live seamlessly in Spain until late May 2012 and so he was patently habitually resident in Spain at the time the appeal court was seised.

The provisions of Article 15.3(a) of the regulation make plain that once a court in one Member State is validly seised it may retain jurisdiction, notwithstanding that after it was seised another Member State has become the habitual residence of the child. (There has not at any stage been any application for transfer pursuant to Article 15 in this case.)

So the Spanish appeal court was validly seised of this case at the time of its decision and judgment in December 2012, notwithstanding that the child was by then living in England and even if (as to which I make no finding) he had become habitually resident here by that date. Miss Jacqueline Renton on behalf of the mother does not argue or suggest that the Spanish appeal court was not validly seised on 20 December 2012, but she submits (i) that the appeal court order of 20 December 2012, or at the latest the subsequent order of the court of first instance of 21 May 2013, represented what she calls a “jurisdictional break”; and (ii) that in any event the Brussels II regulation accords no priority as between the provisions as to jurisdiction under Chapter II and the provisions as to recognition and enforcement under Chapter III. She submits, therefore, that this court cannot simply consider recognition and enforcement, but must, before doing so, or at least concurrently, hold a full welfare hearing of the application the mother has now issued for residence. I will address each of these submissions in turn, but briefly.

Miss Jacqueline Renton accepts that the phrase “jurisdictional break” is not found in the regulation or in any authority, but she says it is implicit and that the concept of a break exists. I agree. The most obvious example is where a court in one state permits a child to be relocated to another state where it may be anticipated that the child will, or at any rate may, become habitually resident. But I cannot accept that there was any jurisdictional break in this case. The provisional enforcement of 23 April 2012, which permitted removal to England, was expressly predicated upon the public commitment that the mother gave, and the proposition that the mother, who had invoked the jurisdiction of the Spanish court, could be relied upon to obey the order of the appeal court upon appeal. The appeal court order of 20 December 2012 itself expressly required the return of the child to the custody of the father and to the specified domicile in the village in Spain within the jurisdiction of that court. The order of 21 May 2013 expressly required the mother to comply with the order of 20 December 2012 and return the child to the father’s home in Spain within the jurisdiction of that court. None of these orders are “jurisdictional breaks”. They are, rather, successive affirmations of the continuing jurisdiction of the Spanish courts which had been seised when the child was habitually resident there.

Miss Jacqueline Renton relies upon Article 8 within Chapter II of the regulation. That provides as follows:

The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”

Miss Jacqueline Renton says that there is “a tension” between the jurisdictional provisions of Chapter II of the regulation and the recognition and enforcement provisions of Chapter III. She says, correctly, that nowhere on its face does the regulation accord “priority” to one chapter over the other. So, she submits, I must, without any discretion, give directions for the court now to embark upon a full welfare investigation, with the assembly of evidence from England and Spain, and with a full CAFCASS or similar inquiry and report, and fix a hearing date (which would inevitably be some months hence) for a full scale contested residence hearing.

In view of the need for interpretation and perhaps the hearing of several witnesses (not just the father) from Spain, a hearing of at least a week would be likely. But at the end of it, or concurrently with it, the court would be under no less of a duty under Chapter III to hear and determine the father’s application for recognition and enforcement of the Spanish order. That would not be based on the paramountcy of welfare, but on the much more stringent and high bar for non-recognition, which must take into account the best interests of the child but need not make them paramount.

If Miss Jacqueline Renton be right, a hugely expensive and protracted process of fully investigating and determining welfare would have to take place (with consequent further delay in decision making for the child) which may either be a waste of time and taxpayers’ money, or would effectively dead-letter the recognition and enforcement provisions of the regulation. This cannot be right and cannot be what the regulation intends and requires. In my view, the regulation as a whole plainly requires in circumstances such as these (and I am dealing only with this case) that I decide now, and once and for all, whether I am required to recognise and enforce the order of 20 December 2012. If I am, I must do so and any further welfare inquiry here is otiose. If I am not, I must not do so, and of course a full scale welfare based residence investigation and inquiry may follow.

So far as is material, Article 21 of the regulation provides as follows:

Article 23 provides as follows:

Article 26 provides as follows:

Article 28 provides as follows:

Article 31 provides as follows:

In my view, the jurisprudence in relation to these provisions is now very clear. The domestic jurisprudence happens to originate in two decisions of my own (in the same case), namely Re S (Brussels II: Recognition: Best interests of child) (No. 1) [2003] EWHC 2115 (Fam), [2004] 1 FLR 517; and Re S (Brussels II: Recognition: Best interests of child) (No. 2)[2003] EWHC 2974 (Fam), [2004] 1 FLR 582, but the jurisprudence is now authoritatively expressed in the later decision of the Court of Appeal in Re L (Brussels II Revised: Appeal)[2012] EWCA Civ 1157, [2013] 1 FLR 430, which effectively approved and repeated what I had earlier said in the cases of Re S.

As it is now so well established in authority, I can summarise the jurisprudence very briefly for the purpose of the present case. There are two distinct stages (i) recognition; and (ii) enforcement. In relation to each stage, recognition or enforcement is mandatory unless the ground or test for non-recognition or non-enforcement applies. In the case of both recognition and enforcement there is only one possible ground for non-recognition or non-enforcement in the present case; namely, that it would be “manifestly contrary to the public policy” of this state “taking into account the best interests of the child”. The test is stringent. The bar is a high one. The test is public policy not welfare as such, still less the paramountcy of welfare itself.

Miss Jacqueline Renton submits that even if the order of 20 December 2012 was entitled to recognition and enforcement at or soon after the time it was made, it is not now, due to the lapse of so much time since that order was made (now about 15 months) and the even longer time (now about 22 months) that the child has been living here. She said that “recognition and enforcement now would amount to a sudden change of residence and blunt enforcement of a stale order in relation to a five year child.”

There has, at my direction, been a very limited independent snapshot by CAFCASS of the relationship and interaction between N and his mother and his siblings within his mother’s home in southern England. The brief report dated 28 February 2014 of a visit to the home on 26 February 2014 indicates that N appears to be settled and happy in his home, and well integrated with, and attached to, his half-siblings:

The officer did comment, however, that N spoke about Spain and his father in ways that may be described as positive. N said to the officer that he could speak Spanish. The officer commented that:

I am fully prepared unreservedly and conscientiously to assume that N is well settled with his mother and siblings and that she looks after him well. But I take into account, too, that his father was assessed by the original Spanish court of first instance as being “perfectly capable of assuming the care and custody of him”. He was later described by the mother as not a bad father. The Spanish appeal court assessed that he should care for the child. While separation from siblings is usually undesirable and to be avoided, the children in fact have different fathers. The situation of N is different from that of the other two. He has a Moroccan/Spanish heritage. They do not. On any view, he should spend periods both here and in Spain, and during parts of every year he is likely to be separated from his half-siblings.

I am expressly forbidden from reviewing the Spanish order as to its substance, but I do, by considering those competing factors, take into account his best interests. He has many years of childhood ahead of him and the competing considerations are by no means one way.

In the case of LAB v KB (Abduction: Brussels II Revised)[2009] EWHC 2243 (Fam), [2010] 2 FLR 1664 Roderic Wood J considered a case in which he was being asked to recognise and enforce under the regulation a very stale order. In that case the children concerned, by then aged 11 and 9¾, had been here for almost four years. Nevertheless, Roderic Wood J did order recognition and enforcement. He said at paragraph 37 of his judgment:

Of course, all these cases must depend on their own facts. But in the present case, too, I am quite unable to say that the delay, whether viewed as 15 months or even as 22 months, is such that it would now be manifestly contrary to the public policy of this state to refuse recognition, nor (although a separate and discrete matter) enforcement. Further, it is relevant that the father strove to enforce at an early stage by the orders he obtained in Spain in April and May 2013 which the mother has flatly disobeyed.

It is also a striking feature of this case that the mother was only permitted to bring the child here on her public commitment or undertaking to obey the order of the appeal court and return him if required to do so. The delay in this case lies substantially at the door of the mother. It may well be unsettling for N now to return to Spain. There is no evidence that it would be damaging to him to the point of being manifestly contrary to public policy.

The regulation is, of course, binding upon me, and the Spanish order must be both recognised and enforced.

Both paragraph 14 of my own judgment in the case of Re S (No. 2) and paragraph 48 of the judgment of Roderic Wood J in LAB v KB make reference to the concept of “phasing in” the process of enforcement of a foreign judgment. As I understand it, the parents have agreed a timetable and mechanism for the return of N to Spain in the event of my decision being that he must indeed return to live there. That is my decision, and the order will reflect and give effect to that agreement of the parents, whose child this is.