England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		27th July 2010

MR. JUSTICE HOLMAN:

1. The essential question is whether the courts of England and Wales should continue to assert any jurisdiction or authority in relation to future arrangements, including access or contact, concerning a boy, now aged three- and-three quarters, who is a German national and is habitually resident in Germany.
2. The essential factual background is as follows. I will call SB "the mother", and IB "the father". Both parents originate from Pakistan and at birth were each citizens or nationals of Pakistan. When the mother was aged about five, she relocated with her family to Germany. In 1995 she became a citizen of Germany. I am not clear (and it is irrelevant) whether she retains her Pakistani citizenship. In 2001 the father travelled from Pakistan to Germany and claimed asylum there. As I understand it, he later withdrew any claim to asylum but was granted a time-limited permission to live for some years in Germany. The parties met in Germany in 2003 and were lawfully married in Germany on 15 January 2005. Sadly, that marriage was not successful and they separated, I understand for the last time, in January 2006, almost exactly a year after they married. Although they have been separated ever since then, and there would appear to be no realistic prospect of any reconciliation, there have never been any proceedings for divorce or otherwise as to the subsistence of the marriage, whether here or in Germany or indeed anywhere else worldwide.
3. After the separation, the mother discovered that she was pregnant and later informed the father of this fact. He then appears to have commenced, or at any rate investigated the taking of, legal proceedings in Germany, which may have precipitated her travelling to England in July 2006. At all events, for whatever reason, she did come here in July 2006 and it was in England that she gave birth to the one child of the parties, a son, AB, who was born on 11 September 2006, and so is now aged about three-and-three quarters.
4. Also in the autumn of 2006 the father travelled to England in order to track down his wife here. He was initially granted some limited permission to remain, which has long since expired, so his technical status here in England or the United Kingdom is as an over-stayer. I will revert again later to the recent immigration history.
5. After Sohail was born, there were various court hearings and proceedings, as a result of which contact was established between Sohail and his father, which I readily assume to have been very much in the best interests of Sohail and no doubt enriching and enjoyable for his father.
6. However, there came a time when the mother, all of whose immediate family continued to live in Germany, desired to return to live there. So she applied to this court for permission permanently to remove Sohail from England and Wales in order to reside in Germany. There was a contested hearing before Her Honour Judge Hughes QC in the autumn of 2008, which culminated in a formal order dated 17 October 2008 and her judgment given slightly later on 20 October 2008. The judge ordered that Sohail should reside with his mother under a residence order and that on or after 1 February 2009 the mother had permission permanently to remove him from England and Wales in order to reside in Germany. It seems that at the hearing the judge indicated her decision on those fundamental issues, after which there was some discussion between the parties as to contact arrangements consequential upon that decision and the anticipated removal to Germany. At paragraphs12 and 13 of her judgment, Her Honour Judge Hughes said as follows:

"12. After I announced my decision the mother indicated that she was prepared to remain in England until 31 January [2009] so her leave will be to remove Sohail to Germany on or after 1 February 2009. During the discussions it was agreed she would bring him back to the country for a long weekend in March 2009 and again in June 2009, and the father's contact would be for five hours on each of the Friday, Saturday, Sunday and Monday over the weekend. The mother would bring him again in September and December [viz, in context, plainly meaning September and December 2009 as the order itself says] provided the father paid for the travel and any reasonable accommodation costs, and in addition the father would have such additional contact to Sohail as may be agreed between the parties.

13. The mother offered to obtain a mirror order giving her residence and the father contact to Sohail in Germany prior to her departure and, in my judgment, that should offer the father some comfort and should be done."

7. Pausing there, it seems that clearly what had been discussed and agreed was the proposition that there should be a long weekend of contact, roughly once a quarter, in the months of March, June, September and December, on the basis that the father would pay the travel and accommodation costs for two of them, and the mother would pay those costs for the other two. It does seem to me of some significance that in that paragraph of her judgment and her order, the judge referred very specifically to the year 2009 and did not appear to be speaking in terms of indefinite quarterly contact. The reason for that may well have been that the judge had in mind the provisions of Article 9.1 of the Council Regulation to which I will shortly refer.
8. Turning to the formal order itself, that set out that from 1 February 2009 onwards the father should indeed have contact on a Friday to a Monday in each of the months of March, June, September and December 2009 on the proviso, in the months of September and December, that he had first put her in funds for the cost of travel and accommodation. Nowhere in the formal order is there any actual undertaking, precondition or even recital that the mother would obtain a mirror order in Germany.
9. In the event, it was not until 13 September 2009 that the mother actually finally travelled to Germany, but on that date she clearly left England intending to sever any continuing habitual residence of herself or Sohail here. She clearly re-established a home in Germany and at any rate by about the end of September 2009, if not earlier, it is plain that Sohail had become habitually resident in Germany.
10. It is now necessary to refer to Council Regulation (EC) No.2201/2003 dated 27 November 2003, and commonly known as Brussels II bis, or revised, and to which I will refer simply as "the regulation". I have already mentioned that there are, and never yet have been, any proceedings between these parties in relation to divorce or legal separation, so Section 1 of Chapter II of the regulation is simply not in point. Section 2 is headed "Parental responsibility". Article 1.2 indicates the matters which may be dealt with under the general heading of "parental responsibility" and they include "rights of access". Further, Article 2.7 expressly provides that the term "parental responsibility", "shall include rights of custody and rights of access". So, insofar as any continuing issue or dispute between these parties relates to contact or access, it is plainly a matter of parental responsibility for the purposes of the regulation.
11. Article 8 provides as follows:

"General jurisdiction

1. 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.

2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12."

Pausing there, there is absolutely no doubt or argument but that this child is, and for several months has been, habitually resident in Germany.

12. On 15 or 12 December 2009 (I notice that the German document, now at bundle p.D1, is dated 15.12.2009, whereas the English translation, now at bundle p.D5, has been translated as December 12, 2009) the mother commenced a set of proceedings in the Amtsgericht Bruchsal, which is the district court having jurisdiction in relation to family matters in the town of Bruchsal in Germany. The document commencing the proceedings is now at bundle pp.D1 to D4 (with a translation at pp.D5 to D8) and one can see that the mother sets out a summary of the history and asks for parental care of the child and makes reference in the narrative to matters of contact or access. So not only do the courts of Germany clearly have jurisdiction in relation to this child as being the courts of the state of habitual residence, but the Amtsgericht Bruchsal has actually been seised since December 2009 in relation to this child.
13. Where does that leave any continuing jurisdiction of this court here in England and Wales? As I have said, paragraph 2 of Article 8 clearly sets out that paragraph 1 of that Article is subject to the provisions of Articles 9, 10 and 12. Article 10 is concerned with jurisdiction in cases of child abduction and is simply not in point at all in the present case. Article 9, however, is concerned with "Continuing jurisdiction of the child's former habitual residence", and patently is, or was, in point. Paragraph 1 of Article 9 provides as follows:

"Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence."

14. Paragraph 1 is disapplied by paragraph 2 in the event that the holder of access rights has accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by participating in proceedings before those courts without contesting their jurisdiction. However, as I understand it, the father has not in any way participated so far in any proceedings before the Amtsgericht Bruchsal and so paragraph 2 of Article 9 is not in point in the present case.
15. I pause to consider, therefore, the application of paragraph 1 of Article 9. This child did move lawfully from one Member State, the United Kingdom, to another, and did acquire a new habitual residence there, namely in Germany. So, by way of exception to Article 8, the courts of this Member State, being the state of the child's former habitual residence, did retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights, given that the holder of those access rights, the father, continued to be habitually resident here, which I am prepared to assume in his favour despite the precarious nature of his immigrant status.
16. So, by operation of Article 9.1, there was a retention for the purposes of Articles 8 and 9 of jurisdiction by the courts of England and Wales until about the middle of December 2009. During that time there was indeed some further litigation here. On 9 September 2009 there had been a hearing before Deputy District Judge Sheldrake, which, however, passes into the history of the matter, save that it set up a further hearing on 19 October 2009. On that date there was a further hearing, also before Deputy District Judge Sheldrake. The mother did not attend and was not represented. Deputy District Judge Sheldrake made an order for two precisely defined occasions of contact, namely one long weekend in December 2009 and one long weekend in March 2010.
17. The contact in December 2009 duly took place. In obedience to the order requiring her to bring the child also for contact in March 2010, the mother did so at her own expense but, unfortunately, the March contact did not take place for the father was by then in prison. Any retained jurisdiction by way of the exception in Article 9 must, as I have mentioned, have come to an end by about the middle of December 2009 when the three-month period referred to in Article 9 elapsed.
18. Moving on in the chronology, the father was, unfortunately, arrested at Heathrow Airport on 17 February 2010 whilst he was attempting to exit on a flight to Canada using a passport which was not his own but that of his brother. That is clearly a serious criminal offence, for on 26 February 2010 - having, I assume, pleaded guilty, and thus obtaining credit for his plea - he was sentenced by Isleworth Crown Court (which, I imagine, has some experience in this field of offences) to nine months' imprisonment, which is why the March contact could not take place. He was later released on licence on 19 July 2010, and thus is able to be present here before me today.
19. There was a further hearing before District Judge Roberts on 3 March 2010 when the mother (who had travelled here for the purpose of the March contact) was personally present. On being apprised by her of the situation and her position, District Judge Roberts made an order that a hearing that had already been listed for 9 March 2010 "shall proceed but shall consider, inter alia, Mrs. SB's deemed application to have future hearings concerning Sohail held in Germany where she lives with Sohail...".
20. The further hearing duly took place on 9 March 2010 (the formal order is mistakenly dated 10 March 2010). At that hearing both parties were represented and the mother was also again personally present, although the father was not, being in prison. On 9 March 2010, District Judge Berry made an order that the whole matter be transferred to a High Court Judge "in respect of the issue of whether the English or German court has jurisdiction for matters of parental responsibility". Apart from some relatively minor provision that the mother should make the child available for indirect telephone contact with the father once per month, there was no further provision or order as to contact.
21. There was a further hearing before Eleanor King J on 23 April 2010. On that day an order was made by consent. The order listed the matter for hearing again here today, and identified that the court would make orders today:

"... limited to either:

(a) confirming the order of Her Honour Judge Hughes QC dated 17.10.2008 as a final order; or

(b) discharging the said order."

Paragraph 2 of the order continued:

"For the avoidance of doubt, the court considers that the hearing listed at paragraph 1 of this order shall be the final hearing in the jurisdiction of England and Wales and thereafter all matters of parental responsibility, including any review of the contact pursuant to the order of Her Honour Judge Hughes dated 17.10.2008, shall be heard in the German court of competent jurisdiction, namely the Amtsgericht Bruchsal (County Court in Germany)."

22. There was one further interim provision as to contact, namely that upon the father being released from custody, the mother should make Sohail available for visiting contact in Farnborough, England on a weekend of Friday to Monday:

"... in the month of July 2010 for five hours each day, provided that the father puts the mother in 'cleared' funds for the cost of travel and accommodation 14 days in advance of contact taking place."

23. Today is Tuesday 27 July 2010 and that contact has not happened. The reason is that the father simply has not put the mother in cleared funds or indeed made any practical or realistic proposal for financing the cost of her travel and accommodation which, on the basis of previous visits, might be of the order of £600. The father is prohibited, as a condition of his immigration bail, from working and has negligible funds or income. So I am very sympathetic to his difficulty in putting her in cleared funds. That said, the bargain always has been that he would pay the costs of half the contact visits and she would pay the costs of the other half. He already owes her outstanding payments from earlier visits. The mother is patently not in breach of paragraph 4 of the order of 23 April 2010 since the proviso has not been satisfied and, frankly, unless and until the father is in a position to fund future contact visits here, I can see little prospect of them taking place.
24. Moving on in the chronology, the last event to which it is necessary to make reference is a hearing on 3 June 2010 before the First-tier Tribunal (Immigration and Asylum Chamber) sitting as Dorking Magistrates' Court. The tribunal promulgated their determination on 14 June 2010. Their determination and reasons are now at bundle pp.E1 to E6. It is clear from that, that the Secretary of State regards the father as an over-stayer and wishes to remove him. The only basis put forward by or on behalf of the father to resist that removal is a claim framed around Article 8 of the European Convention on Human Rights. In paragraph 8 of their determination and reasons, the tribunal set out the history, including the history in relation to Sohail. In paragraph 10 the tribunal addressed his claim to a private life here, and in paragraphs 11 to 19 they addressed a claim to an Article 8 right based upon his relationship with, and contact with, Sohail. At paragraph 16, the tribunal took the view that:

"Looking at the totality of the evidence before us, we find that the limited contact which the appellant has had with his son does not amount to family life. This is not a case where family life has been established between father and son but subsequently limited through separation. They have never cohabited and bonded as father and son in a family context..."

25. But, even if they were wrong about that, the tribunal went on to consider, at paragraphs 17 and onwards, whether there was a proportionate interference with any family life between him and Sohail. At paragraph 18 they said:

"Looking at the evidence in the round, we find that the location of any family life and court proceedings related thereto will in future be Germany. The appellant's presence in the United Kingdom is not essential for him to enjoy the limited relationship he has with his son in Germany. Furthermore, we note that the appellant was arrested while attempting to travel to Canada. In evidence the appellant stated he hoped to claim asylum in Canada..."

26. So the Article 8 claim was dismissed. The father is seeking to appeal that decision to the Upper Tribunal, and at bundle pp.E9 to E23 are the grounds of appeal settled by his very well-known counsel in this field, Ms. Shivani Jegarajah. It is plain from that, that the argument advanced on further appeal is firmly rooted on a proposition that he needs to be based here in England in order to be able to have contact with his son, whether here or in Germany.
27. On behalf of the father today, his counsel, Ms. Cynthia Gifford, has accepted that this should indeed be the last hearing in, and decision of, the English court, but asks, as contemplated by paragraph 1(a) of the order of Eleanor King J, that I should make some enduring order which "confirms the order of Her Honour Judge Hughes QC dated 17.10.2008 as a final order". As I have already explained, the continuing jurisdiction of this court that continued under Article 9 of the regulation has now expired. It is therefore necessary to consider the jurisdictional basis for me to make any further or continuing order.
28. Article 8, paragraph 1 was subject also to the provisions of Article 12, which is concerned with "Prorogation of jurisdiction", to which I now turn. Paragraph 1 is not in point, for this court is not currently exercising any jurisdiction by virtue of Article 3 in relation to divorce or legal separation. But paragraph 3 of Article 12 provides as follows:

"The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:

(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State..."

29. Pausing there, Sohail is not a national of this Member State, being a national only of Germany. However, I am prepared, as I have already said, to assume that currently the father, who is one of the holders of parental responsibility, is still habitually resident here. So subparagraph (a) of paragraph 3 is satisfied. Paragraph 3 of Article 12 continues:

" …….; and

(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child."

30. This court was first seised long ago and its jurisdiction was indeed accepted, expressly or otherwise, in an unequivocal manner by both the parents. It is necessary, however, before I continue to exert any jurisdiction in reliance on Article 12.3, to consider whether it is in the best interests of Sohail still to do so. On behalf of the father, Ms. Gifford submits that it is in the continuing best interests of Sohail that I should exert jurisdiction and "confirm" and continue the order of Her Honour Judge Hughes "as a final order", because these proceedings are on foot here, and the father is able to obtain public funding here, but is not able or may not be able to obtain public funding in Germany. Further, he is present in England and Wales at the moment on immigration bail, but his status here is so shaky or tenuous at the moment that if he were to travel to Germany in order to participate in proceedings or in contact there, he would not gain readmission here. I understand those arguments from the perspective of the father.
31. On the other hand, the fact is that this child has now been habitually resident in Germany for about 10 months, which is a significant period of time in the lifetime of a young boy still only aged about three-and-three-quarters. I know very little about his circumstances in Germany. In the near future it seems idle to make any order as to contact here since, as recent events have demonstrated, the father is not in a position to put the mother in cleared funds so as to enable the contact to take place. Frankly, I would risk making some so-called "final order" of indefinite and long-term duration with complete uncertainty as to whether or when it would ever actually be implemented. Further, the position at the moment is that there has been a decision adverse to the father by the First-tier Tribunal. I have no knowledge whether or when a further appeal to the Upper Tribunal might be heard, nor of course what the outcome might be. But the current position, at all events, is that the father's position here is extremely tenuous and that does not seem to me to be an appropriate context in which to be making some long-term order.
32. The patent reality about the present case is that when Judge Hughes reached her decision back in October 2008 to permit the mother to relocate with the child to Germany, and when the mother actually did so, future responsibility for this child clearly shifted from the courts of England and Wales to the courts of Germany. As I have already remarked, the contact order that was made by Her Honour Judge Hughes was expressly confined to the calendar year 2009 and did not even purport to be an order of longer term duration.
33. So I cannot see that it is in the best interests of this child that this court, at a distance, should assert some continuing authority over him. Rather, it is patently in his best interests that all future issues as to contact are considered and resolved in the court in Germany which is already seised of this matter. It does not seem to me that Article 15 of the regulation is directly in point in the present case but, even if it was, I would unhesitatingly conclude that Germany is the Member State with which this child "has a particular connection". Each of subparagraphs (a), (c) and (d) of paragraph 3 of Article 15 are satisfied, in that Germany has become the habitual residence of the child, Germany is the place of the child's nationality, and Germany is the habitual residence of a holder of parental responsibility, namely the mother. If Article 15 was in point, I would unhesitatingly conclude that the courts of Germany "would be better placed to hear the case" and that that "is in the best interests of the child".
34. For all of these reasons, although I have some sympathy with the plight and position of the father personally, I am unhesitatingly of the view that proper application of the regulation now requires that all proceedings in relation to this child in England and Wales are dismissed and, for the avoidance of doubt, that any previous orders as to contact are discharged. I will accordingly make an order in the following terms:

"Upon hearing counsel on behalf of both parents and upon the basis that the child, AB, date of birth 11.9.2006, is, and has been since September 2009, lawfully habitually resident in Germany and is a national of Germany, but not of the United Kingdom, and that the Amtsgericht District Court of Bruchsal is currently seised of proceedings in matters of parental responsibility in relation to the child in proceedings number IF439/09, of which notice has been given to the father, and upon this court considering for the purposes of Article 12.3 of the Council Regulation EC No.2201/2003 of 27^th November 2003, that it is no longer in the best interests of the child that this court shall continue also to have jurisdiction pursuant to Article 12.3 of that regulation, it is ordered that:

(1) All continuing proceedings in England and Wales in relation to the child AB, date of birth [a day and month in] 2006, are hereby dismissed and, for the avoidance doubt, any previous orders as to contact are discharged on the basis that all future issues as to contact should be resolved in Germany and not here."

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