England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		27th February 2013

Mr Justice Peter Jackson:

1. These proceedings concern R, a boy aged 3 and a half, who is the son of G B and R B. The family is Romanian. The Father lives in Romania. The Mother and R live in York. The matter comes before the Court today on the Mother's appeal against a recent registration in this jurisdiction of a Romanian court order dated 20 November 2012. That order granted the care of R to his Father until proceedings in Romania were finalised.
2. The procedure for registration of a judgment is governed by FPR 2010 at rule 31.8. Subparagraph (2) makes it clear that this is an administrative matter. The decision in Re D (Brussels II Revised: Contact) 2008 1 FLR 516 shows that the means of challenging a decision is by an appeal. I do not have the exact date of registration by the Senior District Judge but I am assured that this happened very recently. Grounds for non-recognition of a judgment of this kind are set out at Article 23 of Brussels II Revised. There are 7 grounds for non-recognition and the Mother relies upon two of them, namely (c) and (d). The intention behind these grounds for non-recognition is clearly to prevent the receiving court being required to enforce an order that was made without one party having had the opportunity to be heard in relation to the judgment.
3. The Mother has the advantage of being represented by Miss Fenella Cooil and the Father the advantage of being assisted by his sister, Mrs LO, to translate proceedings for him and to help him to present his case.
4. At the beginning of the hearing, the court and the Father were presented with a written skeleton argument clearly setting out the Mother's case. In particular the document gave an account of the background and I read into the judgment at this point the background sections on pages 2 and 3

4. The Appellant and Respondent are both Romanian nationals from Piapra-Neamt. The parties married in 2 September[a date in] 2007 and their son R was born on [a date in] 2009. The Appellant moved to the UK in September 2010 to find work but returned in May 2011. The parties commenced divorce proceedings in May 2011 in Romania but reconciled and these proceedings were stayed.

5. On 11 August 2011 the Appellant, Respondent and R all moved to York. The relationship between the parties broke down over the following month and resulted in three incidents of domestic violence against the mother where the police were called.

6. On 26 September 2011 the Respondent left the UK following the breakdown of the relationship.

7. The Appellant believes that the Respondent commenced divorce and custody proceedings in October 2011 in Romania but she was not served with any documentation.

8. In May 2012 the Appellant found out through a post on Facebook that the Respondent had commenced custody proceedings in Romania.

9. In June 2012 court papers arrived at the Appellant's parents' house in Romania but her mother, not knowing what the papers concerned, refused to sign for them. The Appellant has never seen any Court documents.

10. In November 2012 the Appellant is contacted by her parents who inform her that there are Court proceedings in Romania. The Appellant has still not received any documentation relating to this.

11. On 19 December 2012 the Appellant receives the Romanian Order. The Respondent had delivered the documentation to the Appellant's local police station at approximately 8.00am on 19 December 2012. The police called the Appellant who picked up the documents at 8.30 on 19 December 2012.

12. The Appellant's parents contacted the Romanian Court and were able to ascertain that there is to be a full custody and divorce hearing on 8 February 2013. The Appellant immediately organised Romanian legal representation for this hearing.

13. Immediately following the hearing before Mostyn J on 21 December 2012, Counsel and her instructing solicitor for the Appellant organised a contact centre in York for the Respondent to have contact with R on 22 December 2012.

14. On 22 December 2012 the Respondent had supported contact with R in a contact centre in York. However, after contact had finished the Respondent refused to leave the contact centre and consequently the police had to be called to escort the Respondent to the train station.

15. The case was before the Romanian Court on 8 February 2013 for a further hearing to determine contact and residence. The Appellant did not attend the hearing due to fear that violence may be threatened against her if she returned to Romania. However, the Appellant fully instructed a solicitor to represent her at the hearing. The Appellant's Romanian solicitor placed the following documents before the Romanian Court; Order of Mostyn J, proof of R's nursery attendance, medical records from R's GP, the Appellant's tenancy agreement and proof of her income.

16. This hearing was the first occasion that the Appellant was represented. Consequently, the Romanian Courts adjourned the hearing of the 8 February 2013 to the 4 April 2013 in order to consider the Appellant's documentation and position. Therefore, there is still no final order of the Romanian Court in respect of R. "

5. It will be seen that the Mother's case was that she was never served with any documents, only found out in May 2012 there were custody proceedings in Romania and never received any court documents either for the hearings in May 2012 or November 2012. The first document she said she received is the judgment on 19 December 2012.
6. Accordingly and on that account the Mother appeared to have a strong case for saying the court should not recognise the Romanian Judgment under Article 23. However, the Father has today had the first opportunity available to him to put his side of the story and he has done so by presenting a number of documents to the Court. Some of these have been translated with the Romanian originals, others are only in Romanian but I am satisfied that with the assistance of the Romanian speakers in Court it is possible to understand the substance of the documents.
7. Referring to paragraph 7 of the Mother's skeleton argument where she states she was served with no documentation, the Father produces a signed postal receipt of a document delivered to the Mother's address in November 2011 from the Romanian Court. As to that the Mother instructs Miss Cooil that she did not receive the documents, that it is not clear what was sent and that a flatmate of hers who left in January 2012 confessed that she received the documents and did not pass them on.
8. The next information available is a request made by a Romanian Judge to an English Judge for a social worker report on R. This led to a report of Cafcass in York dated 19 March 2012 which was available to the Romanian Court after that. The report refers to the request from the civil court in Romania and three interviews with the Mother at the Cafcass office and at home on 16 December 2011, 25 January 2012 and 15 March 2012.
9. Next the father produces a document in Romanian, an official reflection of a retainer of a Romanian Lawyer on 27 February 2012 named Andrea Todirite. To this the mother says that she did not know of the existence of Mrs Todirite and never spoke to, corresponded with or instructed her.
10. The next document, referring to paragraphs 8 and 9 of the Mother's skeleton argument, is a judgment of the Romanian Court following hearings on 24 and 31 May 2012. These are reasoned judgments arrived at after the court had heard from advocates of both parties, Mr Mihai-Gabriel for the father and Mrs Todirite for the mother. The Mother says she has no knowledge of that.
11. Next, referring to paragraphs 9 of the skeleton argument, the father produces an appeal document, bearing the Mother's name, dated 7 September 2012, in which she appeals against the May decision on the basis that it is better for R to remain with her in England.
12. Referring to paragraph 9, the Mother changes her account by saying that her Mother sent the judgment of May 2012 to her by post contained in an envelope that she produces at this hearing, dated 11 September 2012.
13. The Mother says that the first she knew of proceedings was in May 2012, the first time she received any documents was in September 2012 and the first time she defended herself was at the hearing on 8 February 2013, when she was represented by an advocate, Mrs Lilian Hurghes. This advocate is shown as appearing for the Mother at the hearing dated 20 November 2012.
14. Miss Cooil has valiantly addressed the changed landscape that these documents appear to represent and I have referred to some of the detailed explanations that the Mother gives for them. The Mother's general assertion is that she did not know about any of this so far as the Romanian proceedings were concerned up until the latter part of last year and that it must have been her mother organising all this legal representation.
15. Before I embarked upon an attempt to understand the Father's case, my instinct was that it would be necessary to put off the exercise for formal documents to be prepared, recognising that this would prejudice the father who has not had any proper contact with R for a year and a half. If I felt that the picture was clouded, I would not hesitate to adjourn this hearing to allow Father and Mother to present formal written arguments. However, as I came to understand the situation better it became clear to me that the position here is quite clear. The combination of documents and information provided by the Father very strongly suggests that the Mother has been well aware of what is going on in the Romanian Courts and she has had every opportunity to put her case before the judges there.
16. That being the case, this Court has no basis upon which to refuse recognition of the judgment on the grounds claimed by the Mother and her appeal against registration is, therefore, dismissed.
17. That is not the end of the matter. On 5 April 2013 there is to be a hearing in the Romanian Court at which both parents will be represented by way of an appeal by the Mother against the decision which is at the root of the registration. It would be wrong for this court to allow the Romanian order to be enforced ahead of that hearing in case the Romanian Court on that occasion should think it right to change its decision. Therefore, I place a stay on any application to enforce the Romanian Order until 19 April 2013 to allow the parties to adjust to the decision taken in Romania.
18. I recognise, as the Father suggests, that the hearing on 5 April 2013 may not be the final hearing, but if the Mother considers that she has some reason to argue for a further stay she may, but otherwise the Romanian Order will be enforceable on that day forwards.
19. The Cafcass report gave a strong warning to the parties about the effect on R of the war between them. It is not likely to be in his best interests to live with one parent, whoever that is, and see nothing of the other parent, so I hope that the parents will now start to treat each other with some respect for the sake of their son.