England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/02/2014

MRS JUSTICE PARKER

Mrs Justice Parker :

1. AB is 8. Her mother is Italian and her father Scottish. They were married and subsequently divorced at a county court in England. The former matrimonial home was the subject of an order which is still the subject of dispute. The mother's case is that the father has brought proceedings about AB here because of the legal dispute about the home. The father denies this and says that he is worried about AB's welfare both emotional and physically. I have made no assumptions either way. This judgment is about whether (i) I should order the return of AB to this country when I have already declared (at an earlier hearing on 3 December 2013) that this court has jurisdiction under Council Regulation (EC) No.2201/2203 (Brussels II Revised Regulation 2003; 'BIIR') and (ii) whether I should stay the proceedings here or transfer them to Italy under Article 15 BIIR; and/or (iii) whether I should adjourn the return application pending a later determination of the Article 15 application.
2. I heard this case on circuit on 7 February 2014 in the middle of another hard-pressed case. The mother was not there although she had had notice and I had made arrangements for her to attend by telephone link, as I shall describe. The father was there in person and Mrs Bennett-Hernandez of CAFCASS (the Children and Family Court Advisory and Support Services) also attended. I made my decision which was notified to the mother that day in the form of a draft order which has subsequently been the subject of refinement. My order that AB be returned within 7 days and consequential directions has not been altered. I did not have time to give reasons.
3. AB has dual Italian and British nationality. She was born and brought up in England, then lived for a time in Kenya where her mother was working. In 2010 the mother was given permission by a judge to relocate to Italy. The father agreed on the basis that there would be contact. Contact has now ceased. The mother says that this is because AB does not want to see her father: the father says that this is because AB has been turned against him and that contact has been physically obstructed.
4. The mother returned to England with AB in August 2013. The father's case is that this was not just a visit, but intended to be indefinite, and that AB changed schools.
5. The father issued proceedings for residence and contact on 23 September 2013. He has parental responsibility. On 9 October 2013 Social Services interviewed AB as part of a threshold assessment as a result of concerns about an alleged suicide threat by the mother and alleged domestic abuse witnessed by AB in the mother's home. An initial assessment by CAFCASS also recorded concern and recommended further assessment.
6. The mother took no point about the jurisdiction of the English Court at this stage. On or about 13 October 2013 the mother through her parents removed AB from England and took her back to Italy without the father's knowledge or agreement. The father returned the matter to court. The mother attended a hearing at the County Court on 16 October 2013 but left the hearing before the end in spite of the court's request that she stay. At a subsequent hearing the local Designated Family Judge transferred the father's application for residence and contact to me as Family Division Liaison Judge for the area. I listed the matter before Moylan J who gave directions and who in turn listed the father's application, including his deemed application for AB to be returned under the inherent jurisdiction, before me on circuit 3 December 2013.
7. The mother had communicated with me by email before the hearing on 3 December 2013. There was an issue about her ability to come to court because she is unfortunately suffering from cancer and is currently having treatment in Italy. In the end she came over, leaving AB in Italy with her parents, and was able to attend court for the whole day. The father attended over the telephone. Both were represented by experienced counsel who addressed me fully on the facts and the law. The hearing took a full day. I pre-read detailed documents. I was referred to the relevant recent international and national case law.
8. The mother's case was that this Court had no jurisdiction since AB had not lost her habitual residence in Italy. Her case was that she had come here for a short visit. I found, principally on the basis of her own documents, that that was not the case. Also AB had been placed in a school without limit of time. The mother had made arrangements to transfer her treatment to a well known and highly regarded English teaching hospital close to the former matrimonial home, to which she had returned to live. I found that the mother had removed AB in order to evade the English process.
9. The case was finely balanced, but in the end I came to a clear conclusion. I gave a reasoned extempore oral judgment that day. I found that the mother had returned to England to be here long term rather than temporarily and that AB had been here long enough and was sufficiently integrated here so that she was habitually resident here at the time when the father issued his application: 23 September 2013. Thus the English court had jurisdiction.
10. I found, contrary to her assertion, that the mother had not issued any proceedings in Italy which would have caused the Italian court to be "first seised" in terms of BIIR. Thus the English court was "first seised". The Court which is second seised must cede jurisdiction to the court which is first seised under Article 19 of BIIR.
11. The mother was clearly very upset at the hearing, but she did not appear in physical discomfort. I understand that her treatment must be very distressing, physically and emotionally, and worrying, but her distress and agitation did not seem to me to be specifically linked with that.
12. The mother has in recent correspondence complained about my conduct of the hearing. I was not asked by her counsel to hear formal evidence from her. She had filed a full statement with exhibits. The father's counsel did not ask to cross examine her. The view of the English Court of Appeal is that oral evidence should be rare in deciding issues of habitual residence and that contemporary written material is likely to be more helpful in determining the issue than statements made after the event. The mother addressed me personally, at some length. Unfortunately she became so disruptive that I did have to ask her to leave court to calm down on several occasions whilst her counsel was addressing me.
13. The father asked me to order AB's immediate return. I acknowledged that AB had been with her mother for some years and I took the view that it would not be right to order her immediate return pending an assessment. I asked CAFCASS to provide an urgent initial assessment as to (a) whether or not the child shall be summarily returned to England and Wales and (b) residence/contact by 10 February 2014. I ordered that the mother shall bring or arrange for the child to be brought to England for the purpose of the CAFCASS assessment, the timing of the trip to be arranged by CAFCASS. The mother's attitude to the proceedings and behaviour was such that I wanted to make sure that the CAFCASS enquiry was under the English Court control rather than that of the mother, particularly so that AB could be seen away from her home and her mother. I refused the mother's application for AB to be seen in Italy. I said that CAFCASS should liaise with CFAB (Children and Families Across Borders) about AB's circumstances there. I listed the next hearing on 6 March 2014.
14. In English law the court which hears the matter needs to be asked first of all to grant permission to appeal. I was so asked, and refused permission.
15. The next step for appeal is for the proposed appellant to apply to the court of appeal for permission to appeal. If it is granted the Court can grant a stay (i.e. put a stop on) the original order pending a full appeal.
16. The mother has not asked the English Court of Appeal for a stay nor issued an application for permission to appeal. Therefore my order stands.
17. The father and mother are no longer represented in these proceedings and a transcript of my judgment of 3 December 2013 has not been obtained. I have now ordered this.
18. The order of 3 December 2013 provides that the father file a statement "in respect of his application for the summary return of the child to England and Wales and residence and in respect of any application under Article 15 (of BIIR) issued by the Respondent to transfer the proceedings to Italy by 4pm on 17^th January 2014." I cannot specifically recall discussion about a potential Article 15 application. I am clear in my own mind that I never told the mother or intimated that I encouraged such application or that she had any choice of jurisdiction to make that application, as she may be suggesting, although it is not clear, in her written representations to me at this hearing.
19. Article 15 is headed "Transfer to a court better placed to hear the case", which is used as a generic description of the range of orders which may be made. I shall use the term "transfer" as shorthand.
20. Article 15 of BIIR provides that:

"1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or a part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court's own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's own motion or by application of a court or another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child's nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration; conservation or disposal of this property …

21. The Italian court has no jurisdiction to transfer the proceedings to Italy. Only this court can do that.
22. An application to stay the proceedings or a specified part of the proceedings and to invite the parties to introduce a request before the Court of another Member State or Contracting State or to make a request to another such state to assume jurisdiction must be made, pursuant to Rule 12.62 Family Procedure Rules 2010 under the Part 18 procedure, to the court where the parental responsibility proceedings are continuing: i.e. this court.
23. An application by the foreign court for transfer of the proceedings or a specified part of the proceedings under Article 15 must be made, pursuant to the provisions of FPR 2012 Rule 12.63, to the Court having jurisdiction in relation to the proceedings, i.e. this court, . The Court Officer will serve the Respondent and notify the domestic Central Authority.
24. On 23 December 2013 the mother made an application by way of Petition number 11830/2013 V. G. to The Milan Law Court–Civil Division for (i) the transfer of these proceedings to Italy pursuant to Article 15 BIIR and (ii) variation of the order made in the County Court in England with regard to the matrimonial home in England. The father has not participated in those proceedings since he relies on my order. His case, which as appears above I perceive to be correct in law, is that only this court has jurisdiction to either hear the proceedings or to transfer them.
25. I note that the mother's written application to the court in Milan conflicts in a number of material respects with my findings in the judgment of 3 December 2013; in particular the duration and purposes for which she had brought AB to England and the child's placement at school.
26. On 10 January 2014 the Milan Family Court 9^th Civil Division-Family Division number 11830/2013 V. G. made an order which states that the Court is "considering the petition to change the divorce conditions". It adjourned the proceedings to 5 February 2013 "considering that there is no immediate prejudice against (AB) as the British Court resolved that she can stay in Italy 'until further review'". The mother's petition also asks that the Milan Court deliver its resolution through the Italian Central Authority or alternatively that the petition and request be delivered to the "British Court before which the proceedings are pending". The order does not refer to the Article 15 application or to Article 15 at all. It provides for service on the "other party" and not for service on or transmission to this court through the central authority.
27. The mother has not made an application under Article 15 BIIR to this court for a stay or to transfer to Italy in accordance with Rule 12.62 Family Proceedings Rules 2010. Nor has this court received a request to transfer from the Italian Court under Rule 12.63.
28. On 14 January 2014 while I was abroad and unable to deal with correspondence the mother's Italian lawyer served the Italian petition and order of 10 January 2014 on the father by email and also sent it to the Clerk of the Rules and to my clerk. In his covering email he asked in effect that I adjourn the 6 March hearing in order to allow "the necessary time to hear the decsison to transfer proceedings to the Court of Milan". He asked that the CAFCASS meeting be deferred until the Article 15 application was determined.
29. The mother has refused/declined to return AB for the purpose of seeing CAFCASS. I had made it clear in my judgment that the mother must make arrangements for one of other of her parents to bring AB to England for the purposes of the assessment, if she was unwilling or unable to do so herself.
30. I have seen her correspondence with CAFCASS. Her first presentation to CAFCASS was that there was no need for AB to be seen in England since she and AB had been out of the UK since 2009. She then said that the visit should be postponed because of her Article 15 application. She did not at that point rely on her medical condition or her treatment. The mother continued to say that since she and AB live in Milan the assessment must take place there.
31. It is right that CAFCASS did tell the mother that they were permitted to visit a child abroad. But this was in general terms and Mrs Bennett–Hernandez CAFCASS officer has made it clear that the terms of my order must be followed. She asked whether the reason for non-compliance was because the mother was unavailable, or that it was not convenient. She reminded her that she should send AB if she could not travel herself. She told the mother that all matters regarding AB had to be dealt with in the English Court. She asked to speak to her on the telephone as she had not managed to do so.
32. The mother wrote, on 14 January 2014, that (i) she was undergoing treatment (ii) AB would not want to travel for the assessment, and could not travel on her own (iii) the date overlapped with the Article 15 application (iv) the father has committed perjury (v) the CAFCASS officer was not right when she says that she had tried to call her but had failed.
33. On 17 January 2014 the father filed a statement as I had directed supporting his application for AB's return. He referred to the Article 15 application in Milan and commented (as also have I) that the Milan order was made on an application to change the divorce conditions and a request to provide financial information and makes no reference to Article 15 or a transfer of jurisdiction. He said that he was strongly opposed to a return to Italy on the basis that it would cause delay and distract from determination of the issues. He sought her immediate return.
34. Whilst I was still on leave, Mrs Bennett-Hernandez wrote to me asking for my assistance. Further correspondence came to my clerk from both parties and Mrs Bennett-Hernandez which I did not see at that point and with which I would have been unable to deal.
35. The mother continued to refuse to bring AB. She stated that since CAFCASS was able to travel that was what they should do. She said that she could not travel because her treatment and the AB's school woud not let her miss school. She suggested a "Skype" interview.
36. I picked up the case when I read the correspondence on my return on 27 January 2014 when I was sitting elsewhere on circuit. My clerk sent emails stating that I would convene a hearing.
37. In response the mother and her Italian lawyer each sent me a medical report indicating that she was having chemotherapy treatment in the week of 27 January 2014. The report states that she suffers side effects throughout although she is better in week three: it is best that she does not travel during treatment. It is not clear whether this is a reference to the whole cycle or just the chemotherapy week.
38. I told the parties and CAFCASS through my clerk on 30 January 2014 that I would convene a hearing on 7 February 2014. A number of communications took place. Thus I gave her 8 notice days of that hearing (not 3 as she later asserted).
39. Her Italian lawyer wrote that the mother could not physically attend a hearing, and then, on 30 January 2014 he wrote that she could not respond to the court by email as she was undergoing chemotherapy but would do her best to attend by telephone.
40. On 31 January my clerk informed the mother that I had ruled that she should attend by telephone. He also told her that I anticipated that the father would be asking for AB's immediate return on 7 February. Through my clerk I asked for an explanation of the application which had been issued. I asked for confirmation that my order had been shown to the Italian Court. I stated that the mother was in breach of my order. I stated that I assumed that I was being asked to enforce my order.
41. The mother's Italian lawyer responded that I already had the details of the Italian court. He did not confirm that the Italian Court had seen the order of 3 December 2013. He asserted that no date had been fixed for AB's return, that AB should be seen in Italy, that there was no urgency, and that the hearing should be postponed for a week when the mother would be able to attend by telephone. The mother also offered to be available in the week of 15 February.
42. I was not prepared to adjourn the 7 February hearing on the basis that she could attend by telephone and time was running short for the assessment to be completed for the hearing on 6 March. I had no medical evidence that the mother could not attend a telephone hearing on 7 February 2013. She had been able to attend court between treatments in December 2013.
43. On 6 February 2014 the mother wrote to my clerk by email that she had instructed a barrister to represent her on 7 February but he was now engaged in court proceedings and would not be available. She copied the barrister in to the email. Three hours later the barrister Mr Snelus also wrote to my clerk asking where the 7 February hearing was to take place on the assumption that the mother would be instructing him. He also said that he is preparing her statement for 6^th March 20124 (the mother's statement as directed by me is late), although instructions to represent her on that date had not been confirmed.
44. My clerk informed the parties that I declined to transfer the hearing to 17 February "the hearing has been set up for over a week and it is your responsibility to arrange for representation if you wish. Please may we have contact details? The hearing will go ahead and you must attend by telephone link".
45. The mother had also said in her emails that that AB is having a full assessment by a team of psychologists and that the report would be produced (presumably for the hearing on 6 March) in two weeks time. This court has not granted permission for such examination or report. She knew that the father objected, since he said so in his 17 January statement.
46. From her documents and the father's own evidence it is clear that the mother has instigated press publicity about AB and the legal proceedings in the Italian press together with a picture (or perhaps pictures) of AB. She knows that the father objects. Her case is that it is necessary.
47. The father did not attend the hearing in Italy on 5 February 2014 (he had asked the mother to agree to an adjournment, which she had declined). He does not yet know the result of the hearing.
48. On 7 February the mother did not attend court and she was not represented. My clerk telephoned at the beginning of the hearing at 10 am and later during the morning. She did not answer her phone.
49. The mother had submitted a number of detailed written documents, which I have read, including many emails sent on the morning of the hearing from her friends. The mother relies on her application for transfer made to the Italian Court which she has sent to the Clerk of the Rules. She asks me to adjourn AB's return pending the hearing of the Article 15 application.
50. The father asked that I order her to bring AB back to remain until the next listed hearing when I am to consider residence and contact on 6 March 2014. CAFCASS agreed.
51. He also asked me to make an order (i) preventing any further interview of AB by a psychiatrist or psychologist and (ii) to restrain her from further publicising AB's case in the Italian press.
52. I am not prepared to, and nor do I think that I can, treat the mother's application made to the Italian court as an application for transfer pursuant to Article 15. The mother has legal advice in this jurisdiction. She is aware from both CAFCASS and the father that they state that Article 15 is for this court and that she has not made the appropriate application. It is not for this Court to give advice. I have no evidence as to what the status of the mother's application is in Italy and whether the court is even considering the Article 15 issue. The mother could have provided that evidence, or told me what was happening by telephone. But I am prepared to consider on the basis of her presentation whether I should stay or transfer the proceedings or stay them of my own motion now.
53. Under Article 15 I would have to consider in amongst other things the child's best interests. I have no evidence as to her best interests. I need CAFCASS's input. I accept that as the jurisdiction of the child's former habitual residence AB has a particular connection with Italy. But I am not in a position to conclude that it would be better placed to hear the case at present, or that it would be in the child's best interests so to do.
54. I make all allowance for the mother's ill health, but I am satisfied that she deliberately absented herself from the proceedings. I have no medical evidence that she could not attend by telephone, and her counsel was obviously available.
55. I also cannot ignore that the mother surreptitiously removed AB from England without the father's consent. She is deliberately refusing to comply with my order that AB be returned to England for the purpose of CAFCASS assessment.
56. I decline on the basis of present information and on the basis of the history so far to transfer these proceedings to Italy of my own motion or to stay them at the moment. This is always an exceptional course. At present it seems to me necessary for the court with some knowledge of the history, including in written records (in this case statements, orders and judgment), and where there is a hearing date fixed within a month, to keep hold of this case. This is particularly so where it seems that what happened in this court, and the reasons for the decision, may have been incorrectly presented to the foreign court, whether inadvertently or otherwise. I have no information as to how long it would take the court in Italy to determine these proceedings. This is not to criticise the Italian court process in any way. But it always takes some time for a new court to take up the reins, as it might also on a transfer here, and on present showing I am concerned that the mother would be prepared and able to exploit this to create further delay and confusion.
57. Notwithstanding the history I was prepared to adjourn the father's application for return to England on the basis that I expected the mother to comply with the CAFCASS assessment in this country. Since she will not co-operate I must now order a return until the next hearing. Mrs Bennett–Hernandez supports the father's application. She is satisfied that he can care for AB if the mother will not return or stay with her. The mother knows that this is the application. A full opportunity must be given for CAFCASS to conduct a proper assessment, on more than one occasion, away from the mother. If I were to order a return simply for the purposes of assessment and the mother took her back to Italy there would be a risk that the mother would again refuse to comply with a return order.
58. AB must be returned within 7 days. If the mother returns with her and stays with her here they shall live at the former matrimonial home. She has a school place here. The mother can be treated locally. If the mother does not return AB the father shall collect her with her passport from Milan. If the mother goes back to Italy, or does not bring AB to England the father shall live with AB at the former matrimonial home.
59. I have power to restrain the mother personally from (i) further publicising information or causing information to be published about AB and (ii) these proceedings. I do so. At the moment I regard such publicity as harmful, and it is in breach of English law for the mother to provide information about these proceedings which identifies AB.
60. I also have power to prevent her from having AB examined by a psychiatrist or psychologist for the purpose of these proceedings. I do so. The father does not agree. It will not be independent. I do not know what assumptions may be made on a one–sided instruction or to what influences AB may be subjected by the mother or those around her.
61. I give leave for the sealed order to be served on the mother by email. She has now been sent the final version. I give her liberty to apply.
62. I shall endeavour to make arrangements to contact the network Judge in Italy though the Office of International Family Justice at the Royal Courts of Justice.
63. The mother has informed my clerk that she intends to appeal this order. I refuse permission. She is free to approach the Court of Appeal.

Postscript

64. This judgment was circulated to the parties in draft on Tuesday 11 February 2014. It reflects and explains my decision and order of 7 February 2014.
65. Since the judgment is to be put on BAILII I have invited the parties and Cafcass to make representations as to whether the 'in personam' publicity injunction needs to be varied. I await a response.