England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
AND IN THE FAMILY COURT


IN THE MATTER OF THE 1996 HAGUE CONVENTION
AND IN THE MATTER OF M AND L (CHILDREN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2016

MR JUSTICE BAKER :

1. This is, so far as I am aware, the first reported judgment in this country concerning the power to submit a request to the court of another country to assume jurisdiction under Article 8, or for authorisation to exercise jurisdiction under Article 9, of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children signed on 19 October 1996 (hereafter referred to as the "1996 Hague Convention") which came into force in the United Kingdom on 1 November 2012. At first sight, it might seem surprising that these provisions have not been considered in any court proceedings before now. One explanation for this may be that most of the countries closest to the United Kingdom that have signed the 1996 Hague Convention are also members of the European Union and therefore parties to Council Regulation (EC) 2201/2003 ("Brussels IIA"), which contains its own provisions for the transfer of proceedings under Article 15. Of course, following the referendum on leaving the European Union, it is possible (although, at the time of this judgment, by no means certain) that Brussels IIA will in due course cease to apply to this country. If so, the provisions of the 1996 Hague Convention will undoubtedly acquire a greater prominence.
2. The present case involves a family which is split – the father and older son in England, the mother and younger son in Norway. Norway is not a member of the European Union, but has itself recently ratified the 1996 Hague Convention. Proceedings have been started in both countries, but the father, who is the applicant in this country, has invited this court to submit a request to the Norwegian court under Article 9, which, if granted, would enable this court to determine all issues concerning the boys.

Background

3. The mother is Norwegian, the father is English. They were married in 2003. During the marriage, they lived in England. They have two sons – M, born in 2006 and therefore now aged 10, and L, born in 2008, therefore now aged 8.
4. The marriage finally broke down in 2014 and the party separated in July of that year. The breakdown has been described as acrimonious by a CAFCASS officer who has reported in the course of the English proceedings. It seems that there were a number of referrals to social services, principally as a result of concerns about M's angry and violent behaviour. As a result of these concerns, the local authority made M subject to a Child in Need plan and he was allocated his own social worker, hereafter referred to as "BF".
5. Following the separation, the mother informed the father that she wished to take both boys to live in Norway. The father objected, and there ensued contested proceedings in the family court in this country. At a dispute resolution hearing in January 2015, the parties agreed that the mother could take L to Norway with a schedule of agreed contact for the father and the court duly made a child arrangements order that L to that effect. The outstanding issues, namely where and with whom M should live and what contact he should have with the other parent, were the subject of further reports and ultimately listed for a final hearing before His Honour Judge Horton on 13 April 2015. The order made at the conclusion of that hearing records inter alia that the mother indicated that, having considered the report of the CAFCASS officer, she did not wish to proceed with her application to remove M to Norway; that the father agreed to permit and facilitate contact between the mother and M, and between M and L; and that both parents indicated that it was "their intention to facilitate good working relationships between themselves in the interests of and consistent with the welfare of the boys". On that basis, the court ordered that M should live with the father in England, that the child arrangements order made in January 2015 in respect of L should remain in force, and that the children should have contact with their parents and each other in accordance with a schedule attached to the order, which set out detailed arrangements for contact in both England and Norway. It further provided for the children to be permitted to communicate with each other via Skype or FaceTime three times per week, such contact to be supported by the parents and conducted around the children's activities.
6. Although the mother was represented by experienced leading counsel, and the order recited her agreement to its terms, it is her case before me that she only agreed the terms under duress.
7. Regrettably, the optimism concerning the parents' co-operation about the boys' future proved misguided. Contact did not take place fully in accordance with the schedule. According to the father, the mother failed to bring L to England for contact in May 2015 as provided in the schedule and, although the children did have contact in England in the summer holidays 2015, the period of contact was somewhat shorter than stipulated in the schedule. M's contact in Norway later in August 2015 was also disrupted. The father asserts that it was the mother who was responsible for this, claiming that she largely ignored M during the visit. He further asserts that the mother failed to comply fully with the provisions of the schedule concerning contact over the October 2015 half-term holiday. He alleges that there were ongoing difficulties over the FaceTime contact which he also attributes to the mother's failure to adhere to the terms set out in the schedule. He claims that the mother used the sessions to manipulate the children by involving them in discussions about where M should live. He also asserts that the mother sent M emails with a link to the UN Convention on the Rights of the Child, and to a YouTube video of a child being interviewed about abuse.
8. The mother's case is that it was the father who was responsible for the difficulties that arose over contact. She asserts that it was he who put pressure on M and criticised her. She accepts that she sent M a link to the UN Convention but asserts that "in Norway, children are informed of their rights according to the UNICEF in their first year of primary school and the importance of children's rights are constantly highlighted to the public". She alleges that M had told her that the father would interfere during the FaceTime contact if he heard anything he did not like, and that he was scared of his father. The mother is highly critical of the English court system and the professionals in this country who have been involved in the litigation. She states: "here we have a custody case with a manipulator in the picture and I have been constantly shocked and amazed that no one involved can see this."
9. On 18 December 2015, the father applied for a prohibited steps order preventing the mother removing M from the jurisdiction, a specific issue order requiring her to surrender M's Norwegian passport, and a variation of the contact order. The matter came before a deputy district judge on 30^th December, when a prohibited steps order was made in the terms of the father's application. The mother informed the court that she did not have a Norwegian passport for M. The matter was listed for a further hearing in April 2016 and the local authority was directed to provide a report under s.7 of the Children Act 1989 on direct and indirect contact and international travel arrangements for the family. The parties agreed an amended arrangement for interim contact via FaceTime, and also that the father would be permitted to record all conversations and make the recordings available to the social worker preparing the s.7 report. The order made at the end of the hearing included a schedule of expectations providing inter alia that "neither party is to put pressure on the children with regard to their living arrangements or where they will be living".
10. It is the father's case that, notwithstanding the terms of the schedule of expectations, the mother continued to use the FaceTime sessions to engage M in conversations about where he should live. The father duly recorded the sessions as he was permitted to do under the order and a transcript of the some of the conversations is appended to a statement he has filed subsequently in these proceedings. I have read the transcripts but I have not heard recordings, nor have I explored whether the transcripts are complete or accurate. It is neither necessary nor appropriate for me to comment in any detail upon the transcripts at this stage, save to record that they appear to show the mother talking to M about moving to Norway and also that M was uncomfortable and distressed at times during the sessions. The mother, who accepts that on at least one occasion she said things that should not have been said, maintains her position that the FaceTime contact has been manipulated by the father.
11. In February 2016, the mother started proceedings in a court in Norway, seeking to change the contact arrangements in respect of L.
12. Prior to the next hearing listed in the English proceedings in April, the local authority social worker BF duly filed her report under s.7. She noted that the schedule of expectations had not been adhered to by the mother. Having considered the recordings and transcripts, she concluded that the mother had placed pressure on M and attempted to discuss with him matters relating to the court proceedings and his future living arrangements. She recorded that both the parents had breached the earlier court order by failing to arrange face-to-face contact between the boys. Although critical of the father in this respect, she noted that he had shown an insight into M's emotional needs and the impact of the current situation on the boy, and concluded that there were no particular concerns regarding his care of M. Noting the high level of distress and difficult behaviour which M had previously displayed at home and at school, where his behaviour had been very challenging and on occasions aggressive, she observed that there had been some improvement, in particular in his attendance at school, although on occasions his difficult behaviour had continued. Overall, however, she concluded that M was very settled in his day-to-day routine with his father and was seen to be happy and settled within his home environment. BF described M as being very frustrated with the current contact arrangements, and wanting to move forward with contact being unrecorded and led by the children themselves. M proposed that physical contact should be shared equally and should alternate each year to make it "fair". BF said that M did not want to have another holiday from school without seeing his brother. She concluded that M was being let down by his parents in regards to face-to-face contact with L. She recommended that he should continue to reside with his father and that "the additional pressure provided by the mother in regards to living arrangements is stopped". She recommended that the FaceTime contact be considerably reduced to once per month "to enable M to regulate his emotions between contacts." She recommended the travel to Norway should take place only in the three main school holidays.
13. The mother is strongly critical of this report, asserting that it contains many inaccuracies and "four direct lies".
14. At the next hearing on 27^th April, the mother applied for M to be joined as a party to the proceedings and to be represented by a NYAS guardian under rule 16.4. District Judge Field refused that application and listed the matter for a final hearing before a circuit judge, directing the parties to file statements for that hearing. In the interim, he directed that FaceTime contact should take place once per month as recommended by BF, on the basis of a schedule of expectations in terms similar to that appended to the previous order. Noting that the mother had started proceedings in Norway, he gave her permission to disclose the documents from the English proceedings to the Norwegian court.
15. On 21^st June, the father's solicitor applied for a request to be made under Article 15 of Brussels IIA for the transfer of the Norwegian proceedings to England and Wales and for the final hearing in respect of M's contact to be adjourned. The proceedings were transferred to me and at a hearing on 20^th June I adjourned the final hearing and give directions for a hearing of the father's application for a transfer. Regrettably, everyone (including the court) overlooked the fact that Norway is not a member of the European Union. On 29^th June, the father's Norwegian lawyer informed his English solicitor by email that the proceedings in Norway regarding L had been stayed and the earliest date for the next hearing would be January 2017, "depending on the UK process". When the matter returned to court on 21^st July, I drew counsel's attention to the fact that Norway was not a member of the EU so that the transfer provisions of Article 15 of Brussels IIA were not available, and adjourned the matter to later in the day to allow the father's counsel to consider the position. At the adjourned hearing, counsel indicated that the father wished to apply for transfer under the 1996 Hague Convention and, upon his undertaking to file an application under that convention by 4^th August, I gave further directions for the filing of any cross application by the mother for transfer of the proceedings in respect of M to Norway. I directed skeleton arguments be filed and list the matter for a telephone hearing before me on 30^th August. On 5^th August, the father duly filed an application in the Family Division of the High Court under the 1996 Hague Convention. On 22^nd August, the mother filed a skeleton argument indicating that on legal advice she did not seek a transfer of the proceedings in respect of M to Norway.

The law

16. The relevant provisions of the 1996 Hague Convention are as follows.
17. Article 1(1) provides:

"The objects of the present Convention are

(a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;

(b) to determine which law is to be applied by such authorities in exercising their jurisdiction;

(c) to determine the law applicable to parental responsibility;

(d) to provide for the recognition and enforcement of such measures of protection in all Contracting States;

(e) to establish such cooperation between the authorities of the Contracting State as may be necessary in order to achieve the purposes of this Convention."

Article 3 provides that the measures referred to in Article 1 may deal in particular with (inter alia) the attribution, exercise, termination or restriction of parental responsibility, as well as its delegation, and rights relating to the care of the person of the child including the right to determine the child's place of residence and rights of access.

18. Chapter II of the Convention is headed "Jurisdiction". Article 5 (1) sets out the basic rule:

"the judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property."

The Practical Handbook on the Operation of the 1996 Hague Convention published by the Hague Conference on Private International Law confirms (at paragraph 3.14 et seq) that "measures directed to the protection of the child's person" include, inter alia, measures relating to the exercise of parental responsibility and rights relating to the care of the child, including residence and access.

19. Article 8 provides, however:

"(1) By way of exception, the authority of a Contracting State having jurisdiction under article 5 … if it considers that the authority of another Contracting State would be better placed in the particular case to assess the best interest of the child may either

request that other authority, directly or with the assistance of the Central Authority of its State, to assume jurisdiction to take such measures of protection as it considers to be necessary, or

suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

(2) The Contracting States whose authorities may be addressed as provided in the preceding paragraph are

(a) a State of which the child is a national,

(b) a State in which property of the child is located;

(c) a State whose authorities are seized of an application for divorce or legal separation of the child's parents, or for annulment of their marriage, or

(d) a State with which the child has a substantial connection.

(3) The authorities concerned may proceed to an exchange of views.

(4) The authority addressed as provided in paragraph 1 may assume jurisdiction, in place of the authority having jurisdiction under article 5 .... if it considers that this is in the child's best interests."

20. Article 9 provides

"(1) If the authorities of a Contracting State referred to in Article 8, paragraph 2, consider that they are better placed in the particular case to assess the child's best interests, they may either

request the competent authority of the Contracting State of the habitual residence of the child, directly or with the assistance of the Central Authority of that State, that they be authorised to exercise jurisdiction to take the measures of protection which they consider to be necessary, or

invite the parties to introduce such a request before the authority of the Contracting State of the habitual residence of the child.

(2) The authorities concerned may proceed to an exchange of views.

(3) The authority initiating the request may exercise jurisdiction in place of the authority of the Contracting State of the habitual residence of the child only if the latter authority has accepted the request."

Submissions

21. On behalf of the father, Ms Reed (who did not appear at previous hearings) submits that the power to submit a request under Article 9 arises in this case because L (a) is a UK national and (b) has a substantial connection with the UK. She has been unable to find any case law on the interpretation of the phrase "substantial connection" under the Convention, but draws attention to the analogous provision in Article 15 of Brussels IIA which permits a request for a transfer in cases where the child has a "particular connection" with the relevant Member State. Article 15 (3) provides that a child shall be considered to have a particular connection with a Member State inter alia if that Member State is the former habitual residence of the child, or is the place of the child's nationality, or is the habitual residence of a holder of parental responsibility. Ms Reed points out that all three of these conditions apply here. She therefore submit that the child has both a particular and substantial connection to the UK.
22. As to the substantive question whether or not this court is "better placed… to assess the child's best interests", Ms Reed submits that, unless one court deals with both siblings, they will inevitably be a scenario where the court of a foreign jurisdiction will be making best interest decisions for one sibling or the other. In those circumstances, she submits that one court should make the decision in respect of both boys. She submits that the courts of Norway and England should be presumed to be equally competent to dispose of the matters with which they are seised, noting that the courts of this country have strongly discouraged the deployment of "chauvinistic" arguments seeking to make relative value judgements about other judicial and child protection systems: see, for example, the observations of Sir James Munby P in Re E [2014] EWHC 6 (Fam) at para 20. On behalf of the father, however, she asserts that this court is better placed to assess L's best interests for the following reasons.

(1) The children were both born in the UK and, prior to the separation of their parents, lived together in this country. Although L has lived in Norway for a little over a year, his formative years, and the majority of his life, have been spent in England. The family's shared cultural base and experience has been England.

(2) This court has prior knowledge of both siblings and both parents. In contrast, the Norwegian court has no prior knowledge of this family and no knowledge at all about M.

(3) This court has current knowledge of M as a result of the revived proceedings, in which a fresh section 7 report has been prepared. There is current social work and other professional involvement arising out of M's emotional difficulties.

(4) The documentation and professional knowledge of a range of professional involvement in the life of this family going back to the earliest years is held in this jurisdiction.

(5) A Norwegian court would need either to proceed without access to much of this potentially important material or arrange to be translated. The documentation is substantial and the cost of translation would be significant. Furthermore, there would be difficulties in taking oral evidence from the relevant English witnesses. The English court is far better placed to deal with this evidence and to afford the parties an opportunity to challenge it. In contrast, the professional evidence emanating from Norway is much less substantial and probably consists only of the psychological assessment of L commissioned within the current Norwegian proceedings. It will be relatively straightforward for this to be translated into English and for the witness to give evidence before the English court.

(6) Both parents are familiar with the workings of the English family court system. In contrast, the father has no experience of the Norwegian court. Both parties speak English. The mother lived in the UK for nearly 20 years, studied here to Masters level, and is bilingual. The father says he does not speak Norwegian save for a few day-to-day phrases.

(7) Although the Norwegian court would have the advantage of the presence of L in assessing his needs in isolation (and vice versa for the English court and M), the English court is better able to consider the interlocking and potentially distinct needs of both children and how they might be best reconciled and managed.

(8) Whichever court deals with the matter will need to be mindful of the need to ensure that the voices of both children are heard. It is perhaps more acutely difficult for a child of M's age to be effectively and appropriately involved in proceedings conducted in a foreign language and in a foreign country. Although M speaks Norwegian, his first language is English.

23. The mother is at present representing herself in these proceedings and at various points in her skeleton argument stated that it was difficult for her to comment on submissions made by Ms Reed, in particular as to the interpretation of the Convention, because she is a litigant in person. She does, however, put forward in her skeleton argument a clear and articulate case for opposing the father's application for a request under Article 9.
24. First, she confirms at several points that she is not herself applying under Article 8 for this court to request the Norwegian court to assume jurisdiction in respect of M. On the other hand, she also asserts at several points that she believes the current arrangements are not in the children's interest and that it will be best for both boys to live in Norway with her.
25. Secondly, she asserts that the Norwegian court process has a number of advantages over the English court process and that, as a result, the Norwegian court is better placed to assess L's best interests. Both she and the father will be granted legal aid in Norway. Interpreters will be provided. More substantially, she asserts that the quality of professional evidence available in Norway is superior to the evidence put before the English court. Specifically, she states that the Norwegian court will as a matter of course obtain the evidence of a psychologist and observes:

"sadly this has not been the case in the English court where a newly qualified social worker (BF) is deemed to be competent instead of a trained, authorised psychologist appointed by the court."

26. Thirdly, she submits that she is at a disadvantage in the English proceedings.

"The court ruling on which the current arrangement is based is characterised by myself not having home-field advantage and that I have gone too far in following the direction of local social workers in the UK, who seem to have been overly focused on concerns relating to a change of environment, to the detriment of other child arrangement parameters, such as caregiving abilities, attachment, the separation of siblings etc."

Later, she adds:

"The applicant father is familiar with the workings of the English family court process and he is on his home ground. I am forced to represent myself as a litigant in person, speaking my second language. Further management of the case to follow an almost 'Kafkaesque' process."

27. Fourthly, and following on from the previous submission, she states that the English court is likely to be biased. She states, for example, that

"the English court has limited and biased knowledge and understanding of the siblings and the parents. There has been no investigation in the maternal home and no investigation in relation to the support network in Norway. The latest statistics from UNICEF report that in the league table of children's welfare across income, education, health and life satisfaction, Norway stands second only to Denmark. The UK has moved from number 16 to number 14 in the latest report published 14 April 2016."

Therefore, she submits that it is an advantage that the Norwegian proceedings in respect of L are independent of any work previously undertaken by the English court. It would also be an advantage that the Norwegian court has no prior knowledge of this family since, in her words,

"this would actually [be] the first time I would have the opportunity to tell my side of the story which I have been denied since the very outset … This will give the Norwegian court the opportunity to conduct an unbiased investigation, go further back in time and find out how the marriage affected M to be the boy he has now become."

28. Fifth, she submits that L's connection to the UK "is sadly reduced due to the applicant's decision to alienate the brothers towards one another and alienate L's contact with the applicant". She points out that there is currently no direct contact at all, and little indirect contact, between M and herself and L, and lays the blame for this squarely on the father, saying:

"parents who obstruct the relationship with the other parent are inflicting untold damage on their children and it's about time the professionals truly understand this."

In oral submissions, the mother referred to literature about parental alienation syndrome in support of her argument that the father has alienated M from her and L. It is her contention that the English court and professionals have failed to recognise that this has happened, and that the Norwegian court and professionals will be better equipped to address this issue.

29. Finally, she contends that the children are of dual nationality and that their mother tongue is Norwegian, stating that, since the father was mostly away from home during the marriage, Norwegian was their main language until M was 8 years old. She therefore submits that the children's voice will be better heard in a Norwegian court since both children are fluent in that language.

Discussion and conclusion

30. I am satisfied that the power to submit a request under Article 9 of the 1996 Hague Convention is available in this case because L is a UK national and also because it is plain, as submitted by Ms Reed, that L has a "substantial connection" with this country. This was the country of L's habitual residence until 2015 and is still the habitual residence of his father and brother.
31. The question therefore arises whether this court is "better placed" to assess L's best interests and to determine what further orders, if any, should be made concerning his contact with his father and brother.
32. Each party seeks to identify ways in which the country in which he or she has started proceedings has an advantage. The father relies on the fact that both boys have lived for most of their lives in this country; that they share a common English culture and background; that the English court has prior knowledge of the family; that the professionals in this country have extensive knowledge of the background to this case and, in particular, of M and his problems; that both parties are familiar with the workings of this court, as opposed to the Norwegian court of which the father has no experience; and that both parties are fluent in English, whereas the father's ability to speak the Norwegian language is limited. The mother relies on the fact that both children are very familiar with Norway and the Norwegian language; that (as she asserts) resources in the Norwegian family justice system are superior to those available here (for example, in terms of the provision of legal aid and the more frequent use of psychologists); that both parties will be represented by lawyers in Norway whereas in England she is a litigant in person representing herself in her second language; and that the Norwegian court would approach the case free from the influence of previous assessments and, as the mother perceives it, the mistakes made in previous proceedings.
33. In my judgment, the English and Norwegian courts are equally competent in general terms to determine issues about children. Each court operates in a sophisticated and advanced legal system manned by experienced judges who are manifestly capable of making decisions in this type of case. Although there are some differences in the respective processes, and each court has advantages which the other does not, overall there is no substantial difference. Comparisons are odious. As Mostyn J observed in Re T [2013] EWHC 521 (Fam) at paragraph 37, the court

"should not descend to some kind of divisive value judgment about the laws and procedures of our European neighbours"

and as Sir James Munby P added in Re E (supra), at paragraph 20,

"beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and apply the same insights and approaches as those we are familiar with."

34. Save for one factor, I consider that each court would be broadly speaking equally well placed to determine the issues concerning L's future contact. Each court, if required to make a decision about L's welfare, would need to obtain evidence from the other country, which would have to be paid for and translated. This is hardly an insuperable problem. In each court both parents will have the opportunity to put their case. In Norway, the father may be at some disadvantage because of the language and will therefore need the assistance of an interpreter. In England the mother may be acting as a litigant in person, but this court will take all necessary steps to ensure that she is not thereby at a forensic disadvantage. I do not accept the mother's contention that the father has "home field advantage" in the English court, any more than she would have such an advantage in the Norwegian court. Each court has the power to commission professional assessments. The mother contends that the Norwegian court would seek the assistance of a psychologist as a matter of course. In this country, expert evidence is only allowed when the court considers it "necessary". My preliminary view, however, is that it will be necessary to obtain psychological evidence in this case. I note that District Judge Field decided earlier this year that it would not be appropriate to join M as a party to the English proceedings and request NYAS to allocate a children's guardian. In my judgment, however, were this court to be in the position of determining contact arrangements for both boys, there is a compelling case for joining them as parties to the proceedings and appointing a guardian and thereby facilitating the instruction of a psychologist to assess the boys. This court would, therefore, be just as capable as the Norwegian court of analysing the mother's contention that this is a case of parental alienation.
35. In most respects, therefore, I consider that the English and Norwegian courts are equally well placed to determine the issues concerning L's contact.
36. There is, however, one crucial point which, in my view, carries decisive weight. It is manifestly in L's best interests for decisions about his contact to be taken by the court which is making decisions about M's contact. A crucial issue between the parties – perhaps, in the long run, the most important issue – concerns the contact between the two boys. This issue arises in both the English proceedings and the Norwegian proceedings. If the two sets of proceedings continue as at present, there is a risk that they will result in inconsistent orders. It does not make any sense for two courts in two separate countries to attempt to make decisions about the same issue at the same time.
37. For whatever reason, the mother has not invited this court to request the Norwegian court to assume jurisdiction in respect of M. It follows that the only way in which all issues of contact can be considered by one tribunal is if the issues concerning L's contact, currently the subject of the Norwegian proceedings, are transferred to this court. For this reason, I conclude that this court is better placed than the Norwegian court to assess L's best interests and to determine what further orders, if any, should be made concerning his contact with his father and brother.
38. Accordingly, I propose to submit a request to the Norwegian court to authorise this court to exercise jurisdiction and make decisions in respect of L's contact with his father and M at the same time as considering the issue of M's contact with his mother and L.
39. How should this request be submitted? I shall begin by contacting the staff of the International Family Justice Office in the expectation that they may be able to facilitate this request. It is notable that, in keeping with the objects of the Convention in Article 1, it is expressly provided in Articles 8 and 9 that the courts concerned "may proceed to an exchange of views". I am willing to discuss this issue with my Norwegian colleague if in the circumstances that is deemed appropriate and helpful.