England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		21st September 2016

MR. JUSTICE BODEY:

1. This is a case about three children, whom I will call "the children": A, born [date stated] who is just eleven; B, who was born on [date stated] who is eight; and C who was born on [date stated] who is four. These children are parties to the case, having been joined by Roberts J on 16^th June 2016 and are represented by Ms L of the CAFCASS High Court team. There is a fourth child on the fringe with whom these proceedings are not concerned, D, who was born on [date stated] therefore ten, and who is a half sibling of the children. The parties have, in fact, settled their differences and come to terms but I give this judgment nevertheless because it may be helpful to summarise the situation as it is today and particularly to record the position of CAFCASS. For convenience, I shall refer to the adult parties as "the mother" and "the father" respectively. The father has been represented by James Turner QC and Jennifer Perrins and the mother by David Williams QC and Dorothea Gartland. Ms. L has been represented by Paul Hepher. They and their respective solicitors have, as it appears from up here, dealt with the case in as collaborative and helpful a way as possible, given the high underlying emotions.
2. The background may be shortly stated. The father was born in Sierra Leone on [date stated] and is, therefore, aged forty. He has lived in Belgium, where he still lives, since he was sixteen or seventeen and he has a residence permit to live there. The mother was born in the Gambia on [date stated] and is, therefore, aged thirty-three. She now has Belgian nationality. For the last year and a bit she has lived with the children in England, more specifically in [the Midlands]. Either in 2000 or 2002 (according to which party's recollection is correct, although the date is immaterial) the parties underwent a customary marriage ceremony in Guinea, subsequent to which they set up their marital home in Belgium. That is where they lived during their marriage and where the three children were born in [years stated] respectively. In 2014 D came to live with them in Belgium. He is the son of the father by a previous marriage or relationship. So, the family became comprised of the mother, the father, the three children and D, all clearly habitually resident in Belgium.
3. On the mother's account the marriage was an abusive one with both she and the children being subjected by the father to physical and emotional abuse. The father vehemently denies this. In mid August 2015 there was on both parties' accounts a big row between them. The mother says that she was subjected to a serious physical assault by the father. He accepts that he did hit her once in the back (albeit he says the only time he has ever laid hands on her) but he maintains that it was only after she had lost her temper and hit him in the chest. The upshot was that on or about [date stated] August 2015 the mother left the matrimonial home with the children (i.e. not including D) and travelled to this country, where she was put up by a relative. She did not tell the father, nor obtain his consent to the children being removed from Belgium. He simply returned home to find the mother and the three children gone. She and the three children have lived in this country ever since but the children have not had any contact to the father since August 2015.
4. There followed a fairly conventional course of litigation in both jurisdictions. It transpired that the parties' customary marriage in Guinea was and is not recognised by Belgian law. As a consequence the father did not have and does not have the equivalent of parental responsibility or "rights of custody" in respect of A and B. He did and does have such rights in respect of C because at some point he signed the necessary formal documentation in Belgian law to achieve those rights. For reasons which are disputed he did not take that formal step regarding the elder two children. As a consequence the father's endeavours in respect of the elder two children to have them returned to Belgium have rested on the use of the inherent jurisdiction of this court. Belgian law regards it as within the mother's rights to remove the elder two children from that jurisdiction without the father's consent. As regards C, however, the father was able to and did approach the courts in both jurisdictions to try to secure that child's return to Belgium. Hence, on about 4^th December 2015 he started proceedings in Belgium:

(i) for a return of C to Belgium; and

(ii) for parental rights to be transferred to him in respect of that child.

5. On 20th January 2016 the Belgian court gave a judgment allowing the father's two applications. Service of the process had been by a Hussier at the mother's registered address in Belgium but there is no dispute that she had not, in fact, received notice of those Belgian proceedings. Accordingly, once served with the Belgian order of 20th January 2016 the mother instructed her Belgian lawyers to apply to revisit it. This led to cross applications in the Belgian court as follows: by the father for custody or joint custody of C and by the mother for custody of him and permission to relocate him to England. Those proceedings were due for hearing this week in Belgium but I am told that they have been adjourned to 31st October 2016.
6. Meanwhile in this jurisdiction, on 5th February 2016 the father issued Hague Convention proceedings for the summary return of C to Belgium, with it subsequently being made clear in an order of Moylan J dated 17^th February 2016 that he was seeking the return of all three children to Belgium under the inherent jurisdiction of this court (in C's case if the Hague Convention was held for any reason not to apply).
7. On 29^th April 2016 the father applied to District Judge McGregor for the registration and enforcement under Brussels II revised of the Belgian order dated 20^th January 2016 (above). That application was granted on that day and the Belgian order was, therefore, cleared for direct enforcement in this jurisdiction. However, on 27^th May 2016 the mother issued an appeal against District Judge McGregor's order on a number of grounds within Art.23 of Brussels II revised, effectively to do with service, hearing the child's voice and the "defence" of "manifestly contrary to public policy".
8. Following a final hearing having had to go off on 25^th April 2016 for lack of judicial resource and after a further delay caused by a late application by the mother to have the children joined and separately represented, the final hearing came on before me yesterday. The macro issues for determination were therefore:

(i) Regarding C:

(a) The mother's appeal against the 29^th April 2016 registration of the Belgian order of 20^th January 2016 granting parental responsibility over C to the father and ordering C's return to Belgium;

(b) If that appeal were allowed, then the father's contested Hague Convention application for C's summary return to Belgium (the mother defending on the basis of "grave risk of physical or emotional harm or intolerable situation");

(c) If that Hague Convention application failed, then the father's application was for C's return to Belgium under this court's inherent jurisdiction.

(ii) Regarding A and B: the father's application under the inherent jurisdiction for orders to be made at this hearing returning them to Belgium.

9. There were, of course, numerous micro issues arising out of the many profound disputes of fact as between the parties, which would have to have been case managed as best as is possible in proceedings which are essentially summary. However, as I have said, negotiations have been taking place for a little while, which came to fruition at the door of the court. To his credit, the father has come to see that the children are now settled and happy here and doing well. He therefore flagged up his position in a recent statement that, provided contact could be re-established, if possible involving D, then he would be willing not to pursue his applications here for the return of any of the children to Belgium and would not pursue his Belgian proceedings or his extant Belgian order. He was perhaps fortified in that decision by Ms. L's second report dated 19^th August 2016, where under the heading "conclusion" she says:

"What a pleasure it was to visit these children in their home. Despite having only recently moved in, it was clear to me that they present at home there. ….. Whilst the children would appear to me to prefer to stay in England, I could not say that they object to returning to Belgium within the meaning of the Hague Convention but it is very clear to me that they wish to remain in the care of their mother… This family present as a loving unit and it is difficult to see how separating one of the children [C] from his siblings could be in anyone's best interests. He clearly brings the fun element in his family. His outgoing personality is infectious and all around him could not help but smile in his presence. …. It would be impossible not to see how he brightened their lives and how they appreciate his presence and it was also clear how he benefited from the love and care he received from his elder siblings. The children present as a close sibling group and, in my assessment, should not be separated… Although the children tell me they do not wish contact with their father, it is encouraging that the mother was able to contemplate it taking place. Unfortunately, given the reports of their life with their father in Belgium, the father is aware that I am unable to endorse unsupervised contact wherever the children reside until an assessment is undertaken to ensure it is safe… Finally, it is invariably better for children to know that their parents are able to work together in their best interests and to that end I very much hope that this family is able to reach an agreement rather than leave the decision to the court."

10. The mother has accepted the father's approach and has agreed through Mr. Williams and directly to me to do her best to encourage the children to engage with the father in sensitively re-introduced contact in the hope, which she says she shares, that a father/child relationship may be re-established. Such relationships, so long as they are enjoyed in circumstances of safety, are universally recognised as being almost always beneficial to the children and the converse as being almost always detrimental. However the negotiations to compromise these proceedings hit a snag, which arose in the following way. On Thursday of last week (15th September 2016) the CAFCASS Legal lawyer had emailed the parties as follows:

"Subject to the children and the mother agreeing to speak with the father on telephone/Skype and that there is some contact between them (which has not yet been agreed), the children's guardian would be prepared to facilitate and observe a one-off meeting between the children and their father for the purpose of re-establishing the relationship. This could take place at the CAFCASS office in Bloomsbury or the CAFCASS RCJ room whenever the father is able to travel to the UK."

Hence, the parties saw the way forward as being: telephone and Skype contact followed by a supervised introductory meeting (if possible including D) with Ms. L present. Thereafter the parties would take stock and see how things looked for the future according to how the introductory indirect and direct contact had gone. However, when it came to the crunch Ms. L was less than happy to supervise a meeting. Mr. Hepher submitted that the proper approach was for Ms. L to drop out, leaving it for the parties either to arrange a contact centre near to the mother's home or else to resort to the family court locally to the mother's home in [the Midlands]. If the CAFCASS High Court team committed itself to ongoing contacts disputes, it was said that there would need to be a 're-tuning' of CAFCASS's resources. Therefore, it was submitted that the case should go off to [the Midlands] where there would be local CAFCASS resources or else local authority resources available to devote to what Mr. Hepher accepted are potentially complex cross border contact issues. As regards the above offer by the email of 15^th September 2016, Mr. Hepher said that it had been meant to refer to a contact session taking place this week only.

11. I was asked in effect to give a "steer" which might resolve the impasse, an impasse wherein the parties had pinned their compromise on Ms. L and she was now reluctant to be further involved. I am not in any way unsympathetic to the resources issue. The CAFCASS High Court team is a valuable resource to the High Court in these complex and often urgent international cases. This Court is heavily dependent on the team with their special expertise and experience. However, in the particular circumstances here, Ms. L is already well known to the three children and has a good rapport with them. She has met the mother twice and spoken over the telephone with the father. If this planned first supervised contact is to have the best chance of working well, it must surely be better that it is facilitated and overseen by Ms. L, who knows all about the background, rather than be supervised by a new professional. The alternative, if not only the Hague proceedings but also the inherent jurisdiction proceedings were to be ended today, would be that the father, possibly as a litigant in person, would be unlikely to find it easy to get the issue of custody back before a local family court. If he succeeded in doing so, there would anyway be delay whilst that new court got a grip and a new CAFCASS officer or Local Authority social worker read into the case and met the parties and the children. Taking that into account and fortified by the wording of the email of last week, I indicated therefore that I felt it would be best for Ms. L to supervise the one-off contact session as originally intended. Looking if only crudely at the overall cost to the public purse, it would be likely to be the most cost effective way forward.
12. When I had made this view clear and had given Mr. Hepher an opportunity to take instructions, he indicated to me that Ms. L would after all agree to do the initial one-off supervision and that is the way the matter is going to proceed. I record, however, that Ms. L is not implying that she would be able to carry on supervising, or being otherwise involved in this case. Further, she stands by her concerns set out in her report (above) that there needs to be a risk assessment, and/or possibly a fact-finding exercise, given the allegations made by the mother of serious violence, which the father denies - unless, that is, arrangements can be made which would satisfy her of the safety of the children during contact. She is also concerned by the children's reports to her of violence by the father, reports which the father believes to have stemmed from the children having been intentionally or unintentionally influenced into saying such things by the mother.
13. I stress that I conclude nothing about the alleged violence within the parties' relationship, nor about the derivation of the things which the children have said to Ms. L. I have no view whatsoever as to where the truth lies since there has been no examination of the issues before me. I merely flag up on the record CAFCASS's concern as expressed by Ms. L. It will be for the judge on the next occasion, following the indirect contact and the one contact supervised by Ms. L, to case manage the matter if the parties cannot agree ongoing arrangements. By 'case manage', I mean to decide whether the inherent jurisdiction should continue or whether a s.8 application should now be made; what level of judge should take the case; at what venue; and whether there needs to be any sort of fact-finding and/or any form of further assessment about the father seeing the children. All that would depend on how the contact seems to have gone in the meantime and where the parties were in terms of what they were respectively willing and able to agree about contact in the interests of the children.
14. I strongly urge the parents to see this as a new beginning. The children will now live with the mother in England and both parties need to work together cooperatively to ensure that the children have safe, enjoyable and fulfilling relationships with both their parents.
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