England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		28th November 2016

MR JUSTICE HOLMAN:

1. The time is now 5.10 p.m. on Monday, 28^th November 2016. This hearing before me was estimated and listed for two days, namely today and tomorrow. For a reason which I will later describe, it is, frankly, imperative that this hearing ends today, because both these parents ought to be in [place name redacted] tomorrow, where their children, and specifically the elder one, live. That reason has, in fact, only unfolded itself within the courtroom in the space of the last hour or so, towards the end of this afternoon. For that reason, I propose in this judgment to deal with the issues before me today in a very abbreviated and summary form.
2. Both parents are Spanish, and citizens of no other state. They were married to each other. They have two children: a daughter, now aged 13, and a son who will be 10 later this week. Both those children are also Spanish and not citizens of any other state.
3. During the course of their parents' marriage the children have lived, at different times, both in England and in various parts of Spain, including the island of Tenerife.
4. Sadly, the marriage between the parents broke down in 2013. The mother applied to the courts in Spain for a divorce between the parents. She was given permission at that stage lawfully to bring the two children to live here in England. The children have, in fact, lived with their mother in England since the very beginning of 2014, namely now only about one month short of three years. Frankly, it is patent that these children are currently habitually resident here in England and Wales, where they have made their primary home during effectively the last three years, and where they are apparently well settled in schools.
5. Despite that fact, litigation between the parents in relation to the children continued to proceed in Spain within the context, as I understand it, of the parents' earlier divorce there. That has resulted in a somewhat unusual situation, in that the courts of Spain have continued to make welfare decisions in relation to two children long after they ceased to be habitually resident in Spain. Both parents sought the custody of their children.
6. In March 2014, namely only about two months after the children had travelled with their mother to live in England, there was a two-day hearing before a judge of first instance in Spain. As I understand it, both parents gave oral evidence at that hearing. Both parents were represented by lawyers. The children were seen and interviewed by the judge at that hearing which, I stress, was in March 2014.
7. At that stage, no decision resulted from that hearing, but at some stage the Spanish judge decided that a psychologist, instructed as an expert, should see the children. A psychologist was instructed and saw the children on the following dates. She saw both children on 31^st July 2015 in the presence of the judge. She saw both children again on each of 18^th and 19^th August 2015, although not on those occasions in the presence of the judge. She saw the daughter, then aged just over 12, again on 8^th January 2016. The psychologist then reported in writing on 5^th February 2016.
8. There was apparently a further short hearing before the judge in May 2016. Both sides were represented. The father was present; the mother was not. The children were not present and accordingly were not seen again by the judge. The father has told me today that that hearing lasted about one to two hours.
9. Finally, on 27^th June 2016, the judge delivered her decision and judgment, which, it will be recalled, was essentially founded upon a hearing which had taken place in March 2014, but supplemented by the report of the psychologist based upon interviews with the children in July and August 2015 and another with the daughter in January 2016. The essential decision of the judge was that the children should cease living with their mother and going to school in England, but should, rather, live with their father and go to school in Spain and spend roughly half of each school holiday with their mother.
10. I have seen the written judgment of the Spanish judge dated 27^th June 2016. It is vitally important to recall and stress that in proceedings for reciprocal enforcement under the EU Council Regulation (EC) Number 2201/2003, under no circumstances may a judgment be reviewed as to its substance (see Article 26); and I make absolutely clear that in nothing that I do or say do I for one moment consider or review that judgment as to its substance. However, it is, of course, permissible and relevant to read the judgment and see what the reasons for the judgment were. It is absolutely clear that, although there were a number of reasons for the judgment which, in summary, included an assessment of the parenting qualities of each parent, the judge was basing her judgment on expressed wishes of the children that they would prefer to live in Spain. That is quite clear from several passages in the judgment.
11. Early in September 2016 the mother, as I assume she was entitled to do, gave notice of appeal to the appellate court in Spain from that decision and order. She also brought the children back to England, for they had been spending time in Spain, as a result of which the father obtained a further order on 20^th September 2016 in the Spanish court that the children should be returned to Spain. The mother has not returned them.
12. Shortly after that, the father made his application to the Principal Registry of the Family Division for registration and enforcement pursuant to the regulation of the, by now, two Spanish orders. As is the procedure, that application came before a district judge sitting, for these purposes, in the Principal Registry of the Family Division, who dealt with it on consideration of the documents. The district judge made two orders on 5^th October 2016, the first of which registers the two Spanish orders in this court, and the second of which gives permission for those orders to be enforced. The mother has now appealed, as she is entitled to do, to this higher court from those two orders of the district judge.
13. In support of his client's appeal, Mr Edward Devereux has deployed many points and arguments with all the profound knowledge and ingenuity which that counsel always displays. I have to say that some of them appear to me to have rather more merit than others. It frankly cuts very little ice indeed with me that the annexe which was presented to the English court pursuant to the regulation was in the form of Annexe III rather than Annexe II; and it does not cut much ice that at that stage, apparently, there was no translation before the court as the rules and practice direction require. In this particular case, there is nothing of significance which was required to be in a form in Annexe II which was not, in fact, in the form in Annexe III. There is, however, one matter of substance and significance. Rules 31.9 and 31.16 of the Family Procedure Rules 2010 clearly give to the district judge, and now also to me on this appeal, a discretion to stay the proceedings for recognition and enforcement of the Spanish orders "if an ordinary appeal against the judgment [viz in Spain] has been lodged". As I have said, an appeal had been lodged in Spain which had not then, and still has not now, been determined.
14. I have read with some care the application in Form C69 for the registration of the Spanish orders and judgments which the father's solicitors issued on 5^th October 2016, and also the statement in support made by the father's solicitor on 4^th October 2016. So far as I can see, neither of those documents made any clear reference to the existence in Spain of the mother's appeal. The only passing reference to possible appeal is a phrase within paragraph 9 of the affidavit in support which says "I understand she may be appealing the said orders …". The obvious effect and implication, of that is that the district judge was not given information, which she clearly should have been given, to enable her to decide whether or not to exercise the discretion under rule 31.9. I cannot say how the district judge might have exercised her discretion if she had known and had details of the appeal in Spain. But it seems to me obvious that, on the facts and in the circumstances of this case, she would, at any rate, have given careful consideration to whether or not to exercise that discretion if she had known of the appeal. After all, these children had, by then, been living here in England and Wales for about two years and nine months; and if the district judge had known that there was a subsisting appeal, she might well have decided to postpone and stay enforcement proceedings here until the outcome of that appeal was known.
15. On that specific ground, namely that the district judge was not given the full information which she should have been given so as to enable her to decide whether or not to exercise the discretion given to her under rule 31.9, I propose to set aside the two orders which she made on 5^th October 2016.
16. That, of course, is far from being the end of the matter, because, quite clearly, this court, having reached that decision, can now decide for itself whether or not the Spanish orders should be registered and enforced here; or, indeed, whether or not these proceedings for registration and enforcement should be stayed to await the outcome of the appeal in Spain.
17. At this point it is important to mention a further important matter. As I have already indicated, the judge in Spain, in her judgment given in June 2016, proceeded on the basis that the expressed wishes of both children were to live and go to school in Spain. That, as I have said, was based on information gleaned as long before as March 2014 and July and August 2015, albeit with one further meeting between the psychologist and the daughter in January 2016. However, on 1^st November 2016 the daughter wrote a letter to this court which very clearly and quite strongly says that she does not wish to go to live in Spain, she wants to stay and live here in England.

"I really love my life and don't want to change it. My friends are everything to me. I have the most amazing friends ever … I love my house and my room, I don't want to move to another place … I cannot even imagine my life without my mum. I have been with her my whole life. I can't just say "bye" to her. … My school. I don't even know where to start. It's the most amazing school I have ever been to … I can't see myself living in Spain, away from everything I love and going to school without my friends. Studying in another language, that seems impossible to me. So, please don't send me to Spain. I love my life here so much … I like my life as it is and I'm very worried about changing it. Please allow me to remain at home in England."

18. As a result of that letter, an application was made to a judge of the Family Division on 9^th November 2016 for an order that both children, or at any rate the daughter, should be seen by a CAFCASS officer to ascertain and report on her, or their, wishes and feelings. That application was refused.
19. That had the effect that on 14^th November 2016 the child, albeit assisted by her mother, made contact with a firm of solicitors here in London, expert in family law. A solicitor in that firm has now made two statements, dated 23^rd November and 28^th November 2016, reporting on the content, first, of a telephone conversation, and later of a face-to-face meeting with the daughter. The gist of the statements is that the daughter feels that she is not being listened to in these proceedings. She has a very strong view which she wishes to articulate that she wishes to continue living here in England, for which she gives a number of reasons. As a result of that development, a formal application was issued last week on behalf of the daughter, asking for permission for her to be joined as a party to these proceedings and represented by a guardian.
20. Today, the father is representing himself, having, he says, become unable to afford any more English legal representation. He says that he is sceptical whether that letter dated 1^st November 2016 is an authentic letter from the child. He believes that the child has been, and is being, strongly manipulated by her mother. That may or may not be the case. I am no position whatsoever today to make any assessment or judgment about that.
21. It seems to me, however, that in this difficult situation I must now permit this child, who is aged 13, to be joined as a party to these proceedings and direct that she be represented by a CAFCASS guardian of the High Court Team. That will enable, and require, the guardian to meet and spend time with the child. He or she will obviously have to ascertain the express views and wishes and feelings of that child, and will no doubt be astute to whether or not they are the authentic wishes and feelings of the child or have been inculcated in her by her mother.
22. I do not, at this stage, appoint a guardian for the son. In the first place, there is no application by him or on his behalf for the appointment of a guardian; in the second place, he is aged 10, not 13. However, I will require the same CAFCASS officer also to interview the son so as to ascertain his wishes and feelings, and to report also as to whether he also should be joined as a party and represented by a guardian. I will require all that to be done and reported upon by Friday, 20^th January 2017, about eight weeks' time.
23. Today, Mr Devereux has said on instructions that he understands that the Spanish appeal decision (which, as I understand it, is dealt with entirely in writing and on the documents) is expected by about the end of January 2017. The father has said today that his Spanish lawyers have told him that the appeal may take a year or more to be resolved and determined.
24. Patently, I cannot leave a stay in place for as much as a year or more, which would be quite intolerable in the case of growing human beings who, above all, need some certainty as to what is going to happen in their lives. So, I will make the stay of indefinite duration until further order, but I propose to direct that this case is listed, for further directions only, in late January 2017, with a time allowed of two hours. That will enable the court then to take further stock of this case, informed by the report of the CAFCASS officer, and in the light of further up-to-date information as to when the outcome of the appeal may be known if, indeed, it has not already been given by then.
25. During the course of this afternoon I have, frankly, been deeply saddened and also shocked by the apparent lack of child focused communication between these two parents. They are both highly educated people. The father is an osteopath; the mother is cardiologist, below the level of consultant. So, they must necessarily be intelligent and highly educated people. They have allowed themselves to be mired for over three years in litigation about their children. I do not know the cost of that litigation in Spain, but I have been informed this afternoon that in the space of only about two months, during which these enforcement proceedings have been taking place here in England, the father has already incurred English legal fees of about £20,000. He told me that the quote for representation at this hearing today was about a further £23,000. I have been told that the mother has incurred expenditure of about £22,000 to £25,000, inclusive of the fees of Mr Devereux today, but exclusive of the hourly rate for the two solicitors who attend with Mr Devereux today. It thus follows that already in these enforcement proceedings, in the space of only about two months, these parties have already spent the better part of £50,000 on top of whatever they have each already spent in Spain. As each of them are sitting there now, it must surely horrify each of them to think what they might have done and provided for their children with those sums of money.
26. But the lack of communication is worse than merely this vortex of litigation into which they have allowed themselves to be sucked. The father told me that he arrived in England late last week for the purpose of this hearing. There was an arrangement that the mother would bring the two children by train from the town where they live on the south coast to Victoria station, arriving at about 9.30 a.m. yesterday, Sunday, morning. Not long before that, she sent an email to the father, who was already waiting at Victoria station, to the effect that they would be late, the train journey was about two and a half hours, it being a Sunday, and the children had not got up in time. He was led to believe that they would still arrive at Victoria station sometime after midday. Later that morning, but before midday, the father received another email from the mother to the effect that the daughter had now been taken to hospital. Later still that day, the mother informed the father that the daughter would be undergoing a lumbar puncture tomorrow, Tuesday. As I understand it, the father has not been given any medical information whatsoever, until an attempt was made at my request about an hour ago to enable him to speak to one of the treating doctors by telephone. There had been no communication from any doctor with the father. Unfortunately, at that time, the doctor was too busy with other patients to be able to speak with the father, although he may later be able to do so. There is no written report or material of any kind.
27. At the moment, the father appears to have been presented with a fait accompli that his daughter will have a lumbar puncture tomorrow. I stress that under the law of both England and Wales and also Spain, each of these parents has effectively joint and equal parental responsibility for their children. A lumbar puncture is not a minor, non-invasive procedure. It is a significant, painful, invasive procedure, not to be undertaken lightly. It may, of course, be that a lumbar puncture is clearly and strongly indicated for this child. But in my view it is quite wrong, and frankly indicative of the lack of co-operation and equality of approach by the mother to their children, that the father has been faced with this in the unsatisfactory way that I have described in the last 24 hours or so. I was told that the daughter is at school today, so there is nothing, on the face of it, to indicate that she is dangerously ill or that a lumbar puncture is very urgent.
28. I make absolutely clear that I make no ruling whatsoever today in relation to whether or not this child should have a lumbar puncture. There is no formal application before me and I have no medical evidence whatsoever on the topic. It is because, at the moment, she is scheduled to have a lumbar puncture at 10.00 a.m. tomorrow morning that, as I said at the outset of this judgment, it is imperative that this case does not run into tomorrow. One or other or both of these parents should clearly be at the hospital with their daughter tomorrow morning, and certainly not sitting in a courtroom here in London. It may be that the lumbar puncture will not happen tomorrow, because of the lack of consent by the father, who shares parental responsibility with the mother. But if that is the case, then it is equally important that tomorrow is spent by the father obtaining more information and advice with regard to the lumbar puncture, and also having some opportunity to see his two children. He has not seen them since the beginning of September. Pursuant to the subsisting Spanish order, they should be living with him in Spain. It is indeed the son's tenth birthday later this week. The contact which was supposed to happen yesterday did not happen. The father has to return to Spain tomorrow night in order to return to his employment on Wednesday. So, both these parents have far, far more important things to be doing tomorrow than sitting here listening to further exegesis by Mr Devereux, however fascinating, on the finer points of the EU regulation and any rules and jurisprudence relating to it.
29. For those reasons, I propose, therefore, to set aside the orders of the district judge; to join the daughter as a party to these proceedings; to require a CAFCASS officer to see both children and report by 20^th January 2017; and to fix this matter for further directions with two hours allowed towards the end of January.
30. This judgment given today must be transcribed at the expense of public funds. I say that because we are in an international situation concerned with enforcement of a Spanish order.
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