Cross border children's cases 1
Stafford Young Jones was instructed by the mother in the case of Re G (Children) in 2003 when the Court of Appeal dealt with the issue of registration and enforcement of a foreign access order and decided two significant points with potentially far reaching implications for parents embroiled in international disputes.
The European Convention 1980 Article 11 and Article 9
First, where an application is made under the European Convention on Recognition and Enforcement Decisions Concerning the Custody of Children and on Restoration of Custody of Children 1980 (“the European Convention”) Lord Justice Thorpe upheld the decision of Mr Justice Wall, at first instance that Article 11(2) must be liberally construed. A significant "tinkering" with an existing foreign order will not necessarily infringe Article 9(3) which prohibits review of the substance of a foreign order.
Brussels II
Secondly, Lord Justice Thorpe has highlighted that Article 37 of Brussels II takes precedence over the European Convention where it applies. Brussels II applies to a decision relating to the children of once married parents decided on the occasion of the matrimonial proceedings. Articles 1, 3 and 13 of Brussels II are to be interpreted so that contact disputes, begun 'on the occasion of the divorce proceedings', will fall within the ambit of Brussels II until a 'final judgement' has been made on the parental responsibility issues as per Article 3(3)(b).
Judgment
The meaning of 'judgement' is laid down in Article 13 of Brussels II and includes judgements “relating to parental responsibility given on the occasion of such matrimonial proceedings.” The question arose in Re G as to proper interpretation of the phrase "on the occasion of matrimonial proceedings".
Facts of the case
In Re G the father and the mother were Italian nationals who lived all of their married lives in France. They had two children now aged 9 and 11 years. The husband left in September 1998 and later returned to live in Italy. The divorce took place in December 2000. There were difficulties with contact between the time when the father left and 11 December 2002 when the mother returned to the French Court requesting to relocate to England where the elder child had obtained a scholarship. A Contact Order was made on 11 December 2002 permitting the relocation, subject to arrangements for Christmas contact together with an order for contact for one half of the school holidays and monthly weekend contact in London. Contact over the Christmas period 2002 did not take place for disputed reasons.
The father applied to the French Court on the 31 December 2002 for a variation of the existing Contact Order, requesting staying contact for the whole of the children's Easter holiday instead of the half earlier ordered, in addition to the existing monthly weekend arrangements. A variation of the 11 December 2002 Order was accordingly made by the French Court on 3 February 2003. On 3 January 2003 the mother and children relocated to London as had been previously agreed. The father failed to take up weekend contact with the children between the 3 January and the 12 April 2002. When he came to collect the children in April there was a scene. The police were called and the children told the police they did not wish to go with their father. They alleged that they had been subjected to a violent incident when they had last had staying contact with their father in October 2002.
None of the family were French nationals and by the spring of 2003 none was habitually resident in France. All the divorce proceedings had been concluded in the Order dated 10 August 2002, though the distribution of matrimonial property was still hotly disputed.
The Litigation in London
The father issued a summons in London on 18 June 2003 under the Child Abduction and Custody Act 1985 seeking the recognition and enforcement of the Order of 11 December 2002 under the European Convention 1980. Wall J at first instance made reference to the potential jurisdiction issues that could arise although he did not consider whether the matter fell within the ambit of Brussels II.
European Convention: background
The European Convention forms Schedule 2 of the Child Abduction and Custody Act 1985. The aim of the Convention was to ensure the recognition and enforcement of national judgments governing custody in Contracting States. The Convention aimed to increase international protection for children and reduce litigation. In addition it was intended to prevent a parent from "shopping" in various jurisdictions in order to get a better deal and to use a Court in the new country of residence as a form of appeal against the orders made overseas.
Articles
The Articles of the European Convention 1980 which were discussed in Re G were:
Article 7:-
"A decision relating to custody given in a contracting state shall be recognised and where it is enforceable in the state of origin, made enforceable in every other contracting state".
Article 9(3):-
Under no circumstances may the foreign decision be reviewed as to its substance".
There are two principal defences for a parent trying to prevent enforcement (in addition to the procedural defences set out in 9(1) and (2)).
The more controversial defences are laid down in Articles 10(1)(a) and 10(1)(b) which state that recognition and enforcement may be refused on the following grounds:-
10(1)(a) "If it is found that the effects of the decisions are manifestly incompatible with the fundamental principles of the law relating to the family and children in the state addressed;
10(1)(b) If it is found that by reason of a change in circumstances including the passage of time but not including a mere change in the residence of a child after an improper removal, the effects of the original decision are no longer in accordance with the welfare of the child;"
Interpretation of Article 10
There is a lack of authority upon interpretation of the European Convention particularly where the child/children have been lawfully removed but contact has broken down with the absent parent.
There are no reported cases where Article 10(1)(a) has been successfully invoked as a defence. After Re G it seems unlikely that that it will ever be used successfully.
For Article 10(1)(b) to succeed, there are two conditions which must be met: see Re A (Foreign Access order: Enforcement) [1996] 1FLR 561 (CA). First, the Defendant must satisfy the court that there has been a change in circumstances, and secondly that this has meant that the effect of the original decision is no longer in accordance with the welfare of the child.
Re G (Children)
The defences under 10(1)(a) and 10(1)(b) were both raised in Re G (Children). At first instance Counsel for the mother argued that the existing Order under 10(1)(a) was manifestly incompatible with the fundamental principles of the English Law because the Children Act 1989 provides that the children's welfare is the paramount consideration and the existing Order for staying contact with the father would (it was argued) have a negative effect on the welfare of the children.
Mr Justice Wall rejected this argument. He acknowledged that a particular form of contact at a particular time may not be in the interest of the children but the proposition that the enforcement of the order was manifestly incompatible with the fundamental principles of English law was untenable
Views of the children
Article 15 of the Convention provides that before reaching a decision under Article 10(1)(b) the state addressed:-
“shall ascertain the child's views unless this is impractical having regard in particular to his age and understanding; and
may request that any appropriate enquiries be carried out.”
At an earlier Directions hearing in Re G Mr Justice Wilson ordered that a CAFCASS officer investigate and file a report on the children in order to comply with Article 15. The report was available to Mr Justice Wall. The reporter stated that the children showed an obvious rejection of their father. Staying contact with the father was likely to be too anxiety-provoking for the children. It was likely that the children would once again refuse to go with the father when staying contact was arranged. Accordingly, it was argued by the mother's Counsel that under 10(1)(b) there had been a change of circumstances because of the following:-
- There had been a move to England, and in 7 months the children's hostility towards their father had increased;
- The children had made allegations of violence by their father;
- The father had failed to take up weekend contact;
- The children had refused to go with the father for contact on the 12 April 2003.
Mr Justice Wall was clearly in a dilemma as to how the Order should be enforced given the views of the CAFCASS Reporter and the possibility that an attempt of staying contact may further damage the children's relationship with their father. In a bid to put the French Order back on a workable footing the Judge applied Article 11 of the Convention. Article 11 provides:-
1. Decisions on rights of access and provisions of decisions relating to custody which deal with the right of access shall be recognised and enforced subject to the same conditions as other decisions relating to custody.
2. However, the competent authority of the state addressed may fix the conditions for implementation and exercise the right of access taking into account, in particular, undertakings given by the parties on this matter.
3. Where no decision on the right of access has been taken or where recognition or enforcement of the decision relating to custody is refused, the central authority of the state addressed may apply to its competent authorities for a decision on the right of access, if the person claiming a right of access so requests.
According to the explanatory notes of the Convention, this provision is intended to allow for the Order to be modified or supplemented so that decisions from other contracting states can be brought into line with the normal practice of the state addressed. This is recognised as "tinkering" with the Order but is acceptable as long as it does not amount to a wholesale re-writing or significantly change the effect of the Order. In Re A (Foreign Access order: Enforcement) [1996] 1FLR 561 the court had gone too far by changing the country in which the contact was to take place.
Mr Justice Wall sought to use Article 11(2) to set conditions to the implementation of the French order, namely:
- That the first period of contact between the father and the children should be in England and should be visiting contact at a place and date for a length of time to be determined by the CAFCASS Family Court Reporter who might at his discretion be present throughout.
- That the second and third periods of contact between the father and the children should likewise be in England on dates to be agreed between the parties and the Reporter and should be visiting contact for a whole day or such lesser period as the parties and the Reporter might determine; again the Reporter might at his discretion be present throughout the whole or part of the time.
- The Reporter was to report back to the Court on the process of contact and the parties were allowed to apply for further directions if required.
Appeal
The father appealed on the grounds that Mr Justice Wall had misused Article 11(2) of the Convention in that his Order had gone further than simply fixing conditions for implementation and the exercise of the right of access and that in reality he had reviewed the French Court's decision as to substance in breach of Article 9(3) of the Convention.
Hale LJ granted permission to appeal and pointed out that a cross-appeal based on Article 10(1)(b) was likely. Counsel for the mother supported Mr Justice Wall's use of Article 11(2) but cross-appealed on the basis that he should have allowed the mother’s defences under 10(1)(a) and/or 10(1)(b).
After the first day the Court adjourned for reserved judgment. Lord Justice Thorpe then took the unusual step of writing to both Leading Counsel expressing concern that while writing his judgment he had formed the view that Article 37 of Brussels II (Council Regulation 1347/2000) might be relevant, as this gives precedence to the Regulation over and above the European Convention. He referred to the fact that Brussels II applies to civil proceedings relating to parental responsibility for children or both spouses 'on the occasion of matrimonial proceedings between parents' (Chapter III - Article 13).
Due to the ambiguity of 'on the occasion of' he listed the matter for further argument and invited the Official Solicitor to instruct Counsel as advocate to the Court. In the meantime Mr Justice Wall's programme of implementation was to stand. The children had further contact with their father in the presence of a CAFCASS Officer and an additional CAFCASS report was submitted to the Court. The matter returned to the Court of Appeal on 2 October 2003. The question asked by Lord Justice Thorpe was whether the father had been correct in bringing registration and enforcement proceedings under the European Convention or whether in fact he should have used Brussels II.
Brussels II
To put Brussels II in context, the Treaty of Amsterdam required that the countries of the European Union should co-operate more fully in civil matters (Article 65). As a result Brussels II was converted from a Convention into a Regulation (Regulation 1347/2000) and as such became directly applicable in English law on 1 March 2001. From this date it took precedence over existing international conventions covering the same subject matter, such as the European Convention.
The key provisions of Brussels II for the purposes of Re G are Article 1, 3 and 13 which provide as follows:
Article 1
“1. This Regulation shall apply to:
(a) civil proceedings relating to divorce, legal separation or marriage annulment;
(b) civil proceedings relating to parental responsibility for the children of both spouses on the occasion of the matrimonial proceedings referred to in (a).”
Article 3
“1. The Courts of a Member State exercising jurisdiction by virtue of Article 2 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in a matter relating to parental responsibility over a child of both spouses where the child is habitually resident in that Member State.
2. Where the child is not habitually resident in the Member State referred to in paragraph 1, the courts of that State shall have jurisdiction in such a matter if the child is habitually resident in one of the Member States and:
(a) at least one of the spouses has parental responsibility in relation to the child;
and
(b) the jurisdiction of the courts has been accepted by the spouses and is in the best interests of the child.
3. The jurisdiction conferred by paragraphs 1 and 2 shall cease as soon as:
(a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;
or
(b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgment in these proceedings has become final;
or
(c) the proceedings referred to in (a) and (b) have come to an end for another reason.”
Article 13
“1. For the purposes of this Regulation, ‘judgment’ means a divorce, legal separation or marriage annulment pronounced by a court of a Member State, as well as a judgment relating to the parental responsibility of the spouses given on the occasion of such matrimonial proceedings, whatever the judgment may be called, including a decree, order or decision.”
The issue was whether the Order which the Applicant father was seeking to enforce under the European Custody Convention, namely that made on the 11 December 2002 by the Tribunal de Grande Instance of Paris, could be regarded as being a judgment relating to parental responsibility of the spouses given on the occasion of matrimonial proceedings. If the Order did fall within this definition, the matter should have been brought under Brussels II rather than under the European Convention.
The advocate to the court submitted that the Order of the 11 December 2002 did fall within the scope of Articles 1 and 13 of Brussels II because:-
"it arose from, and is directly linked to, proceedings relating to parental responsibility for the children which were begun while divorce proceedings were still pending".
In addition to this, the French Court had exclusive jurisdiction at the time when the order was made.
The advocate to the court further submitted that 'on the occasion of' should be given a wide interpretation in order to cover the different member states' institutions for dealing with divorce and contact matters and the words 'closely linked' in the preamble to the Regulation should be regarded as giving an indication to the interpretation of 'on the occasion of'.
Counsel for the Respondent mother adopted the arguments put forward by the advocate to the court. He emphasised Article 3(3)(b) and discussed what constitutes a final judgment in matters concerning parental responsibility. He referred the Court to the Report of Professor Borras, who has written a detailed explanatory report on Brussels II (O.J. C221/41). At paragraph 39 she explains that article 3(3)(b) was put in precisely to deal with a situation where matrimonial proceedings on parental responsibility had not come to an end, even though the marriage proceeding had.
The father's counsel advanced two points in opposition:
1) That the divorce was final before the hearing on 11 December 2002, and that no further review or appeal was possible. Counsel referred to the literal meaning of 'on the occasion of' and argued that it could not be construed as anything other than meaning at the same time i.e. at the same time as the marriage was dissolved.
2) Secondly, counsel argued that "Parental Responsibility" did not encompass access or contact and should be given the same meaning as in the Children Act 1989.
Judgment of the Court of Appeal
In his leading Judgement Lord Justice Thorpe first considered the cross appeal which he dismissed, confirming that Mr Justice Wall was right to take a strict approach to the interpretation of 10(1)(a) and 10(1)(b). He cited paragraph 49 of the explanatory report to the European Convention which states:
"It should be noted that the term 'manifestly' is used both in sub-paragraph (a) and sub-paragraph (b) of paragraph 1. The intention of those who drafted these texts was that these grounds for refusal should not be used except in a clear case."
He went on to say that he found the mother's case far from clear, particularly given past criticisms of her from the French judiciary.
Thus the hurdles presented by Article 10(1)(a) and 10(1)(b) remain very difficult to overcome, even though the facts were similar to those in Re H (A Minor) (Foreign Custody Order) 1 FLR [1994] where Mr Justice Ward took a different view:-
"I accept the burden upon the mother must be very high, but in my judgment a reading of the court welfare officer's reports leads one to only one very clear ineluctable conclusion, viz that the enforcement of the order for staying access for half the school holidays is inimical to the welfare of the child and positively harmful."
Turning to the appeal Lord Justice Thorpe did not accept that Mr Justice Wall's use of Article 11(2) had amounted to an impermissible review of the Order of 11 December 2002. Lord Justice Thorpe looked beyond the fact that Mr Justice Wall's order made immediate staying contact impossible, and chose instead to look at what Mr Justice Wall was attempting to achieve, namely "full implementation in a gradual way".
Lord Justice Thorpe stated that the realities of orders relating to children demand a liberal construction of 11(2) in order to achieve the overriding objectives of the Convention. He went on to make two further points: First, that provided the rules of natural justice are not jeopardised, open communication between judges on the transmission of jurisdiction should be considered. Secondly, that there are numerous difficulties in trying to interpret the European Convention alongside the various other international treaties in this field.
What then are the implications of such a liberal interpretation of article 11(2)? It makes it difficult to analyse which conditions will be permissible, and which will infringe Article 9(3). In an attempt to find a fair solution the court has blurred this boundary to the point where it is hard to discern.
This was demonstrated in the current case very well. Mr Justice Wall had placed himself in such a position that further tinkering would be required. He had clearly hoped that a gradual re-introduction would lead to successful contact between the children and their father. This was sadly not the case by the time the parties returned to the court on the 29 September for further directions. Had the matter not been in the process of appeal, Mr Justice Wall would have been forced to make further directions with regard to implementation. The clear danger is that judges can inadvertently find themselves in the position where they are progressively reviewing the substance of the foreign order as it becomes increasingly inappropriate for the current circumstances of the children.
Following this judgement it is hard to imagine that the European Convention will be much used in the future. It is not relevant in cases where no order for contact has been made, as these are covered by the Hague Convention. The European Convention is now only likely to be invoked in cases where either the parties are unmarried but have an existing contact order in place in a Contracting State; or the children of the family are not children of both spouses, i.e. in cases involving step children.
Brussels II
Lord Justice Thorpe held that the application had been incorrectly brought under the European Convention and that it should have been brought under Brussels II. It therefore followed that the current proceedings were a nullity and no orders could be made. The alternatives for the father were to restart the proceedings under Brussels II, this time without the benefit of non means tested public funding or in the alternative under the Children Act 1989.
Lord Justice Thorpe stated that the scope of the words "on the occasion of" was to be interpreted to cover access orders of the court regardless of whether the order is embodied in the judgement dealing with divorce or whether it pre or post dates any such decree. He emphasised that the relevant articles must be interpreted alongside the eleventh preamble which suggests that a wide construction of the words "on the occasion of" is appropriate:
"This Regulation covers parental responsibility for children of both spouses on issues that are closely linked to proceedings for divorce, legal separation or marriage annulment."
This conclusion does not correspond to the view previously held by many practitioners. It was generally agreed that ‘parental responsibility’ in Brussels II should be construed to include all applications under s8 of the Children Act, but many observers had considered that "on the occasion of" would be construed narrowly so as to relate only to access orders attached to matrimonial proceedings; and not to orders about children made after the conclusion of the divorce proceedings.
This new construction will have far reaching implications. In the first place parents having to use Brussels II rather than the European Convention will no longer be entitled to non means-tested legal aid. After costly overseas proceedings, having to pay further funds to have an existing order registered may deter many parents from even trying. This may mean that such cases will be even rarer than they now are under the European Convention.
Nevertheless, the other side of this coin is that at least both parties are placed on an equal legal footing, which is undoubtedly in the interests of justice and in accordance with Article 6 of the European Convention on Human Rights. At present a mother who is not working but who would not qualify automatically for legal aid, can find herself dragged through costly proceedings by a non means-tested spouse who has nothing to lose in financial terms.
In terms of the defences to enforcement, Article 15 of Brussels II is not dissimilar to Article 10 under the existing European Convention. Article 15(2) lays down the grounds for non recognition of judgements relating to parental responsibility given "on the occasion of" matrimonial proceedings:
“A Judgment relating to the parental responsibility of the spouses given on the occasion of matrimonial proceedings as referred to in Article 15 shall not be recognised:
a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;”
It will be interesting to see whether the Court will interpret Article 15(2)(a) as rigorously as Article10(1)(b) of the European Convention has been interpreted in Re G; especially since Brussels II does not afford the court any power to impose conditions comparable to that provided by Article 11(2) of the European Convention.
One matter which emerges clearly from this case is that the increased number of international treaties and conventions and the European Union's relatively recent direct role in family law is inevitably going to lead to some confusion. This is all the more so since, as Re G has shown, there is scope for more than one interpretation of the provisions of Brussels II which are directly applicable in all EU Member States except for Denmark. Unless and until the ECJ has clarified matters, it seems quite possible that the courts of different Member States will interpret the same clauses differently.
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