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Re ML and AL (Children) 2006 EWHC 3631 (Fam)

Judgment in contact proceedings where an implacable mother, living in Austria, is refusing to comply with an interim contact order.

The case involves the enforcement of contact under Brussels II and the judge concludes that, given the inability of the Austrian courts to assist in enforcing the English orders for contact, he has no option but to make a final order and to request that the Austrian courts respect his judgment which is that the father is entitled to reasonable unsupervised contact.

This judgment should be read in conjunction with Re ML and AL (Children) [2006] EWHC 2385 (Fam) - where the order referred to in this judgment is set out in full.


2006 EWHC 3631 (FAM)
Royal Courts of Justice
Thursday, 9th November 2006


(Sitting as a Deputy Judge of the High Court)
(In Private)

B E T W E E N :

(1) MC L (2) CM L (3) MML (Applicants)

- and -

TL - and - M and A L (by their Guardian) (Respondents)


Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
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MR. M. NICHOLLS QC and MS. R. CAREW-POLE (instructed by Sears Tooth) appeared on behalf of the Applicant.

THE RESPONDENT MOTHER did not appear and was not represented.

MR. T. GUPTA (instructed by (Cafcass Legal) appeared on behalf of the Guardian.

In any report this case should be referred to as Re ML and AL (Children) and the parties and the children must be fully anonymised.

1 I am going to give this judgment ex tempore because it is important that there is no further delay in this matter and so any imperfections which I now state will be as a result of my not having reserved this matter and given my reasons in writing.

2 Six weeks ago on 29th September 2006 I gave a substantial judgment in which the background was set out. That in turn referred to my three previous judgments in this case, namely my judgment of 9th December 2005 in the financial proceedings; my judgment of the same date where I made my first interim order for supervised contact; and my judgment dated 20th July 2006 where I directed that the children were to be represented by a guardian supplied by CAFCASS and where I ordered a single period of supervised contact to take place so that the children could be interviewed and assessed by their guardian and a child psychiatrist. As I explained in my judgment of 29th September 2006, that contact never took place because, shortly before it, the Austrian court, purporting to act under Article 20 of Brussels IIR, suspended that contact, relying on psychiatric evidence, which I later found to have been wholly insubstantial and incapable of supplying a reason for suspending the contact.

3 In my judgment of 29th September 2006 I stated that the ramifications of this case go beyond the central question which is the restoration of the relationship between this father and his children, and call into question whether the principles of automatic enforcement in another Member State of a contact order validly made by this court as stipulated by Brussels IIR are valid or whether they are a dead letter. By that judgment I ordered that a week of contact should take place commencing last Sunday, 5th November. The scheme which I had in mind is set out in para.57 of my judgment. I will not repeat it here fully. In summary, the mother was required to bring the children from Vienna to London on Sunday 5th November. They were to be interviewed and observed by Dr. Berelowitz and the guardian on the following day. On Tuesday 7th November there was to be supervised contact with the father for a short period so that their reaction to the resumption of their relationship with him could be observed. Reports were to be written and this hearing today was envisaged to consider how the father's contact to the children could be taken forward in a way that was beneficial to them and, although this is a subsidiary consideration, beneficial to him.

4 The mother's Austrian lawyers have since then served the application for transfer of parental responsibility that I referred to in my previous judgment. I expressed the view then, and I reiterate it now, that, given the clear terms of Article 8 of Brussels IIR, that application had no jurisdictional foundation at the time it was issued and ought to be summarily struck out.

5 The mother's lawyers in Austria have also written to the guardian stating in uncompromising terms that the mother would not be complying with my order and would not be travelling to London. They assert that this court has no jurisdiction to deal with the matter - a view which, for the reasons set out in my previous judgment, is wholly misconceived.

6 This time the mother did not even try to get the Austrian court to suspend my order under Article 20, as she had on the last occasion. She has simply ignored my order and she remains in contempt of court.

7 Before I turn to the merits of the case, I should therefore express my view on the failure of the Austrian system to do what the Regulation plainly contemplates, namely to enforce my orders for contact. I expressed the view in my previous judgment that I would be most surprised if the Austrian court did not have coercive powers to ensure that the children were delivered to this jurisdiction for the purposes of the contact and therapeutic and forensic assessment which I had ordered, but it appears from the evidence with which I have been supplied that this is the case. According to the correspondence from the father's Austrian lawyers, the only measure of enforcement that is available is a daily fine and not even that has been imposed in this case. Although I had sent my judgment to the liaison judges in Austria and had expressed the view that this was a paradigm case for judicial cooperation so as to ensure that this order for contact was implemented as readily as if it was a wholly domestic order, nothing has happened. The Austrian system has not, to the best of my understanding, attempted any measures whatever to implement the order that was judged by me, by all the experts, and by the children's guardian to be so fundamentally in their best interests.

8 So I do express the firm view that a very close and hard look will have to be given by the relevant Government departments here, by the Head of International Family Justice here, by the Commission, and I believe by the Austrian authorities, as to how the terms of the Regulation - filled as they are with such good intentions - have proved to be completely ineffective on the facts of this case. As Mr. Nicholls has explained, this case is hardly atypical and, by definition, any contact orders that are likely to be sought to be enforced are those where there is a dispute about contact. Disputes about contact range from those where the dispute is hardly serious to those when it is very serious and where there is a resistance to the principle of contact. One would have thought that it is in that latter type of case, where the court has adjudged that contact is in the best interests of the children, where the Regulation should be at its most efficacious. It would be a sorry state of affairs if it only worked in those cases where the disputes between the parents were largely trivial. I cannot believe that anybody could have contemplated that the Regulation would only have real effect in cases where the disputes were of a minor nature. So unless a view is going to be taken that the words of the Regulation do truly speak into the empty air, I think that serious consideration has to be given to requiring the courts of Member States to deliver enforcement measures that actually work.

9 So to this case. I would reiterate that in accordance with the expert opinions that I have had and in accordance with my own judgment which I have considered carefully, this is a case where these children are being wrongly deprived of the society of their father and where that deprivation is directly contrary to their best interests. I reiterate that this is, in my opinion, not a case where there is any demonstrated justifiable reason for imposing on this father a requirement of supervision of access or depriving him of overnight or holiday access. In depriving the children of a full relationship with their father, in depriving these children of the society of his paternal family, it is my view that the mother is abusing them and unless the matter is very soon rectified these children are likely to suffer significant harm.

10 I have made it clear in my earlier judgments that I do not regard this father as a perfect human being by any means. He has obvious personal flaws, some of which I have mentioned. Equally, the mother has obvious flaws. But personal flaw, unless it impacts on one's parenting ability, is no reason, in my view, for depriving a child of the society of that parent. There has to be a direct nexus between the flaw and the children's interests, for that flaw to play a part in a determination that contact should either be extinguished or circumscribed, and there is nothing in the father's make-up, in my view, which warrants such a finding.

11 The question now is: by what legal measures can this father best pursue the restoration of his relationship with these children? To make another interim contact order on the basis of the last two would, in my view, be futile. It is obvious that the mother is not going to comply with it and it is equally obvious that the Austrian legal system is not going to enforce it. That leaves other options, all of which have their disadvantages to varying degrees.

12 The first that was suggested by Mr. Nicholls, and indeed this was referred to as a possibility in my previous judgment, is an order for an immediate residence order in the father's favour, either for indefinite residence in his favour or residence in his favour for a finite period. Another option put up by Mr. Nicholls was that I should make a lengthy contact order, for five or six weeks, which I regard as being in substance indistinguishable from a residence order limited in time.

13 Mr. Gupta has, in his conscientious and carefully-considered skeleton argument, raised the question that there may be jurisdictional problems in the court making an order for residence, but I am satisfied by Mr. Nicholls that I do indeed have the power. I think it is covered squarely by Article 8 of the Regulation which I am going to read for these purposes in this way:

"The courts of a member state shall have jurisdiction in [and then I would add the words] all aspects of parental responsibility over a child who is habitually resident in that member state at the time that the court is seised [and then I would add the words] of any aspect of parental responsibility."

Because otherwise if any other interpretation is put on it, then, as Mr. Nicholls points out, it would be impossible in this case for me, for example, to make a prohibited steps order because, at the time of the order of 28th July 2005, that was not specifically prorogued to this court. So I am satisfied that I would have jurisdiction to do it. Were I to make that order, I am also satisfied that in those circumstances the Austrian court would have the coercive powers available to it to enforce that order by delivering the children up to the father in Austria on the appointed day.

14 But that does not mean that the legal route is going to be without problem because I am satisfied, first, that were I to make such a residence order, then before it could be enforced in Austria, it would have to be declared to be enforceable there under Article 28. It is not clear to me what right of opposition the mother would have under a process for a declaration of enforceability, but I would imagine that she would be entitled to be heard on that. More significantly, she would, either on that occasion or perhaps on a separate occasion, be entitled to raise, under Article 23, objections on the grounds there set out. So one can see that even if I were to make an order for transfer of residence now, that there could be very lengthy litigation in Austria instigated by the mother in which that order is challenged. So that is a legal reason which militates against making such an order.

15 But there is a strong welfare reason why such an order should not be made. Both the guardian, in her report and orally through Mr. Gupta, and Dr. Berelowitz in the witness box are emphatic that a change of residence today would be inappropriate and that they could not support it. I am aware of cases where residence is transferred in the face of refusal of contact by an implacably hostile mother, but I am not aware of that having been done before the fitness of the father as primary carer has been assessed, or the views of the children have been taken, or, at the very least, the children interviewed. I believe it would be wholly unprecedented for me to make a change of residence order now on the available material. As Dr. Berelowitz said in his evidence, the consequences for the daughter might be dire and it is impossible to predict how she might react were she to be taken away from her mother and delivered into the care of her father. He said she might not eat, she might threaten suicide, she might make a beeline to the airport, she might make allegations against him. He said that the idea of court officers taking her from her mother as she gripped the banisters, as he put it, is almost too grim a picture to contemplate.

16 So I am satisfied at this stage that I simply do not have the material that would justify me making that order sought by Mr. Nicholls.

17 The second option is to recognise that this court is, in effect, impotent in obtaining the enforcement of its contact orders and to simply hand over the adjudication of the father's existing contact application to Austria under Article 15 of Brussels IIR. Were I to do that, it would of course be an admission of defeat on the part of this court and may well be regarded by the mother as a validation of her wholly improper defiance of this court's earlier orders, she having said, through her Austrian lawyers, that she wishes the matter to be adjudicated in Austria. Were I to make a transfer, I could, under Article 15(4), set a time limit by which the Austrian court should be seised, which I understand to mean should be deemed to have the application before it.

18 The original recommendation of the guardian, through Mr. Gupta, was that this choice should be taken by me, but it was during Mr. Nicholls' final submissions that a third course was discerned, which I am satisfied provides the solution to this case. I have explained in my previous judgments how, under Article 12, the parties here prorogued jurisdiction in favour of this court by virtue of the express agreement contained in the order of Wilson J. dated 28th July 2005. That agreement vested jurisdiction in this court exclusive jurisdiction until the final determination of the father's contact application. By virtue of Article 12(2)(b), the jurisdiction conferred on me by Article 12 will come to an end when I give a final judgment on the father's contact application. Final judgment in that context means an order for contact which is not an interim order for contact.

19 Were I to make a final judgment in relation to the father's contact application, then my jurisdiction will end and, the children being habitually resident in Austria, the Austrian courts would have sole jurisdiction in respect of any future applications. But there would nonetheless be, if I were to make a final order for contact, an order capable of being enforced under Article 41 and, more importantly, Article 48 would be available for the Austrian courts to make the practical arrangements for organising the exercise of the rights of access if this court has not made the necessary arrangements in its order or judgment. Article 48 expressly provides the obligation on the second court to respect the essential elements of the judgment.

20 Had the mother cooperated in the proceedings, I would not have made a final order today but I would have proceeded in the way that is set out in my previous judgment of 29th September 2006 and there would have been therapeutic and professional observation and assessment by Dr. Berelowitz and the guardian to enable me to determine what the practical arrangements for the husband's contact should be. I am pretty sure that, subject to anything that they may have said, I would have been striving to have resumed substantive, unsupervised contact at the earliest opportunity.

21 In circumstances where I am deprived of making the necessary enquiries with the benefit of expert evidence for this purpose, I believe that the time has now come for me to recognise that the role of this court is drawing to an end, and that it is appropriate for me to make the final orders so that this court's jurisdiction ends and the Austrian court's jurisdiction arises in respect of making the practical arrangements for the implementation of my order, or for variation of it should either party apply to vary it.

22 What I therefore propose to do is to make a final order for contact which is in these terms: (1) that the mother do afford the father reasonable, unsupervised contact in England, Greece or Austria, to include holiday contact. (2) Because I have not been able to determine what the extent of that reasonable, unsupervised contact should be or when it should commence, I leave it to the Austrian courts under Article 48 to make the necessary arrangements, including the necessary forensic and psychiatric assessments for that determination, but I expect those courts to respect the judgment that I have given, which is that in principle this father is entitled to, and these children's interests demand, reasonable unsupervised contact.

23 As I have mentioned, if I transferred the existing application for contact under Article 15 rather than determining it finally as I have, I would have the power to set a time limit under Article 15(4). I do not have an explicit power under Article 48 to set a time limit for the Austrian court to commence the process of making the enquiries to implement the necessary arrangements for the implementation of my final judgment. However, I would ask that within six weeks of the date of my order the Austrian court do hold a preliminary hearing to give the necessary directions for the assessment and observation that I have previously ordered to take place. I would also like to think that my colleague in Austria would consider drawing on the inestimable experience and wisdom of Dr. Berelowitz, whose evidence in this case, both on this occasion and on the previous occasion, has been of the utmost help to me.

(Discussion followed)


24 I will say this. Were the grandmother to apply for contact in Austria, I can see no good reason why it would not be in the children's interests for them to see her. Nothing can be said against her.