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Home > Judgments > 2011 archive

A v B [2011] EWHC 2752 (Fam)

Application to the High Court for a stay of wardship proceedings in this jurisdiction under para 19 of BIIR on the basis that the Swedish court was already seised of the matter. Application granted. Re S (Parental Responsibility: Jurisdiction) [1998] 2 FLR 921considered in the light of BIIR.

This was a private law dispute between the parents of a three-year old child, M.  The parents had separated before M's birth and the mother had gone to live in Sweden.  There had historically been some involvement with social services in Sweden following which the father sought contact with M through the Swedish courts.  An agreement was reached as to the father's contact but this contact did not take place and the father subsequently made applications for joint custody and to enforce the order made reflecting the earlier agreement.  These applications were refused and the Swedish court decided that the father should not have contact with M.  However, a welfare report by the local authority in Sweden on the issues of contact and custody remained outstanding and is now due to be completed by 15 December 2011.

In late September 2011 M and her mother came to England.  The mother's case was that she was here temporarily to stay with her own mother.  Prior to this, in August 2011, the father had made an application to the High Court under Council Regulation (EC) no. 2201/2003 (known as Brussels II Revised or BIIR) for an order that the Swedish Central Authority provide information as to the mother's whereabouts.  On 29 September 2011, the father made a without notice application that M should be made a ward of court.  The father also sought parental responsibility for M.  Bodey J acceded to the application to make M a ward of court and further on notice hearings were directed.
This judgment concerns the question of jurisdiction.  The mother sought a stay of the proceedings in this jurisdiction under paragraph 19 of BIIR on the basis that the Swedish court was already seised of the matter and that the Swedish social services had conducted a thorough investigation and they were satisfied that M was not at risk in the mother's care.  She offered various undertakings designed to reassure the court of her intention to return to Sweden.   

On behalf of the father it was argued that his application for parental responsibility fell outside the Family Law Act 1986 and consequently BIIR did not govern the jurisdictional question.  He relied on Re S (Parental Responsibility: Jurisdiction) [1998] 2 FLR 921.  He also submitted that the mother and M had lost their habitual residence in Sweden.  Having regard to the mother's conduct, he argued that the correct forum was England and Wales.

It was accepted on the father's behalf that a lacuna existed as a result of the grafting on of BIIR to the Family Law Act 1986 which placed applications for parental responsibility outside of the Act but he argued that this was the result of a drafting error.  This required applications for parental responsibility to be considered within the terms of the Act and, in the first instance, under BIIR.  Accordingly, if Re S no longer applied, it was open to him to argue that the lis pendens rule did not apply as the proceedings now brought by the father did not involve the same cause of action as those in Sweden.  In the alternative, he argued that if the Swedish court was appropriately seised it should be invited to transfer the proceedings to this jurisdiction under Article 15 of BIIR and that, in any event, this court could undertake an enquiry into the circumstances of M's welfare based on Article 20, BIIR.

The President found that the Re S case no longer applied as it pre-dated BIIR by a number of years.  He preferred the arguments of the mother, that the Swedish court was seised and it was up to that court whether to transfer the case under Article 15.  The Swedish court had lawfully taken jurisdiction following M's birth and had to date retained it notwithstanding M's previously stated intention not to return to Sweden.  It was a matter for that court to determine whether or not it retains jurisdiction.  The only basis upon which the English Court might take jurisdiction would be under s.2(3)(b)(ii) of the Family Law Act 1986 and the evidence in this case came nowhere near the terms of that section.

The President also declined to take jurisdiction by means of interim measure under Article 20 and he rejected the argument that BIIR did not apply.  The father's applications for contact and parental responsibility were fully within BIIR and article 19.2 applied.

Case summary by Sally Gore, Barrister, 14 Gray's Inn Square
_________________________________________


Neutral Citation Number: [2011] EWHC 2752 (Fam)
Case No: FD11P02190
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 01/11/2011

Before:

SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION
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Between:

A Applicant

- and - 

B Respondent

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- - - - - - - - - - - - - - - - - - - - -

Edward Devereux (instructed by Bindmans) for the Applicant
Christopher Butterfield (instructed by William Bache & Co) for the Respondent

Hearing dates: 12th October 2011
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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

SIR NICHOLAS WALL, THE PRESIDENT OF THE FAMILY DIVISION

This judgment consists of 7 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Sir Nicholas Wall P:
The case in summary
1. The principal question raised by this case is whether or not I have jurisdiction to entertain a father's applications in relation to his daughter. This involves an examination of Council Regulation (EC) no. 2201/2003. more commonly known as "Brussels II Revised". I propose, for convenience, to call it in shorthand BIIR.  Paragraph 2 of Article 19 of BIIR, which is said to apply here, reads as follows: -

"2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before the courts of different Member states, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established."

2. Paragraph 3 of Article 19 reads: -

"Where the jurisdiction of the court first seized is established, the court second seized shall decline jurisdiction in favour of that court……."

3. The child with whom I am concerned is M, who was born on [a date in] 2008, and is thus 3. Her parents are not married to each other, and the father does not currently have parental responsibility for M. The parents, who are both English by origin, met sometime in 2001, and began a relationship in about 2005. Their relationship came to an end in 2007, prior to M's birth.

4. On 21 November 2007, in circumstances to which I shall refer again in due course, the mother went to Sweden, where M was born. DNA tests carried out through Swedish social services confirmed the father's paternity.

5. On 23 December 2009, M was placed in foster care following a hearing in the Landsrattren (the administrative court of Stockholm). On 8 February 2010, M was returned to her mother's care following a further hearing in the same court.  She has remained in her mother's care ever since.

6. On 21 December 2010, an order was made by the Stockholm District Court. This recorded an agreement between the parents as to future contact by the father with M. The court ordered the mother to pay one third of the father's travel costs incurred in relation to his contact with M and the local authority was charged by the court to appoint a person to carry out an investigation pursuant to the Swedish Parental Code with regard to the custody of and contact with M. The investigation was to be received by the court by 15 September 2011 at the latest: otherwise the agreement (and presumably the order) was to last until such time as the questions had been resolved through a judgment or decision which had gained legal force.

7. Contact did not take place pursuant to the agreement, and in June 2011 the father made an application in the Swedish court seeking interim joint custody and for the order of 21 December 2010 to be enforced by way of a fine.  On 4 July 2011 there was a hearing in the Stockholm District Court and by an order dated 11 July 2011 that court: -

(1) dismissed the father's interim application for joint custody;
(2) dismissed his application for the mother's breaches of contact to be the subject of a fine; and
(3) decided that the father should have no contact with M.

8. On 24 August 2011, according to the mother, the father's appeal against the order of 11 July 2011 was dismissed by the Swedish Court of Appeal. The mother now asserts, through counsel, that the report due on 15 September 2011 will be available on 15 December 2011, when the court will consider the future handling of the case.

9. In late September 2011 the mother came to this jurisdiction with M. Her case is that she is staying temporarily with her mother and that she wishes to return to Sweden with M. Through counsel she says that I should stay the English proceedings under paragraph 19 of BIIR. She offers a number of undertakings designed to reassure the court as to the genuine nature of her wish to return to Sweden.

The applications by the father before the court
10. Counsel for the father opened the case to me on the basis that there are currently four applications by the father before this court. They arise in the following way. On 11 August 2011 the father applied on a without notice basis to HH Judge Barnett sitting in this building as a judge of the High Court. He directed that the matter be listed for argument as to jurisdiction during the week commencing 22 August 2011, and that the Swedish Central Authority, pursuant to Article 55 of BIIR should provide to the English Central Authority any information which it had as to the mother and M's location and whereabouts, and any information it had in respect of all child protection or other welfare proceedings taken or otherwise involving M.

11. On 24 August 2011 Macur J vacated the hearing fixed by Judge Barnett and adjourned the father's application under the inherent jurisdiction with liberty to restore.  On 29 September 2011 the father made an application that M should be made a ward of court. On the same day, and again on a "without notice" basis, Bodey J warded M and made a location order. He ordered that the mother was not to remove herself or M from the jurisdiction without the court's permission: he directed that the father's solicitors disclose the papers in the case to the legal department of Northamptonshire County Council and adjourned the case to 3 October 2011. He also made a location order.

12. On 3 October 2011, Charles J directed that the case should be reviewed by him on 7 October, and ordered the mother to file a statement dealing (inter alia) with her future intentions as to where she and M were to live. He also made various orders for disclosure of documents from different social services departments, the detail of which I do not need to record.

13. Unfortunately, Charles J was not available on 7 October and the case came before Coleridge J. He made various orders for disclosure and directed a hearing before me on 12 October 2011. Thus it was that the case came before me on that date.

The father's case
14. For the father, Mr. Edward Devereux opened the case to me in great detail. I make no criticism of him for that, and quite see that from the father's perspective, the situation is highly unsatisfactory and frustrating. His case, in essence, is that the mother only fled England to avoid a detailed enquiry, the institution of care  proceedings and the likely removal of M from her care at birth by Northumberland County Council; further that she is a liar who suffers from a long history of mental health problems and has also misled numerous medical professionals about her physical health; that she has recently disavowed any intention of living permanently in Sweden and, despite her protestations to the contrary has led a peripatetic existence, a principal purpose of which has been, and continues to be, the hitherto successful attempt to prevent him playing any part in M's life.

15. The father has produced four very substantial bundles of documents, largely comprising material gathered together from various English Social Services Departments, all of which I read after the conclusion of argument and submissions. In the detailed case summary prepared by Mr. Devereux, the father seeks: -

(a) proper disclosure of all relevant material from Sweden; 
(b) the joinder of M as a party;
(c) a section 37 Children Act 1989 investigation to be directed;
(d)  disclosure of the Northumberland County Council records to him (and not just to his legal representatives);
(e) insofar as it is needed, a finding of fact hearing about any disputed matters;
(f) international collaboration between the respective social services departments (to include sharing of documents) and, if necessary, international judicial collaboration through the office of the Head of International Family Law, Lord Justice Thorpe; and
(g) such interim contact as any children's Guardian may direct.  

16. On the question of jurisdiction, Mr. Devereux submitted that the father's application for parental responsibility expressly fell outside the terms of the Family Law Act 1986 and accordingly BIIR did not govern the jurisdictional position. In this respect, he relied on Re S (Parental Responsibility: Jurisdiction) [1998] 2 FLR 921( Re S).  Furthermore, he submitted that the mother and M were no longer habitually in Sweden – having lost that habitual residence some time after January of this year.  Having regard to the mother's conduct, the correct forum for the hearing of any application was England and Wales.

17. Mr. Devereux accepted that there was indeed a lacuna that existed as a result of the grafting on of BIIR to the Family Law Act 1986 which placed applications for parental responsibility expressly outside the Act. However, he submitted that this was a drafting error which required applications for parental responsibility to be considered within the terms of the Act and, in the first instance, within the four corners of BIIR. Accordingly, if  Re S no longer applied, it was still open to him to argue that  the lis pendens rule did not apply as the proceedings now brought by the father did not involve the same "cause of action" or did not have "le meme object et la meme cause" as those that were brought by him in December 2010.

18. Finally, Mr. Devereux argued that insofar as the Swedish Court was appropriately seised, that court should be invited to transfer those proceedings to this jurisdiction pursuant to Article 15 of BIIR and that, in any event, I had jurisdiction to undertake an enquiry into the circumstances of M's welfare based on Article 20 of BIIR, with the assistance of collaboration between the two relevant social service agencies.

The mother's case
19. This was very simple. The Stockholm District Court was already seized, and the English proceedings should be stayed under Article 19.2 of BIIR. The disclosure from the various local authorities largely related to 2007, prior to M's birth. Swedish Social Services had become involved: they had conducted a careful investigation and were satisfied with the mother's care of M. There was no evidence that M had ever come to harm. In addition, there was abundant evidence in the papers that the father also suffered from mental health difficulties         

20. Whenever the mother had come to England with M - for example in 2008 – she had contacted social services to inform them of her visit. The mother had maintained a good relationship with the father's parents: she had visited his parents over Christmas 2008: a social worker from Northamptonshire Children's Services had visited M at her paternal grandparents' home on 23 December 2008 and had no concerns for the mother's care of M.

21. Similarly, in December 2010 another referral had been made to Northamptonshire following the mother's presentation at hospital. A brief section 47 enquiry had been undertaken, after which Northamptonshire again decided to take no further action.

22. The mother joined issue generally with the father both as to her health and as to her peripatetic lifestyle. She had remained living with M in Sweden until January 2011 when she moved to Paris for the purpose of a 6 month course of study at the Institut d'Etudes Politiques. She subsequently obtained a scholarship to study in Australia.  She travelled to the USA on 30 June 2011, where she finished her semester by distance learning from the University of Oxford.  She was subsequently refused a visa for Australia and therefore travelled to the UK in the last of week of September to visit her mother.

23. The mother had never unlawfully removed M from any jurisdiction. It was the case that in July 2011 the mother had told the Swedish court that she was not returning to Sweden. This had been true at the time, but, despite this, the Swedish court had retained jurisdiction. The Swedish court remains seised and is awaiting a welfare report on the issues of custody and access from Swedish social services.

24. Despite the pre-birth concerns of Northumberland Children's Services, Swedish social services had fully investigated the mother's ability to care for M after her birth and were completely satisfied with her care. Although M was subsequently briefly placed in the care of foster carers between December 2009 and February 2010, she had not been in foster care since that time.

25. Northamptonshire Children's Services had been involved three times prior to this current application, at times at the instigation of the mother herself. On each occasion they had been satisfied that there was no reason to take any further action. The mother had exercised her right to freedom of movement with M pursuant to Articles 20(ii) (a) and 21(i) of the Treaty on the Functioning of the European Union.

26. For the mother, Mr. Butterfield then argued that the first question was whether the court had jurisdiction. He relied on Re A (removal outside jurisdiction: habitual residence) [2011] 1 FLR 2025. He also relied on the judgments of Thorpe LJ in Al Habtoor v Fotherington [2001] 1 FLR 951 at 970:

"In my opinion the courts of this jurisdiction should be very slow to make orders that directly conflict with pre-existing orders in any friendly foreign state. The principle of comity requires no less."

And further, in Mercredi v Chaffe [2011] 2 FLR 515 at 527:

"…. as a matter of comity and the collaboration of courts within the European Union the London judge had an obligation to support the proper conclusions of the French court or, at the least, not to enter into a litigation strategy to undermine the order…

[67] One the one hand it can be said that the general rule must be that jurisdiction is established in the State of the habitual residence of the child at the time the court is seised.  Once seised that court retains jurisdiction even if the child changes habitual residence during the course of the proceedings. This is the principle of petuatio fori. It is a practical rule to prevent one party from aborting proceedings by a tactical move during their course. Thus it can be argued that the issue of Children Act proceedings fixed jurisdiction in London until the termination of the proceedings."

Other authority
27. Apart from Re S, Mr. Devereux referred me to a number of cases, including the decision of the Court of Appeal in Re H (Parental Responsibility [1998] 1 FLR  855. the decision of Munby J (as he then was)  in AB v JLB (Brussels II Revised; Article 15) [2009] 1 FLR 517; the decision of Jonathan Baker QC (as he then was) on Re S-R (Jurisdiction: Contact) [2008] 2 FLR 1741; and the decision of Charles J in Re S (Care: Jurisdiction) [ 2009] 2 FLR 550.

Discussion and conclusion
28. With great respect to Mr. Devereux, none of the cases which he cited to me dealt with the particular conundrum with which I am faced. Re S, it is true, goes to jurisdiction, but predates BIIR by many years. Re H goes to the merits of making a parental responsibility order. AB v JLB, as its name suggests deals with the transfer of proceedings. Re S-R and Charles J's  Re S likewise do not address BIIR Article 19.

29. In my judgment Article 15 of BIIR is inapplicable. Whether or not the case is transferred to England is a matter for the Swedish court to decide. It is for the Member State "having jurisdiction as to the substance of the matter" and it is not for me, on the facts of this case, to request the Swedish court to cede jurisdiction to England and Wales.  

30. In my judgment, the arguments advanced on the mother's side are to be preferred, and the English proceedings will be stayed. It seems to me a matter entirely for the Swedish Court as to whether or not it retains jurisdiction in this case, and that any other conclusion would fly in the face of Article 19.2 of  BIIR

31. In summary, the Swedish court lawfully took jurisdiction following the birth of M and has to date retained it, notwithstanding the fact that, on the facts as they then were,  the mother said she was not intending to return to live in Sweden.

32. Furthermore. it seems to me that it is for the Swedish court, which is currently seized of the merits, to interrogate the mother about her future intentions. I have not conducted a welfare enquiry, and for this reason will have not conducted a detailed analysis of the local authority disclosure. I am simply looking at the question of jurisdiction and the wording of Article 19.2.

33. I also agree with Mr. Butterfield: (1) that the only basis upon which the English Court might be able to take jurisdiction would be section 2(3) (b) (ii) of the Family Law Act 1986; and (2) that the evidence comes nowhere near satisfying the terms of that section.

34. I an equally unimpressed with the argument that I could take jurisdiction on the facts of this case by means of provisional, including interim measures under Article 20 of BIIR. I reject the argument that BIIR does not apply. In my judgment, whilst the argument based on Re S is sophisticated, the father's applications for parental responsibility and contact are fully within BIIR, and article 19.2 applies to them.

35. Given the likely proximity of the hearing in the Swedish court, and also given the history of the matter, however, I take the view that it is within my jurisdiction under BIIR Article 20 to direct that the mother should obtain from the Swedish Court orders in the terms of the undertakings she proffers, and both parties shall be at liberty, if so advised, to disclose into the Swedish proceedings both this judgment and all the documents in the bundles before me. The use (if any) to which the Swedish Court puts the material will, of course, be a matter for it.

36. The father's English proceedings will, accordingly, be stayed on these terms. I will also give both parties liberty to apply as to implementation of the order and generally.