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LSdC (A Child) [2012] EWHC 983 (Fam)

Residence dispute in which the father contended that the Portuguese court (which had been seised of the proceedings) retained jurisdiction whereas the mother wished the English courts to determine the matter.

The father made an application for registration, recognition and enforcement of a judgment of the Portuguese Court pursuant to Council Regulation (EC) 2201/2003 in respect of the parties' one year old child.  The Portuguese Court's judgment (reached by agreement during mediation in Portugal and later perfected into an order) provided for equal shared care of the child between the mother and the father on a rotating 2 monthly basis in England and Portugal to endure until the child turned three.

The parties, a Portuguese father and an English mother, met and commenced their relationship in England. The child was born in England in April 2011.  The parties' relationship was turbulent and included periods of separation before the mother agreed to move with the father to Portugal.  The mother eventually sought to leave Portugal with the child but the father would not agree.  At the airport, there were distressing scenes including the involvement of the police.  The child was not allowed to leave Portugal and the mother also returned to the family home in Portugal.  The Commission for the Protection of Children and Juveniles (CPCJ) in Portugal became involved and the shared care arrangement was mediated between the parties with the assistance of an officer of the CPCJ.  After the order was ratified, the mother remained in Portugal with the child to allow for the necessary formalities to be complied with and she then left for England on 18/12/11 with the child.  Macur J held that she thus resumed her previous habitual residence.

The impending return of the child to Portugal galvanised the mother into making her application on 7/2/12.  Macur J heard and read evidence about the mental/emotional health of the mother at the time of the agreement in Portugal and it gave rise to concerns as to the ability of the mother to make her dissent known to the proposed agreement at the relevant time.  Macur J thus held that because of those concerns it would be manifestly contrary to public policy to recognise the Judgment of the Portuguese Court pursuant to Article 23(a) of the Regulations.  It was further held that the child was habitually resident in Portugal at the time of the Judgment and while the Portuguese Court was no longer seized of the matter it could not be said that it did not have jurisdiction.  Macur J held however that the English courts had jurisdiction because per Article 13 it was in the best interests of the child to conduct the proceedings in this jurisdiction and that the mother had objectively exhibited emotional fragility seemingly associated with environmental factors in Portugal and such could not be in the best interests of L.  Judgment not recognised.

Summary by Richard Tambling, barrister, 1 Garden Court


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Neutral Citation Number: [2012] EWHC 983 (Fam)

Case No: OX12P00043
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/04/2012

Before :

MRS JUSTICE MACUR DBE

Re LSdC (a Child)
  
  
Mr G Armstrong (instructed by Harris De Silva Solicitors) for the Applicant
Mr M Scott-Manderson & Miss C Papazian  (instructed by Johnson & Gaunt Solicitors) for the Respondent
      

Hearing dates: 26th – 27th March 2012

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.


.............................

MRS JUSTICE MACUR DBE

Mrs Justice Macur DBE :
1. The father makes application for registration, recognition and enforcement  of a Judgment of the Portuguese Court dated 7 December 2011 pursuant to Council Regulation (EC) 2201/2003 ("the Regulation") and consequential orders for stay of proceedings in the UK on the basis that the Portuguese Court has jurisdiction to determine issues in relation to the child.  He proceeds by way of Article 41/ Section 4 of Chapter III (rights of access) supported by a certificate in form of Annex III in his written application. During the course of the hearing Mr Armstrong, who appears on his behalf, has adopted Article 21/ Section 1 and 2 of Chapter III procedure supported by a later obtained certificate in form of Annex II in the alternative without conceding the primary argument raised by the mother as indicated below.

2. The mother resists recognition and enforcement and contends that the correct procedure is pursuant to Article 21/ Section 1 and 2 of Chapter III (parental responsibility). If I uphold that argument and in order to save time and costs she waives the right to insist on compliance with Part 31.4 of the Family Proceedings Rules 2010 which requires that any application other than in relation to rights of access or return of a child to a member state pursuant to Article 11(8) shall be made to a district judge of the principal registry. Mr Scott-Manderson QC, on her behalf, asks that I treat his submissions as being made at first instance and on appeal under Part 31.15. I commend this exercise and adopt it.

3. The order concerned is made by the County of Baixo Vouga, Aveiro Family and Minors Court on 7 December 2011.  Assistant Scrivener Victor Renato Costa "homologated" the parent's previously made agreement "having verified the necessary legal requirements and analysed the interests of the minor and with the favourable opinion of the Public Ministry" and with this caveat: "However, I stress to the parents that it is convenient for the child to establish residence with one of the parents as once the child gets older especially from three years old onwards there will be the issue of frequency of pre-school and then school materials which will not fit with the "comings and goings" of the child between the homes of the mother and the father."

4. I have regard to Recital 22 in the preamble to, and Articles 2.1, 2.2, 2.4 and 2.7 of the Regulation. Consequently I conclude that prima facie, the   Judgment should be recognised and enforced in accordance with Recital 21 subject to my determination as to the correct procedure and, if the mother succeeds in relation to that, her arguments pursuant to Article 23.

5. The parents' agreement forming the basis of the Judgment/order of the court is described as an "Agreement on the Exercise of Parental Responsibilities". It is patently correct to describe it as such. It makes arrangements for exactly equal shared care on a rotating 2 monthly basis in England and Portugal to endure until the child's third birthday.

6. There is no issue as to this description. Therefore I am able to give reasons for my determination of the preliminary argument as to procedure without reference to the facts of the case.

7. The father contends that the agreement as to the joint exercise of parental responsibility and shared care arrangements inevitably incorporates his "rights of access" which facilitate the same.  This is a superficially attractive argument. I reject it. Articles 2.9 and 2.10 differentiate between rights of custody and rights of access. Whilst the definition in Article 2.10 could 'accommodate' the father's defined periods of residence as "access", it strains to do so in contrast to the definition in Article 2.9 which clearly accords with the expressed intention of the parents. I am not persuaded that the terms of Article 2.7 permit the relevant party to extract the "rights of access" involved in exercise of parental responsibility in order to chose between Sections 1 and 2 as opposed to Section 4 of Chapter III procedure to gain tactical or any advantage, particularly as here the father seeks to exercise the "day to day" parental responsibility bestowed upon the parent with whom the child resides at the time in accordance with paragraph B of the agreement.
 
8. I do not read Article 40.2 to be permissive of procedural selection by the father in these circumstances. This view is supported by the Court of Appeal decision in Re D-F (Children) [2011] EWCA Civ 963 which differentiated between enforcement procedure applicable to shared residence and contact orders. Mr Armstrong's attempt to distinguish the authority fails. I do not "review" the Judgment of the Portuguese Court as to "substance" in according to it the description afforded to it by the parties and subsequently the court.  The description accords with its content.  It relates to parental responsibility not access. This contrast with the case of Re D-F (above). However, the principle remains that the Court of Appeal recognised that different procedures for enforcement of Judgment ensued.

9. Consequently I dismiss the father's application made pursuant to Article 41.

10. In considering the father's deemed application to register, recognise and enforce the Portuguese Judgment (and to stay the English proceedings) in accordance with Sections 1 and 2 of Chapter III and the mother's defence thereto it is necessary to have regard to the background circumstances of the case.

11.  I have had regard to the parent's statements and the report and written answers of Ms Verissimo. I have heard oral evidence from the mother and the father restricted to issues of habitual residence and the making of the agreement and order. I have certificates in the form of Annex III – translated into English and Annex II in Portuguese, upon which the mother takes no issue but that it accords with the standard form attached to the regulation. I have paid them due regard.

12. The child is L born in England on 17 April 2011. His mother, JS is English and 21 years old. His father, AC is Portuguese and 29 years old. The parents met and formed a relationship when the father was working in Oxfordshire. Their relationship was turbulent, none the less so following the birth of L. The father had a relationship with a third party. This caused upset and anxiety to the mother leading to arguments and recriminations which, according to the father endured beyond their reconciliation and caused estrangement and ultimately separation. This is clear from the contents of the parent's statements and independent contemporaneous documentation.  I have not found it necessary or feasible to enquire into all other matters which are alleged by the mother and father to have contributed to the downfall of the relationship.

13. Of particular relevance is the following sequence of events as I find them to be. The father decided to return to Portugal to reside and work. Before he did so, the mother and father spoke of reconciliation on or about 5 June 2011 following a period of separation, initially on the telephone and then face to face. Over the course of their lengthy conversation commencing in the evening and continuing well into the night, a rapprochement occurred and the mother agreed to accompany the father to Portugal with L. I am satisfied to the requisite degree that she did so intending to establish a home for herself and L with the father. This appears to me to have been an ill thought out and emotive decision but the only credible and realistic explanation for her immediate execution of the plan on the following day. I do not accept the mother's account that this was always expected by her and the father to be for a trial period only.

14. The mother and father and L lived with the father's parents from on or about 6 June to 18 December 2011, save for a trip to England by the mother and L between 24 August and 11 September 2011 with the father's consent. L's birth was registered in Portugal on 29 August 2011 upon the joint declaration of the parents. His Portuguese (dual) nationality is thereby recognised. Amongst other benefits he became entitled to medical services, and in particular, according to the mother, participation in the infant inoculation programme. I reject Mr Scott-Manderson QC's argument as to the weight to be attached to the details concerning "habitual residence" in the registration certificate. I accept the father's evidence that these details would have been copied directly from the English birth certificate and do not identify nor prove the then habitual residence of the child or either parent.

15. I have seen photographs of various events in Portugal during this time in which the mother, father and L participated. Whilst snapshots of happy occasions, and I am aware that problems in the relationship continued, the photographs support the father's contention that the mother and L were integrated into a family and social life in Portugal.

16. I do not accept the mother's oral evidence that she was disinclined to return to Portugal in September and had no real expectation of doing so on her departure from Portugal in August. E-mail traffic from the mother to the third party's employer and a letter purported to be written by a lawyer acting on behalf of the mother to the third party threatening legal action and a card sent to the father which can be dated during this trip and subsequently, assert the continuing relationship between the mother and the father as engaged to be married. The mother's contention that the father had agreed to return to England in pursuit of this relationship is not borne out by the undoubted circumstances of their lifestyle in Portugal or the evidence as a whole.

17. However, by November 2011 there is no doubt that the mother wished to leave Portugal to return to England with L. She entered into a clandestine arrangement with her own mother to supply airline tickets. The father discovered the plan and confronted the mother. He refused his consent to the removal of L. The mother's perception is that he subsequently and apparently relented in that he drove her and L to the airport with their packed luggage on 14 November 2011. Two other male adults of his family accompanied them. He contends that he had never changed his mind and that he would not permit L to be removed but had no wish to detain the mother against her will. It matters little. A distressing scene ensued at the airport. A police officer was involved. L was not permitted to leave the jurisdiction. The mother returned to the family home. It seems the mother's mother called the British Embassy.  The Commission for the Protection of Children and Juveniles (CPCJ) of Aveiro became involved and visited the family on 18 November 2011. The mother's father flew to Portugal to support his daughter and was present, as was the father's father in the subsequent meeting between the parents and the CPCJ.

18. In the course of a meeting on 23 November 2011 at the offices of the CPCJ the agreement which was officially recognised by the court as indicated above came into being. The mother has claimed disadvantage and lack of understanding by reason of the absence of an independent interpreter. I am satisfied on the basis of her own evidence that whilst she may not have understood the legal implications of the same that she understood the proposal and agreed to a division of L's care not merely between parents but also between England and Portugal.

19. I am not satisfied that she was coerced into agreeing terms by the words or actions of the CPCJ officer, Ms Verissimo, and, although I note what would be a highly unusual presence of two police officers during parental negotiations in this jurisdiction albeit that they were attached to a specialised unit concerned with the welfare of minors, I am not satisfied on the evidence that they acted improperly nor directly influenced the outcome of the meeting.

20. The agreement once reached had to be ratified by the Courts. I do not accept the mother's evidence that the lawyer jointly instructed was a "friend of the [father's] family". I do accept her evidence that his English was limited to making reference to "L of A" in apparent response to learning of the child's name. This has an undoubted ring of truth about it. I do not understand the father to contest this issue. His case is that he interpreted for the mother when necessary. As indicated I find that the mother understood the practical effects of the agreement she entered.

21.  I cannot accept the mother's evidence as to the procedure in court which she claims was conducted in her and the father's absence in the face of the certificate in Annex III which says that she was given the opportunity to be heard– albeit issued to support an incorrect procedure as I have found. Whatismore, the mother's signature is clearly appended to the Court document.

22. Nevertheless, most telling to me is the mother's evidence that she would "have sold her soul to the devil" to exit Portugal. I found this evidence compelling as to her state of mind at the time. It suggests desperation and despair. Observing the mother closely during this part of her oral evidence I was satisfied that it was not a contrived expression used to manipulate the present proceedings. Equally, I was satisfied that she was not capable at the time of entering into the agreement to have already formulated the intention to breach it.

23. This evidence does not stand alone. I am satisfied on the evidence of the mother and father that whilst in Portugal she was "down" and prescribed anti-anxiety drugs. The father and his mother were sufficiently concerned for her welfare to seek medical attention for her.  The mother contends in writing that the father's mother supplied her with other and stronger sedatives; in oral evidence she asserted them to be anti-depressants. This is denied by the father. In the circumstances as a whole it matters little.

24. I am not able to ascertain whether she was subject to post natal depression or a reactive depression to her circumstances and what became her undoubted evolving and increasing wish to return to live permanently in England, as she now suggests/implies to be the case. I am satisfied that there is independent third party evidence of her mental state at the relevant time. This evidence is to be found in the undated report of Anna Verissimo made in response to questions posed to her by order of Baron J on 6 March 2012.  In addition to the questions posed and with no apparent wish to promote the mother she remarked that she and a fellow officer of the CPCJ "observed a very unbalanced (my italics)  and nervous and in some aspects in regards to the child, a negligent mother as she confirmed herself especially in regards to the child's feeding…."

25. The mother remained in Portugal until the 18 December 2011. I do not interpret her remaining in Portugal to be anything other than the result of practical considerations such as the sealing of the order and the making of travel arrangements. She and L returned to England on that day. It was a lawful removal and in accordance with the agreement made and ratified. I am satisfied beyond any doubt that she resumed her previous habitual residence in England at this time.

26. Whilst initially entirely cynical of the mother's motives at the time of entering into the agreement with the father I conclude that her intention to renege upon the agreement was not formulated until after her return to this jurisdiction when the traumatic events post 14 November 2011 were behind her. I find that it was the impending date for L's return to Portugal and the father reasonably indicating that he wished to make necessary arrangements to facilitate this which galvanised her into making application to the Courts in this jurisdiction on 7 February 2012.

27. In the context of these findings I address the cross application of the father to register, recognise and enforce (and for orders staying the proceedings in England) and the mother to make orders preventing the same. Throughout I bear in mind Article 26.

28. The mother relies upon Article 23 (a), (d) and (e) grounds for non recognition of the order.

29. Mr Scott-Manderson QC argues that the agreed arrangements for the child are so contrary to his welfare having particular regard to his chronological age that recognition of the homologated order would be manifestly contrary to public policy taking into account the best interests of the child. This subject has been canvassed on many occasions before the Court. The decision of Holman J in Re S (Brussels II: Best Interests of Child) (No 1) [2004] 1 FLR 571 being a touch stone throughout and no dissent to the principle derived there from emerging. That is, the case where welfare considerations may be legitimately entertained without undermining the principle of Article 26 and so manifestly offend public policy will be extremely rare.

30. Allowing that the definition of "public policy" must encompass fundamental rights guaranteed by the European Charter of Human Rights and The Charter of Fundamental Rights of the European Union. The speech of Baroness Hale and Lord Wilson in Re E (Children) (Abduction: Custody Appeal) 2011 UKSC makes clear that "if the court faithfully applies [the provisions of Brussels II (R)]…that it too will be complying with Art 3 (1) of the UNCRC".  In these circumstances I cannot accept Mr Scott- Manderson QC's argument that "these principles will impact in BIIR cases concerning recognition and enforcement", nor should it lead to a different reading of Re S et al.

31. I would not have ratified this agreement at first instance. I would not consider it to be in the best interests of an infant child to become a shuttlecock during his early and crucial age of emotional development. That said, I am unable to conclude that the overall situation envisaged would be so obviously and extremely abusive to qualify as the exceptional case.

32. There is certainly nothing contrary to public policy, let alone manifestly so, in encouraging the mediation of parental disputes as occurred here. In the vast majority of cases, as I indicated during the course of argument, a court is entitled to presume that adult parents of full capacity and apparent equal status will reach a conclusion which they regard to best reflect the welfare interests of their child. 

33. The additional argument of the mother utilised in support of  Article 23(a) exception is the fact that she was not of equal status by virtue of her linguistic difficulties and thereby was not given the "opportunity to be heard" as per 23(d). Having regard to the available evidence I have already concluded that whatever the situation concerning interpretation or translation the mother was aware of the exact terms of agreement to which she subscribed.

34. Her mental/emotional health at the time gives me far more reason to concern myself as to her ostensible consent to the arrangement, or the ability to make any dissent known. I bear in mind that parental agreement was seen as key to the CPCJ officer, Ms Verissimo and the caveat expressed by the Assistant Scrivener indicated above and in the circumstances of this particular case, I have tentatively but no less certainly decided that, without any review of the substance of the Judgment, it would be manifestly contrary to public policy to recognise this Judgment pursuant to Article 23(a) of the Regulations.

35. If I am found to be wrong in that determination I address the further discrete arguments resisting recognition below.

36. There is no question but that a prohibited steps order, residence order or the making of L a ward of Court would make the Portuguese order irreconcilable and therefore justify non-recognition (Article 23 (e)). This is obviously dependent upon the court having jurisdiction to do so. Assuming for the point of this argument, that I do (and as I indicate below I determine that I do have jurisdiction) my obvious disinclination to this step made clear during the course of argument arises from the proximity in time of the Portuguese order and the inevitable and implicit review of the substance of the Judgment to justify the fresh application. I cannot conceive that the aim of Brussels IIR should be able to be thwarted so readily in such circumstances in the absence of other grounds not to recognise and enforce. I accept Mr Armstrong's characterisation of such an exercise as having "logic [which] is demonstrably unreliable".

37. Whilst it does not appear to be specifically raised on behalf of the mother (and perhaps for good reason not apparent to me on the face of the papers) I observe in passing that I am concerned that L (or his appointed independent agent) was not given an opportunity to be heard in violation of fundamental principles of procedure in this jurisdiction. L did not and does not have his own voice for obvious reasons. I am aware of the involvement of the CPCJ and have full regard to the contents of  the responses made by Ms Verissimo in raising this issue but note that she refers to  advising "them both (the parents) to reach an agreement in regards to the guardianship of their son but always prevailing the wishes of both parents(my italics) ". Whilst she goes on to say that her "concern was to safeguard the interests of the child and mediate an amicable solution that would be best for [his] healthy biological, psychological and social development" it appears to me that too much emphasis was placed upon the fact of adult consensus. The only due diligence investigation that had taken place was during one unscheduled visit to the paternal grandparents home on 18 November 2012. If the mother  did indeed present as "a negligent mother" as suggested by Ms Verissimo it is difficult to see how the equal shared agreement brokered by the CPCJ could be said to be in L's best interests. I would find this feature in itself, or as a component part of Article 23(a) to justify non recognition.

38. The question of enforcement does not arise in the event that I am satisfied that there are grounds not to recognise the Judgment as indicated above. If my decision is not upheld on the relevant bases then I doubt that there is any legitimate basis to 'modify' enforcement which could only be achieved by a radical overhaul of the division of time based on what would inevitably be a review of the substance of the Judgment.  I do not see this Judgment to be 'divisible' in its terms so as to permit partial enforcement pursuant to Article 36.1.  The father does not apply for "partial enforcement" pursuant to Article 36.2. For the reasons given in paragraph 29 above I reject Mr Scott Manderson QC's argument that the welfare needs of a child as determined by further investigation are primary consideration in enforcement.

39. I have little hesitation in finding that L was habitually resident in Portugal at the time of the making of the order in December 2011.  In any event the Portuguese Court were rightly seized of the matter in accordance with Article 12.3.  Prorogation of jurisdiction is expressly provided for at the conclusion of proceedings in matters of parental responsibility associated with applications for divorce, legal, separation or marriage annulment by Article 12.2. There is no such provision in relation to 'stand alone' parental responsibility proceedings – as here. However, there is no reason not to imply a similar discontinuance of jurisdiction upon conclusion of proceedings.

40. The proceedings in this case were commenced and concluded with the presentation of the agreement. The Portuguese Court is no longer seized of any proceedings to require me to consider the timing of the respective claims of the mother or father in accordance with Articles 16 and 19. That is not to say that it does not have jurisdiction.

41. Clearly L cannot be "habitually resident" in two places at once within the meaning of Brussels II (R). The nature of the agreement reached and ratified by the Portuguese court is such whereby the parents apparently concede a constantly changing "habitual residence" for L. The European Union legal definition of habitual residence is set out in Mercredi v Chaffe (Case C-477/10) [2011] 1FLR 1293. Given his age and understanding he must be deemed to acquire the habitual residence of the parent whom is exercising de facto sole parental responsibility at the time. In that the time it is proposed he spends in each jurisdiction is intermittent it is nevertheless of ascertainable regularity.

42.  Mr Armstrong convincingly argues that it could never have been the intention of the parents that the change of habitual residence on a two month rotation would permit the respective jurisdictions of each to operate in the relevant periods. This may be so but is, I find, an effect of the drafting of the agreement. There is no stipulation as to preservation of L's habitual residence in Portugal, as I find it to have been, or that Portugal should have sole jurisdiction to determine parental disagreements.

43. Article 9 preserves the jurisdiction of the courts of the child's former habitual residence following a lawful move and acquisition of new habitual residence during a three month period following the move for the purpose of "modifying a Judgment on access rights". That is not the nature of the Judgment here. In any event the three months has expired.

44. In that the mother has wrongfully retained L beyond the 18 February 2012, Article 10 provides that jurisdiction will lie with the Member State in which the child was habitually resident immediately before the wrongful retention.   If my analysis of the effect of the agreement in relation to L's habitual residence is correct, that would mean that this court has jurisdiction. A circular and unsatisfactory route in which to arrive at the mother's objective.

45. Article 13 offers no better solution to the problem raised by the practical effect of the Judgment. Wherever the child happened to be in the cycle of shared care will endow the relevant Member State with jurisdiction.

46. The father does not concede nor consent jurisdiction otherwise than in Portugal.

47. This is an altogether unfortunate state of affairs for all concerned. L has an extended and loving family in Portugal as well as in England. His welfare cannot be mired in perpetual dispute as to jurisdiction and the attendant anxiety of the non-residential parent. The arrangements for his future must be litigated if not amenable to mediation.

48. I am satisfied that the English courts do have jurisdiction to entertain the mother's applications at least by reason of Article 13 and that it is prima facie in the best interests of the child now to conduct proceedings here. I therefore lift the stay imposed upon the mother's application for a residence order, effective upon expiry of the period in which the father may enter notice of permission to appeal or conclusion of appeal if permission is granted, whichever is the later.

49. If the father is successful in seeking review of this Judgment by the Court of Appeal in England and Wales and in the interests of completeness I would otherwise invite transfer of any proceedings commenced in Portugal (and in the event that Portugal had jurisdiction in respect of same) to this jurisdiction pursuant to Article 15. The child has a particular connection with England. His mother has objectively exhibited an emotional fragility seemingly associated with environmental factors in Portugal which if resurrected would not be in the best interests of L in either his care or else the full participation of a parent within the legal process involving his future living arrangements.

50. In the meantime and pursuant to Article 20 I make an order staying the Portuguese Judgment of 7 December 2011 and pursuant to the Children's Act 1989 prohibiting L's removal from the jurisdiction until further order of the Court save by agreement for the purpose of contact.

51. Order accordingly.