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Enforcing Foreign Contact Orders: Article 41 & Brussels II Revised

Finola Moore, of 4 Brick Court, uses her recent experience in a Polish contact case to highlight the potential problems when enforcing overseas contact orders under Brussels II Revised.

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Finola Moore, 4 Brick Court

I recently represented a Polish lady who has been living in England with her daughter for the past two years. Her former husband and Father of the 9 year old daughter was seeking to enforce his Polish contact order in England via the Central Authorities and pursuant specifically to Article 41 of Brussels II Revised.

At the time of preparing the case there was very little available to assist and, needless to say, the papers were sent by fax about 24 hours before the first hearing.

The case raised a number of issues that proved significant and potentially problematic for the family lawyer in overseas contact disputes. In this article I will use the case to illustrate the potential pitfalls including:

The Polish Litigation
The parents are Polish nationals who married in Poland in 1998. Their daughter was born in July 1998. The marriage was dissolved in Poland on a no fault basis in 2002. It was specifically stated in the Polish court documents dissolving the marriage and defining the arrangements for their daughter that the Mother shall exercise Parental Authority and the Father's rights to exercise Parental Authority were restricted to co-deciding the child's education and choice of future job as well as about medical treatment in the event of serious illness. The Father was to pay child support of 300 Zloty per month.

After their divorce, the parties lived in different towns some 12 km apart. By 2004, alleged difficulties in contact developed such that the Father applied to the Polish courts for a defined contact order. On 17th May 2005, a defined contact order was made by consent. The Parties' daughter was just under 7 years old. The order was in a form very familiar to that often used in the English courts: alternate weekend staying contact, staying contact at Easter and Christmas with the parents alternating the festival period, and two weeks summer holiday contact. The Father was not aware of his daughter being seen by any equivalent to a court welfare officer/Cafcass and the Mother was clear that her daughter was not seen by any court officer.

When the order was made on 17th May 2005, the provisions for contact were based on the Parties' current living arrangements in Poland. A transborder move was not contemplated.

The Mother and daughter moved to England quite soon afterwards. The Father took the matter back to the Polish court. At a hearing which took place on 25th October 2005 in Poland, it was established that the Mother, daughter and Mother's partner (now Husband) had moved to England. The Father subsequently had some telephone contact with his daughter in December 2005.

At a further hearing in Poland on 9th February 2006, the court rejected the Father's application to modify the parental custody provisions of the divorce judgment on the basis that it lacked jurisdiction under Brussels II Revised. There were further applications to the Polish courts by both parents. On 20th March 2006, the Mother applied for leave for the child to remain abroad and to change the contact arrangements. This application was refused on 21st August 2006 due to lack of jurisdiction as the child was habitually resident in the UK. The Father applied to enforce his contact order and was rewarded with an order fining the mother for breach of the contact order.

Eventually, in October 2006 the Father signed the authority for the Polish Central Authority to take steps under BIIR and the Hague Convention for recognition and enforcement of the contact order of 17th May 2005. On 27th October 2006, a Certificate was issued by the Polish court in accordance with Art 41 and Annex III of BIIR. Apparently, the Father was only advised to take this step at that point.

On 11th December 2006, the District Court in Warsaw ( not the court which made the original contact order on 17th May 2005) rejected the Father's application for modification of the judgment concerning parental responsibility on the basis of lack of jurisdiction under Brussels 11 Revised since the child was habitually resident in England. The Father appealed against this order on 22nd December 2006. That appeal was still pending when the matter came before the High Court on 25th July 2007. The grounds of the appeal appear to be: (a) The Mother's original removal was wrongful; or (b) pursuant to Article 12, the child has substantial ties with Poland and Polish jurisdiction has been unequivocally accepted by all parties and it is in the best interests of the child.

The English Litigation
It seems that the Father and the Polish court learnt definitely on 25th October 2005 that the Mother and child were in England. However, almost a year passed before the Father gave written authorisation on 7th October 2006 empowering the Central Authority for the United Kingdom to act on his behalf.

This authorisation was effected by way of the Polish Central Authority writing on 23rd October 2006 to the International Child Abduction Unit at the Official Solicitor's office in Chancery Lane which is the UK Central Authority applying to establish contact with the child and attaching proposals for future contact which were slightly different from those provided for in the Polish May 2005 order.. The Father also obtained on 27th October 2006 an Article 41(1) Certificate relating directly to the Polish May 2005 order.

Article 41(1) Certificates
Much of Brussels II Revised repeats the provisions of Brussels II and the Practice Guide prepared for use with Brussels II Revised has a useful table set out in Annex V identifying where the repealed article is repeated or has corresponding articles in BIIR. Article 41 is completely new and has no corresponding predecessor.

The purpose of the Article 41 Certificate is that it makes an order for contact which complies with the conditions set out in Article 41 directly recognised and enforceable in another member state if it has an Article 41 Certificate. (See The New Brussels II Regulation: A Supplement to International Movement of Children, Lowe, Everall & Nicholls 2005 p22 the essential guide to Brussels IIR for legal travellers) Otherwise, the procedure is to apply to the new Member Sate for registration, recognition and enforcement of an order pursuant to Chapter 111, Article 21 of Brussels11Revised.

This certificate is issued in the member state of origin providing certain conditions apply:

  1. It must be issued in the standard form as set out in Annex III
  2. If the judgment certified was given in default, the person defaulting had good and sufficient notice so as to arrange a defence or where service did not comply with conditions, the defendant accepted the decision unconditionally
  3. All parties were given an opportunity to be heard
  4. The child was given an opportunity to be heard unless a hearing was considered to be inappropriate having regard to age or maturity.
    (Art.41 (2) )

Thus, if there is a cross border element in an order for contact in England and Wales involving or potentially involving a member state, it seems it would be prudent to ask for this certificate when the order is made in order to speed up any future enforcement. I am referring here to applications to remove from the jurisdiction. If the order does not have a cross border character but subsequently acquires one, either party may request the court of origin that delivered the judgment to issue a certificate. However, if appropriate according to national law, the child must be heard and this is not always the case where matters are compromised on a consensual basis. This is a point that needs to be considered very seriously when agreeing orders for contact after a relocation to a member state.

In Scotland in abduction cases, the applicant is required to complete a standard court form advising the child of the proceedings and asking him if he wishes to give any views. This is sent to the child with a pre-paid envelope and the child is advised that his views will be passed to the court and that the Judge may wish to speak to him. ( P.McEleavy, The Impact and Application of the Brussels II Bis Regulation in the United Kingdom, Brussels II Bis, Its impact & Application in the Member States Ed K.Boele-Woelki et al 2007 p 319, an excellent article on child abduction)

If there is an Article 41(1) Certificate in prescribed form and no application has been made to the court of origin to rectify it, then that decision is directly recognised and enforceable in another member state.

The status of the child is significantly increased and enhanced in BIIR. Research undertaken by the European Forum for Child Welfare in 2001, which took the form of an examination of the implementation of Art 12, UNCRC, in six member states identified significant short comings and divergent age-based restrictions in giving effect to the right of the child to be heard in family law proceedings. Child consultation procedures remain a matter for national law. (See G.Shannon, The Impact and Application of the Brussels 11Bis Regulations in Ireland, Brussels 11Bis, Its impact & Application in the Member States Ed K.Boele-Woelki et al 2007 145 )

The vulnerable position of the migrant child arising out of the divergent child-consultation procedures between Member States needs to be addressed. (op.cit 157)

The Position in Poland
Poland's accession to the European Union occurred on 1st May 2004 some time after the parties in this case were divorced and the Father's parental responsibility was defined. Thus, it cannot be assumed that every Polish case that comes before the courts will necessarily have the same features with regard to the scope of the non resident parent's parental responsibility. (The European Judicial Network in Civil and Commercial Matters has a helpful section on parental responsibility for each member state although some entries appear to need updating)

It seems that there is no provision in Polish law for a stay of proceedings and thus problems are anticipated with regard to the application of Article 19 concerning lis pendens. In Polish law Article 1098 of the Civil Procedure Code first implemented in 1964 and, apparently, subsequently added to, does not provide for any legal effects when a case is pending in a foreign court. (Agnieszka Kozakiewicz , The Impact and Application of the Brussels II Bis regulation in Poland, Brussels 11Bis, Its impact & Application in the Member States Ed K.Boele-Woelki et al 2007 ..243) Further, the author notes that there is work in progress towards reforming Polish private international law.

If I have understood this point correctly, it would explain the course of the Polish litigation where despite repeated decisions that there is no jurisdiction as the child is habitually resident in England, there does not seem to have been a way of staying the litigation despite the Father going through the Central Authorities to apply to enforce the order in England.

The Decision of the High Court: Article 41(1), Wardship & the Children Act 1989
Pursuant to Re D (Abduction: Rights of Custody) [2006] UKHL 51 [2007] 1 FLR 961 HL it was accepted that the Mother's move to England from Poland was a lawful removal as the Father had no right to veto where the child should live.

A lawful removal triggers Art 9 which provides that where there is a lawful removal, the court of the child's former habitual residence retains jurisdiction for 3 months to modify an access order unless the holder of access rights accepts the jurisdiction of the new court by participating in proceedings there. It does not seem, however, to affect the right to apply for an Article 41 certificate and seek enforcement.

The Father requested and obtained the Article 41 certificate 17 months after the order was made, a year after he was aware of the move to England and at a time when the circumstances were so different that it is very hard to see how all of the terms of the order so certified could be implemented.

The Father through the Central Authority issued an originating summons on 26th April 2007 and an order was made ex parte that day which registered and recognised the Polish contact order of 17th May 2005, a separate location order was made (not necessary as the Father knew where the child was) and provision was made for the Mother to appeal the registration and recognition of the Polish order within one month of service of the order on the Mother. This latter direction was made pursuant to the FPR r.7.44 which covers orders giving permission for registration of a judgment under Article 28(2). In fact, there is no appeal against the registration and recognition of an Article 41 certified order as article 43(2) states that no appeal lies against the issuing of the certificate and the certificate ensures that an access order is directly recognised and enforceable in another member state. The FPR which deal with Article 41 certificates are to be found in rules 7.51, 7.52 and 7.55, the latter dealing with rectification. However, consideration of an appeal does allow a full and detailed consideration of the Article 41 Certificate and perhaps, if necessary, prompt an application for rectification.

Thus, initially without rectification of the certificate, an order for contact made in different circumstances nearly two years previously was enforceable directly in England. Article 47, however, provides that a judgment which has been certified according to Article 41(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.

The child had moved to England lawfully and had acquired habitual residence. Thus the Mother could have applied for a Children Act order at any time after 3 months had elapsed from the date of her departure from Poland. There seems no reason why she could not have applied for an order defining contact upon receipt of notice that the Father was applying to the English courts.

It does not seem possible for the court to make a s.8 order in the proceedings in the High Court of its own motion as the proceedings as initiated by the Father through the Central Authorities for recognition and enforcement do not appear to be included in those set out in s8(4) CA.
As there was no Children Act application before the court, the court decided to ward the child and made a new order for contact reflecting the wishes of the child as expressed to Cafcass and her current circumstances thus putting in place a subsequent enforceable judgment which pursuant to Article 47 supersedes the earlier order where it is irreconcilable. That order is now subject to further review by the court with the assistance of a further Cafcass report next year.

Finola Moore