A (a child), Re, Court of Appeal - Family Division, August 24, 2007, [2007] EWHC 2016 (Fam)

Reporting Judge: [2007] EWHC 2016 (Fam)

President: A (a child), Re

Linked as:

Extract

A (a child), Re, Court of Appeal - Family Division, August 24, 2007, [2007] EWHC 2016 (Fam)

Neutral Citation Number: [2007] EWHC 2016 (Fam)

Case No: FD06P02074

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 24/08/2007

Before:

MR JUSTICE SINGER

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Between:

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To be cited as:

Re A, HA v MB (Brussels II Revised: Article (11)7 Application)

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Mr Marcus Scott-Manderson QC and Mr David Williams (instructed by Gillian Radford and Co) for the Applicant Father

Mr Michael Nicholls QC and Miss Marie-Claire Sparrow (instructed by Pritchard Joyce and Hinds) for the Respondent Mother

Miss Kate Branigan QC (instructed by CAFCASS Legal) for the Child A

Hearing dates: 14 and 15 and 28 June 2007

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Judgment

MR JUSTICE SINGER

This judgment is being handed down in private on 24 August 2007. It consists of 143 paragraphs and an Annex 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 child and the adult members of his family must be strictly preserved.

Mr Justice Singer:

Introduction

1. The issues for determination in this case arise as a result of articles 10 and 11 of the compendiously entitled 'Council Regulation (EC) No 2201/2003 (Brussels II) of 27th November 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, repealing Regulation (EC) No 1347/2000'. I will refer to this as 'BIIR'. Unlike its repealed predecessor, BIIR applies to all children who fall within its jurisdiction and scope, although no maximum age is prescribed so that this is left to national law.

2. These issues involve consideration of as yet unplumbed depths (certainly in English jurisprudence and, as far as the admittedly non-comprehensive enquiries of counsel could establish, elsewhere) sounded by those and other articles of BIIR; and of their inter-relationship with the Hague Convention on the Civil Aspects of International Child Abduction 1980 (to which I will refer simply as 'Hague') as interpreted and applied in England and Wales; and their interface with our own domestic law and procedure in relation to questions concerning a child's welfare, primarily founded on the provisions of the Children Act 1989 and of the Family Proceedings Rules 1991 (and their counterpart for use in Family Proceedings Courts).

3. So far as I am aware the only reported case in this jurisdiction to date on such an application is my judgment in Re A (custody decision after Maltese non-return order), [2006] EWHC 3397 (Fam), (2007) 1 FCR 402.

4. BIIR took direct effect from 1st March 2005 (with the exception of some articles earlier in force but not relevant for present purposes). By article 72 the Regulation is 'binding in its entirety and directly applicable in the Member States in accordance with the Treaty establishing the European Community.' 'Member States' include all the existing and subsequently acceding countries, with the exception of Denmark which opted out. It is in this slightly restricted sense that I use the term Member States in this judgment.

5. Before BIIR's entry into force the European Commission Services published the first version of a 'Practice Guide' to assist with interpretation and implementation of the revised Regulation. The Practice Guide makes it plain that it does not have the force of law, which ultimately (and 'ultimately' may be the right word) must be for the European Court of Justice to decide. In June 2005 the European Commission published an updated version of the Practice Guide.

6. Our domestic procedure has to an extent been modified by Amendment Rules and internal Regulations in an attempt to accommodate the requirements of BIIR but, in my view and that of others, does not as yet provide a complete and coherent code to meet the requirements which the Regulation imposes on Member States. See, for instance, the decision of Black J concerning the provisions in relation to the registration and enforcement in this jurisdiction of foreign judgments which are supposed to be recognised and enforced with little ado: a judgment in the case of D v D [2007] EWHC 822 (Fam), handed down on 20th April 2007 and as yet unreported:

7. The Family Proceedings Rules 1991 and the Family Proceedings Courts (Children Act 1989) Rules 1991 are in course of comprehensive revision. I should in the interests of transparency make it clear that both Michael Nicholls, leading counsel for the mother in this case, and I are members of the Child Abduction Working Party constituted to operate under the ...

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