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Family Law

The leading authority on all aspects of family law

28 OCT 2014

AA v TT [2014] EWHC 3488 (Fam)

AA v TT [2014] EWHC 3488 (Fam)
(Family Division, Holman J, 16 October 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 2 FLR 1]

Enforcement – Turkish custody order – Father granted custody of children – Enforcement sought under 1980 European Recognition and Enforcement Convention – Turkish judgment founded on false belief that mother living in Turkey while children living in England – Art 10(1)(a),(b) – Whether the custody order should be recognised and enforced

The father’s application to enforce a Turkish custody order was refused on the basis of Art 10(1)(a) and (b) of the European Recognition and Enforcement Convention 1980.

Please see attached file below for the full judgment.

The British mother and Turkish father were married in Turkey before moving to England. During the marriage they had three children, now aged 12, 9 and 7. In 2009 the family moved back to Turkey but the parents’ relationship broke down.

In 2011 a divorce was granted in Turkey and the father was granted sole custody of the children and while the mother was granted access rights. The mother moved out of the family home but the father agreed to the mother caring for the children.

In subsequent proceedings the mother was granted formal custody of the children. The mother remarried a Turkish man and she left Turkey with the three children and brought them to England. She did not have the father’s consent nor did she give him notification of her intentions. She claimed she was driven to leave due to the father’s aggression and violence.

The father promptly brought proceedings in Turkey and in England in which he sought a return order pursuant to the Hague Convention. During the Hague Convention proceedings the father withdrew his application stating that he would seek custody via the Turkish court.

In the Turkish proceedings the court incorrectly accepted evidence that the mother was now living in Turkey with her new husband and that the children were being cared for by the maternal grandparents in England. Based upon that finding custody was granted to the father and provision was not for contact with the mother.

The mother and children had now lived in England with the maternal grandparents for 2 years. The father applied for the recognition and enforcement of the order pursuant to the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children 1980 which applied to Turkey as a Member State of the Council of Europe. That Convention had been superceded for all practical purposes by BIIR which applied to Member States of the European Union of which Turkey was not one.

It was clear from evidence presented by the mother including bank statements showing day-to-day transactions that during the previous 2 years she had been living in England. She had visited Turkey without the children for a total of 61 days in that period. However, by virtue of Art 9(2) of the Convention the court could no review the Turkish decision as to its substance. There was a distinction between reviewing a decision as to its substance and discerning that the foreign decision was fundamentally founded on a completely mistaken essential fact. The court was not prevented from considering the application on the basis of the true essential facts.

The children’s guardian reported that the children were well settled here and that a move to the custody of the father or even to Turkey could not be countenanced.

It was clear that the circumstances of the case fell within Art 10(1)(a) and (b) of the Convention. It was a fundamental principle of law that decisions relating to children should be based on correct facts. It would also be manifestly incompatible with the fundamental principles of our law for the children who were settled to be removed from the care of their mother. Furthermore to recognise and enforce the Turkish decision now would be utterly contrary to the welfare of the children. The application was refused.

Neutral Citation Number: [2014] EWHC 3488 (Fam)
No. FD12P02790

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice

Date: Thursday, 16th October 2014

Before:

MR JUSTICE HOLMAN (Sitting throughout in public)

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AA
Applicant/Father

v

TT
Respondent/Mother

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Transcribed by BEVERLEY F. NUNNERY & CO. (a trading name of Opus 2 International Limited) Official Court Reporters and Audio Transcribers One Quality Court, Chancery Lane, London WC2A 1HR Tel: 020 7831 5627 Fax: 020 7831 7737 info@beverleynunnery.com

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MR M. JARMAN (counsel) appeared on behalf of the Applicant Father
MR E. BENNETT (counsel), generously acting free of charge, appeared on behalf of the Respondent Mother
MR M. GRATION (counsel) appeared on behalf of the Guardian

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J U D G M E N T

AA v TT [2014] EWHC 3488 (Fam)

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