(Family Court, Peter Jackson J, 17 June 2015)
Private law children – Contact – Enforcement – BIIR – Children living in Spain – Father sought to enforce order permitting contact with the children
The father's application to enforce an order providing for contact with the children who were living in Spain was refused on the basis that the children were no longer habitually resident here and, therefore, the English court did not have jurisdiction in this regard.
The British father and American mother had two children, aged 3 and 6. During their relationship they spent significant period of time in both Spain and England. When they separated the mother chose to live in Spain and the father lived in England. An order made in 2013 provided for the children to live with the mother in Spain until August 2015 but stated that they were to remain habitually resident in England and Wales. By consent the order provided that the father would have contact with the children on at least a 3-weekly cycle in England or Spain.
The children held that based upon a factual enquiry of the reality of the children's situation, they were no longer habitually resident in England and Wales, and therefore, the court no longer had jurisdiction. The order as to contact was not capable of being enforced since it failed to specify specific times for contact to take place and it placed no obligation on the mother to permit the father to spend time with the children. However, the term of the order requiring the child's return to the jurisdiction was perfectly valid and it was open to the father to seek its recognition and enforcement in Spain under BIIR.
Neutral Citation Number:  EWFC 56
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Wednesday, 17th June 2015
MR. JUSTICE PETER JACKSON
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B E T W E E N :
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MR. ANDREW LORIE (instructed by St John Legal) appeared on behalf of the Applicant Father.
MISS LYNDSEY SAMBROOKS-WRIGHT (instructed by Manak Solicitors, Orpington) appeared on behalf of the Respondent Mother.
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J U D G M E N T
MR. JUSTICE PETER JACKSON:
 This is an application by GW (to whom I shall refer as “the father”) to which the respondent is MW (“the mother”). It concerns two children: J, aged six, and B, aged three. The application, dated 27th November 2014, is to enforce a contact order that was made on 2nd December 2013 by District Judge Bowman. That order, amongst other things, contemplated contact taking place between the father and the children both in England and in Spain.
 The father is British and the mother American. The children are both British citizens. In a nutshell, they are now living with their mother in Spain, having very little direct contact with their father, but regular contact by Skype, and there is a major issue between the parents about how the wider terms of the 2013 order should be put into effect.
 The application has an unfortunate procedural history. It started with a Deputy District Judge appropriately referring the matter of jurisdiction to this court within a short while of the application being issued; but hearing dates in March and April went by without the matter being resolved because of the lack of an available judge. It has eventually come before me today, and I have had the benefit of very helpful submissions on behalf of the father from Mr. Andrew Lorie, and on behalf of the mother by Miss Lyndsey Sambrooks-Wright. The father has been present. The mother is, with the court’s permission, not present but has been in contact with her counsel as required.
 I next describe the chronology. The parents met in 2004 in Spain and began a relationship. At some point thereafter, and at all events by 2007, they began to live together. In 2008 J was born in Spain. In March 2010 the parents were married in Gibraltar. In May 2012 B was born, also in Spain.
 There is a discrepancy (that does not signify for the purpose of my decision) between the accounts of the parents as to when they were living in Spain and when they were living in England. By the time we get to 2012 and the birth of B, it is apparent that they had spent substantial periods of time in both countries. They had created a business in Spain. In November 2012 on the father’s chronology, the family came to live in England and at some point in the following year the final separation took place. The date is put at March 2013 by the father and November 2013 by the mother. Again, the process may have been protracted and it does not make any difference to the overall picture, which is that by the end of 2013 the parents’ futures lay in different directions, with the clear intention that the children should live with their mother but have a meaningful and regular relationship with their father.
 At some point, the mother made an application to the court in relation to the children. She filed a statement, as did the father, but I have not been provided with copies. The matter came before District Judge Bowman on 2nd December 2013. Neither parent was represented at that hearing, and the resultant order is not expressed in a satisfactory way. I propose to set out the five paragraphs of the order as they were actually made, and then to set them out as they perhaps should have been expressed; as part of my order today, I will amend the terms of the order from the former to the latter so that in any future proceedings, particularly ones where a translation is required, the order reads as it should.
 The existing order reads as follows:
“The court orders:
1 By consent, the mother may remove the children from the jurisdiction of this court to Spain for a period of 19 months to 1st August 2015.
2 The children so remain habitually reside in England and Wales.
3 Parties otherwise agreed, the children are to be returned to the jurisdiction by 1st August 2015.
4 By consent, the father is to have such contact with the children as may be agreed it being envisaged today that he will have contact at least on three-weekly cycle either in England or in Spain. The parents both agreeing to pay on half of the travel costs of the other parent and of the children.
5 Permission to apply on short notice”.
 I amend those terms as follows:
“It is order that:
1 By consent, the mother may remove the children from the jurisdiction of this court to Spain for a period of 19 months to 1st August 2015.
2 The children shall remain habitually resident in England and Wales.
3 Unless the parties otherwise agree, the children are to be returned to the jurisdiction of England and Wales by 1st August 2015.
4 By consent, the father is to have such contact with the children as may be agreed, it being envisaged today that he will have contact at least once every three weeks either in England or Spain. The parents both agree to pay one half of the travel costs of the other parent and of the children.
5 Permission to apply on short notice.”
 After the making of the order the mother and children moved back to Spain on 29th December 2013. In the events that have followed, the children have not returned to England since.
 The father has visited Spain on a handful of occasions, the dates of which have not been agreed but, again, it is not material to my decision. He says that he went to Spain to see the children for long weekends in the summer and autumn of 2013, and that there was then a gap of about a year until October 2014. The mother says that in fact he also visited in May and July 2014. However, in October 2014 there was a serious argument between the parents in front of the children at the end of a period of contact – the topic of the argument being the mother’s wish to take the children on holiday at Christmas when the father expected to see them himself.
 The day after that event the mother obtained a restraining order against the father without notice to him, and there are ongoing criminal proceedings arising out of that incident which the father is dealing with. Happily, he was able to go to Spain and to see the children for about a week over the New Year 2015. Unhappily, he has not seen them face to face since then. Even with the benefit of their current English lawyers, the parents’ efforts to set up what should be quite simple arrangements for contact this Easter came to nothing.
 The evidence clearly establishes that the parents are in agreement that the children should be seeing the father regularly. The father’s explanation for the very few occasions that he has travelled in the past two years centres around the cost of travelling. For her part, the mother notes that she receives no direct maintenance for the children; to this the father responds that she has the benefit of the parties’ business without accounting to him for that.
 Matters may not have been made easier by the fact that the father began a new relationship in early 2014; he and his partner have now been cohabiting for over a year.
 Another development is that in June 2014 the father issued an English divorce petition on the basis of the parties having been separated for two years and the mother consenting. That would not seem to have been a basis for divorce that was consistent with the facts, and the mother did not agree. The father, in September 2014, then issued a behaviour petition leading to the mother issuing a behaviour cross-petition the following month. Those proceedings are apparently ongoing.
 The mother has at the present time no right of abode in this country. She does have a right of abode in Spain as a result of a visa that will expire in the course of next year.
 That, broadly, is the chronology. It gives rise to quite a number of legal issues. The first question for this hearing is whether the court has jurisdiction to entertain the father’s application. The mother says that it does not because she contends that the children are not habitually resident in this jurisdiction within the meaning of Article 8 of the Council Regulation (EC) 2201/2003 known as “Brussels II Revised”. The father contends that the children are habitually resident here, remaining so by virtue of the 2013 order and other features of the case. He also contends that jurisdiction has been prorogued in favour of this court under Article 12.
 The second question is whether the 2013 order is expressed in terms that can be enforced.
 I turn first to the question of jurisdiction. Article 8 of the Regulation reads as follows:
1 The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.
2 Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.”
 The meaning of the term “habitual residence” has been fully considered in a number of important recent decisions to which my attention has been drawn. I particularly refer to a decision of the Supreme Court in Re A  3 WLR 761; Re H ( jurisdiction)  EWCA Civ 1101, a decision of the Court of Appeal; and the very recent decision of the Supreme Court in AR v RN (Scotland)  UKSC 35 on 22 May 2015.
 For convenience, I quote from the last of these decisions. Paragraph 17 of the united opinion of the court reads as follows:
“As Lady Hale observed at para. 54 of A v A, habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The social and family environment of an infant or young child is shared with those (whether parents or others) on whom she is dependent; hence it is necessary in such a case to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce …”.
 And, from para.21, I would cite this sentence:
“As was explain in A v A, the important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent”.
 The facts of the AR decision have some passing resemblance to the circumstances of this case in that the question at issue was whether the habitual residence of children had changed during the course of what was accepted to be an impermanent move. The additional feature of this case is the existence of the 2013 order.
 The circumstances of these children’s lives are as one would expect from children who have a joint British and overseas background who have been living for some time in Spain and who are as young as they are, only six and three. In her written submissions Miss Sambrooks-Wright points out that the children are enrolled in school and nursery respectively; that J had attended school in England for no more than four months and nursery for six months before that time, whereas B’s Spanish nursery is the first facility she has been to; the two of them have spent more of their lives and all of their recent lives in Spain; that they speak Spanish as well as English; that there is a support network there; that the mother has a right to reside in Spain but not in England; the mother has no home or means of living in this jurisdiction; and that the father’s attendance for contact in Spain has been disappointing.
 The father says that the indicators of the children’s stability in Spain do not point to any permanency. They are no more than what would be expected from an arrangement that was agreed to last for 19 months.
 It is an obvious feature of the case that the mother has a central position in the children’s lives, being their primary carer and having become a more dominant figure as a result of her taking the children back to Spain, and also as a result of the father’s unfortunate absence.
 A further factor of relevance in considering the issue of habitual residence in this case is the question of the parental intention and the terms of the court order. Whatever thoughts the mother might have harboured when she agreed to the order, there is no doubt that it records an intention that the children should go to Spain and come back. The court stated that the children should remain habitually resident in England and Wales during that period. It is common ground between the parties that that is to be weighed as a relevant factor, but that it cannot be an overriding one because, as has been repeatedly made clear, the court has to look at the actual factual situation and not substitute legal concepts or hypothetical ones for the reality.
 It is argued by Mr. Lorie on the father’s behalf that there are important policy considerations in favour of upholding agreements of this kind, otherwise they will not be made. That must be a matter for consideration. Nonetheless, I am of the view that parties who agree on where habitual residence is to be situated, or courts who make statements about such things in the case of departing children, should be alert to the reality that the court’s grasp cannot exceed its reach. Jurisdiction will exist if and only if the Council Regulation so provides.
 I turn to Article 12:
“Prorogation of jurisdiction:
1 The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where:
(a) at least one of the spouses has parental responsibility in relation to the child; and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time when the court is seised, and is in the superior interests of the child”.
I need not read further into that Article.
 I have reminded myself of the attention that was paid to this Article in the Supreme Court decision of Re I (a child) (Contact Application: Jurisdiction)  1 FLR 361. In that decision Baroness Hale considers in particular the meaning of the phrase “at the time the court is seised” at paras. 23-32, but reaches no final conclusion about that. The questions that arise for consideration in this case are whether there has been acceptance within the meaning of the Article, when that acceptance must be, and whether prorogation of jurisdiction would be in the superior interests of the child.
 I do not find it necessary to reach a firm conclusion on when the court was seised in this case. Consideration was given in submissions to three possibilities: the date of the 2013 order, the date on which the father issued divorce proceedings in summer/autumn of 2014 or the date on which this enforcement application was made. I would favour one or other of the later dates as being the relevant time, namely June 2014 at the earliest, November 2014 at the latest. It does not very much affect the overall analysis.
 I come to my conclusions, firstly, in relation to the question of jurisdiction. In this respect I am concerned with the time at which the court was seised with the matter for the purpose of establishing habitual residence, not for the purpose of prorogation, and I take that time to be the issuing of the father’s present application in November 2014.
 I find that although the contrary is arguable and has been well argued, that at that time these children were not habitually resident in the United Kingdom. They are small children, heavily dependent on their mother’s existence and way of life. At that stage they had not been to the UK for almost a year, a situation that unfortunately continues.
 I have thought carefully about the weight to be given to the parental intentions as recorded in the order of December 2013, and the fact of the order itself. These do count but they are diluted by the breakdown in arrangements contemplated by that order, the discord between the parents, the long and somewhat unexplained absences of the father, and the bringing of the divorce proceedings which, whether they were anticipated or not, are likely to have prejudiced the mother’s ability to obtain a visa to come to live in England. At present it is not at all clear how the mother could obtain the right to live in England; the father’s response is that the children can come and live with him in her basence does not reflect the purpose of the 2013 order any more than the mother’s present position does.
 Balancing matters up, I find that the reality for the children is that they have reintegrated into their social and family environment in Spain. Even though the order shows that their presence in Spain was not intended to be permanent, it had the necessary quality of stability at the time this court became seised. The children are dependant on their mother and both she and they have have a significant history of living in Spain. The factual enquiry I have conducted takes account of the intentions of the parents and the court that are reflected in the 2013 order, but I find that while these carry significant weight, they are outweighted by the circumstances of the children’s actual situation as habitual residents of Spain.
 I further find that there has not been a prorogation to this court of jurisdiction in this matter. The mother has not in my view done anything that amounts to an acceptance within the meaning of Article 12. Her participation in divorce proceedings does not amount to that (see Bush v Bush  EWCA Civ 865 paras. 12, 53 and 32). Nor in the overall circumstances do I find that it would be in the superior interests of these children for the court to accept a prorogation of jurisdiction when they are not habitually resident here.
 I therefore find that in November 2014 and since then the children are not habitually resident in England and Wales and that this court has no general jurisdiction in respect of them.
 The consequence of that is that para.2 of the order which provides that the children shall remain habitually resident in England and Wales is of no effect.
 I recognise that the children’s father will feel that there was, to put it colloquially, a deal, and that the mother has reneged on that deal. I have some sympathy for that position. However, jurisdiction in these matters cannot be based on deals but on the principle that the future of children should be decided by the courts best placed to do so, and that those will normally be the courts of their habitual residence.
 The second question is whether there an enforceable order. It will be recalled that the father was to have such contact as may be agreed, it being envisaged that it would take place three-weekly; that the costs were to be equally shared; and that contact would take place in both countries.
 I do not consider that this is an order that can be enforced. In the first place, it is necessary for the order to follow the pattern of the statute at least in general terms by placing on the mother an obligation to allow the children to spend time with the father. Secondly, an enforceable order would have to be specify the times when contact was to take place, but this order does not do that.
 The parents were not legally represented at that hearing and I am afraid that the way in which the order emerged very much reflects that. It may be, although I have no information about the hearing itself, that these are matters the court itself should have resolved.
 That disposes of the father’s application for enforcement, and I will hear from counsel in a moment as to the precise terms of the order that should be made. I, however, would like to add this – paragraph 3 of that order provides that unless the parties otherwise agree, the children are to be returned to this jurisdiction by 1st August 2015. There has been no suggestion at this hearing, nor could there be, that that is anything other than a valid order made by a court having jurisdiction to make it, the children having undoubtedly been habitually resident in England and Wales at the time that it was made. It is therefore open to the father to take steps to register and enforce that order in Spain under Chapter III of the Regulation and that will be a matter for the Spanish court to determine.
 I end this extempore judgment with a request on behalf of the children to both parents to take whatever opportunity they can to find a legal and practical solution that reflects the situation that they both intend for J and B, namely that they should live securely with their mother wherever that is to be; and that they should have regular dependable high quality time with their father, free from the disagreements and legal arguments that have been taking place so much in the recent past. In the end, the parents will have to find a solution for the children. They do not have to do this through lawyers or through courts except as a last resort, and I hope that there may now be some effort to reach a solution that will allow the children to benefit from each of them to the fullest possible extent.
 That concludes this judgment.