Case No: B4/2012/3217
Neutral Citation Number:  EWCA Civ 129
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MRS JUSTICE PARKER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday, 22nd January 2013
LORD JUSTICE THORPE
LORD JUSTICE LONGMORE
LORD JUSTICE McCOMBE
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IN THE MATTER OF Y (A Child)
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(DAR Transcript of
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Mr Henry Setright QC & Mr Davis Williams (instructed by Duncan Lewis) appeared on behalf of the Appellant.
Mr James Turner QC & Ms Katy Chokowry (instructed by Williscroft & Co Solicitors) appeared on behalf of the Respondent.
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Crown Copyright(c)Lord Justice Thorpe:
1. On 3 December 2012 Parker J had before her a father's application for a return order under the 1988 Abduction Convention. The country from which the little girl, Isabelle, had been abducted was Cyprus, for the parents are Cypriot. The little girl is four-and-a-half years of age. The abductor, Isabelle's mother, advanced a defence under Article 13(b), asserting that she herself would be at risk of domestic violence, and that Isabelle would herself be at risk of abuse at the hands of her father were the application to be granted. The assertion of abuse to both mother and daughter was highly contentious, and Parker J ultimately concluded that that was better investigated and decided in Cyprus by the Cypriot Judge. She accordingly ordered the return subject to protective measures. In so ordering, she was of course giving effect to Article 11(4) of the Brussels Regulation II Bis, which provides:
That Article expressly underscores for Member States of the European Union the well-settled law and practice under the Convention that an applicant for return might, and frequently would, counter the development of an Article 13(b) defence by saying, well, insofar as anxieties are expressed I will meet them by these promises to the court, perhaps to vacate the family home, perhaps to provide for the costs of return, perhaps for providing maintenance on return. So in a sense, Article 11(4) does not introduce novelty but rather emphasises the importance of protective measures in any abduction between two Member States.
2. So it was that there was identified, no doubt in a dialogue between the judge and counsel for the mother and counsel for the father, a raft of protective measures which are expressed in an undertaking preceding the order. There are 11 separate undertakings, all of them carefully expressed and no doubt carefully negotiated. After judgment, there was an emerging issue as to the form of the order. Ms Chokowry for the successful applicant father drafted an order on the basis that the undertakings would effectively be as valid in Cyprus as here, given the terms of Article 23 of the Hague Child Protection Convention of 1996, which had only come into force in this jurisdiction some four to five weeks before the judge gave judgment. However, Cyprus had been quicker off the ratification mark, and the Convention had been in force in Cyprus for some little time. Article 23 is the first Article in Chapter 4 of the Convention, which is headed "Recognition and Enforcement". The first subparagraph is the vital paragraph:
"The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States."
Subsection (2) of the Article is a let-out provision which permits the refusal of recognition in six defined situations.
3. Mr David Williams, who was and is counsel for the mother, took issue with Ms Chokowry's draft, saying that the order had to require the father to seek from the court in Cyprus a specific determination of recognition of the order of 3 December. Since the juniors could not agree on that point of drafting it was put to the judge, who decided it in favour of Ms Chokowry, whose paragraph became the order. That provoked an Appellant's Notice of 7 December, which would have been ruled upon very swiftly had not the office received a request from the appellant's solicitors that the application be put on hold, since there was every possibility that the point in dispute would disappear if an application made by the father to the court in Cyprus for recognition were to result in the desired order. So the file was simply shelved until a further communication was received by the appellant to the effect that the possible resolution as a result of an action in the Cyprus court had not resulted, and accordingly the matter was to be listed.
4. It is very important to trace the development in Cyprus, which can be easily done thanks to a respondent's bundle which has been prepared for us by Mr James Turner QC, who now leads Ms Chokowry. At page 37 in the bundle is the translation of the order of the Family Court of Limassol issued on 7 December, drafted on 10 December. The order is headed up "In the Matter of the Council Regulation on Jurisdiction and Recognition of Judgments", "In the Matter of the Judgment of the Family Division of 3 December", "In the Matter of the Child", and with reference to the 1996 Convention. The order then recites that an on ex parte application from the father, the court orders:
"...the registration and/or recognition and/or execution of the Judgement dated 3/12/2012 issued in London from the High Court of Justice, Family Division of the United Kingdom, in the course of the case with case number fd12 p02455."
5. It seems to me that that development was essentially the end of any need for consideration by this court of whether or not Parker J had erred in preferring Ms Chokowry's submissions to those of Mr Williams. Effectively, Mr Williams had obtained by concession what he had failed to obtain from Parker J by submission. However, Mr Williams and Mr Setright QC, who has come in to lead him, cast doubt on the apparent total security of that order by building on an exchange between the Network Judge for Cyprus and my Legal Secretary, Mr Edward Bennett. Plainly, Mr Bennett had put to the network judge a question which no doubt originated from the mother's legal team, for the response from Judge Sergidhes is as follows:
"Regarding the enforceability of the undertakings in the British order, in considering the nature of such undertakings I prefer not to express any opinion, especially in view of possible future proceedings. The parties may take an advice on that by their legal advisors in Cyprus."
The submission in the skeletons prepared by Mr Williams and Mr Setright is to the effect that the paragraph which I have cited is to be read as casting doubt upon the safeguard of the order of the Family Court of Limassol, and thus doubts on the enforceability of the undertakings in Cyprus. In my judgment, that is not the correct construction. I do not think that this paragraph bears an ounce of the heavy weight that Mr Setright seeks to place upon it. I am in no doubt at all that the Cypriot Network Judge was simply making the perfectly correct point that it was not for him to give legal advice as to the law of Cyprus.
6. Mr Setright, in his submissions to us today, has sought to augment the edifice by saying, well, we took from this letter the suggested step; we instructed lawyers in Cyprus by a carefully drafted letter. An opinion comes from an advocate in a Cypriot firm dated 21 January, and the material paragraph, in answer to a question in the letter of instruction, went thus:
"Under the 1996 Hague Convention on Protection of Children protective measures taken in another jurisdiction can be registered and declared enforceable by the Cypriot Court. In this case the father gave undertakings to the English court promising that he would not do certain things. In England an undertaking has the same force as a court order. Please explain whether undertakings are used by the courts in Cyprus and if so what their effect is? How would you recommend that the protective measures included in the undertakings are made enforceable in Cyprus? Does the English court need to replace the undertakings with orders for them to become enforceable in Cyprus? How would breaches of these undertakings be dealt with by the Cypriot courts?"
The answer, in the letter that I have already identified, reads:
"In Cyprus, an undertaking does not have the same effect and the same strength as a Court Order. In the event that the father in this particular case is in breach of any of the undertakings given to the English Court, this would not constitute a contempt of Court and therefore it cannot be enforced effectively, as powers of arrest cannot be attached. It must be a violation of the order issued by the Court for a contempt of Court to be constituted. The undertakings are not binding to him in the Courts of Cyprus. However, we can use those undertakings and promises in order to show that the father altered his behaviour to the promise. We are of the opinion the said undertakings should be replaced with a Court Order."
7. So this afternoon Mr Setright has applied for the admission of this exchange as fresh evidence. I would for myself unhesitatingly refuse that application. It does not seem to me to be a disregard of what is said to be its genesis. I recognise that its late arrival is partially explained by an interruption in the appellant's public funding, but fundamentally the exercise smacks too much to me of strategy, and if this point were to be developed it could have been and should have been developed at the trial below, given Mr Setright's perfectly correct statement that the use of undertakings in Hague Convention cases has for many years now been the subject of some difficulty and debate, with uneven reception of undertakings cross-border in a number of jurisdictions. Mr Setright, however, maintained his submissions on the basis that the step taken by the father to obtain recognition under Article 24 is really adding nothing. If the undertakings are unenforceable in Cyprus, they are as well unenforceable if the Article 23 automatic registration is then augmented by Article 24 registration.
8. Perhaps I should just read into this judgment the terms of Articles 24, 26 and 28 of the Convention:
Without prejudice to Article 23, paragraph 1, any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State.
(1) If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State. (2) Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure. (3) The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 23, paragraph 2.
Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child."
9. Mr Setright says, perhaps it has dawned at a late stage but the conclusion of the appellant's team is now that after protection by way of undertakings is made the useful machinery in the 1996 Convention is only effective if the protective measures are expressed by the State ordering return in the form of concrete orders. I would unhesitatingly reject that submission, essentially for two reasons. The first is that the terms of these Articles, Articles 23, 24, 26 and 28, are identically "The measures." In my judgment, "measures" is plainly to be construed broadly rather than narrowly. For a common law jurisdiction such as England and Wales, to say that undertakings are not to be classed as measures would be erroneous and devoid of practical sense. Those who negotiated this Convention would by the date of its arrival have been very familiar with the wide use of undertakings amongst the 40 or perhaps 50 jurisdictions that were then operating the 1980 Convention.
10. My second reason for rejecting the submission is the obvious one, that the whole purpose of the 1996 Convention was to support and supplement the effective operation of its parent; the 1980 Convention, insofar as undertakings were widely used for the expression of protective measures in the early years of the development of the 1980 Convention. It is simply unthinkable that an intention or an effect of the 1996 Convention was to diminish rather than to fortify the effect of undertakings and their use, as one of a number of mechanisms available to provide protection for the returning abductor and child.
11. So for all those reasons, my conclusion is that we should grant permission not on the basis that the application revealed any reasonable prospects of success, but rather to recognise that this is the first case that has come to this court that requires any consideration under the 1996 Convention. The ensuing appeal I would dismiss.
Lord Justice Longmore:
12. I agree. I would only add that paragraph 3 of the letter of advice from Ms Maria Koundourou, the advocate/associate from Cyprus, does not refer to Articles 23, 24, 26 or 28 of the 1996 Hague Convention and does not purport to grapple with the concept of the word "measures" used in that Convention, and I therefore cannot see how even if we were to admit at this very late stage the opinion of Ms Koundourou that it could conceivably have affected the results of this appeal.
Mr Justice McCombe:
13. I also agree. I find, as my Lord, Lord Justice Thorpe, the use of the word "measures" in Article 23 and following, and indeed in the earlier Articles of the Convention, telling. I cannot conceive that the order, for example, of Parker J in these proceedings should not be taken to be measures as a "package" to achieve an end, for the purposes that her order was designed to achieve. As indicated, I agree with my Lord that permission should be granted to appeal, but the appeal should be dismissed.
Order: Application granted. Appeal dismissed.
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