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A continental perspective and a shuttlecock baby

Moving abroad is always a big step, whether for work, a new relationship, or just a little more sunshine. Expatriates have contend with legal systems and cultures that may be very different to those in the UK, colouring their experience of such fundamentals as buying a house, obtaining residency status, paying tax….and of course getting married or divorced. In my last post I looked at the increasing numbers of Brits moving to Turkey and the problems many encountered in dealing with the Turkish legal system.

It can all become even worse if children are involved. These children may then have dual nationalities, dual residences and two parents whose cultural and social differences may easily and understandably lead to clashes over the upbringing of their children. In fact it is these very differences in raising their children that can cause the family to split. Sometimes couples naively think that having a child together will cement their relationship when nothing could be further from the truth, particularly when they are trying in vain to live together in their respective countries and failing spectacularly in both, as a couple discovered in the newly published case of Re L[2012] EWCA Civ 1157.

There is one great legal divide amongst all the possible destinations for the emigrating Brit: EU membership. If you are moving to Spain, France, Portugal, Germany or any of the other 23 member states, for all the superficial unfamiliarity, a variety of EU laws will also apply, and family law is certainly no exception to this. The intention of EU law is to create certainty throughout its member states.

So we have a situation where judgments issued in the court of one member state may not be subject to any change at all (except for the most narrow of possibilities), even if the judgment objectively appears to be manifestly wrong and even deeply damaging to the interests of those involved, including a child.

The central EU regulation on family law issues is one we have already touched upon in earlier posts:  No 2201/2003, more commonly referred to as Brussels II Revised. This is concerned with determining jurisdiction and related issues in international divorce, custody and child abduction cases.

Habitual Residence is an important principle of Brussels II in relation to cases involving children. What does it mean and at what point does the habitual residence of a child change? How does moving from one country affect a childs’ “habitual residence” and in is a court order concerning the child made in a different EU country still enforceable?

As Lord Justice Munby pointed out in Re L, the Court of Appeal deals with some of these important points for the first time. The case involved a British woman and a Portuguese man, who met and began a relationship while both were living in Oxfordshire. They did not marry, but had a child, who was born in 2011.

After the child’s birth, and despite the fact that the relationship was already “under considerable strain”, the couple moved to Portugal with the child, living with the man’s parents. However, the relationship rapidly deteriorated and in mid-November, the woman attempted to leave Portugal with her child secretly, and was only prevented from doing so by the Police.

Ten days later, a meeting was held at the local offices of the Portuguese Commission for the Protection of Children and Juveniles, and the couple entered into an agreement to share care of the baby.

The agreement was for the baby to travel between England and Portugal every two months, staying with each parent. This arrangement seems likely to have been quite unsettling for all concerned, but it did provide for a review when the child got older. It was later made into a legal order before a Portuguese judge.

The mother returned by consent to England with the child.  However, shortly before her initial period of custody was due to end, she went to an English court and applied to change the care arrangement,  getting a ‘prohibited steps’ order to prevent the child being taken back to Portugal by her father. The mother was suffering severe emotional stress as a result of the arrangement and her previous desire to leave Portugal.

At the trial Mrs Justice Macur found that the child was now ‘habitually resident’ in England and also ruled for the mother in refusing to enforce the Portuguese order.

The father appealed.

The Court of Appeal overturned the original ruling and found for the father. The judges ruled that, under Brussels II, the child was in fact habitually resident in Portugal and ordered the return of the child to that country. The case should be dealt with under Portuguese law, which had, after all, been the first jurisdiction to consider it.

The Appeal judges also dismissed all the mother’s arguments about the nature of the shared care court order itself, saying that it could not interfere with an order made by another court in a different jurisdiction. To quote from the ruling: “ Article 23(a) [of Brussels II revised] on the other hand prohibits recognition [acceptance of a judgement made in another jurisdiction] if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought, taking into account the best interests of the child.” But this was very narrow and did not apply to this case, they said.

Effectively the court declared that it is almost impossible to overturn a foreign judgment in these circumstances, even if the result could have a profound impact on the mother.

It is an example of how the English courts will sometimes make the toughest of orders against an English national who has been made ill through the court order of another country, in order to uphold the right of a foreign court to make its own orders.

This is a very serious case and perhaps given its novelty, one for the Supreme Court to consider. On the one hand, applying the same law, we have the original judge making a ruling in favour of the mother – a decision many would agree is in the best interests of the child, given the somewhat unorthodox nature of the child arrangement which was agreed in Portugal. And on the other hand, we have the Appeal Court judges disagreeing, notwithstanding the consequences for mother and child.

The lesson to be learned here for an English national is – I think –to let the cold light of day flood in over your feelings. Think! Think! Think! Take your blinkers off.

If it won’t work over here, you can bet your last Euro it won’t work over there.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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  1. Sola Noah says:

    “And on the other hand, we have theAppeal Courtjudges disagreeing, notwithstanding the consequences for mother and child”… what about the consequences for the father?
    In the first instance, we have a woman who tried to abscond with a child and the man still reached an agreement.
    If that happens in the UK, the man may not see the child again. The notion that the UK law is better than others is ridiculous.

  2. Jono says:

    I detest “mummy-law bias”.
    If you read the judgment, it was very precisely parsed. The “mummy law” author ignores that the judges, in effect, “hammered” the (female) judge in the High Court for not only reaching a “legally-tortured” position viz. jurisdiction, but also accepting the evidence of the mother at face value, even though it was by way of an affidavit “sworn at the court door”.
    This was a victory for the Rule of Law, BIIR, and a strong message that “mummy-law” is not recognised as a legal tenet to overturn a mediated court sanctioned agreement as between the parties, and especially not when the only basis to do so was an affidavit delivered at the last moment before the female judge.
    BIIR is VERY VERY strict – and rightly so. As it comports to the “transportability of justice” pertinent to the freedom of movement – a fundamental EU right. Read the Tampere Council’s 1999 justification for beefing-up BII into what became BIIR.

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