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Foreign contact order cannot be enforced Court of Appeal rules

A father’s bid to overturn a ruling that there was no practical way to enforce a contact order issued abroad has failed in the Court of Appeal.

The case concerned two sisters, aged 12 and 13, who were born to an Estonian father and English mother.

The parents had married in 2002 and lived together in England until 2008, where their daughters were born. They then moved to Estonia on the Baltic Sea and lived there till 2013, when the marriage begun to crumble. The mother “secretly” returned to England with the two sisters and her two older children from a previous relationship.

The father duly made an application for the return of his daughters under the Hague Convention on the Civil Aspects of International Child Abduction.

In her defence, the mother relied on Article 13b of the convention, which states that

“…there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

She claimed that the father had the father had subjected them to domestic violence and even that he had sexually assaulted their oldest daughter. In court Mr Justice Roderic Wood ruled that protective measures in place meant that the threshold for a valid defence under Article 13(b) had not been reached. However he ruled against the father anyway, on the grounds that the two sisters objected to returning.

Meanwhile, the father applied for contact in the Estonian courts. Following a series of hearings, he was granted an order saying he had the right to see the children once a month, in the presence of a third party.

The mother was ordered not to interfere by the Estonian courts. The order also acknowledged the current impracticality of forcing the children to travel to Estonia, a requirement which would be “a sudden and radical intervention to the children’s current life situation and could create new uncommon situations for them.”

The Estonian authorities acknowledged that the girls had not met their father for more than a year at that point and might be reluctant to see him. Nevertheless the order was described as being:

“ the best interests of [the children] is the securing of a stable living situation and communication with both parents.”

The father applied to have the order enforced but Mr Justice Moylan concluded that while technically valid, it was not practically enforceable in this country. This was because the Estonian authorities had specified that visits had to be supervised and there was no authority or professional available to conduct this supervision.

In the Court of Appeal Lady Justice Black backed Mr Justice Moylan’s decision. She declared:

“…enforcing the order would place obligations on the local authority/CAFCASS. In my view, that cannot be done unless there is power to do so under the domestic legislation and I have found that there is no such power under the Children Act and that the inherent jurisdiction cannot be used to order an authority to supervise contact.”

She added:

“There being no domestic route to ordering the supervision by a government agency that the Estonian judgment required, and that I have found to be an essential element in that decision, it seems to me that Moylan J was right to reach the decision that he did. There was indeed no practical way to enforce the Estonian judgment.”

The father’s appeal was therefore dismissed.

Read M (Children) here.

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. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. JamesB says:

    This case seems to highlight what is wrong with family law. Add to it the uneven distribution of assets and hefty child and even without spousal maintenance (which there may well be) even the most stuborn intransigent backer of the family courts such as J Bolch should be able to empathise with fathers being very aggrieved with the courts and being told “its all for the best” or “its in the best interests of the children”. Although I admit its difficult, these places do a difficult job badly.

    The inability of English men and women to get on with each other and preponderance of them going on to look for foreign partners instead is another issue that needs looking at also. Bit of a mess all-round this one. Could be worse I suppose, Could be Australia. Still I hope it gets better for them all, especially the children seeing the father from time to time, contact is good all round I find and she’s being a b&^%h not supporting that and the judge is also playing the children don’t want to go line when is clearly wrong and PAS and would benefit and be in their best interests to see their Dad. That the Mum tutors them what to say is what I’m talking about.

    The lets throw in a DA allegation here also sucks. As said, highlights the issues and failures of the system and the judges and the prejudices against fathers which even after many years of campaigning are not improving, no wonder the establishment have such a bad name in this country at the moment.

  2. JamesB says:

    I think English women being like this needs looking at, if Dave Cameron can say it needs to be made socially unacceptable for men to leave their families, then I think it needs to be socially unacceptable for women to behave like this and the sisterhood if they really were true feminists rather than man haters would take it on as a real issue as it is about enabling equal parenting. Strangely the feminists don’t seem to say much about that, probably because they are not really feminists, but man haters.

  3. JamesB says:

    Plus, on a related subject, the whole IVF without a father / e.g. Viking Baby thing is wrong and should be made illegal too. Families need fathers. If women can’t find a partner they should compromise or try harder. Its political correctness gone mad.

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