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:
“..in 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.”
“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.