17 August 2017
July 2017 - Private Law
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Proceedings concerned 2 girls aged 12 and 13 years old. The father is Estonian and lives in Estonia and the mother is British and has lived in England with the children since 2013. In June 2015 the father obtained an interim contact order from the Estonian court and sought to enforce it in this country.
Moylan J declared that the order was an enforceable order but made no order in respect of it because he found that it was incapable of practical enforcement in this country in its current terms. The order provided for the father to have contact in the presence of a third party being a competent child welfare authority of the UK but there was no child welfare authority or child care professional willing to supervise the contact and Moylan J concluded that there was no order he could make to compel this.
The family had lived together in England until 2008. They then moved to Estonia, where they lived together until 2013. The mother then secretly brought the 2 girls and her 2 older children from a different relationship to England.
The father applied under the 1980 Hague Convention for the return of the younger two children to Estonia. The mother relied upon Article 13(b) of the Convention, asserting that she had been the victim of domestic violence perpetrated by the father and that he had sexually assaulted her eldest daughter and had frequently physically assaulted her second child. Roderic Wood J, who heard The Hague application in July 2014, decided that having regard to the protective measures available in Estonia and the undertakings offered by the father, grave risk/intolerability under Article 13(b) was not established. However, he found that the children objected to being returned and declined to order their return.
February 2016, the father made a separate application to the court for contact, which was dismissed by the Estonian court on the basis that the children were by now habitually resident in England. On 3 May 2016, the Estonian court dismissed an application by the mother for the variation or annulment of the interim contact order, which was specifically stated still to remain in force.
The father made an application for enforcement of the interim contact order was made under Council Regulation (EC) No 2201/2003 ("Brussels IIA" or "the Regulation") Article 41 (1), the interim custody order is to be recognised and enforceable in this country, as another Member State, without the need for a declaration of enforceability and without any possibility of opposing its recognition. The enforcing court is not free to interfere with the substance of the order.
The father was prosecuted for criminal offences, relating to the alleged sexual assault on the mother’s older daughter. The trial concluded in February 2014 with the jury unable to agree and the CPS dropping all the charges.
Children's Services of the relevant English local authority had been asked whether they would supervise contact but, after carrying out an assessment, had concluded that it was neither safe nor in the children's best interests for them to have contact, so declined to participate in supervision. Moylan J concluded that the Estonian order could not practically be enforced in its current terms.
The position was supported by the court of appeal, who dismissed the appeal as there was ‘no practical way to enforce the Estonian judgment’.
An appeal from an order made by Moylan J under Part III of the Matrimonial and Family Proceedings Act 1984.
The order provided for the husband to pay the wife a lump sum of £350,000 by 1st August 2014 with the intention being that the remainder of the £880,000 due to the wife coming from a 50/50 pension share in due course once the husband had been given the opportunity to pay the lump sum and share only half of his pension.
The Husband failed to pay the lump sum and the matter came back before Moylan J on 16 July 2015 who said the following: “… it is also clear from my judgment that I specifically adjourned the pension sharing order application to enable such an order to be used, if I considered it appropriate to do so, as a means to enforce, in part or in full, the lump sum order in the event that the husband did not pay it.”
Moylan J started at his original starting point of a 50/50 pension share with consideration as to how the remainder would be made up as the Husband had failed to pay the remainder by lump sum as ordered.
Moylan J had previously expected the Husband to use the proceeds from the sale of a property abroad as part of the lump sum payment, the amount of those proceeds being £200,000. In concluding that the Husband was unlikely to pay the lump sum he took the expected £200,000 and added it to the £385,000 (50% of the pension fund) totalling £585,000 to be paid to the Wife as a pension sharing order, leaving £150,000 as the balance due from the Husband who would be required to give an assurance that he would pay.
The £585,000 equated to 76% of the pension which is the order Moylan J made.
The order was appealed on the following grounds?
The increase in the pension sharing order to reflect non-compliance was an impermissible variation of the lump sum order
The judge was wrong to have recourse to the husband’s pension by way of enforcement
The judge was wrong to fix the provision at 26%
The order for payment of interest amounted to a variation of the lump sum order and the making of a second which was not within the judge’s jurisdiction.
The appeal was dismissed by The President of the Family Division with agreement.
Whilst Moylan J had no power to vary the lump sum order or make a second, he was in fact making a pension sharing order and supplemental orders by way of enforcement of previous orders, which he had jurisdiction to do.
Moylan J could not be criticised for the additional percentage as he clearly had the ‘pound for pound’ point in mind. He further had the jurisdiction to make an order for the enforcement of the interest sum.
The Court ordered the Husband to pay £300 for the Wife’s costs.
Mr Justice Francis tasked with dealing with the applications and to make declarations which were then unopposed.
He paid tribute to Charlie’s parents Mr Gard and Ms Yates for their love and care, but who had now accepted that Charlie’s life could not be improved and the only remaining course was for palliative care and to permit him to die with dignity.
GOSH application on 7 July 2017 applying for the court to affirm the declarations made in April 2017 and to make orders in the same terms.
Orders being sought as well due to the disputed interpretation of the declarations. Those declarations being:
Charlie, by reason of his minority, lacks capacity to make decisions regarding his medical treatment.
It is not in Charlie’s best interest for artificial ventilation to continue to be provided to and it therefore lawful and in his best interests to be withdrawn.
It is lawful and in Charlie’s best interests for his treating clinicians to provide him with palliative care only.
It is lawful and in Charlie’s best interests not to undergo nucleoside therapy. Provided always that the measures and treatments adopted of the most compatible with maintaining Charlie’s dignity.
That decision was upheld by three levels of appeal court including the ECHR.
Shortly after the ECHR decision, the parents asserted new evidence in the form of letter which in summary stated that; 1) the Bambino Gesu Children’s Hospital, Rome was willing to accept the transfer of Charlie, 2) Dr Hirano and the USA medical centre would still accept the transfer of Charlie and 3) Dr Hirano considered the likelihood of a positive effect of the treatment to be markedly improved and the likelihood of the treatment crossing the blood brain barrier to be significantly enhanced.
The letter asserted that the best interests assessment had now shifted and was weighted in favour of preserving Charlie’s life and providing treatment.
Mr Justice Francis made clear that he could only challenge his own decision on the basis of compelling new evidence.
Further MRI scans were undertaken to assess whether GOSH’s position was correct and the result being that having heard the evidence in court, the reality was that Charlie was beyond help.
All those involved agreed that it was in his best interests to die.
Mr Justice Francis accordingly confirmed the declarations he had made in April.
The Judge made the following additional remarks:
1) an expression of thanks to all of the medical experts and practitioners involved,
2) an expression of thanks to all of the lawyers involved who were so on a pro-bono basis and condemned the lack of legal aid provision,
3) a condemnation of the notion that the NHS has the power to decide Charlie’s fate and an emphasis that any similar applications are guided by the paramountcy principle of welfare,
4) that mediation should always be attempted.