Case No. ZE22P01627

INTRODUCTION1.In this matter I am concerned with the question of whether this court has jurisdiction in respect of the subject children, each of whom all parties accept are habitually resident in this jurisdiction for the purposes of Art 5 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereafter ‘the 1996 Hague Convention’). If this court does have jurisdiction pursuant to the terms of that Convention, a further question arises as to whether this court should exercise that jurisdiction. These twin questions arise in circumstances where a court in the jurisdiction of the Hellenic Republic is purporting to exercise jurisdiction in respect of the children, notwithstanding that neither child is habitually resident in the jurisdiction of Greece for the purposes of Art 5 of the 1996 Hague Convention. Both the United Kingdom and the Hellenic Republic are Contracting States to the 1996 Hague Convention.2.The subject children are A, born in July 2019 and now aged 3 years old, and B, born in March 2021 and now aged nearly 2 years old. Both children were born in England. The parents of the children, who reside with the children in this jurisdiction, are AM and GM. The maternal grandparents of the children, who reside in Greece, are KL and VL. The applications before this court comprise the following, in order of issue:i)An application by the parents of the children for a child arrangements order pursuant to Part II of the Children Act 1989.ii)An application by the parents of the children for a prohibited steps order pursuant to Part II of the Children Act 1989.iii)An application by the maternal grandparents pursuant to Art 8 of the Convention for this court to transfer its jurisdiction to the Greek court.iv)An application by the maternal grandparents, in the alternative, pursuant to s.10(1)(a)(ii) of the Children Act 1989 for permission to apply for a child arrangements order under Part II of the Children Act 1989.3.The applications made by the parents were issued in October 2022. As I have noted, at the present time there are also proceedings on foot in respect of the children in Greece. On 14 September 2021, the maternal grandparents made an on notice application to the Greek court for interim relief, which application was heard on 15 November 2021 by a Judge sitting in the Hellenic Court of First Instance in Athens, with a subsequent decision granting interim contact being handed down on 23 May 2022. Indirect contact commenced on 5 June 2022. Whilst it initially appeared that the Greek court had limited itself to exercising an interim jurisdiction and that proceedings had come to an end with the decision on 23 May 2022, this court has now been informed that there is a final hearing of the maternal grandparents’ substantive application listed before the Greek court on 20 February 2023. 4.At the outset of this hearing, counsel on behalf of the maternal grandparents indicated to the court that, in circumstances where they accept that each child is habitually resident in the jurisdiction of England and Wales, the maternal grandparents further accept that this court has substantive jurisdiction in respect of the children pursuant to the terms of Art 5 of the 1996 Hague Convention. The corollary of this concession is that the maternal grandparents recognise that the Greek court is operating outside the scope of that Convention and, accordingly, does not have jurisdiction in respect of the children absent a transfer of jurisdiction by this court under the terms of Art 8 of the 1996 Hague Convention. In the circumstances, Ms Laurent’s submissions concentrated on the application by the maternal grandparents pursuant to Art 8 for an order transferring jurisdiction to the Greek court. That application is resisted by the parents, who contend that this court should retain and exercise its established jurisdiction.BACKGROUND5.For the purposes of determining the question of jurisdiction, it is not necessary to descend into detail concerning the background of this matter. This is a case in which there is plainly a high level of family conflict between the maternal grandparents and the parents. 6.The mother was born on 31 October 1993. The maternal grandparents contend that they became estranged from the mother in or about October 2014. The parents married on 23 August 2015. The maternal grandparents assert that there has been no contact between them and the mother since 8 October 2015. As I have noted, A was born in July 2019 and B was born in March 2021. Both children were born in England and speak only English. The children are British Citizens and also hold Greek citizenship. They have each resided with the parents in England since their birth. They are registered with doctors in this jurisdiction and attend nursery provision in this jurisdiction.7.The maternal grandparents contend that following the birth of the children, all attempts to secure contact with the children were unsuccessful. As I have noted, on 14 September 2021 the maternal grandparents made an on notice application to the Greek court for interim relief, which application was heard on 15 November 2021 by the Judge in the Hellenic Court of First Instance in Athens. The court has the benefit of a translated copy of the learned Judge’s subsequent judgment, handed down on 23 May 2022.8.The translation of judgment of the Greek Judge sets out the basis on which the learned Judge concluded that the Greek court has jurisdiction over the children. The learned Judge considered in the course of her judgment the impact on the Greek jurisdictional position of Council Regulation EC 2201/2003 (hereafter BIIa), which remains in force in Greece but not in the United Kingdom following the UK’s departure from the European Union. It would not appear however, that the learned Judge was referred during the course of argument to the 1996 Hague Convention, which remains in force between the Hellenic Republic and the United Kingdom, and there is no reference to that international instrument in the Greek judgment. Indeed, the learned Judge appears to have proceeded on the basis that there was no international convention regulating the question of jurisdiction in this case. Within this context, the learned Judge identified a concurrent Greek domestic jurisdiction as follows:“In this case, Greek citizenship functions as an independent jurisdictional basis in the sense that it establishes, though concurrently and not exclusively, the international jurisdiction of the Greek courts even when the parents or the child do not have, nor did they have residence or residency in Greece. However, especially in the case of interim measures, the place of execution of the interim measures - and as such is considered not only the place of forced execution, but also of voluntary compliance according to substantive law - establishes a special jurisdiction and at the same time constitutes a corresponding basis of international jurisdiction for the application of interim measures, since it is not specifically regulated by an international convention, it is in principle accepted for reasons of public order to prevent unavoidable damage to the applicant or for another urgent and special reason, taking into account the admissibility and the possibility of executing the interim measures abroad.”9.Having concluded that the Greek court had jurisdiction in respect of the children, the learned Judge made what in this jurisdiction would be characterised as a child arrangements order, requiring the parents to make the children available for indirect contact with the maternal grandparents every two weeks for fifteen minutes and direct contact on one occasion each time the children are in Greece. The Greek court further placed the parents under a liability to pay a €150 fine for each occasion contact was obstructed. 10.In October 2022, the parents issued their application in this jurisdiction under Part II of the Children Act 1989 for a child arrangements order and a prohibited steps order. Those applications came initially before HHJ Purkiss sitting at the East London Family Court. In light of the jurisdictional issues raised by the case, and following discussion, HHJ Purkiss re-allocated the matter to me and listed the case for a directions hearing before this court on 17 November 2022. 11.In circumstances where both the United Kingdom and the Hellenic Republic are Contracting States to the 1996 Hague Convention, and where it appeared to this court that the children were habitually resident in this jurisdiction for the purposes of Art 5 of the Convention, on 17 November 2022 this court sought to clarify the basis on which the Greek court was exercising jurisdiction in respect of the children by giving a direction for judicial liaison through the Hague Judicial Network. Whilst it transpired that the Hellenic Republic does not at this time have a nominated Hague Network Judge, another Greek Judge kindly agreed to assist by passing the following questions posed by this court to the Judge dealing with the matter in the Court of First Instance in Athens:i)Whether the understanding of this court that the Court of First Instance in Athens has exercised a concurrent interim jurisdiction in respect of the children based on urgency and has granted interim relief is correct.ii)The current stage reached in the proceedings before the Court of First Instance in Athens in case number 70203/7595/14-9-29021.iii)Whether the matter has been listed for a further hearing and, if so, the date and purposes of that hearing.iv)The anticipated timescale for the determination of the proceedings in case number 70203/7595/14-9-29021.12.On 16 January 2023 this court was provided with the answers to the questions posed by the order of 17 November 2022. This court is extremely grateful to the Greek Judge for facilitating judicial liaison in this case. With respect to the nature of the jurisdiction being exercised by the Court of First Instance in Athens, the reply was as follows:“The international jurisdiction of the Court of First Instance of Athens to order interim measures regulating visiting rights was not based on the presence of the children in Greece. The Court ruled that Greek citizenship functions in this case as an independent jurisdictional basis in the sense that it establishes, however concurrent and not exclusive, international jurisdiction of the Greek courts even when the parents or the child do not have residence in Greece. It also mentions that an additional jurisdictional basis is the fact that Greece will be the place of (voluntary) execution of the injunctive measures. It is mentioned in the Judgement that regardless of the fact that the international jurisdiction of the Greek courts to take injunctive measures, since it is not specifically regulated by an international convention, is in principle accepted for reasons of public order to prevent unavoidable damage to the applicant or for another urgent and specialized reason, taking into account in particular the admissibility and the possibility of enforcement of injunctive measures abroad. As correctly noted in the Οrder both the United Kingdom and the Hellenic Republic are signatories to the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Relation to Parental Responsibility and measures to protect children. Nevertheless, it is still supported by part of the jurisprudence and literature that a concurrent basis of jurisdiction can be established due to the Greek citizenship and the place of execution of the interim measures”13.The Greek Judge was also able to confirm that under article 695 of the Greek Code of Civil Procedure, a request for interim measures does not create pending litigation, and any further hearing would concern the “main action”. The Greek Judge was not however able to confirm whether such an action had been filed in this case. As I have noted above however, it is now clear from information provided to the court at this hearing that there is a “main action” with respect to the question of contact between the maternal grandparents and the children, which is listed for final hearing on 20 February 2023.THE LAWJurisdiction14.The Hellenic Republic signed the 1996 Hague Convention on 1 April 2003 and ratified the Convention on 1 June 2012. The United Kingdom likewise signed the Convention on 1 April 2003 and ratified it on 1 June 2012. The 1996 Hague Convention is incorporated into domestic law in this jurisdiction by the Civil Jurisdiction and Judges Act 1982, as amended by the Private International Law (Implementation of Agreements) Act 2020. Within this context, notwithstanding the departure of the United Kingdom from the European Union on 31 December 2021, the jurisdictional position with respect to children as between the United Kingdom and the Hellenic Republic is governed by the 1996 Hague Convention, to which both States are Contracting States.15.As made clear in the Explanatory Report on the 1996 Hague Convention by Paul Lagarde, the 1996 Convention determines the Contracting State whose authorities have jurisdiction to take protective measures in respect of a child or children. The preamble to the 1996 Hague Convention articulates one of the aims of the Convention as being the avoidance of conflicts between the legal systems of the Contracting States in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children. Within this context, Art 1 of the 1996 Hague Convention provides as follows:“