M (Children) (Rev 1)

Judgment Approved

Lady Justice Black:

This is an appeal from an order made by Mr Justice Moylan (as he then was) on 11 May 2016. The proceedings concerned two girls, one of whom is now aged 12 and the other aged 13. The father is Estonian and lives in Estonia. The mother is British and has lived in England with the children since August 2013. The father obtained an interim contact order from the Estonian court in June 2015 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. In essence, this was because 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.

Terminology

In the course of this judgment, I will sometimes refer to “contact” and sometimes to “access”. There is nothing to differentiate between the two concepts, both of which are to be found in the materials to which I have reference. Similarly, at times I refer to the Estonian court’s decision as an “order” and at times as a “judgment”. In the domestic context, we would draw a rigid distinction between orders and judgments but in the international context, the distinction is not so clear and it is sometimes necessary to term a “judgment” that which the courts of this country would call an “order”.

The background, including the making of the June 2015 interim contact order

The mother and father married in 2002. The mother already had two children from a previous relationship who are now in early adulthood. The family lived together in England until 2008, during which time the two girls to whom the present proceedings relate were born. They then moved to Estonia, where they lived together until August 2013, when the mother secretly brought all four children to England. The father applied under the 1980 Hague Convention for the return of the younger two children to Estonia. In response, 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 (the allegations including rape) and had frequently physically assaulted her se