Judgment in case 2DS 2007/9

2DS 2007/9

26th October 2007

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IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN STAFF OF GOVERNMENT DIVISION ————— In the Matter of Orders of the Family Division made on 5th November 2004 and 16th November 2005 G. STEPHEN HOLMES

Appellant

YVONNE HOLMES

Respondent

[PAUL BECKETT

Amicus Curiae]

Constitution of the Court: His Honour Deemster J.M. Kerruish QC His Honour Judge of Appeal G.F. Tattersall QC —————

Judgment of the Court delivered at Douglas on 26th day of October 2007 ————— 1.

This is the Judgment of the Court.

Introduction

2.

Gordon Stephen Holmes ['the Appellant'] and Yvonne Holmes ['the Respondent'] are divorced but have two children : Katarina May Holmes ['Katie'] born on 19th May 1996 and Peter Elliot Benedict Holmes ['Ben'] born on 28th August l999.

3.

The issues raised by this appeal are two-fold: firstly, whether orders made in the Lancaster County Court in 2004 have been properly registered in the High Court of the Isle of Man pursuant to the Child Custody Act 1987 and, secondly, if such orders were not properly registered, to what extent orders subsequently made by the High Court should be revoked.

4.

Notwithstanding that the submissions made by the Appellant to this court were wide-ranging, the Appellant conceded that the central issue raised by appeal related to the question of registration, albeit that, in the light of recent even he also sought to pursue an application for residence in respect of Katarina. Although at times the Appellant sought to persuade this court to declare that orders made by the Lancaster County Court were invalid, ineffective or that such court lacked the jurisdiction to make them, he was unable to demonstrate to our satisfaction that this court has any jurisdiction to make such a declaration, a conclusion which at times the Appellant recognized to be the case, and we are satisfied that any attempt by the Appellant to challenge the extent or validity of orders must be made in England and not in this separate jurisdiction.

The relevant background

5.

It is crucial to set out the relevant factual background.

6.

In 2003, when both the Appellant and the Respondent were resident in England, both made applications to the Kendal County Court relating to their children. The Appellant applied for a residence order and the Respondent applied for leave to remove the children from the English jurisdiction. It seems that such applications were transferred to the Lancaster County Court.

7.

On 24th February 2004 District Judge Forrester sitting in the Lancaster County Court ordered [inter alia] that :

[1] [2] [3] [4] [5]

The Appellant have permission to withdraw his application for residence and prohibited steps.

Katarina and Benedict should reside with the Respondent. [the mother] Respondent have permission to remove the children to the Isle of Man. The Appellant do have reasonable contact with the children provided that such contact took place in the Isle of Man. The Children and Family Reporter do file a report on the question of contact.

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On the same day, District Judge Forrester made a further order in which he granted leave to the Respondent to remove the children from the United Kingdom to the Isle of Man permanently.

8.

There was no appeal by either party against either of such orders.

9.

On 2nd April 2004 Mrs Holmes wrote to the Clerk to Deputy Deemster Williamson enclosing copies of the two orders, namely the residence and contact order, and the order granting leave to permanently remove the children to the Isle of Man made by District Judge Forrester and asked that such orders be registered at the Isle of Man Court.

10.

On 28th May 2004 notice of registration of such orders by the Isle of Man High Court ['the High Court'] was sent to the Respondent. The Appellant was not informed of the registrations.

11.

By application dated 18th May 2004 the Appellant applied to the Isle of Man High Court for a residence order in respect of both children.

12.

At a hearing of such application on 1st July 2004 Deputy Deemster Williamson told the Appellant that the English orders made on 24th February 2004 had been registered and dismissed his application.

13.

The Appellant did not appeal against such dismissal of his application.

14.

On 27th October 2004 District Judge Nuttall sitting in the Lancaster County Court ordered that the Appellant do have indirect contact with the children, such contact to be exercised by way of telephone calls, letters and e-mails [one of each per week].

15.

Although the Appellant contends that he has appealed against such order, we have seen no document in support thereof.

16.

We repeat what we have already said, that this court has no jurisdiction make any determination as to the validity or effect of such orders made in the Lancaster County Court and that any challenge to the validity or effect of such orders must be made in England. It is sufficient for this court to say that such orders we capable of being registered in the Isle of Man courts.

17.

On 4th November 2004 the order made by District Judge Gordon Nuttall was purportedly registered by the Isle of Man High Court.

18.

On 5th November 2004 there was a hearing before Deputy Deemster Williamson. The Respondent says, and the Appellant did not dispute, that such hearing was prompted by the unannounced arrival of the Appellant at the children's school that morning. It seems that the purpose of the hearing was to clarify the position in relation to the orders made by the Lancaster County Court in respect the children.

19.

20.

Both parties attended such hearing: the Appellant was legally represented.

The order made by Deputy Deemster Williamson recites that, upon the Appellant undertaking that he would abide by the terms of the aforesaid orders of the Lancaster County Court : 'IT IS DECLARED 1. that the said orders of the Lancaster County Court registered in this Court are of full effect and enforceable within the jurisdiction of this Court, that is, within the Isle of Man and that this Court is not empowered to vary such Orders.

2. that the [Appellant] have indirect contact with the said children as authorised by clause 2 of the said Order of the 27th day of October 2004 of the Lancaster County Court.'

21.

Although we to not doubt that the High Court had no Jurisdiction to vary orders made by the Lancaster County Court we will have to consider whether Deputy Deemster was correct in his assumption that the orders had been registered in the High Court and, if not, the consequences of non registration of such orders.

22.

On 20th April 2005 the Appellant made application to the High Court for orders relating to residence and/or contact in respect of the children.

23.

On 14th June 2005 Deputy Deemster Williamson ordered that there be interim indirect contact as

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directed by the Lancaster City Court Order of the 27 th October 2004 and such direct supervised contact as may be agreed and at the direction of Court Welfare Officer. The Court Welfare Officer was ordered to arrange for psychological assessment of the Appellant.

24.

On 3rd October 2005 the Appellant made application to the High Court for a residence order in respect of the children and for a prohibited steps order.

25.

At a hearing fixed for the determination of the Appellant's applications on 16 th November 2005 there were reports from the Court Welfare Officer and Chartered Clinical Psychologist. We have not seen such reports. The Appellant did not attend : he had previously indicated to the court that he would not appear and that he withdrew his applications. The Court ordered that : ‘1. The [Appellant] do have leave to withdraw his Applications which are marked withdrawn.

2. There be no order as to costs save for legal aid assessment of the Respondent's costs.

3. For reasons which will be given in writing no further Application for an Order under Part 2 of the Children and Young Persons Act 2001 in respect of the said children or either of them may be made by the [Appellant] without the leave of the Court within 2 years of the date of this Order.

4. For the avoidance of doubt it is declared that the Order for indirect contact between the [Appellant] and the said children made in the Lancaster County Court on the 27th October 2004 and registered in this Court on the 4th November 2004 remains the effective Order for contact between the [Appellant] and the said children.’

26.

In the written reasons for his decision Deputy Deemster Williamson explained why he had felt it appropriate to prevent the Appellant making further applications to the court without leave for a period of 2 years. We will not repeat them here but the order was made in the context of there having been 13 applications in the English Court and 5 applications in the Manx court and threats by the Appellant to disrupt the lives of all concerned. Although Deputy Deemster Williamson expressly noted that there was no suggestion that the Appellant would deliberately harm his children, he expressed ‘considerable concern that his inconsistency, unpredictability, erratic behaviour causes and will cause emotional harm to them.’ He agreed with the Court Welfare Officer that ‘the children needed a period in which to settle, free from applications free from interviews with Welfare Officers and other professionals.’

27.

We observe that, although Deputy Deemster Williamson would have been entitled to make the order which he did on the basis that the High Court had assumed jurisdiction over the children, in fact paragraph 4 of his Order was founded on the proper registration in the Isle of Man of the order made by the Lancaster County Court on 27th October 2004. Again we will have to consider whether such order had in fact been registered in the High Court and, if not, the consequences of non registration on the order made by Deputy Deemster Williamson on 16th November 2005.

The Appellant's appeal

28.

On 19th March 2007 the Appellant applied to have the order made by Deputy Deemster Williamson on 5 November 2004 set aside. Such was in effect an appeal and was treated as such. Because such an appeal was made more than 28 months after the making of the order, the Appellant required the leave of this court to pursue such an appeal. th

29.

Although the Appellant's application did not refer to the order made by Deputy Deemster Williamson on 16th November 2005, given that the same issues may arise in respect of at least part of such order, we have treated his application relating to both orders made by the Deputy Deemster.

30.

Although during his submissions to this court, the Appellant complained about the delay which had elapsed since the making of such orders it should be noted that his application was only made an 19th March 2007, and that there were delays in case management of this appeal due to the lack of notice of the proceeding to the Respondent.

31.

At the commencement of the hearing on 24th September 2007 this court, observing that the question of whether to grant leave to appeal out of time was inextricably linked to the merits of the appeal, heard full

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argument on all matters and reserved the question of the granting of leave to appeal and the merits of any such appeal. At such hearing the Appellant and the Respondent appeared in person and Mr Paul Beckett appeared as amicus curiae.

32.

Having considered all the submissions made at such hearing, we are satisfied that we should grant the Appellant leave to appeal out of time and we do so. Whatever may have been the reasons for the Appellants delay in pursuing his appeal, as hereinafter appears we are satisfied that his appeal has merit.

33.

As already noted the central issue before the court was whether the orders made by the Lancaster County Court on 24th February 2004 and 27th October 2004 were properly registered by the High Court. It is thus crucial that the court should consider the requirements for registration by the High Court and whether such requirements were met in this case.

The statutory framework

34.

The statutory provisions relating to the recognition and enforcement in the Island of custody orders made in the United Kingdom are contained in the Child Custody Act 1987. We set out below the material parts of such Act as are relevant to the facts of this case.

35.

Section 6(1) provides that where a custody order made by a court in any part of the United Kingdom is in force with respect to a child who has not attained the age of 16, save where such order provides for the means by which such rights conferred by the order are to be enforced, the order shall be recognized and have the same effect in the Island as if it had been made by the High Court and as if that Court had had jurisdiction to make it

36.

Section 6(3) provides that a court in the Island shall not enforce an order which is recognised in accordance with subsection (1) unless it has been registered in the High Court under section 7 and proceedings for enforcement are taken in accordance with section 9.

37.

Section 7(1) provides that where the Chief Registrar receives a certified copy of a custody order made by a court in any part of the United Kingdom and sent to him under a provision corresponding to section 12 and having effect in that part, he shall forthwith cause the order, together with particulars of any variation, to be registered in the High Court in the prescribed manner.

38.

Section 9(1) provides that where a custody order has been registered under section 7, the High Court shall have the same powers for the purpose of enforcing the order as it would have if it had itself made the order and had jurisdiction to make it : and proceedings for or with respect to enforcement may be taken accordingly.

39.

Section 12 relates to the registration in the United Kingdom of a custody order made by any court in the Island. It provides that :

[1] an application for registration shall be made in the prescribed manner, contain the prescribed information and be accompanied by such documents as may be prescribed [section 12(2)].

[2] on receiving an application the court which made the custody order shall cause the following documents to be sent to the appropriate court in United Kingdom namely [a] a certified copy of the order, [b] where the order has been varied, prescribed particulars of any variation which is in force, [c] a copy of the application and of any accompanying documents [section 12(3)] 40.

It is thus self-evident that, pursuant to sections 7 and 12, for the orders made by the Lancaster County Court to be registered by the High Court it was required that the Lancaster County Court should send the High Court a certified copy of orders made together with a copy of the Respondents application and accompanying documents.

Were the requirements for registration met?

41.

42.

We turn to consider whether the requirement for registration were met in this case.

It is clear that the application to register the orders made by the Lancaster County Court on 24 th February 2004 was made by the Respondent herself writing to the Clerk to Deputy Deemster Williamson,

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enclosing copies of the orders and asking that the same be registered. Although such copies were accurate copies of the orders made, they were not certified copies.

43.

It appears that the orders were registered albeit that the requirements that are clearly set out in sections 7 and 12 were not met. The Respondent herself can't be criticised for such error because she was genuinely, and understandably, ignorant of the precise requirements for registration. In any events she had believed that the General Registry had itself obtained certified copies of the orders from the Lancaster County Court, which does not seem to have happened.

44.

Such a conclusion is supported by a letter of the Chief Registrar to Mr Beckett dated 25th July 2007 in which he concedes that it would appear that the two orders were registered in the High Court erroneously and not in accordance with the requirements of the Child Custody Act 1987.

45.

As to the order made by the Lancaster County Court on 27 th October 2004 which was purportedly registered in the High Court on 4th November 2004, it is unknown how such orders came to be registered.

The Respondent conceded, it view realistically, that such order could not have been registered.

The effect of non registration

46.

We consider first the order made by Deputy Deemster Williamson on 5th November 2004.

47.

In our judgment in the absence of proper registration of the orders made in the Lancaster County Court on 24th February 2004 and 27th October 2004 it necessarily follows that the totality of the order by Deputy Deemster Williamson 5th November 2004 cannot stand and must be quashed. Paragraph 1 of such order expressly recorded that the Lancaster County Court orders had been registered when they had not been so registered, and paragraph 2 of such order was based upon the incorrect premise that there had been proper registration. Although no fair criticism can be made of the Deputy Deemster for him accepting what he believed to be correct, namely that the orders had been properly registered, given that there was in fact no proper registration there was no legitimate basis upon which the Deputy Deemster could have made the order which he did. Whilst we recognize that Deputy Deemster could have exercised the jurisdiction of the Isle of Man court make an order to like effect, he did not exercise such jurisdiction.

48.

We turn to consider the order made by Deputy Deemster Williamson on 16th November 2005. We are satisfied that such order falls into two distinct parts: first the orders contained in paragraphs 1, 2 and 3 and secondly, the order contained paragraph 4. We will consider them separately.

49.

The orders contained in paragraphs 1, 2 and 3 related to the Appellant's applications made on 20 th April, and 3rd October 2005 and were not founded on the orders made by the Lancaster County Court. We are satisfied that in respect of parts of the order Deputy Deemster Williamson was assuming and exercising jurisdiction of the Isle of Man court to make orders, if appropriate, in respect children residing in the Isle of Man. We cannot see any basis upon which it could adjudged that the Deputy Deemster had no jurisdiction to make such orders, if such orders were in any way affected by the non-registration of the orders made in the Lancaster County Court or that the Deputy Deemster was not entitled to make the orders which he did. Paragraph I merely gave the Appellant leave to withdraw his applications we cannot see how the Deputy Deemster could have refused grant the Appellant such leave. Paragraph 2 had no effect on the Appellant but merely related to the assessment of the Respondent's costs. The order maintained paragraph 3 was amply justified for the reasons related in paragraph 26 above. Although in part such order relied upon previous applications in the English court, in our judgment the lack of proper registration of the orders made by the Lancaster County Court on 24th February 2004 and 27th October 2004 had no bearing on the entitlement of the Deputy Deemster to make such order.

50.

Mr Beckett submitted that this court should consider varying paragraph 3 of the order so as to remove the two year prohibition upon the Appellant make further applications under Part 2 of the Children and Young Persons Act 2001 in respect of either of the children. We cannot see any legitimate basis upon which should accept such submission. We are satisfied that such prohibition was made with good reason and it will remain. In any event it will elapse very soon after delivery of this judgment.

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By contrast we are satisfied that paragraph 4, being founded especially on the the proper registration of the order made by the Lancaster County Court on 27th October 2004 cannot stand and must be quashed.

Again, whilst we recognize that Deputy Deemster could have exercised the jurisdiction of the Isle of Man courts to make an order to like effect, he did not exercise such jurisdiction.

Conclusions

52.

It follows that we allow the Appellant's appeal to the extent that the order made by Deputy Deemster Williamson on 5th November 2004 is quashed and that paragraph 4 of the order made by Deputy Deemster Williamson on 16th November 2005 is quashed.

53.

It should be noted that nothing we have said in this judgment would prevent the orders made by the Lancaster County Court on 24th February 2004 and 27th October 2007 from being registered and enforced in the Island if, but only if, they were registered in the High Court in accordance with the requirement of the Child Custody Act 1987. Equally, absent any judicial determination to the contrary in the United Kingdom, such orders remain in force in that jurisdiction.

54.

During the hearing the Appellant informed the court that since about August 2007 Katarina hat resided with him, whilst Ben continued to reside with the Respondent. In such circumstances the Appellant asked that we should make a residence order in his favour in respect of Katarina. In response thereto the Respondent asked the court not to make any such order.

55.

We do not know the precise circumstances in which Katarina came to reside with the Appellant and in the absence of a Court Welfare Officer's report or the Respondent's consent we do not consider that it is appropriate for this court – an appellate court – to make any residence order. Any application for a residence order should be made in the normal way and we have no doubt that any court determining any such application will wish to seek a report from the Court Welfare Officer.

56.

Finally, for the sake of transparency, we record that between the conclusion of the hearing and the delivery of this judgment the Appellant wrote a letter to the Judge of Appeal a copy of which has been disclosed to the Respondent and to the amicus curiae. We to not believe that the contents of such add anything to submission already made to the court or otherwise assist the court.

G.F. Tattersall

J.M. Kerruish

2DS 2007/9

26th October 2007

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2DS 2007/09 IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN STAFF OF GOVERNMENT DIVISION

————— IN THE MATTER of Orders of the Family Division made on 5th November 2004 and on 16th November 2005 and IN THE MATTER of the Appeal of GORDON STEPHEN HOLMES dated 19th March 2007 ————— At a Court at Douglas on 26th day of October 2007 His Honour Deemster Kerruish His Honour Judge of Appeal Tattersall UPON the Court having delivered this day its Judgment in the above-mentioned appeal in presence of Gordon Stephen Holmes (Appellant) in person Yvonne Holmes (Respondent) in person the Court appointed Amicus Curiae, Mr. P.R Beckett, having been given leave of absence, and there being no applications by the Appellant or the Respondent IT IS HEREBY ORDERED that: 1. the Order made on 5th November 2004 by Deputy Deemster Williamson sitting in the Family Division of the High Court is revoked.

2. paragraph 4 of the Order made on 16th November 2005 by Deputy Deemster Williamson sitting in the Family Division of the High Court is revoked.

SEAL OF THE HIGH COURT