Simon Craddock

Father applied for an order for the interim return of his 4 year old daughter after wrongful retention by the mother in Poland. Order granted.

Neutral Citation Number: [2011] EWHC 471 (Fam).Case No: FD10P02375IN THE HIGH COURT OF JUSTICEFAMILY DIVISION

Royal Courts of JusticeStrand, London, WC2A 2LL

Date: 08/03/2011

Before:

MRS JUSTICE THEIS DBE- - - - - - - - - - - - - - - - - - - - -Between:D Applicant- and - N First Defendant(By her Guardian ad Litem,)- and - DSecond Defendant- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Mr Christopher Hames  (instructed by Brethertons Solicitors) for the ApplicantMs Gill Honeyman Cafcass Legal for the Second Defendant

Hearing dates: 25th February 2011

- - - - - - - - - - - - - - - - - - - -

JUDGMENT (Anonymised) 

This judgment is being handed down in private on 7th March 2101. It consists of 14 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.The judgment is being distributed on the strict understanding that in any report no person other than the advocates and their solicitors may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preservedMrs Justice Theis DBE:1. This matter concerns D (dob.06) a girl now 4 ½ years of age. Her parents are D and N, who I shall refer to in this judgment respectively as the father and mother. I am concerned with the father's application for an order for the return of the child to this jurisdiction pursuant to Article 11 (8) of Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters of Parental Responsibility (hereafter 'BIIR'). 2. The child is currently in the care of her mother in Poland. She has been there since April 2010 when the mother wrongfully retained her there. Prior to that the parties had lived and were habitually resident in England. 3. On 26th May 2010 the father sought the child's return to England, through Hague Proceedings commenced via the English central authority in the Polish Courts. The final hearing of that application took place on 30th July 2010. The Polish Court accepted that the child had been habitually resident in England and had been wrongfully retained but refused to order her return on Article 13b grounds.4. The judgment delivered by the Polish Court was received in England on 20th September 2010. The father issued proceedings in this court on the 20th October 2010 seeking an order that the child be returned to this jurisdiction pursuant to Article 11 (6) – (8).Background  5. The parties met over the internet in 2002 and met face to face with the father travelling to Poland in 2003. The father is a British Citizen and mother is a Polish Citizen.6. From April 2004 until March 2010 the parties lived in a rented property inWiltshire, England. The child was born on 27th October 2006 in England.. 7. On 20th March 2010 the parties travelled to Poland with the child for a proposed holiday with a return date of 11th April 2010. On 8th April 2010 the father discovered that the mother was registering the child for temporary residence in Poland against his wishes. On the 11th April 2010 (the end of the holiday) the mother refused to return to England with the child. The father returned alone. 8. On the 26th May 2010 proceedings under the Hague Convention were issued by the father via the English central authority seeking a return of his daughter to England. This was issued out of the Regional Court in Gorzow Wkip on 26th May. There was oral evidence and the hearing took place on 1st, 15th and 16th July with judgment being given on 30th July 2010. The Polish Court refused to return the child to England on the basis that the defence had been made out pursuant to Article 13b of the Convention and the court exercised its discretion to refuse the application for the child's immediate return.9. The mother issued proceedings in Poland seeking to limit the father's parental responsibility. It is unclear when they were issued. The letter from the mother's Polish lawyer states they were submitted in April 2010. The only document the father has been served with (by bailiff on 20th December) is a Petition for Limitation of Parental Authority dated 4th May 2010. He said he has not been served with anything since.10. The father issued proceedings here on 20th October 2010 and following orders made by Mrs Justice Pauffley on the same day the proceedings were sent to the mother by DHL on 26th October 2010 and signed for by her the following day. The matter was listed for further directions on 10th November 2010 with a direction for the mother to attend that hearing. On 1st November 2010 Cafcass indicated they felt it was in the child's best interests to be joined as a party.11. On 10th November 2010 Mr Justice Charles approved the child being joined as a party to the proceedings and ordered a hearing on 17th December to be the hearing to consider summary return and contact. He also requested that the Official Solicitor do appoint an Advocate to the Court. This was done as the court had received a letter from the mother's Polish lawyer Advocate Arkadiusz Bylinski dated 4th November 2010. That letter suggested that the proceedings here should be stayed pending determination by the Polish Courts of the mother's application to limit the father's parental responsibility, that documents should be translated for the mother and refers to a judgment of the District Court in Gorzow Wielkopolski of 16th September 2010 for the father to pay maintenance for the child from 26th April 2010 of 800 PLN per month.12. The mother and her Polish lawyers received a translated version of the order and the father's statement on 2nd December 2010.13. On the 10th December 2010 the Guardian's lawyer Ms Honeyman confirmed in a letter that the Guardian had had a brief conversation with the mother but the mother was not willing to engage with her.14. On the 15th December the court sent to the father's solicitors a copy of a letter from the mother's polish lawyer Advocate Bylinski which the father's solicitors responded to on 16th December 2010.15. On 16th December 2010 the mother instructed TV Edwards to act for her within the English proceedings. 16. The hearing listed on 17th December was ineffective as no judge was available.  I made detailed directions that had been agreed between the parties outside court, including setting the matter down for a three day hearing commencing on 11th April 2011. Although the mother was not present she was represented by solicitors and counsel who I am told were able to take instructions from the mother by telephone during the course of the day. That order provided for the matter to be heard on 31st January 2011, there was provision for the further filing of evidence, for the father to have contact with the child in Poland in early January and for the mother to travel to England with the child on 28th January so that the Guardian could meet with them and the child could see her father prior to the hearing on 31st January. The father gave various undertakings in the order to facilitate the mother and the child's return and agreed to pay the sum of £650 as a contribution towards the cost of their travel. Mr Devereux was instructed on behalf of the Official Solicitor. He had circulated his skeleton argument in advance. As there was no issue taken on his legal submissions the appointment of the Advocate to the Court was discharged.17. The father had contact with the child in Poland in early January in accordance with my order dated 17th December.18. The father issued an application under the Children Act 1989 on 26th January 2011 seeking residence and/or contact with the child.19. The mother's solicitors sent a fax late on 27th January 2011 to state they had not resolved their legal aid difficulties but the mother was not going to be present at the hearing on 31st January as she had only received cleared funds from the father on 25th January, leaving insufficient time to attend the hearing on 31st January.  In any event, the letter continued, both the mother and the child had had a fever for a week. If well enough the mother would be available by phone on the 31st January.20. The mother was not present at the hearing before Mr Justice Coleridge on 31st January 2011, but was represented by counsel and solicitors. The order recorded the reasons for the mother's non-attendance, directed the mother to file medical evidence as to her illness and directed the matter be adjourned for a further hearing on 21st February, with the mother and the child to travel to this jurisdiction on 17th February in readiness for the hearing on 21st February. Detailed directions were made concerning the father's contact with the child.  21. On the 7th February the mother's solicitors wrote to the father's solicitor informing them that the Legal Services Commission would not extend the mother's certificate on an emergency basis as she needed to provide financial documentation, which a later letter from the mother's solicitors on 17th February confirmed the mother had not provided. In addition, the mother's solicitor considered there had been a breakdown in the solicitor/client relationship and they will be no longer able to act for the mother. They confirmed they had sent the mother a list of expert solicitors who could act for her.22. A letter dated 8th February was sent to this court by the mother's Polish lawyer Advocate Bylinski. That letter suggests that the Polish Court should deal with any remaining issues and they sought a transfer of the proceedings to Poland pursuant to Article 15 BIIR. The father's solicitors responded to this letter on 15th February.23. On 17th February the mother's solicitors wrote to the court to say they were without instructions and the mother did not have public funding to be represented at the hearing on 21st February.24. The case was not reached on the 21st February and was adjourned to 25th February. The mother did not attend the hearing on 21st February or return back to the jurisdiction with the child on 17th February.25. The matter was listed before me on 25th February. The mother did not attend and was not represented.  In the Position Statement filed on behalf of the child Ms Honeyman set out details of the attempts by the Guardian to contact the mother. The Guardian has tried to speak to the mother on the telephone and has left messages. The Guardian received a text on 24th February from the mother which confirmed the mother and the child were still in Poland, she could not get any days off work and still 'got a cold'. She was aware the case had not been reached on the 21st February. She asked that the Guardian conduct her enquiries in Poland and indicates that the child is saying she doesn't want to go anywhere. She suggests that she is not using the number the Guardian has been using as she alleges the father has been sending abusive texts. She states she will continue with the Skype contact and refers to her Polish solicitor sending a letter to the court.26. The Guardian tried to speak to the mother following this text but the mother was at work and unable to talk.The Law27. The refusal of the Polish Court to order a return triggers the provisions in Article 11(6) - (8).  28. Singer J considered these provisions in Re A, HA –v- MB [2008] 1 FLR 289 and gave guidance on their interpretation.  In Re A both the parents and the child were represented, the parents gave oral evidence and a full welfare enquiry was undertaken hearing evidence and submissions over three days. 29. Singer J concluded that where an application is made pursuant to the provisions of Article 11(6-8) the court is exercising its original and complete jurisdiction which it had pursuant to the provisions of Article 8 of BIIR. Article 8 BIIR provides 'The courts of a Member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member States at the time the court is seised.'  Thus the English Court is able to exercise any of the powers within the Children Act 1989 or in wardship that it would in any purely domestic case. 30. In M v T (Abduction: Brussels II Revised, Art 11 (7)) [2010] EWHC 1479 (Fam), [2010] 2 FLR 1685 the mother and the child were represented and the father appeared in person. Charles J conducted a full welfare enquiry, hearing oral evidence and submissions from the parties over the course of three days.    31. At paras [17], [18] and [20] at 1691 – 1692, Charles J said:

[17] "…As to the jurisdiction and role of the court, it seems to me: first, that what the court is not doing is carrying out an appeal process in respect of a decision of a foreign court or anything akin to that.  Secondly, it seems to me that the court is not itself applying Art 13 or a Hague jurisdiction as such.  Rather, it seems to me, that what the court is doing is exercising the jurisdiction it always held under Art 10 which is a welfare jurisdiction and, therefore, it is a welfare approach that has to be applied.  Within that approach applying English law, there is the ability of the court to order a summary return of a child to another jurisdiction.  So it seems to me that the court in exercising its welfare jurisdiction has the power to make a summary order under Art 11(7) in an appropriate case (see by analogy to the decision of the House of Lords in Re J (A Child: Custody Rights Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, [2005] 3 WLR 14 sub nom J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802).  In particular, I would draw attention to para [26] of the speech of Baroness Hale of Richmond in Re J which identifies that summary orders are within the jurisdiction of the court and from para [29] onwards where she deals with the factors to be taken into account by the court in making the choice as to whether or not to order a summary return or to embark upon a welfare inquiry.[18] Necessarily, a summary return does not involve a full welfare inquiry or anything approaching it, albeit it that it is applying a welfare test.  In the present context it would, however, inevitably involve an effective rejection or an effective refusal not to follow the decision of the foreign court not to return the child under Art 13, but that is inherent in Art 11(7) itself.  It seems to me that cases could well arise for a variety of reasons in which this court may feel it appropriate to exercise its jurisdiction under Art 11(7) on a summary basis albeit applying a welfare test.  There may, for example, be differences if the refusing court acted under Art 13a rather than 13b.  In that context Art 11(4) may have some relevance. [20] So it seems to me, given the existence of the power and jurisdiction to make a summary order and having regard to the history of this case and the lessons that could be learned from it, that as soon as possible after an application under Art 11(7) I issued, there should be directions from the court in which the court should expressly consider the approach that is to be taken to the case, namely: is the case to be determined on a summary basis and/or is there to be a welfare inquiry and, if so, what is to be the extent of that welfare inquiry and, therefore, what directions need to be made in that context?  Also, importantly, at that first directions hearing or as soon as possible thereafter, the issue whether or not the child should be joined and, if so the representation of the child, should be determined." 

32. Therefore the court is exercising a paramount welfare jurisdiction.33. There is nothing in the provisions in BIIR which indicates this jurisdiction is in some way restricted and that the court cannot order a summary or interim return of the child under Article 11 (8). 34. The Court of Justice of the European Union considered this in the case of Povse-v-Alpago C-211/10 [2010] 2 FLR 1343.  The CJEU said

'Consequently, the answer to the second question is that Article 11(8) of the regulation must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child.'

35. The reasoning of the CJEU (as set out at paragraphs 51 – 67) is relevant as it covers some of the issues in this case; namely the preservation of the Father's relationship with the child and the ability of the court properly to examine the case and to exercise its jurisdiction. 

"61.    Further, as the European Commission has correctly observed, the court which is ultimately responsible for determining rights of custody must have the power to determine all the interim arrangements and measures, including fixing the child's place of residence, which might possibly require the return of the child.62      The objective of the provisions of Articles 11(8), 40 and 42 of the regulation, namely, that proceedings be expeditious, and the priority given to the jurisdiction of the court of origin are scarcely compatible with an interpretation according to which a judgment ordering return must be preceded by a final judgment on rights of custody. Such an interpretation would constitute a constraint which might compel the court with jurisdiction to take a decision on rights of custody when it had neither all the information and all the material needed for that purpose, nor the time required to make an objective and dispassionate assessment.63      As regards the argument that such an interpretation might lead to the child being moved needlessly, if the court with jurisdiction were ultimately to award custody to the parent residing in the Member State of removal, it must be stated that the importance of delivering a court judgment on the final custody of the child that is fair and soundly based, the need to deter child abduction, and the child's right to maintain on a regular basis a personal relationship and direct contact with both parents, take precedence over any disadvantages which such moving might entail.64      One of the fundamental rights of the child is the right, set out in Article 24(3) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child (see Case C 403/09 PPU Deti?ek [2009] ECR I 0000, paragraph 54). It is clear that an unlawful removal of the child, following the taking of a unilateral decision by one of the child's parents, more often than not deprives the child of the possibility of maintaining on a regular basis a personal relationship and direct contact with the other parent (see Deti?ek, paragraph 56).65    Consideration of the situation at issue in the main proceeding again demonstrates the correctness of this approach.66      The grounds for the judgment of 10 July 2009 whereby the court with jurisdiction ordered the return of the child were that the relationship between the child and her father had been broken. Consequently, it is in the child's best interests to re establish that relationship and also to ensure, if possible, that the mother is in Italy, so that the relationship of the child with both parents, and the parental abilities and characters of the parents, can be examined thoroughly by the competent Italian authorities, prior to delivery of a final judgment on custody and parental responsibility.67      Consequently, the answer to the second question is that Article 11(8) of the regulation must be interpreted as meaning that a judgment of the court with jurisdiction ordering the return of the child falls within the scope of that provision, even if it is not preceded by a final judgment of that court relating to rights of custody of the child."

36. If this court decides to order the return of the child pursuant to Article 11(8) Section 4 of BIIR applies (see Article 40 (1) (b)). Article 42 (1) provides that a return of a child pursuant to Article 11(8) shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State or origin in accordance with paragraph 2. 37. Article 42 (2) provides that the judge of origin who delivered the judgment ordering a return pursuant to Article 11(8) shall issue the certificate referred to in paragraph (1) only if

a. The child was given an opportunity to be heard unless such was inappropriate.b. The parties were given an opportunity to be heardc. The court has considered the reasons for and evidence underlying the non-return decision.

38. I agree with the conclusions set out by Mr Devereux in his skeleton argument submitted to the court.39.  The position can be summarised as follows:

(1) The interrelationship of Articles 10 and Articles 11(7) and (8) of BIIR permit the State of origin (from where the child has been wrongfully removed or retained to) to undertake an examination of the question of the custody of the child, once a judgment of non return pursuant to Article 13 has been made by a State where a request has been under the Hague Convention 1980; (2) Proceedings under Article 11(7) should be carried out as quickly as possible (M v T (Abduction: Brussels II Revised, Art 11(7)) at para [8] at 1689);   (3) In undertaking the examination of the question of the custody of the child, the Judge should be in a position that he or she would have been in if the abducting parent had not abducted the child.  Thus the whole range of orders that would normally available to a Judge should be available when examining the question of the custody of the child (Re A; HA v MB (Brussels II Revised: Art 11 (7) Application) at para [90]; M v T (Abduction: Brussels II Revised, Art 11(7)) at para [17] at 1691 – 1692);  (4) In undertaking the examination of the question of the custody of the child, the court exercises a welfare jurisdiction: the child's welfare shall be the court's paramount consideration (section 1(1) of the Children Act 1989; Re A; HA v MB (Brussels II Revised: Art 11 (7) Application); M v T (Abduction: Brussels II Revised, Art 11(7)) at para [17] at 1691 – 1692); (5) It may not be necessary or appropriate to categorise the jurisdictional foundation for such an enquiry as deriving from, or relying upon, the inherent jurisdiction.  The foundation for any examination of the question of the custody of the child is simply through the gateway of Article 11(7);     (6) The court has a well known and historic ability to order the summary return of a child to and from another jurisdiction; (7) As part of the court's enquiry under Article 11(7) the court does have the ability to order a summary return of the child to this country to facilitate the decision making process leading to a final judgment (M v T (Abduction: Brussels II Revised, Art 11(7)) at para [17] at 1692; Povse v Alpago Case C-211/10 [2010] 2 FLR 1343);   (8) In deciding whether to order a summary return or to carry out a full welfare enquiry, the court exercises a welfare jurisdiction. (M v T (Abduction: Brussels II Revised, Art 11(7) at para [17] at 1692).  It is not altogether clear whether the decision to order a return of the child on a summary basis is more appropriately considered as akin to that which might be ordered under the inherent jurisdiction  or whether it is effectively a specific issue order under the Children Act 1989 order: if it is more appropriately considered as akin to the inherent jurisdiction then – at least as to the question of summary return – it may not be necessary for the court mechanistically and slavishly to direct itself to the welfare checklist; that having been said, once the child has returned and the court is considering what order to make the court should direct itself to the welfare checklist;(9) Any summary return order is directly enforceable through the procedures in BIIR (see, Article 42 and Article 47 of BIIR,  Povse v Alpago (supra)).

40. On the evidence I have seen the mother accepted this court has exclusive jurisdiction. As a matter of law there can, in my judgment, be no basis for a challenge to that. Article 8 is mandatory in its terms and the child's habitual residence was clearly in England at the time these proceedings were issued by the father. In her statement (served on 17th January 2011) the mother refers to her willingness to engage with this court (paragraphs 3 and 5) and the need to issue an application for leave to remove the child from this jurisdiction (paragraph 56). The child's welfare41. Having established that this court has jurisdiction by virtue of Articles 8, 10, 11 (6) – (8) to consider the father's application for an order for the summary return of the child and that such an order can be made prior to a final determination I now turn to consider whether such an order is in the child's best interests and whether I should issue a certificate pursuant to Article 42 (2).

42. The judgment of the Polish Court is in the papers. The decision to refuse a return was based on Article 13 b of the Convention. The factual basis of the finding was:

(a) the risks posed by the father's alleged excess consumption of alcohol(b) an absence of secure provision of the 'necessities' of life in England(c) a return to the father's care and/or England would be contrary to the child's wishes. This appears to be based on the mother indicating she would not return.

43. There is no reference in the Polish Court decision to any consideration of the provisions of Article 11 (4) which provides 'A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.' 44.  In these proceedings the father was directed to file evidence which dealt with the reasons on which the refusal to return was based and set out his proposals for a return. 45. The mother's statement in these proceedings repeats the allegations she made regarding the father in the proceedings before the Polish Court.46. The father's statement in response provides some evidence that supports his position regarding the level of his alcohol intake and he makes admissions regarding a limited number of occasions when he has behaved poorly. He sets out in this statement the further undertakings he offers in the event that the child is to return.47. It is submitted on behalf of the father that on closer examination of the evidence the reasons for refusal given by the Polish Court do not stand up to close scrutiny and regard needs to be had to the protective measures that would be available through the father's undertakings and the protection offered by Social Services, the courts and the police.

(1) In relation to the alcohol related risks it is said the alleged incidents are relatively old (dating back to 2008) are relatively general in nature and the extent of the drinking is not as extensive as alleged. In November 2009 the letter from the GP records the father's liver function tests were normal and did not indicate any liver damage. The more recent hair strand tests record a negative finding for the period October 20101 to January 2011.(2) The evidence points to the father having a significant role in the child's care prior to her retention in Poland. The father was not working and was in receipt of incapacity benefit. The mother was working four days per week and no outside agency was concerned about the care of the child.(3) The other incidents complained of are denied by the father. He has offered undertakings that would ensure the mother and the child are housed and that the child would not be removed from her mother's care pending the next court hearing. Whilst the mother has expressed reservations about returning to the former family home in the short term that would provide suitable accommodation for the mother and the child whilst the welfare enquiry is undertaken.(4) The circumstances in which the child's wishes have been obtained give cause for concern. She was 3 years 8 months at the time she was interviewed. Her views as to where and with whom she would want to live should be of limited weight.

48. If the child remains in Poland the father submits that

(1) His relationship with the child will be unduly restricted and he and the child will be denied regular ands meaningful contact. Both the father's and the child's rights under Article 8 EHCR are engaged.(2) The father's ability to properly present a case for either sole or shared care of the child is severely restricted as they cannot maintain their relationship and the court cannot properly assess his ability to be the child's carer either on a shared or sole basis.(3) A new status quo will develop which will almost inevitably result in the mother becoming the child's long term primary carer and the relationship between the child and her father being limited.(4) The mother has not facilitated contact previously and has not properly engaged in these proceedings to date resulting in considerable delay.

49. The father seeks an order that the child is to return to this jurisdiction in seven days.50. No submissions were made on behalf of the mother but I have considered her statement filed in these proceedings and the letters from her Polish lawyer Advocate Bylinski.51. Due to the lack of information that the Guardian has Ms Honeyman, on behalf of the child, is unable to make any positive submissions one way or the other as to the order being sought on behalf of the father. She does not disagree with the legal analysis set out above as to the court's jurisdiction.52. Ms Honeyman did inform the court that whatever decision the court came to the Guardian was probably going to undertake a trip to Poland as part of her investigations. Due to her commitments on other cases that trip is likely to be around the 31st March/1st April for a couple of days.53.  I have considered the arguments canvassed before me in the written material and during the hearing. I have come to the conclusion that on the information I have the child's welfare is best met by an order that she return to this country by the 6th April 2011. I have reached that conclusion for the following reasons:

(1) To enable this court to undertake a proper welfare enquiry at the hearing listed to commence on 11th April to consider what orders should be made for the future care of the child the court needs the father to have an opportunity to spend some time with the child in this jurisdiction and for that to be assessed by the Guardian. (2) Both parties in this case have very limited means which have an impact on the realistic options available to the court.(3) By allowing some extra time before the return order is effective will enable the mother to make suitable arrangements with her employer to take time off.(4) On the information I have seen it is more likely than not that the mother will accompany the child to this jurisdiction. It would be in the child's interests if she did. That is what she indicated in her statement (paragraph 56) and it gives sufficient time to make practical arrangements that will make it easier for her to do so. (5) If the mother doesn't plan to accompany the child the short delay will give the father sufficient time to make the necessary arrangements to accompany the child back to this country. The father is having some Skype contact with the child, she saw him in January and he will see her when the Guardian travels to Poland.(6) The order will take effect after the Guardian has visited Poland. As indicated during the hearing arrangements need to be made for the father to go out to Poland at the same time as the Guardian to see the child and I will make such orders as are necessary to ensure the contact takes place during that visit.(7) By structuring the order in the way that I have it will enable the Guardian to see the child in Poland with her mother and father and for the same to happen in this jurisdiction.(8) The concerns raised by the mother regarding the father's behaviour and the consequent risks are manageable due to the following factors: (i) the undertakings that the father offers (ii) the mother would have access to legal representation in this country (iii) the child is separately represented within these proceedings (iv) the spotlight of the court is on this family which will act as a deterrent and thereby reduce the risks the mother is concerned about regarding the father's behaviour.(9) I have not required the father to pay any further sums of money. He paid the sum of £650 on 25th January to the mother for the purposes of funding the travel expenses for the mother and the child back to this jurisdiction. That money is still available to the mother for the purpose for which it was intended.(10) I have balanced the fact that the date for the child's return to this country is very close to the three day hearing listed to commence on 11th April with the fact that if I ordered her return significantly before then it may prompt an application by the mother to return with the child to Poland pending the hearing and then to return back for the hearing in April. In addition it is important as part of the welfare enquiry for the mother, father and the child to be seen in Poland.  Whether the court will be able to make final orders at the hearing in April will depend on the information that is available. I will direct that the mother and father do file statements setting out their plans for the future care of the child.(11) By ordering the child's return when I have it is more likely that the mother will be present for the hearing in April and participate in that hearing which will be in the child's interests.(12) I have as a guide considered the welfare checklist in section 1 (3) of the Children Act 1989 in reaching my decision and in particular the physical and emotional needs of the child, the likely effect of any change in circumstances, any harm she is at risk of suffering, the capability of each of the parents to meet her needs and the range of orders the court can make.

54. Having decided to make the order for the child's return to this jurisdiction pursuant to Article 11 (8) I need to consider whether I should issue a certificate pursuant to Article  42 (2). In considering whether to do so I need to consider the matters set out in Article 42 (2), taking each of them in turn:

a. the child was given an opportunity to be heard unless such was inappropriateThe child is 4 years old. Her views as ascertained in Poland are unlikely to have changed. She will be closely aligned to her primary carer. The Guardian had sought the opportunity to obtain the child's views but the mother declined to co-operate. The mother's obstruction cannot give a ground for saying the requirement is not met. In determining when the order should take effect I have ensured the Guardian will have the opportunity to see the child in Poland first and given sufficient time for the mother to arrange to accompany the child back to England.b. the parties were given an opportunity to be heardThe Mother has been in possession of the papers since 27th October and she had solicitors acting on her behalf from 16th December 2010 until early February 2011. Those solicitors endeavoured to keep in contact with the mother, that she failed to respond to and she failed to comply with the necessary requests that would continue her public funding. She has been sent details of alternative expert solicitors and has engaged Polish lawyers. She was aware of this hearing and has had the opportunity to be heard.c. The court has considered the reasons for and evidence underlying the non-return decision. I have considered the judgment of the Polish Court dated 30th July 2010 and the reasons for and the evidence underlying the non-return decision. The father has set out his response to the reasons for the non-return decision in these proceedings. This evidence has been considered together with the following matters: (i) the undertakings the father has offered; (ii) the mother has access to legal advice and representation within this jurisdiction; (iii) The child is represented within these proceedings; (iv) the spotlight of the court will be on the family; (v) the protection offered by the courts, social services and the police.

55. Having considered the matters set out in Article 42 (2) as set out above I have decided to issue the certificate in Annex IV.56. Advocate Bylinski in his letter dated 8th February invites the court to transfer the proceedings to the Polish Court pursuant to Article 15. Although there is no formal application made the court can consider a transfer under Article 15 of the court's own motion. I do not consider that such a transfer should be made at this stage as the child's immediate connection with Poland has been brought about by the mother's wrongful retention of the child there, it would not be a better place to hear the case as the father would have difficulty in participating in a full welfare enquiry there due to his financial circumstances which would not be in the child's best interests. This matter can be considered again, if required, at the hearing in April.57. Following circulation of the draft judgment Ms Honeyman informed the court that the Guardian is now able to complete her trip to Poland by 28th March 2011. In those circumstances I have reconsidered the date for the child's return to this jurisdiction and in the light of the Guardian being able to complete her enquiries in Poland earlier the date for the child's return will be 30th March 2011. In addition the court has been able to accommodate a short delay in the commencement of the hearing in April so that it can now start on 13th April. These adjustments will allow more time for the Guardian to conduct her welfare enquiries in this jurisdiction.

Financial Provision under Part III of the Matrimonial and Family Proceedings Act 1984: Application by a wife for interim periodical payments where the husband had not supplied the court with any evidence of his wealth.

IN THE HIGH COURT OF JUSTICE No. FD10F00551FAMILY DIVISION[2011] EWHC 3574 (Fam) and [2010] EWHC 2817 (Fam)Royal Courts of JusticeTuesday, 19th October 2010Before:MRS. JUSTICE KINGB E T W E E N :M Applicant-  and -M Respondent __________

Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel:  020 7831 5627    Fax:  020 7831 7737info@beverleynunnery.com__________

MR. Nigel DYER QC and MISS Juliet CHAPMAN (instructed by Mishcon de Reya) appeared on behalf of the Applicant.MR. Tim SCOTT QC and MR. Brent MOLYNEUX (instructed by Farrer & Co.) appeared on behalf of the Respondent.__________

J U D G M E N T(As approved by the Judge) MRS. JUSTICE KING:  1 This is an application by the wife for interim periodical payments following the breakdown of her marriage to her husband.  The wife's application for financial relief is made under Part III Matrimonial and Family Proceedings Act 1984, leave having been given by me for the wife to commence her application for financial relief on 20th July 2010. 2 At the hearing on 20th July, directions were given for the wife to file an affidavit in support of her application for interim maintenance, that affidavit to be filed by 7th September, and thereafter for the husband to file his affidavit in reply by 7th October 2010.3 The case was listed on 20th July for hearing on 18th October 2010 (yesterday).  At the July hearing a freezing order was made against the husband in relation to a number of properties in London. Directions were given in the usual way at that hearing for the husband to file an affidavit of means.4 The wife filed her affidavit in support of her application for maintenance a little late, on 9th September 2010.  The husband has not filed an affidavit in reply and offers no explanation for its absence.5 The matter was listed for directions in front of Parker J. on 5th October.  The husband was represented by counsel but chose not to attend.  The matter came on before me yesterday afternoon.  The husband again chose not to attend.  I am told he "has an infection", but that was not given as the reason for his non attendance. No medical report has been produced.6 The husband was and is represented by leading counsel and junior counsel.  No explanation has been offered for his failure to file an affidavit.  When the matter did not get reached until late in the day yesterday and the matter has, accordingly to go over until today, the husband did not take the opportunity to file an affidavit overnight.7 Mr. Dyer QC on behalf of the wife indicated yesterday that it was his intention to submit to the court that under the principles in Hadkinson given the circumstances outlined above the husband should not be heard in relation to the application before me.BACKGROUND 8 The brief background is as follows.  The parties are Russian nationals in their mid-40s who have lived in England since August 2005.  They married in Moscow in 1991.   Including pre-marriage cohabitation the marriage lasted for nearly 20 years.  There are two children of the marriage who are 16 and 12 years of age. Both the boys are educated in England and both are attending boarding school.  The parties each have a child from a previous marriage.  The wife's daughter is 25 years old and was adopted by the husband in Russia.  The family's connection with England started as long ago as 1998, when the wife's daughter was first sent to school in the UK.  The husband's son, is 23 years of age and he, it would appear from the limited information available to the court, is very involved with the husband in his business affairs.9 It appears from documents which were obtained on the wife's behalf from Companies' House, that shortly after the parties separated, the wife's 50% share in a property holding company was transferred to the husband's son.  It is alleged by the wife that this was done without her knowledge and consent.  Indeed, Parker J. at the recent directions hearing ordered the husband to produce the transfer in order to allow the signature to be examined.  Parker J attached a penal notice to that order. I have not got a copy of the draft order and do not know not the date when the transfer was to be filed.10 The parties moved to live in England, as I have already indicated, in 2005.  After a year or so living in rented accommodation they bought their first London home for approaching £4 million.  This property was and remains in the parties' joint names.  This is where their family life was conducted and it was to there that the boys returned to from boarding school during the school holidays. Before the breakdown of the marriage the family moved into rented accommodation whilst the former matrimonial homewas being renovated.11 In the autumn of 2008 the parties separated.  The wife left the property they were then living in, and moved to rented accommodation where she still lives with the boys when they are not at school.  12 The husband has remained living in London in a property in north London. .  He also spends some time living at a property in the West  country which he bought last year.  The husband has given the wife no financial support of any type since 10th September 2009.  His only financial contribution has been to pay the boys' school fees and to give the boys some form of allowance or gifts.  The wife has been living off the generosity of a wealthy friend and her husband.  That couple currently pay the rent on the property which in itself amounts to £12,000 a month.  13 The husband has engaged with the litigation on only the most superficial level.  The order of 20th July required him to produce an affidavit in response to the freezing injunction, together with the relevant supporting documents.  These were to be produced by 31st August.  The wife agreed an extension of time to 7th September.  The wife's legal team were no doubt encouraged by a letter sent by the husband's legal team at Farrer & Co which said that "the affidavit for which you have just agreed an extension will not be limited to the matters in paragraph 5 of the injunction order.  It will be considerably wider in its scope and it will also respond to your wife's affidavit sworn on 13th July 2010."14 Despite the promises, the affidavit did not arrive until 1st October 2010.  It had no supporting documentation whatsoever, and as Mr. Scott sensibly and realistically concedes on the husband's behalf, it is very limited in the information it gives.  In fact, it is more than limited; it gives the court absolutely no idea of the extent of the husband's wealth other than the properties already identified by the wife and frozen under the July order as being in the United Kingdom; he says that a Forbes estimate of his wealth at £150 million was an exaggeration.  Income is not even mentioned.15 Meanwhile, the wife's team was also waiting for the affidavit in reply to the application for interim maintenance.  Once again, Mishcon de Reya were chasing that affidavit.  In a letter written on 12th October Farrer & Co., on behalf of the husband, were driven to saying as follows:

"I regret that I was unable to serve an affidavit of my client on 7th October in relation to interim maintenance.  Equally, I regret that I cannot tell you when I shall be in a position to serve it.  In the circumstances, I cannot suggest a particular period or date for an extension of time.  When I am in a position to serve an affidavit I will ask you to accept it and treat time as extended, or my client will have to apply to the judge for an extension."

16 That letter seemed to indicate that Farrer & Co , even as of 12th October (six days before the hearing) had not given up hope completely that they would be in a position to file an affidavit as ordered by the court.  It should be noted that there was no suggestion in that letter or any other correspondence that this court had no jurisdiction to make such an order.  Mishcon, now denied the affidavit for the foreseeable future, wrote back asking for a run of the husband's bank statements and credit cards.  None have been forthcoming.17 The court therefore finds itself in a position whereby , three months after the hearing was listed, it has not had a single piece of documentary evidence from the husband as to his financial position and there has been no attempt by him to give the court any picture of his wealth, or, of particular relevance to this interim hearing, his income.  In the unsatisfactory affidavit he has filed, he did make reference to maintenance, but only to say that he believed that the wife had sufficient means of her own and that she would have asked him if she needed financial assistance.18 Mr. Scott QC appears today, as he did yesterday, with junior counsel and with a partner from Farrer & Co.  He again came with no explanation or justification for his lay client's continued contempt, or any evidence with which to fill the void in the court's knowledge which would allow it properly and effectively to exercise its judicial discretion in determining the application of the wife.  Mr. Scott, as always, has been moderate and careful in how he has put his case in what must have been an extremely difficult position for him.19 Mr. Scott seeks to argue that as a matter of principle no order should be made.  Mr Dyer, for his part, submits that the court should decline to hear the submissions of Mr. Scott and proceed to hear the application which has been listed before the court for three months and against the backdrop of a wife who has had no financial support of any type, shape or description from her husband for a year.THE LAW20 In Hadkinson v. Hadkinson [1952] FLR 287 Denning LJ said:

"Those cases seem to me to point the way to the modern rule.  It is a strong thing for a court to refuse to hear a party to a cause, and it is only to be justified by great considerations of public policy.  It is a step which a court will only take when the party itself impedes the course of justice and there is no other effective means of securing his compliance … Applying this principle, I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or enforce the orders which it may make, then the court may, in its discretion, refuse to hear him until the impediment is removed or good reason is shown why it should not be removed."

21 In Mubarak v. Mubarak [2004] 2 FLR 932 Ryder J. had before him an application to vary periodical payments in circumstances where the applicant was in contempt for failure to pay a lump sum.  In that case Ryder J., having held that a Hadkinson application remains available in the context of family proceedings and is Art.6 compliant, suggested that the following questions should be answered:

`(1) Is the husband in contempt?  (2) Is there an impediment to the course of justice?  (3) Is there any other effective means of securing compliance with the court's orders?(4) Should the court exercise its discretion to impose jurisdiction having regard to the question?  (5) Is the contempt wilful, i.e. is it contumacious and continuing? (6) If so, what conditions would be proportionate? 

22 During the course of his judgment in Laing v. Laing [2007] 2 FLR 199 Sir Mark Potter indicated that he did not find the use of the expression utilised by Ryder J. in Mubarak of "contumacious" as a helpful one when applied to the wilful nature of the contempt relied on to found the Hadkinson jurisdiction.  He said: 

"I do not regard the word 'contumacious' as a useful addition or supplement to the threshold requirement that the contempt should be wilful in the sense of voluntary, deliberate, knowing, and continuingly breach by a person well able to comply with the order if he or she chose to do so.  Once that threshold is established, then in deciding whether and to what extent the right of the applicant to proceed with an application for variation or relief by imposition of conditions, it would be relevant for the court to take into account the level of defiance displayed as well as its effects." 

23 Relevant to the issue of refusal in Laing, Sir Mark Potter reminded those hearing this type of  application that:

"The mere fact that the husband may have a legitimate argument in support of his application for a reduction of maintenance based on the reduction of his own income does not legitimate his wilful failure to make payments due .. given his ample means to pay out of the current resources."

24 In the course of Laing the court considered the phrase "impede the course of justice".  Sir Mark Potter said at para.18:

"The touchstone in the power of the court to refuse to hear a party on which the power to impose conditions of continuance is founded is, as already stated, whether the conduct amounted to a contempt.  In this case the failure to pay under an existing order, is such that as long as it continues it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders it may make. That was accepted and restated in Baker (No 2) [1997] 1 FLR 148 and confirmed in Mubarak.  It is not a principle that depends on the size of the sums involved but upon the relevant situation of the parties, by the circumstances of the non payment and the effect of such non payment on the course of justice in the particular case …"(30) As to Mr. Percival's point, it is plain that the judge did not ignore the requirement that the impediment to justice should be one which made it more difficult for the court to enforce the orders which it may make.  He specifically referred to that principle when he posed and answered question (c) in Mubarak in the course of his judgment by reference to the inutility of the only alternative, i.e. the issue of a judgment summons."

25 Mr. Scott makes a number of points in response to the application of Mr. Dyer:

(1) He accepts that his role will be limited.  The husband's evidence is circumscribed and the court is deprived, by his actions, of relying on matters upon which it could and should have been able to rely.  But, submits Mr. Scott, there are arguments of principle and of construction of the statute which he can and should make.  (2) That Hadkinson cases have concerned applicants that came to court without clean hands in that they were themselves in contempt (although he subsequently accepted that there is at least one case, the second Mubarak case, where the husband was the respondent.).  That, says Mr. Scott, is a wholly different situation from a party who is, as here, responding to an application.  Even if, Mr. Scott says, Hadkinson is in principle Art. 6 compliant, the Art. 6 considerations are wholly different when defending an application, and the court should be slow to shut a respondent out.  He accepts that his ability to oppose is circumscribed, but submits that he should be permitted to make submissions about the issues of principle and statutory considerations raised in his position statement.  Mr. Dyer, for his part, reminds me that Hadkinson refers specifically to "a party to a cause" who has "disobeyed an order" and not to a respondent to a cause. 

26 I accept, of course, that the order sought is draconian.  I further accept that the situation needs even more anxious consideration where the party in respect of which it is submitted should not be heard, is the respondent to the application.  But in the present case, the respondent husband's contempt has been directed specifically at undermining the very application before the court. The husband has set out to deprive the court of the information which it needs and to which it is entitled and the provision of which is in his gift.  In those circumstances, in my judgment, the fact that the contemnor in the present case is the respondent, as opposed to the applicant, does not preclude the court from declining to hear him, nor does it fall foul of Art. 6.27 Mr. Dyer further reminds me, with considerable force, that this is an interim hearing and so does not lead to the prejudice against the husband which must inevitably arise in a final hearing.  The solution, he says rightly, is in the husband's hands.  He could comply with the order; he could file an affidavit and thereafter apply to vary any order I make today.28 I turn, then, to Ryder J.'s principles as set out in Mubarak:(i) Is the husband in contempt?  Yes. (ii) Does this contempt impede the course of justice? It almost goes without saying as here that where there is an application by a wife, who does not work outside the home and has, throughout her marriage, been wholly reliant upon the husband financially to support her very considerable lifestyle, then a wilful refusal on his part to provide the court with financial information will impede the course of justice.  As Mr. Dyer submitted, this court can have no idea whether the very substantial sum (over £500,000 per annum) which is sought by the wife by way of interim provision is, at one extreme ludicrously aspirational, or, at the other, wholly reasonable when taken against the backdrop of the family's wealth.Similarly, it renders enforcement extraordinarily difficult when the only assets above the radar are the London properties held in the names of various companies, and the court has no information about other assets or any other liquid assets – in particular, bank accounts which may have substantial amounts held in them.(iii) Is there any other effective means of securing compliance?  The lack of teeth available that a court has in effecting the enforcement of its orders is well known.  It is hard to see what order could be made which would be effective in ensuring compliance, given the level of defiance the husband has exhibited to date.  I will come to conditions in a moment.Technically, the wife could issue contempt proceedings.  But, like judgment summonses, such applications are notoriously cumbersome and largely ineffective and, in the present case, would no doubt cause deep distress to the parties' two sons who see their father regularly.(iv) Is the contempt wilful? Looking at Sir Mark Potter's analysis in Laing, I have no hesitation in concluding that "the contempt is wilful in the sense of voluntary, deliberate, knowing and continuingly in breach by a person well able to comply with the  order if he or she chose to do so."  This husband has one of the country's most elite teams of matrimonial finance lawyers at his disposal.  Instructing them, as he does, to appear today having failed to comply with the court's order and offering it no explanation, shows an unfortunate arrogance and a complete disrespect for the court process.  29 I am satisfied, therefore, that the wife's Hadkinson application succeeds in principle.  I have thereafter to consider what response is proportionate in the exercise of my discretion.  In argument before the short adjournment,  Mr. Scott said in terms that he does not seek an adjournment.  He made no offer of future compliance on the husband's part, or assurances of disclosure forthwith if the matter was held over.  30 Over the short adjournment, Mr. Scott drew my attention to a further judgment of Bodey J. in the second Mubarak.  In that case, as here, he concluded that the Hadkinson criteria had been satisfied but concluded that it would be wrong at that stage to bar the husband from participating, taking into account that he was a respondent and that there were jurisdictional issues to be considered.  Instead, the judge imposed terms.  Failure to comply with the terms would lead to the husband being debarred from participating at a further hearing.  31 I therefore re-entered court after the short adjournment anticipating that further thought had been given by the husband to his position, and, that upon instructions, Mr. Scott was going to going to make some sort of offer to the court whereby there would be the imposition of sanctions on the basis of an adjournment, giving the husband a further opportunity to file an affidavit and to take part in the proceedings.  Far from it, Mr. Scott's instructions remain the same.  No offers have been made, no explanations have been made.  The court, therefore, remains in exactly the same position as at the start of the hearing.32 I take note that in his position statement Mr. Scott has raised what he regards as an issue of jurisdiction.  I take into account, however, that whilst there appears to be no reported authorities on the subject, applications for interim maintenance in Part III cases are commonplace.  I in this, as in all applications have to be satisfied that I have the jurisdiction to make the order sought.  I take into account, as Mr. Dyer has forcefully and correctly submitted, that this is an interim hearing and that the husband may at any stage choose to re-engage in the process, to file an affidavit, and to make any application he may wish to vary any order I make.33 In those circumstances in the exercise of my discretion, I accede to the application of Mr. Dyer.  __________H's Counsel then left the Court (leaving behind a representative from Farrer & Co to take a note of the proceedings)INTERIM PERIODICAL PAYMENTS 34 The wife seeks orders for interim maintenance enhanced under the principles in  A v A (Maintenance Pending Suit for Legal Fees)  [2001] 1 WLR 605 to  cover her costs up until the financial dispute resolution type hearing which has been ordered to take place next year by Parker J.Jurisdiction35 Any court must be satisfied that it has jurisdiction and that it is appropriate to make any order a party may seek. In the present case, that order is an interim maintenance order. Mr Scott QC advertised in his note his contention that this wife does not meet the statutory criteria which would enable me to make an order for interim maintenance, either at the level she seeks or at all. 36 Having said that, Mr Scott accepted in his oral submissions in relation to Mr Dyer's Hadkinson application, that if the court held that the wife does fall within the sub-section, then he on behalf of the husband, would be unable to challenge either the wife's assertions as to the standard of living enjoyed by the parties during the marriage or the husband's ability to maintain the wife at such a level.37 Mr Dyer QC has addressed me on jurisdiction and the principles which apply in relation to his application.38 Section 14 of Part III provides as follows:

14 Interim orders for maintenance(1)     Where leave is granted under section 13 above for the making of an application for an order for financial relief and it appears to the court that the applicant or any child of the family is in immediate need of financial assistance, the court may make an interim order for maintenance, that is to say, an order requiring the other party to the marriage to make to the applicant or to the child such periodical payments, and for such term, being a term beginning not earlier than the date of the grant of leave and ending with the date of the determination of the application for an order for financial relief, as the court thinks reasonable

39 In order to assist me in interpreting the section, Mr Dyer took me to the Law Commission report (Law Com.No117) of 20 October 1982: Financial Relief after Foreign Divorce.   The report recommended as follows:

"2.4 We also propose that on granting leave the court should be empowered to make interim orders for maintenance, in favour of the applicant or any child of the family where they are in immediate need of financial assistance."

40  Following the report of the Law Commission, a draft bill was published which contained provision for interim orders of maintenance in the same terms as are now found in s14. The explanatory notes attached to the bill referred to section 27(5) of the Matrimonial Causes Act 1973: interim orders in cases of failure to maintain as an analogous provision. 41  I note for completeness that section 5 Interim Orders the Inheritance (Provision for Family and Dependants) Act 1975   uses the same terminology namely 'immediate need of financial assistance'42 The language adopted for Part III is therefore somewhat different from that found in section 22 Matrimonial Causes Act 1973 (as amended) which makes provision for maintenance pending suit in the context of domestic divorce.

22 Maintenance pending suitOn a petition for divorce, nullity of marriage or judicial separation, the court may make an order for maintenance pending suit, that is to say, an order requiring either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition and ending with the date of the determination of the suit, as the court thinks reasonable.

In other words, under s22 the court may make such order as it thinks is reasonable.43 The question therefore, as posed by Mr. Scott, is whether s14 of Part III imports a higher hurdle than that that found in s22 MCA 1973: put another way does the word 'immediate' have connotations of urgency and is 'need' limited in its scope given that it unlike s22 MCA 1973, is not balanced by the various considerations found in s25 MCA 1973.44 The Oxford English Dictionary includes in the definition of 'immediate' the following: Of time: Present or next adjacent; of things: Pertaining to the time current or instant.  Co-incidentally, given the issue before me, the example given in the OED is:  1748 SMOLLETT Rod. Rand. viii, Some loose silver for our immediate expenses.45 Whilst the word 'immediate' can of course mean 'urgent', in my judgment having read the Law Commission report and bearing in mind also the Inheritance (Provision for Family and Dependants Act) I have no doubt that the word 'immediate' should be construed to mean 'current' as opposed to 'urgent'; (although it could be both).46 Section 14 of Part III requires the court once it is satisfied that a party is in "immediate need", to make such order as is reasonable. I accept the argument of Mr. Dyer that the approach described in the authorities in relation to applications for interim maintenance under MCA 1973 applies also to s14. Mr Dyer drew my attention to a recent judgment of Charles J in an unreported case: A v M of 6 September 2010 where Charles J took just such a view in a similar application.47 Mr. Dyer points out that although applications for interim maintenance are ordinarily made under s14 of Part III, the wife could, on a strict construction of s17 of Part III, equally have made an application for interim periodical payments via that route as opposed to an application under s14. 48 S 17  provides:

(1)     Subject to section 20 below, on an application by a party to a marriage for an order for financial relief under this section, the court may—

(a)     make any one or more of the orders which it could make under Part II of the 1973 Act if a decree of divorce, a decree of nullity of marriage or a decree of judicial separation in respect of the marriage had been granted in England and Wales, that is to say—

(i)     any order mentioned in section 23(1) of the 1973 Act (financial provision orders); and(ii)     any order mentioned in section 24(1) of that Act (property adjustment orders);

49 S23(1)(a) MCA 1973 allows the court on granting a decree of divorce, to make an order for periodical payments for such term as may be specified; it follows therefore that  the court can under the provisions of s17 of Part III, make  an interim periodical payments order.50 In my judgment the limitations imposed by s14 are as follows :

i) no order for interim maintenance will be made until leave to make a Part III order has been given and, ii) under s14(2), the jurisdiction must be founded on domicile or habitual residence (as opposed to an interest in a former matrimonial home in this jurisdiction). iii) The applicant must be in 'immediate need' and the provision is to be reasonable.

There is not in my judgment a gloss on the words 'immediate need' or a further requirement which imports a requirement that a party should establish that he or she is in urgent need of funds.51 If I felt in need of reassurance that the approach I take is in tune with the philosophy of and contemporary interpretation of the Act, I need go no further than  Agbaje v Agbaje [2010] 1 AC 628 where the Supreme Court  reviewed the law in relation to financial provision following a foreign decree. The Supreme Court made it clear that neither hardship nor injustice is a precondition for the exercise of the jurisdiction [72] nor is it only appropriate for the English court to intervene with financial relief to the minimum extent necessary [63]. 52 In Agbaje the Supreme Court anticipated cases where a wife would receive the same provision as if the divorce proceedings were in England. [64]. Such an approach is not consistent with there being a higher hurdle under s14 of Part III for a wife (or husband) to clear before she (or he) is awarded interim maintenance than that under s22 MCA 1973 (or it would seem, illogically and inconsistently, under s17 of  Part III). 53 The question therefore remains as to whether this wife has demonstrated 'immediate need', that is to say does she currently stand in need of financial assistance. In his freezing order affidavit the husband says that the wife had not asked him for money and that he presumed she was living on her own assets. It is noteworthy that he did not go on to say that had she asked he would have made appropriate provision for her.54 I accept the submission made by Mr Dyer. This wife has been wholly financially dependant upon her husband throughout their married life. As of September 2009 he stopped all financial support and put her (and the children), in a situation where she has to live in rented accommodation (albeit expensive accommodation in a fashionable part of London), and support the family on loans from a friend. The husband cannot now, submits Mr Dyer, use the  generosity of those friends who have no obligation, whether moral or financial, to provide any financial assistance, to pray in aid  an argument that the wife has no 'immediate need' for maintenance and that he should as a consequence be allowed to shirk his obligation towards her and his children.55 In the early, dark days following separation, families and friends frequently help wives out financially until, either by agreement or court order, finances are sorted out and the husband assumes his obligations to maintain his family.  Such temporary assistance should not subsequently be used as a basis for resisting the making of an order for interim maintenance which would otherwise be appropriate. The fact that the sums involved in this case are very considerable matters not; this is a family who lived at a very high level, as do their friends and acquaintances.56 The wife's initial budget as exhibited to her affidavit comes to a total of £577,969.44 pa (£48,164.12 pcm). This can be broken down as follows:Rent                                      150,168Former Matrimonial Home           9,892General Living                         262,305Children                                   39,480Wife's daughter                       116,124Total                                       577,969

57 The wife has during the course of submissions sensibly withdrawn the element of maintenance sought for the her daughter who is in her early 20s and not currently in education. That leaves the budget at £461,845 of which £150,168 is the rent on rented property.58 The rent is a flagrant waste of family money; the former matrimonial home is held in the joint names of the parties. The wife continues to pay the standing charges in relation to the property. It was the family home. It is empty and the wife would like to move back in with the boys. The husband refuses and has changed the locks. The wife has no idea what sort of condition the flat is in given that the family originally moved out of the property on a temporary basis prior to the breakdown of the marriage in order for it to be refurbished. The wife has consequently been driven to make an application in the County Court for a declaration that she is entitled to occupy her own property. The husband opposes the application on the basis that the flat should be sold and the proceeds of sale be divided between the parties. 59 As a result of the actions of the husband, the wife is living, at considerable cost, in a smaller, rented property which is nonsense when there is an empty, larger property, owned by the parties and which is mortgage free. The lease on the rented property comes to an end on 31 October 2010; the husband however maintains his refusal to allow the wife to move back into the former matrimonial home and the County Court proceedings continue. The wife and children have no alternative therefore but to remain at the rented property and the husband will have to pay for his intransigence as the wife's maintenance will have to provide not only for rent but also for the essential recurring charges in relation to the former matrimonial home.60 That leaves for consideration general living expenses of £301,785 (262,305 + 39,480) or £25,148 pcm.  I am conscious that I have not had the benefit of an affidavit from the husband and that the wife seeks a very substantial sum by way of interim maintenance. The failure of the husband to comply with the court's order to file an affidavit in response to the wife's application means that he has deprived the court of the opportunity adequately to carry out an analysis of both sides' contentions when  exercising  its' discretion.61 In Al-Khatib v Masry [2002] 1 FLR 1053 the court was faced with the same predicament. Mr Justice Munby (as he then was) relied then, as I do now, on what he called the classic passage in J-PC v J-AF [1955] P 215 where Sachs J said at P 227

"in cases of this kind, where the duty of disclosure comes to lie on a husband; where a husband has – and his wife has not- detailed knowledge of his complex affairs; where a husband is fully capable of explaining and has the opportunity to explain, those affairs, and where he seeks to minimise the wife's claim, that husband can hardly complain if, when he leaves gaps in the court's knowledge, the court does not draw inferences in his favour. On the contrary, when he leaves a gap in such  a state that two alternative inferences may be drawn, the court will normally draw the less favourable inference – especially where it seems likely that his able legal advisers would have hastened to put forward affirmatively any facts, if they had existed, establishing the more favourable alternative"

62 He continued at page 229

"…. The obligation of the husband is to be full, frank and clear in that disclosure. Any shortcomings of the husband from the requisite standard can and normally should be visited at least by the court drawing inferences against the husband on matters the subject of the shortcomings – insofar as such inferences can be properly drawn."

63 Mr Dyer has highlighted eight matters which he submits would, in the present case, enable the court draw the inference that the husband's assets and income are such as would justify the court in making an interim maintenance award of the size sought by the wife.They are as follows:

iv) The husband has on his own admission spent £15.5m on property in London since 2005. All those properties are unencumbered.v) On his own account he has spent well in excess of £1m on refurbishment.vi) None of the properties are let out and so are not income producing. He must therefore have other income.vii) When dealing with the source of the funds to buy the properties in each case he has said that the purchase price had been funded by 'savings' from Russia -  implying substantial liquidity.viii) In his affidavit he indicates he has sold his commercial properties in Russia. He gives no figures.ix) The boys are being educated at an expensive boarding school.x) The husband has within the last few years bought the wife a ring costing £250,000 and a watch costing £100,000; an indication of his disposable income.xi) The husband has bought, at a cost of £2.35m, a small hotel in the country which is being extensively refurbished. He says there is a substantial loan on the property and yet there is no charge registered on the title.

64 I would add to that list that the husband does not suggest in his affidavit in response to the freezing order that he is short of money despite that fact that the affidavit was filed after he had received and read the affidavit of the wife. 65 Mr Scott accepted in his submissions that it was not open to him to make submissions as to either budget or affordability. 66 Absent any disclosure from the husband I accept the submissions made by Mr Dyer and I will therefore make an order for interim maintenance in the sum of £460,000pa  of which  £150,000 is specified as being for rent. 67 It seems likely that the wife will be tied into another 12 month lease on the rented property given that the renewal date is imminent. In case the husband regrets his decision and changes his mind about the wife moving back into the former matrimonial home, I should make it clear that the husband cannot unilaterally stop paying the figure equal to the rent. The wife would have wished, and still does wish to move back into former matrimonial home.  However given that she has no idea what sort of condition the property is in, the order I intend to make although specifying a figure for rent, will continue to be payable in full unless there is an agreement or a court order varying the quantum or terms. Legal fees funded by interim maintenance68 In considering the application for legal fees for the wife I again apply the same principles as those which apply in domestic divorces. It follows therefore that I bear in mind in particular the judgement of Lord Justice Wilson at paragraphs [20] to [22]  in Currey v Currey (No 2)  [2007] 1 FLR 946.69 I bear in mind also that whilst I have a discretion, it would not be appropriate to make  a costs allowance unless the wife has demonstrated that such assets as she has cannot be reasonably deployed to pay legal fees and that she cannot reasonably procure legal advice and representation by any other means.70 The position as to alternative legal funding is as follows:

(i) Loans from the friend: I do not think it is reasonable to expect the wife to have to depend on the continuing generosity of her friend for funding. There is no obligation for the money to be paid and it is impossible to speculate as to when the friend may take the view, as she is entitled to do, that 'enough is enough'. Were that to happen the wife would be left in a most vulnerable position of being without legal representation at what might be a crucial stage of the litigation.(ii) The wife's solicitors do not accept payment on a Sears Tooth charge and, as was recognised in Moses Taiga v Moses Taiga [2006] 1 FLR 1074 by Lord Justice Wilson, the type of firms of solicitors who specialise in this type of case do not accept legal aid work even if the wife was eligible.(iii) The wife has a valuable unencumbered flat in Russia. She cannot raise a loan on the property as she has no credit rating in Russia and it is impossible to estimate how long it would take for her to sell it. She needs funds now. It would not be reasonable to expect the wife to sell that property significantly under value for an early sale. I take the view that such a sale would not be reasonable deployment of that asset on the facts of this case. The husband is neither maintaining his family nor engaging in the litigation.  The flat is the family's base in Russia and it is one of the few assets held in the sole name of the wife.(iv) The wife has made enquiries as to the availability of a litigation loan. Where there is an ongoing dispute about jurisdiction, (as has been confirmed by the husband in his freezing order affidavit), the banks will not offer a loan facility to the wife.(v) Finally the wife owns a half share in the matrimonial home, again the wife faces considerable, if not insuperable, difficulties in getting a bank to lend her money secured on that property given the jurisdictional dispute and again I do not think it is reasonable deployment of her one asset within the jurisdiction for it to be used to fund the litigation.(vi) Accordingly I take the view that there should be an element for legal fees in the order I make. I have looked at the costs schedule which has been carefully worked by reference to each stage of the  litigation until the FDR type hearing in about 10 months time.  I accept the rolled up estimate of £112,000 to that  hearing to be  reasonable given the complexities of the case and will make an order for legal fees  at the rate of £10,000 pcm until the date of the FDR.(vii) Mr Dyer also sought to incorporate in the order the sums spent on legal fees to date, most of which has been paid, courtesy of the wife's friend.  I do not accede to that submission but I will back date that part of the order which relates to legal fees to the date that I gave leave to commence the proceedings that is to say 20 July 2010.