AD v CD v AD
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe |
| Judgment Date | 12 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1277 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/1954 |
| Date | 12 December 2007 |
[2007] EWCA Civ 1277
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE MUNBY
FD07P01490
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall and
Lord Justice Lawrence Collins
Case No: B4/2007/1954
Mr A D appeared in person—Appellant
Mrs C D appeared in person – 1 st Respondent
Mr T Gupta (instructed by Dawson Cornwell) for the 2nd Respondent
Hearing dates: 23rd October 2007
I Introduction
This is the judgment of the court, to which all of its members have contributed. Because of the urgency inherent in the nature of the proceedings, we indicated at the close of the hearing of this appeal that the appeal would be dismissed, and that reasons would be given in writing.
This appeal concerns the application to a Romanian contact order of Council Regulation (EC) 2201/2003 (“Brussels II Revised”) of 27 th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) 1347/2000 (“Brussels II”).
The first instance court in Romania made a contact order on 24 th October 2006. Some days later (within the fifteen days allowed) the father filed a Notice of Appeal. On 19 th March 2007, at the hearing before the Appeal Court, the father withdrew his appeal. On 28 th March 2007 the Appeal Court accordingly sealed the order of 24 th October 2006 and on 27 th April 2007 the Romanian Court issued a certificate under Article 41 of Brussels II Revised in the form provided in Annex III to the Regulation. The judgment certified was that of the 24 th October 2006 rendered final and enforceable by the order of the 19 th March 2007.
Romania acceded to the European Union on the 1 st January 2007. The question is whether the judgment is enforceable under Brussels II Revised. By a judgment of the 1 st August 2007 Munby J held that the order certified was the order of the 24 th October and was accordingly unenforceable under the provisions of Brussels II Revised because it pre-dated Romania's accession to the European Union.
At an oral hearing of the 11 th October the father's application for permission to appeal was adjourned to a further oral hearing on notice with the appeal to follow if permission granted. That decision was based largely on fresh evidence, namely a letter of 9 th October 2007 from the Secretary of State in the Ministry of Labour Family and Equality of Chances in Bucharest.
II Background
The parents are Romanian. They married there, their only child, A, was born there in 1998 and there they divorced in 2000. In 2002 the mother unilaterally removed A from his homeland to this jurisdiction, effectively destroying his relationship with his father. Proceedings under the Child Abduction and Custody Act 1985 and the Hague Convention on the Civil Aspects of International Child Abduction 1980 were issued in February 2003. Those proceedings were not resolved until the House of Lords delivered judgment on 16 th November 2006. The House reversed the return orders made below: [2007] 1 A.C. 619. One effect of these inordinately prolonged proceedings was to extend the separation between the child and his father.
The order made in Bucharest some three weeks before the conclusion of the Hague Convention proceedings was an order made on the mother's application for variation of contact. Her proposal, endorsed by the judge, was that the father should have regular staying contact, including ten days during the Christmas holidays and all of August.
The father sought the enforcement of the certified Romanian order by an originating summons of the 18 th June 2007. This application, like his previous application under the 1980 Hague Convention, became enmeshed in legal complexity, which we have explained above.
The D family has suffered greatly as a consequence of becoming enmeshed in these legal complexities. The principal casualty has been the relationship between father and son.
III The issue
Before Munby J on 1 st August 2007 the parents appeared in person and the child by Mr Teertha Gupta. It was the House of Lords which had granted A party status, appointing Mr John Mellor as his guardian. That litigation team, save leading counsel, constituted for the purposes of the Hague Convention appeal has remained in place for the Brussels II Revised issue raised by the father's originating summons of the 18 th June 2007. Thus in determining the pure points of law raised by the originating summons Munby J had the assistance of only one counsel and we are in the same position. We are obviously grateful to Mr Gupta for his efforts and also to Mr D who presented his argument most effectively in clearly spoken English. We will come to their respective submissions later.
It is convenient now to set out the relevant provisions of Brussels II Revised, namely Recital 23 and Articles 41 and 64:
“(23) The Tampere European Council considered in its conclusions (point 34) that judgments in the field of family litigation should be 'automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement'. This is why judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this Regulation should be recognised and enforceable in all other Member States without any further procedure being required. Arrangements for the enforcement of such judgments continue to be governed by national law.”
“Article 41
Rights of access
1. The rights of access referred to in Article 40(1) (a) granted in an enforceable judgment given in a Member State 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 of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal.
2. The judge of origin shall issue the certificate referred to in paragraph 1 using the standard form in Annex III (certificate concerning rights of access) only if:
(a) where the judgment was given in default, the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence, or, the person has been served with the document but not in compliance with these conditions, it is nevertheless established that he or she accepted the decision unequivocally;
(b) all parties concerned were given an opportunity to be heard;
and
(c) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity. The certificate shall be completed in the language of the judgment.
3. Where the rights of access involve a cross-border situation at the time of the delivery of the judgment, the certificate shall be issued ex officio when the judgment becomes enforceable, even if only provisionally. If the situation subsequently acquires a cross-border character, the certificate shall be issued at the request of one of the parties.”
“TRANSITIONAL PROVISIONS
Article 64
1. The provisions of this Regulation shall apply only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to agreements concluded between the parties after its date of application in accordance with Article 72.
2. Judgments given after the date of application of this Regulation in proceedings instituted before that date but after the date of entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation if jurisdiction was founded on rules which accorded with those provided for either in Chapter II or in Regulation (EC) No 1347/2000 or in a convention concluded between the Member State of origin and the Member State addressed which was in force when the proceedings were instituted.
3. Judgments given before the date of application of this Regulation in proceedings instituted after the entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation provided they relate to divorce, legal separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings.
4. Judgments given before the date of application of this Regulation but after the date of entry into force of Regulation (EC) No 1347/2000 in proceedings instituted before the date of entry into force of Regulation (EC) No 1347/2000 shall be recognised and enforced in accordance with the provisions of Chapter III of this Regulation provided they relate to divorce, legal separation or marriage annulment or parental responsibility for the children of both spouses on the occasion of these matrimonial proceedings and that jurisdiction was founded on rules which accorded with those provided for either in Chapter II of this Regulation or in Regulation (EC) No 1347/2000 or in a convention concluded between the Member State of origin and the Member...
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