B v C

Held, granting declaration that D having no parental responsibility for child in this jurisdiction, that were the court to apply Spanish law as designated by article 16(3) of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, being the law of the state of the child’s habitual residence under which D’s parental responsibility originally existed, then following the child’s change of habitual residence the parental responsibility arising in favour of D by operation of Spanish law would properly have remained in force or in effect in the jurisdiction of England and Wales pursuant to the terms of article 16(3); that by the terms of article 18 the court would then have been able to take measures of protection concerning the termination or modification of the parental responsibility that thereby subsisted in favour of D, pursuant to the substantive jurisdiction conferred on the English court by article 5, and in so far as permitted by English law pursuant to article 15(1); that, however, on the particular facts of the case, having due regard to the terms of article 22 and therefore to the child’s best interests as a primary consideration, as set against the established principles governing the application of the public policy doctrine recognised by domestic and international law, it was manifestly contrary to the rightfully high bar of public policy to apply the Spanish law; that were the court to do so it would perpetuate the fraud committed by the father and the uncertainty and insecurity inherent in a stranger holding parental responsibility for the child and would breach the fundamental principles concerning the protection of human rights and fundamental freedoms; that such a conclusion did not impugn the Spanish law, where a distinction could properly be made between the foreign law itself and the effect of the application of that foreign law, but given the effect of the application of Spanish law in the singularly egregious circumstances of the present case article 22 of the Convention was engaged; that in such circumstances it was not appropriate to exercise any discretion that might exist under article 22 (suggested to arise from the words “can be refused” found therein) to apply Spanish law in any event; that the effect of the decision not to apply Spanish law was that D did not have parental responsibility for the child in the jurisdiction of England and Wales; that although D would continue to have parental responsibility under Spanish law, the expert evidence made clear that, where all the necessary requirements were also complied with, a final determination by the English court that D was proved not to be the father of the child would enable a request for rectification to be made to the Spanish Civil Registry which, on presentation of the judgment with the exequatur, would cause the register to be rectified; and that. accordingly, the court also made the finding, pursuant to section 55A(2)(b) of the Family Law Act 1986, that D was not the child’s father and respectfully requested that the Spanish Civil Registry be rectified (post, paras, 73, 82–86, 87, 88, 89–91, 92, 93, 94, 96).

Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, HL(E) applied.