D (A Child) (International Recognition)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lord Justice Briggs,Lord Justice Moore-Bick |
| Judgment Date | 27 January 2016 |
| Neutral Citation | [2016] EWCA Civ 12 |
| Docket Number | Case No: B4/2014/2790 & B4/2014/2790(B) |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 2016 |
[2016] EWCA Civ 12
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT
Mr. Justice Peter Jackson
[2014] EWHC 2756
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice President of the Court of Appeal (Civil Division)
Lord Justice Ryder
and
Lord Justice Briggs
Case No: B4/2014/2790 & B4/2014/2790(B)
Mr. David Williams QC and Ms. Jacqueline Renton (instructed by Wedlake Bell LLP) for the Father
Mr. James Turner QC and Mr. Edward Devereux (instructed by Osbornes) for the Mother
Mr. Nicholas Anderson (instructed by Cafcass Legal) for the Child
Mr. Henry Setright QC and Mr. Michael Gration (instructed by Dawson Cornwell) for Reunite Child Abduction Centre
Hearing date: 20 May 2015
Introduction:
I shall call the child who is at the centre of these proceedings, David. He is now 9 years of age. He has lived with his mother in England since shortly after his birth. His father lives in Romania. On 20 June 2014, Peter Jackson J, sitting in the Family Division of the High Court, allowed an appeal by David's mother against the recognition and enforcement of an order made by the Romanian Court of Appeal in Bucharest on 27 November 2013. The effect of enforcement of that order would have been to transfer custody of David from his mother to his father. The practical effect of Peter Jackson J's order is that the Romanian decision is not recognised by the courts of England and Wales and his parents are exercising a form of shared care in this jurisdiction pending further litigation. The judgment of Peter Jackson J is reported as Re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam), [2015] 1 FLR 1272.
This appeal engages fundamental principles concerning children's litigation and prior to the full hearing before this court, I permitted 'Reunite Child Abduction Centre' ["Reunite"] to intervene to assist the court on those principles. The other parties to the appeal are David's father who is the appellant, his mother who is the first respondent and David himself, by his children's guardian. David was joined to the proceedings in the High Court on 8 May 2014 and is represented by an experienced children's guardian from the Cafcass High Court team. David's representatives oppose this appeal.
In characteristically clear terms, the judge set out a summary of his decision and the background facts which by way of an introduction, it is helpful to set out in full:
"[2] In summary:
(1) These issues concerning parental responsibility are governed by articles 21–39 of BIIR — the Council Regulation (EC) No. 2201/2003 ( Brussels II Revised Regulation 2003).
(2) Article 21(1) provides that a judgment given in a Member State shall be recognised in another Member State without any special procedure being required.
(3) Article 21(2) allows any interested party to apply for a decision that the judgment be or not be recognised.
(4) Article 23(a)-(g) sets out seven grounds on which a judgment shall not be recognised.
(5) In this case, the mother relies on grounds (a) to (d), asserting that:
(a) Recognition would be contrary to public policy taking account of David's best interests.
(b) David was not given an opportunity to be heard, in violation of the fundamental principles of procedure in this jurisdiction.
(c) She herself was not served with the father's application that led to the November 2013 decision and was not enabled to defend those proceedings.
(d) She was not given the opportunity to be heard in those proceedings.
(6) The father contests each of these grounds. David's Children's Guardian submits that recognition should be refused on ground (b) and possibly also on ground (a). She makes no submissions on the other grounds.
[3] My conclusion is that the mother succeeds under article 23(b) because David was not given an opportunity to be heard in the Romanian proceedings, and also under article 23(c) and (d) in that she was not effectively served and was not given an opportunity to be heard. I dismiss her appeal under article 23(a), the public policy ground.
[4] I also uphold the mother's complaints in relation to certain aspects of the registration procedure in this jurisdiction, but her appeal does not ultimately succeed on those grounds.
[5] At the end of the hearing, I expressed concern at the damaging effect on David's welfare of the interminable litigation between his parents. The state of affairs described below is thoroughly contrary to the spirit of the BIIR regime, which aims to ensure that decisions are made in the country of a child's habitual residence and swiftly enforced elsewhere. I hope that even now the parents will take responsibility for David's future by reaching a mediated solution.
[6] In what follows, I set out the background, the history of the litigation, the legal framework, and my analysis and conclusions in relation to each ground of appeal.
Background
[7] David's parents are both Romanian. The father is aged 36 and the mother 31. They met in 2003 while they were both working in England, the father as a builder and the mother as a cleaner. They lived together in England from 2004 until November 2007, when they separated.
[8] In the meantime, David was born. In August 2006, during his mother's pregnancy, the parents had returned to Romania to get married. The mother remained there for David's birth on 8 November 2006, with the father travelling backwards and forwards to England. The mother and David remained in Romania for a short time because of visa problems that were solved by Romania's accession to the European Union on 1 January 2007. On 10 January 2007, the mother rejoined the father in England with baby David.
[9] In November 2007, the parents separated. In 2009, the father returned to Romania, though he has maintained a second home in England, to which he returns for about 10 days each month for work and to see David.
[10] The parties' marriage was dissolved by the Romanian court in April 2008. The mother and David live alone. In January 2013, the father remarried and now has a 1-year-old daughter.
[11] Until November 2012, the father had regular contact with David in England, including overnight contact at weekends. The mother then withheld contact for reasons that have not been adjudicated upon, and David then saw almost nothing of his father until March 2014. At that point, following the mother's arrest for an alleged failure to comply with an order of this court, David was placed in the care of his father in England. At present, following a succession of temporary orders, he divides his time equally between his parents.
[12] The overall picture is that:
• The father lived in England between 2003 and November 2009. Since then he has lived in Romania, visiting England for substantial periods. Despite the acute difficulties in the parents' relationship, he has a significant relationship with David.
• The mother has lived continuously in England since 2003. She has been David's main carer since his birth. She states that she has not been back to Romania since coming here with David in January 2007.
• David has lived in England since he was under two months old, a period of 7 years 7 months in the life of a child aged 7 years 9 months. He has attended school here since September 2010. Reports from school and other sources, referred to below, are positive. He has never been back to Romania and speaks only a few words of Romanian."
As the judge remarked, litigation about David has been continuing uninterrupted since November 2007. David is habitually resident in this jurisdiction but his parents have chosen to undertake that litigation in Romania and, with only one exception, the Romanian courts have accepted jurisdiction and have made orders about David in accordance with the prorogation provisions in article 12 BIIR (see below). There are eight relevant orders which, as the judge described, had the effect of providing over time for an almost equal division of lawful (and sole) custody in each parent. David's actual care has, however, been provided by his mother in this jurisdiction although his father has visited England for substantial periods and David has a significant relationship with him.
The judge set out a detailed description of that litigation. I need not repeat it here. It is not in issue before this court and it can be read at [12] to [38] of his reported judgment. In summary, on 27 November 2013 the Romanian Court of Appeal in Bucharest allowed the father's appeal from the order of the Bucharest Law Court – Third Civil Section made on 7 March 2013. That was itself a first appeal by both parents from an earlier decision of the Bucharest District 1 County Court made on 12 December 2011.
The appeal before this court focussed on the two bases and three grounds upon which the mother succeeded before the High Court, namely, whether:
a. David was not given an opportunity to be heard, in violation of the fundamental principles of procedure in this jurisdiction; and
b. mother was neither served with the father's application that led to the November 2013 decision and was not enabled to defend those proceedings, nor was she given the opportunity to be heard in those proceedings.
The three grounds of appeal are as follows:
Ground 1: article 23(b) BIIR
"Peter Jackson J was wrong to find that article 23(b) of BIIR had been established for the following reasons—
a) Peter Jackson J was wrong in law in his approach to what in law could amount to a 'violation of fundamental principles of procedure of the Member State in which...
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