MD v CT
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 25 March 2014 |
| Neutral Citation | [2014] EWHC 871 (Fam) |
| Date | 25 March 2014 |
| Court | Family Division |
| Docket Number | Case No: FD13P02317 |
[2014] EWHC 871 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD13P02317
Mr Michael Gration (instructed by Williscroft & Co Solicitors) for the Applicant
Ms Geraldine More O'Ferrall (instructed by Pluck Andrew Solicitors) for the Respondent/Appellant
Hearing dates: 24–25 March 2014
Approved Judgment
I direct that copies of this version as handed down may be treated as authentic.
This is my judgment on a mother's appeal against orders made by District Judge Bowman on 26 February 2014 which registered, and permitted enforcement of, a judgment made by Judge Dubarry in the Tribunal de Grande Instance d'Evry, France on 18 June 2013 ("the Evry judgment"). Those orders for registration and enforcement were made pursuant to Article 28(2) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ("B2R") and FPR 2010 rules 31.8, 31.11 and 31.17. The Evry judgment followed a hearing on 4 June 2013, which the mother did not attend, and awarded the residence of ND, who was born on 9 July 2012 in France, and who therefore was then aged 11 months, to his father, with ample contact to his mother.
Linked to this appeal is an application by the father under the Hague Convention on the Civil Aspects of International Child Abduction 1980. In my decision of JRG v EB (Abduction: Brussels II Revised) [2012] EWHC 1863 (Fam), [2013] 1 FLR 203 I ventured the view that where there is a parental responsibility order made in a sister EU state the better procedural course is to apply for registration and enforcement under Chapter III of B2R rather than under the Hague Convention since under the former defences available under the latter would not be available. Here the two applications have proceeded in tandem. The main reason is legal aid. But as it happens it was right that they should have done so as there is here an arguable ground of appeal under Article 23(c) of B2R. Should that ground succeed I will be able to move straight onto the Hague application. This aspect points up the need for the court when giving directions for such an appeal to make a preliminary assessment of its strength. If it seems arguable then linkage with Hague proceedings, as has happened here, would be appropriate.
For the purposes of this appeal the following provisions of Chapter II of B2R are in play:-
"Article 23
Grounds of non-recognition for judgments relating to parental responsibility
A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
…
(c) where it was given in default of appearance if the person in default was not 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 unless it is determined that such person has accepted the judgment unequivocally;
Article 24
Prohibition of review of jurisdiction of the court of origin
The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.
…
Article 26
Non-review as to substance
Under no circumstances may a judgment be reviewed as to its substance."
These parts of Article 23 are very similar, but not identical, to the corresponding provisions in Article 34 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Judgments Regulation). These provide:-
"Article 34
A judgment shall not be recognised:
1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought;
2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so 1."
It can be seen that the public policy ground is qualified in B2R by the addition of the phrase "taking into account the best interests of the child". The conjunctive final phrase in the service ground is different in the two Regulations. In the Judgments Regulation it is "unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so"; in B2R it is "unless it is determined that such person has accepted the judgment unequivocally". In this case the difference may prove to be important.
Plainly, decisions of the CJEU and of our domestic courts concerning these parts of Article 34 of the Judgments Regulation are going to be highly relevant when seeking to explicate Article 23, but in examining any such decisions the differences which I have identified must be fully borne in mind.
It is also worth noting that the equivalent defence in Art 9(1)(a) of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children (the Luxembourg Convention), which is incorporated in our law by Schedule 2 to the Child Abduction and Custody Act 1985, but which is now almost obsolete, has a yet different final conjunctive proviso. This states:
"in the case of a decision given in the absence of the defendant or his legal representative, the defendant was not duly served with the document which instituted the proceedings or an equivalent document in sufficient time to enable him to arrange his defence; but such a failure to effect service cannot constitute a ground for refusing recognition or enforcement where service was not effected because the defendant had concealed his whereabouts from the person who instituted the proceedings in the State of origin"
Again, had this proviso been in play in this case I suspect that the outcome would have been different.
CJEU and domestic decisions made under the Judgments Regulation show that a successful invocation of the public policy ground will be a very difficult challenge indeed. A criterion of exceptional circumstances applies, which is hardly surprising given that the ground of being contrary to public policy is stressed by the adverb "manifestly". Even fraud may not suffice, as the better remedy is to apply for revocation in the original court – see Interdesco SA v Nullifire Ltd [1992] 1 Lloyd's Rep 180. A judgment obtained in defiance of an English anti-suit injunction will likely offend our notion of public policy – see Philip Alexander Securities and Futures Ltd v Bamberger [1997] I.L.Pr 73, but contrast Golubovich v Golubovich [2011] Fam 88 where a Russian divorce was recognised notwithstanding that it had been obtained in breach of an English anti-suit injunction. Differences in substantive law will not suffice to invoke the ground. Article 35 of the Judgments Regulation and Article 24 of B2R specifically forbid a challenge to the jurisdiction of the original court on the ground of public policy.
As I have mentioned the public policy ground has been augmented in B2R by the qualifying phrase "taking into account the best interests of the child". All EU countries apply the paramountcy of the best interests of the child as the governing principle. The question whether a registering court can examine the application of that principle by the original court has been considered in a number of domestic cases. In Re S (Brussels II: Recognition: Best Interests of Child) (No. 1) [2004] 1 FLR 571 Holman J accepted that "it is possible to contemplate a situation in which an order of the foreign court is so contrary to the welfare of the child concerned that it would be possible to conclude that its recognition was manifestly contrary to the public policy of our State", but concluded on the facts that that hurdle was not surmounted. In W v W (Residence: Enforcement of Order) [2005] EWHC 1811 Singer J held that "the use of the word "manifestly" connotes a very high degree of disparity between the order's effects if now enforced and the child's current welfare interests, and that disparity must be wrought by the changed circumstances". In LAB v KB (Abduction: Brussels II revised) [2010] 2 FLR 1664 Wood J was of the view that cases where such a situation would arise would be "extremely rare, and that the consequences for the children of recognition and enforcement … would have to be of the utmost seriousness".
I turn to the service ground. There are no cases under B2R concerning this ground but there are a fair few under the Judgments Regulation. There are three stages to the establishment of this defence. The first stage is to establish that the judgment "was given in default of appearance". This does not mean merely that the defendant/respondent was physically absent. In Tavoulareas v Tsavliris & Ors [2006] EWCA Civ 1772 [2007] 1 WLR 1573 Longmore LJ explained at paras 11–16 that if a defendant has lodged a formal document defending the proceedings or challenging the jurisdiction then he will have "appeared" even if he absents himself from the trial. He stated at para 13 "if he chooses not to be present he will not, in one sense, have "appeared". But if he has already chosen to take part in the proceedings by defending them or even by challenging the jurisdiction, he may (in some legal systems) be said to have...
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