Re D (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger,Lady Hale,Lord Clarke,Lord Wilson,Lord Hughes |
| Judgment Date | 22 June 2016 |
| Neutral Citation | [2016] UKSC 34 |
| Date | 22 June 2016 |
| Court | Supreme Court |
[2016] UKSC 34
Lord Neuberger, President
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Hughes
Appellant (Father)
Richard Harrison QC Stephen Jarmain Samantha Ridley
(Instructed by Wedlake Bell Solicitors LLP)
1st Intervener (Written submissions only)
(Reunite International Child Abduction Centre)
Henry Setright QC Michael Gration
(Instructed by Dawson Cornwell)
1st Respondent (AA Mother)
James Turner QC Edward Devereux
(Instructed by Osbornes Solicitors LLP)
2nd Respondent (DD Child)
Nicholas Anderson Katy Chokowry
(Instructed by CAFCASS Legal Services)
2nd Intervener (Ministry of Justice)
Hugh Mercer QC Alistair Mackenzie
(Instructed by The Government Legal Department)
Heard on 23 May 2016
(with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hughes agree)
On 21 March 2016, this court gave a father permission to appeal against the decision of the Court of Appeal that a custody order which he had obtained in Romania should not be enforced in this country under the Brussels II (Revised) Regulation ("BIIR"), because it had been given "without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure" in this country. In the view of the panel giving permission to appeal, the judgment of the Court of Appeal raised an arguable point of law of general public importance, as to the precise extent to which it is a fundamental principle of the procedure relating to all cases about children in the courts of England and Wales that the child should be given an opportunity to be heard. This is a question of importance in all children's cases, not just those where the court here is asked to enforce a judgment given in another member state of the European Union.
However, it has now become clear that under BIIR this court has no jurisdiction to entertain such an appeal. This point was not raised by the respondent mother in her notice of objection to the application for permission to appeal. No doubt, had she done so, the court would have listed it for oral argument before deciding whether or not to give permission. In the event, once it was raised, we were able to arrange a hearing at short notice, in advance of the date set for the substantive appeal. As a point of jurisdiction, it could not be ignored, however inconveniently late in the day it was raised. We are grateful to the parties for the speed with which they have prepared their written and oral arguments and, in particular, to the Ministry of Justice, whom we asked to intervene in order to give us an account of the relevant history.
The circumstances in which this question arises are deeply unfortunate, not least because of the delays there have been, not only in Romania but also in this country, but they are largely irrelevant to the question of law which we have to decide. The child in question, DD, was born in Romania on 8 November 2006 and so is now aged nine and a half. His parents are both Romanian but met while working in this country. They returned briefly to Romania, where they got married and the child was born, but by January 2007 both parents had returned to live in this country with the child. They separated in November 2007. DD has continued to live here with his mother, his main carer, ever since. The father returned to live in Romania in 2009, but has kept a second home here and for most of the intervening years (with a long gap from November 2012 until March 2014) has shared the care of DD with the mother. He has a significant relationship with his son.
Although DD is undoubtedly habitually resident in this country, the parties chose to litigate about his future in Romania. The father issued divorce and custody proceedings there in November 2007. The couple were divorced in April 2008. The father was awarded custody of DD, but the mother successfully appealed. At the retrial, the father was again awarded custody, but first the mother and then the father successfully appealed. At a further retrial in a different court, in December 2011, the court awarded joint parental authority to both parents, while finding that DD's domicile and residence were at the mother's address in England. Both parties appealed, but their appeals were dismissed in March 2013, on the basis that joint custody is the norm and sole custody the exception. Nevertheless, the child should remain living with his mother in England, as it was not in his best interests to change his living arrangements. The father launched a further appeal, to the Bucharest Court of Appeal. Its final decision, in November 2013, was that the child should live with the father, on the basis that he could provide "the best moral and material conditions".
In February 2014, the father applied for the recognition and enforcement of this order by the English court. The result was the re-establishment of contact between father and son and a High Court-ordered arrangement that the parents share his care in this country while the father's application proceeded. On 1 May 2014, Peter Jackson J ordered that DD be made a party to the enforcement proceedings: see the summary of the history in In re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam), [2015] 1 FLR 1272. He quotes, in para 33, the reasons given in his earlier judgment. This was not so as to make inquiries as to his welfare, which would be inappropriate in enforcement proceedings, but because "D's rights as an individual child are engaged in his father's application and … whatever has happened in this case he bears no responsibility for it" (para 15). His interest was not being represented (para 16) and the facts were "egregious" (para 10) — neither the judge, nor counsel, nor the Children's Guardian had experienced a "case in which enforcement is being sought with regard to a child who has attained the age of seven and has never lived in the country from which the relevant order emanates" (para 11).
The registration of an order under BIIR is "essentially administrative, although it requires a judicial act": see In re S (Foreign Contact Order) [2009] EWCA Civ 993, [2010] 1 FLR 982, para 12. Judicial consideration of any dispute occurs at the first "appeal" stage. This came before Peter Jackson J who determined it in July 2014 (reference above). Article 23 lays down seven grounds for non-recognition. The judge rejected the mother's case on article 23(a), that recognition was "manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child". This ground is to be narrowly construed and the Bucharest decision was "not so extreme as to require recognition to be withheld on this ground" (para 74).
However, he did refuse recognition under article 23(b), which provides that a judgment shall not be recognised "if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition is sought". The Bucharest Court of Appeal's conclusion about DD's wishes and feelings, namely that "he constantly craves for [the father's] permanent presence", had not arisen from any direct or indirect enquiry involving the child himself (para 83). It had a report from a Cafcass officer in earlier enforcement proceedings when DD was two years old. It had a report from a social worker when he was five and a half, in response to the father's concerns about the mother's care. At the first-tier appeal in February 2013, the father had asked the court to hear the child, but the mother had opposed this (interestingly, given her current stance), and the court had deemed it "not useful given the age of the minor". Peter Jackson J disagreed:
"The child's entitlement to a voice is a fundamental procedural principle in our system. If he is old enough, it will be his voice and his words. An adult voice will convey the younger child's point of view. Younger children are less able to articulate their wishes, but their feelings may be more vivid than those of older children and of adults, whose views we canvass without a second thought." (para 96)
A report from a court social worker, containing the child's perspective, would be fundamental to the decision of any English court, "faced with a striking application of this kind (peremptory change of lifelong carer, country and language)" (para 103). He therefore allowed the mother's appeal on this ground. He also allowed her appeal on the grounds contained in article 23(c) (lack of service) and (d) (not giving the mother an opportunity of being heard).
The Court of Appeal dismissed the mother's cross-appeal on article 23(a), allowed the father's appeal on article 23(c) and (d), but dismissed the father's appeal on article 23(b): [2016] EWCA Civ 12, [2016] 1 WLR 2469. The question of whether and how the child's voice was to be heard in the proceedings was a separate question from the weight to be given to his wishes and feelings:
"… the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in section 1(3)(a) [of the Children Act 1989] like that in article 12(1) [of the United Nations Convention on the Rights of the Child 1989] relates to the weight to be put upon a child's wishes and feelings, not their participation." (para 44)
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