Re P (Recognition and Registration of Orders Under the 1996 Hague Child Protection Convention)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moylan |
| Judgment Date | 30 April 2014 |
| Neutral Citation | [2014] EWHC 2845 (Fam) |
| Date | 30 April 2014 |
| Court | Family Division |
| Docket Number | Case No: FD14P00567 |
[2014] EWHC 2845 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
Courtroom No. 40
The Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Moylan
Case No: FD14P00567
THE MOTHER appeared In Person
Application for Registration
This is an application for the registration of an Order made in The Family Court of Australia by the Honourable Justice Bennett under the Family Law Act 1975. The application for registration is made pursuant to the provisions of the 1996 Hague Child Protection Convention (the full title of which is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children) ("the 1996 Convention").
I am giving this judgment to explain the procedure available when an application for recognition or registration is made pursuant to the 1996 Convention to the courts of England and Wales.
The application is made by a father who is resident in Australia. He is neither present nor represented. Pursuant to a notice of hearing issued by this court the mother has attended today in person. She has indicated that she agrees to the registration of the relevant provisions of the Australian Court's Order pursuant to the 1996 Convention so that those provisions are treated by this court as though they had been made by a court in England and Wales. Given that the mother agreed to the Order being registered, I determined the application at the hearing. This is my approved judgment.
Background
The brief background is as follows: on the 6 th June 2013 the Honourable Justice Bennett made a consent Order in the Family Court of Australia sitting at Melbourne ("the Order"). Under the Order the mother is given permission to relocate the residence of the parties' child to the United Kingdom as from December 2013. There are included within the Order a number of provisions stipulating what time the child will spend with the father and what other forms of contact will take place following the child's relocation to England.
The Order specifically provides that the parents will take all steps necessary to procure the recognition of the Order in England and Wales. In addition, pursuant to my responsibilities as one of the two judges for England and Wales (with Lady Justice Black) designated to the International Hague Network of Judges ("the IHNJ"), I was made aware of the Order in this case by Justice Bennett (who is, with the Honourable Chief Justice Bryant, designated to the IHNJ for Australia). She requested my assistance in seeking to procure the registration of the Order.
Regrettably, very considerable delays were then encountered. These were caused by a number of factors including, but not limited to, establishing whether any fee would be payable in respect of the application for registration and whether the application could be made by email. It was surprising that the process appeared to lack clarity, given that a registration process for orders has been in existence for many years, and it certainly did not create the appearance of being a "simple and rapid procedure" as required under the 1996 Convention (as referred to below). It was ultimately determined that no fee is payable and I made arrangements for the application to be accepted by email.
The unsatisfactory nature of these delays, which did not reflect well on the courts of England and Wales, caused me, unusually and not in accordance with the rules, to list the application for hearing before me to enable me to address these broader issues in a judgment. I provide practical guidance in paragraphs 34 to 38 below.
The 1996 Hague Child Protection Convention
The 1996 Convention came into force in the United Kingdom on 1 st November 2012, following its ratification on 27 th July 2012. It is directly effective pursuant to the European Communities Act 1972, section 2 and SI 2010 No. 232. Additional provisions, dealing with the manner in which the 1996 Convention has been implemented and to assist with its operation in this jurisdiction, have been made by the Parental Responsibility and Measures for the Protection of Children (International Obligations)(England and Wales and Northern Ireland) Regulations 2010 ("the 2010 Regulations").
There are a number of guides to the operation of the 1996 Convention, in particular: Paul Lagarde's Explanatory Report on the 1996 Hague Child Protection Convention ("the Lagarde Report") ( http://www.hcch.net/upload/expl34.pdf); a Practical Handbook on the operation of the 1996 Convention published by the Permanent Bureau ("the Practical Handbook") ( http://www.hcch.net/upload/handbook34en.pdf); and The 1996 Hague Convention Practice Guide published by the Ministry of Justice ( http://www.justice.gov.uk/downloads/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit/1996-hague-convention-guide.pdf). States which have ratified the 1996 Convention can be found at hcch.net.
The relevant provisions of the 1996 Convention, for the purposes of this judgment, are contained in Chapter IV, Recognition and Enforcement:
"Article 23
(1) The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.
(2) Recognition may however be refused –
a) if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II; b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State; c) on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard; d) if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child; e) if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State;
f) if the procedure provided in Article 33 has not been complied with.
Article 24
Without prejudice to Article 23, paragraph 1, any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State.
Article 25
The authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction.
Article 26
(1) If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State.
(2) Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure.
(3) The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 23, paragraph 2.
Article 27
Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken.
Article 28
Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child.
The Convention refers to measures but in this judgment I use the word order.
It is important to note that, pursuant to the above provisions (Art 23(1)), an order is recognised automatically in England and Wales without any steps having to be taken by any party. However, although recognition is automatic, there is scope for one party to seek to challenge recognition under Art 23(2), without limit of time. Such a challenge could, for example, be mounted when an application is made under Art 26. This issue is addressed in the Practical Handbook (derived from the Lagarde Report para 129):
"10.17 Since recognition of measures from other Contracting States occurs by operation of law, it is only at the time when the measure is invoked that a possible dispute over the existence of a ground for non-recognition may be the subject of a ruling. It may cause inconvenience and hardship to have to wait until this point for a determination of whether or not an order can be recognised, and various people may have a legitimate interest in dispelling any doubt which may exist about recognition. Therefore, an interested person can apply to the competent authority of a Contracting State for a decision regarding the recognition of measures taken in another Contracting State."
Since the hearing in this case, Justice Bennett has given comprehensive guidance on the manner in which the provisions of the 1996 Hague Convention have been implemented in Australia in Merrick & Wellington [2014] Fam CA 514.. Although it post-dates the hearing, I propose to refer to her judgment in this approved judgment. As in the...
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