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Home > Judgments > 2014 archive

MD v AA & Another [2014] EWHC 2756 (Fam)

Appeal against orders recognising and registering decision of Romanian Court under Article 21(2) BIIR – appeal allowed under Articles 23(b), (c) and (d)

The child, now aged 7, had been the subject of long-running litigation between his parents in Romania, which had continued since November 2007. The parents were both Romanian and had met in 2003 when both working in England. They were in a relationship between 2004 and 2007 and the child was born in November 2006. Notwithstanding that the child had always lived in England, the parties had chosen to litigate about him in Romania and the Romanian Court had, with one exception, entertained the litigation. Over the course of six years, there had been eight main orders in respect of the custody of the child, with every previous order being the subject of an appeal or re-hearing, some awarding custody to the mother and some to the father.

The final order within the proceedings in Romania was made in the Bucharest Court of Appeal on 27 November 2013, which had established the child's residence with the father. The father then applied in England on 5 February 2014 for the recognition and registration of the order of 27 November 2013 and his application was granted. An order was made on 6 February for the disclosure by the mother of the child's whereabouts. A number of further hearings took place between February and May 2014 concerning the enforcement of the order, the result of which was that the child was initially placed in his father's care, and by May 2014 was spending roughly equal amounts of time with the mother and the father.

At a hearing on 1 May 2014 Peter Jackson J joined the child as a party, not so that any enquiries could be made into his welfare by a Guardian, but rather so that legal argument could be presented on his behalf. Peter Jackson J commented that the joinder of the child had been very much in the same spirit in which the child was joined in the Court of Appeal decision of Re H (Jurisdiction) [2014] EWCA Civ 1101.

On 18 June 2014 the mother lodged an appeal against the registration orders. She also commenced fresh custody proceedings in Romania, which were listed for a first hearing in September 2014 and which, the Court was informed, could be lengthy.

Peter Jackson J set out the legal principles which applied to applications for registration of foreign orders under BIIR. Issues concerning parental responsibility are governed by Articles 21-39 of BIIR - the Council Regulation (EC) No. 2201/2003 (Brussels II Revised Regulation 2003). 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. Article 21(2) allows any interested party to apply for a decision that the judgment be or not be recognised. Article 23(a)-(g) sets out seven grounds on which a judgment shall not be recognised. 

In this case, the mother relied on grounds (a) to (d), asserting that:

(a) Recognition would be contrary to public policy taking account of David's best interests.

(b) The child 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.

A further ground to the mother's appeal was that there had been serious shortcomings in the process of registration of the order.
 
Peter Jackson J held that the mother's appeal succeeded under Article 23(b) because David was not given an opportunity to be heard in the Romanian proceedings (see paragraphs 75 to 104). The decision of the Romanian Court had not been taken in urgency and there had been no recent and independent source of information about the child's wishes and feelings before the Romanian Court when the order was made. He also allowed the appeal under Articles 23(c) and (d) in that the mother was not effectively served and was not given an opportunity to be heard (see paragraphs 106 – 124). 

The mother's appeal under Article 23(a), i.e. public policy, was dismissed (see paragraphs 69 – 74). Although a transfer of the child to the father's care would be painful and might be damaging, the father did have a substantial relationship with the child and there were no concerns about his abilities as a parent. The decision of the Romanian Court was not so extreme as to warrant the withholding of recognition under Article 23(a).

Turning to the further ground in relation to the registration procedure, Peter Jackson J held that there had been procedural shortcomings for which neither parent bore responsibility. He held that the order of 7 February 2014 must be set aside owing to four procedural failures: (i) there had been no judgment (original or translation) exhibited to the application (ii) there had been no Annex II certificate, (iii) there was no service of the application on the respondent and (iv) time for enforcement had been abridged when there had been no urgency. These procedural defects had been noted at the hearing on 1st May and Peter Jackson J had given the father another opportunity to apply for registration, which he did and a further registration order was made on 19th May. Although there had also been some procedural defects with this order, none had any practical effect on the case and Peter Jackson J held that he would not allow the appeal against the order of 19th May on this particular ground.

Peter Jackson J's order was therefore that in the case of both orders, recognition must be refused under Article 23(b), (c) and (d) and that the order of 7th February must be quashed for procedural defects.

He directed that his judgment be sent to the Central Family Court in order that urgent attention could be given to the operation of the registration process there.

Summary by Thomas Dudley, barrister, 1 Garden Court Family Law Chambers

__________


IN THE HIGH COURT OF JUSTICE Case No: FD08P01701
FAMILY DIVISION
Neutral Citation Number: [2014] EWHC 2756 (Fam)

Date: 31 July 2014
Before :

THE HONOURABLE MR JUSTICE PETER JACKSON
Sitting at the Royal Courts of Justice
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Between :

MD Applicant

 -and- 

(1) AA
(2) DD (by his Children's Guardian Respondents
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Jacqueline Renton (instructed by Wedlake Bell LLP) for the Applicant Father
Edward Devereux (instructed by Osbornes) for the First Respondent Mother
Nicholas Anderson (instructed by Cafcass Legal) for the Second Respondent Child

Hearing dates: 19 and 20 June
Judgment date:   31 July 2014
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JUDGMENT: 
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the persons concerned must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

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Mr Justice Peter Jackson:
1. This is an appeal against English orders recognising and registering a decision of the Bucharest Court of Appeal dated 27 November 2013 at the conclusion of proceedings that had continued in Romania for six years to the day.  The Court of Appeal ordered that the custody of David, a seven-year-old boy who has lived with his mother in England since the age of eight weeks, should be transferred to his father in Romania.  The order was registered for enforcement in this jurisdiction and the mother has appealed.  At the end of a hearing that took place on 19-20 June, I informed the parties that recognition of the Romanian order would be refused.  This judgment contains my reasons. 

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. 

PROCEEDINGS ABOUT DAVID
13. These have continued uninterrupted since November 2007.  Even though David has been habitually resident in England since arriving here, his parents have chosen to litigate about him in Romania and the Romanian court has, with one exception, entertained their litigation.  In broad terms, there have been eight main orders over the last six years, with every previous order being subject to appeal or to a rehearing.  The effect of this has been that in the eyes of the Romanian court David has been lawfully in his mother's care for three periods totalling 3½ years, while custody has been awarded to his father for four periods totalling 3 years.  This situation does not reflect David's actual experience, which has until recently been that he has lived in the continuous care of this mother, but it means that his legal status has been perpetually provisional.  One obvious detriment is that he has been unable to go to and from Romania, with the loss of the family contacts and cultural experiences that he might have enjoyed had the legal position ever been resolved.

14. I turn to the detailed narrative.  On 22 November 2007, following the parents' separation, the father returned to Romania to begin legal proceedings.  On 27 November 2007, he issued an application for divorce and custody. 

15. On 4 April 2008, the Onesti County Court dissolved the parties' marriage and awarded custody to the father, a decision based on the father's case that the mother was not interested in caring for David.  The mother did not participate in those proceedings.

16. On 18 August 2008, the father applied to this court to register the Romanian order.  A series of hearings took place here.

17. In the meantime the mother appealed in Romania on the basis that she was living in England and had not been properly served with the father's Romanian application.  On 2 February 2009, her appeal was allowed by the Bacau County Court and the case was sent for a retrial. 

18. As a result, the English proceedings became dormant, the last order being one made on 27 August 2009 concerning the father's contact.

19. The matter came again before the Onesti County Court, which again granted custody to the father on 8 December 2009.  On this occasion it did not find that the mother was not interested in David, but rather that the father was in a better material position to bring him up. 

20. On 10 May 2010, the mother appealed again to the Bacau County Court.  Again, her appeal was allowed, the court finding that in view of the fact that the parties' last common address was in England, jurisdiction lay with the English court.

21. The father appealed to the Bacau Regional Court of Appeal against this decision, and on 13 April 2011 his appeal was allowed.  The court found that the Romanian court had jurisdiction on the basis that the parties are Romanian citizens.  The matter was sent for rehearing to the Bucharest District 1 Court.

22. On 12 December 2011, the Bucharest District 1 Court awarded joint parental authority to both parties with David's domicile and residence being found to be at the mother's address in England.  Both parties' applications for exclusive custody were refused.

23. Both parties appealed against this order.  On 7 March 2013 (sic) their appeals were dismissed by the Third Civil Section of the Bucharest Court on the basis that joint custody is the rule and sole custody the exception.  The court stated:

The Court considers, given the evidence presented, namely documents and witnesses, that it is in the interests of the child to establish his domicile at the mother because she took care of raising the minor, took him to kindergarten, took him to the doctor, all these aspects resulting from the social investigation report carried out by the authorities in England.  Furthermore, the minor is fond of his mother, was all the time with her, and grew up in England, so the Court considers that it is not in his interest to change his living.

24. Between mid-2008 and the above hearing in 2013, both parties had participated and had been legally represented in the Romanian proceedings.

25. On 11 June 2013, the father appealed again, on this occasion to the Bucharest Court of Appeal.  Several hearings took place, described more fully below, leading to a final and irrevocable decision on 27 November 2013.  Allowing the father's appeal in part, the Court established David's residence with the father.  The Court of Appeal did not receive any further evidence and based its decision on the information that had been available to the lower court in March 2013 and before.

26. The material part of the judgment of the Court of Appeal is as follows:

"The [father] invoked, throughout the appeal, both moral and financial reasons why the minor should not live with his mother.

The Court considers that the minor, given the disagreement of the parties, should live with the parent who can provide the best moral and material conditions…

Or, the Court, based on the evidence brought before it, finds that the defendant does not meet the financial conditions required for raising the minor David. 

Firstly, the Court will acknowledge that the defendant did not prove that she has the right to work in England, the country where she is currently living and where she intends on staying in the future with David; furthermore, the defendant did not prove that she generates income from legal activities performed in England. 

[Reference to the mother having filed proof of earnings on the notepaper of a company that had been dissolved.]  Apart from this ... the respondent did not bring any other evidence which would confirm that she had another legal income.  Therefore, the Court considers that the respondent does not have the appropriate financial possibilities to meet the financial conditions required for raising the minor David.

Secondly, the respondent did not prove that she has a home either in [England] or in Romania where she could live with that child.

[Reference to a possession order said to have been made against the mother for rent arrears and antisocial behaviour]  This situation was proven de facto by the appellant and it was not challenged or refuted by any evidence whatsoever by the defendant.

Furthermore, the Court finds that the respondent does not own a home in Onesti, Romania, her home town either ... therefore the Court estimates that she cannot provide the minor with a suitable place to live in.

On the other hand, the Court finds that the appellant fully proved by means of the evidence brought before the Court that he can provide the minor with a safe home and material conditions suited for raising him.

The appellant is able to provide the minor with her home both in [England], where he has rented a flat, and in Romania, in the town of Onesti.

The appellant has a certain income, as proven within the case file, since he is engaged in profitable businesses both in Romania and England.

As for the moral conditions the two parents may provide the child with, the Court finds that the pieces of evidence are contradictory on the matter, given that the appellant cannot prove beyond any doubt the defendant's antisocial behaviour in relation to the minor David.

Also considering that the minor David has a very good relationship with his father, given that he constantly craves for the latter's permanent presence, the Court sees it is still the best interest of the minor for him to live with his father.

27. On 5 February 2014, and again on 16 May, the father applied within the previous English proceedings for the recognition and registration of the order of 27 November 2013 and his applications were granted.  The unsatisfactory course of those applications is described below.  On 18 June, the mother lodged a formal appeal against the registration orders.

28. It will be recalled that there had been a lengthy interruption in David's contact with his father, which had been withheld by the mother for over a year.  The revival of proceedings in England had a dramatic effect on that situation.  At a hearing on 6 February 2014, orders were made for the disclosure by the mother of David's whereabouts.  On 27 February, the mother was arrested by the Tipstaff and brought before Mr Justice Moor for alleged non-compliance with those orders.  He listed the matter for hearing on 3 March and in the meantime ordered that David was to live with the father.

29. On 3 March, Mr Justice Moylan found that the alleged breaches of the disclosure order were not proved.  He ordered that David was to continue to live with the father but introduced extensive contact for the mother.  Amongst other orders, he directed a report from the CAFCASS High Court Team into David's schooling and accommodation.

30. The mother attempted, unsuccessfully, to appeal the part of the order of providing for David to live with the father, permission being refused on 18 March.

31. On 4 April, Mrs Justice Eleanor King heard evidence from the CAFCASS officer, Ms Lillian Odze, and directed a regime of shared care for David. 

32. At a hearing on 1 May, at which the mother appeared in person, I took the unusual step of joining David as a party, with Ms Odze as his Children's Guardian, so that legal argument could be presented on his behalf.  (I made clear that a welfare enquiry was not to be carried out at that stage.)  I increased the time spent by David with his mother so that the parents' share of time is now equal. 

33. In joining David as a party, I said this, having referred to the parties' agreement that the hearing should be adjourned to allow for the mother to be represented:

9.  However there is another suggested basis for the matter being adjourned which is not agreed on the father's part but is sought on behalf of the mother and supported by the CAFCASS officer, Ms Odze, who has been present throughout today's hearing.  That emanates from a suggestion of my own: that, regardless of the mother's position, D's position requires legal articulation and that can best be achieved by joining him as a party to the father's application.

10.  As to that, for reasons I understand and respect, Ms Renton argues that there should not be an order joining D.  She observes, and she may be right, I do not know, that there is no precedent for a child being joined as a party to an application for registration, recognition or enforcement under Brussels II, but that does not much weigh in the balance of my thinking because the facts of this case are egregious.

11.  I do not want to say anything about the merits of any arguments or circumstances but the collective experience of Ms Renton, Ms Odze and myself, which together runs to some years, does not include 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.

12.  More substantial, in my mind, is Ms Renton's apt reminder that an application for the enforcement of an order in these circumstances is a strict technical procedure, in which welfare pays either no role or only a contingent role, referring specifically to the drafting of Article 23(a).

13.  The proceedings, says Ms Renton, are not analogous even to Hague Convention proceedings where welfare is at least a consideration, and any order placing David in a position where his welfare interests were going to be investigated, presented and urged would be quite inappropriate here.  Ms Renton might also, I think, have added that the procedure for registration and enforcement of an order of this kind is normally a short and sharp process and so any addition of a child as a party would need to be an exceptional step.

14.  Ms Renton has referred me to the Supreme Court Decision of LC (Children) [2014] UKSC 1, which I note is mentioned by the Court of Appeal in a decision today entitled Re KP (A Child) [2014] EWCA 554 with regard to hearing children in Hague Convention proceedings. I have particular regard to Lord Wilson's opinion at paragraphs 50, 53 and 55, discussed during this hearing.

15.  So I agree with Ms Renton that it could not be a proper purpose of joining the child to such an application to make enquiries into his welfare and to urge any conclusions arising therefrom; nor could it be a proper process to fill a gap left by the mother herself not being represented.  However that is not what I have in mind at all.  It is clear law that David's rights as an individual child are engaged in his father's application and that whatever has happened in this case he bears no responsibility for it.

16.  I have regard to the guidance contained in Practice Direction 16A, paragraph 7.2, as guidance not as a directive, and there I note that one reason for justifying the unusual course of appointing a guardian is that the child has a standpoint or interest inconsistent with, or incapable of being represented by any of the adult parties.  I do not see, at the moment, where David's interest in this application is being represented.

17.  I also note as another relevant consideration that Ms Odze, having consulted with her legal officer, Ms Carew, invites me to take this step.  David's interests in this matter are not simply matters of detached principle.  The consequence of the fathers application succeeding would be profound for him, even if it might be in his interests, and I am therefore satisfied that this is, on its exceptional facts, an entirely exceptional case for the appointment of a Children's Guardian and I so appoint Ms Odze.  However, in doing so, I make clear what is already obvious to the parties, namely that there will be no further welfare investigation into this matter pending the further hearing unless circumstances arise that lead the Guardian to feel that such further information-gathering is necessary.

18.  Likewise I make clear that the particular function of the Children's Guardian by this appointment is expected to be the protection of David's legal interests when matters come to be considered.  As to those, the central issue at the next hearing is whether recognition and/or enforcement of the Romanian order of the 25th November should be refused under Article 23 (a) and/or Article 23 (b) of the Council Regulation.

34. Since my preliminary ruling and the appeal hearing, I note the decision of the Court of Appeal in Re H (Jurisdiction) [2014] EWCA Civ 1101, handed down on 29 July 2014, in which Black LJ discussed the joinder of a child at the appeal stage:

12. Where both parents participate in litigation concerning their children, the court can be sure to receive at least two points of view as to what is in the children's best interests and, if there is any legal argument that can legitimately be advanced in support of the rival contentions, it will be presented. Where, as here, there is only one active party to the litigation, the case (factual and legal) is inevitably presented in accordance with that party's view of the children's interests, which may or may not be the only perspective.  In the absence of any argument from the mother to counter the father's presentation, there was therefore a risk in this case that what was actually in the children's best interests would not emerge and that the arguments, legal and factual, that would further those interests may be overlooked. It was for that reason that I decided, as I said in my earlier judgment, that in their interests they should be represented separately in the appeal.

13. This does not presage the frequent joinder of children as parties at the appeal stage, nor is it intended to send a message that whenever only one of the parents appears in proceedings, whether at first instance or on appeal, the children should be joined. My decision was a decision taken on the particular facts of this case. 

35. My decision in relation to the joinder of David as a party to these proceedings was made very much in the same spirit.
 
36. The appeal ultimately came on for final hearing on 19 and 20 June.  I heard legal argument of high quality from Ms Jacqueline Renton for the father, Mr Edward Devereux for the mother, and Mr Nicholas Anderson for David. 

37. The mother has even now started fresh custody proceedings in Romania, which are listed for first hearing on 2 September. If they continue, they may be lengthy.

38. I describe the course of the 2014 English proceedings below.

LEGAL FRAMEWORK
39. I shall set out the relevant provisions of Chapter III of the BIIR Regulation concerning recognition and enforcement and of Part 31 of the Family Procedure Rules 2010 ("the FPR"), the regime by which the regulation is given domestic effect.  

Recognition under BIIR
40. The effect of the Regulation is that a judgment given in another Member State will be recognised unless a reason for non-recognition is demonstrated, and will thereafter be enforceable provided the registration process that exists in this jurisdiction is followed. 
 
41. The core principle of mutual recognition is set out in Article 21:

1  A judgment given in a Member State shall be recognised in the other Member State without any special procedure being required.



3  Without prejudice to section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised
.

42. The spirit in which recognition is to be approached appears from Preamble 21 to the Regulation, which states:

The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required.

43. Article 26 bolsters this by providing that:

Under no circumstances may a judgment be reviewed as to its substance.

44. However, Article 23 sets out the grounds of non-recognition for judgments relating to parental responsibility.  The article can be seen as a pressure valve that will operate in circumstances where automatic recognition might otherwise lead to an unacceptable result.  Of the seven grounds, the first four are relevant in this case:

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;

(b)  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;

(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;

(d)  on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;

(e)  if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;

(f)  if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.
or

(g)  if the procedure laid down in Article 56 has not been complied with.

45. Preamble 19 concerns the importance of the voice of the child:

The hearing of the child plays an important role in the application of this Regulation, although this instrument is not intended to modify national procedures applicable.

46. Preamble 20 provides for hearing a child by means of the Evidence Regulation:

The hearing of a child in another Member State may take place under the arrangements laid down in Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

47. Article 28 concerns the declaration of enforceability, with a specific provision for a system of registration in the United Kingdom:

1  A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.

2  However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland or in Northern Ireland only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

48. Article 30 provides that :

1  The procedure for making the application shall be governed by the law of the Member State of enforcement.

3  The documents referred to in Articles 37 and 39 shall be attached to the application.

49. Article 39 specifies the documents that the state of origin must provide:

The competent court or authority of a Member State of origin shall, at the request of any interested party, issue a certificate using the standard form set out in the Annex I (judgments in matrimonial matters) or in Annex II (judgments on parental responsibility).

50. Article 31 provides for an early decision to be taken and for the process to be one-sided in the first instance:

1  The court applied to shall give its decision without delay.  Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application.

2  The application may be refused only for one of the reasons specified in Articles 22, 23 and 24.

3  Under no circumstances may a judgment be reviewed as to its substance.

51. Article 32 provides for notification of the decision to be given to the applicant:

The appropriate officer of the court shall without delay bring to the notice of the applicant the decision given on the application in accordance with the procedure lain down by the law of the Member State of enforcement.

52. Article 33 provides an appeal mechanism for the respondent:

1  The decision on the application for a declaration of enforceability may be appealed against by either party.

2  The appeal shall be lodged with the court appearing in the list notified by each Member State to the Commission pursuant to Article 68.

5  An appeal against a declaration of enforceability must be lodged within one month of service thereof. If the party against whom enforcement is sought is habitually resident in a Member State other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him or his residence.  No extension of time may be granted on account of distance.

Procedure for recognition and enforcement
53. Article 47 provides for enforcement as if the order had been made domestically:

1.  The enforcement procedure is governed by the law of the Member State of enforcement.

2.  Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.

54. Part 31 of the FPR lays down the procedure for registration of orders under BIIR and the Hague Convention 1996 and certain other regulations.  It is a detailed code designed to ensure that incoming requests are efficiently processed.  

55. Rule 31.4 provides that:

(1)  Any interested person may apply to the court for an order that the judgment be registered, recognised or not recognised.

(2)  Except for an application under rule 31.7, an application for registration, recognition or non-recognition must be –

(a)  made to a district judge of the principal registry; and

(b) in the form, and supported by the documents and the information required by a practice direction.

56. Practice Direction 31A, paragraph 2.2 provides that:

All applications to which 31.4(2) applies must be supported by a statement that is sworn to be true or an affidavit exhibiting the judgment, or a verified, certified or otherwise duly authenticated copy of the judgment.  In the case of an application under the Jurisdiction and Recognition of Judgments Regulations, the 2014 Regulations, or the 1996 Hague Convention, a translation of the judgment should be supplied.

57. PD paragraphs 3.1 and 3.2 state:

An application for a judgment to be registered, recognised or not recognised under the Council Regulation must be accompanied by a witness statement or an affidavit exhibiting the following documents and giving the information required by 3.2 or 3.3 below, as appropriate.

In the case of an application for recognition or registration –

(a) the certificate in the form set out in Annex I or Annex II of the Council Regulation, issued by the Member State in which judgment was given;
 
(b) in the case of a judgment given in default, the documents referred to in Article 37(2);

58. Article 37 of BIIR provides:

1  A party seeking or contesting recognition or applying for a declaration of enforceability shall produce:

(a) a copy of the judgment which satisfies the conditions necessary to establish its authenticity; and

(b) the certificate referred to in Article 39.

2  In addition, in the case of a judgment given in default, the party seeking recognition or applying for a declaration of enforceability shall produce: (a) the original or certified true copy of the document which establishes that the defaulting party was served with the document instituting the proceedings or with an equivalent document; or (b) any document indicating that the defendant has accepted the judgment unequivocally.

59. Article 38 provides that:

1  If the documents specified in Article 37(1)(b) or (2) are not produced, the court may specify a time for their production, accept equivalent documents or, if it considers that it has sufficient information before it, dispense with their production.

60. Rule 31.5 of the FPR provides that:

(1) Except as regards a copy of a judgment required by Article 37(1)(a) of the Council Regulation, where the person making an application under this Part does not produce the documents required by rule 31.4(2)(b) the court may –

(a) fix a time within which the documents are to be produced;

(b) accept equivalent documents; or

(c) dispense with production of the documents if the court considers it has sufficient information.

61. Rule 31.6 provides that after an application has been made

… the court may (subject to the requirements of the Council Regulation) give such directions as it considers appropriate …

62. Rule 31.8 provides that:



(2) Where the application is made for an order that the judgment should be registered –

(a)  upon receipt of the application, and subject to any direction given by the court under 31.6, the court officer will serve the application on the person against whom registration is sought;

(b) the court will not accept submissions from either the person against whom registration is sought or any child in relation to whom the judgment was given.

63. Rule 31.11 provides that:

(1) Where the court has –

(a) made an order on an application for an order that a judgment should be registered for enforcement

the court officer will as soon as practicable take the appropriate action under paragraph (2) or (3).

(3)  If the court orders that the judgment should be registered for enforcement, the court officer will –

(a)  register the judgment in the central index of judgments kept by the principal registry;

(b)  confirm on the order that the judgment has been registered; and

(c)  serve on the parties the court's order endorsed with the court's confirmation that the judgment has been registered.   

64. The register of judgments is a secure volume kept at the Central Family Court.   Entry of the order is the final stage of the application.  The book contains details of the country of origin of the order, the date the order was made, the applicant, the registration date and number and the name of the judge who ordered the registration. 

65. Rule 31.12 provides that:

Registration of a judgment under rule 31.11 will serve for the purpose of Article 21(3) of the Council Regulation, Article 24 of the 1996 Hague Convention, regulation 7 of the Jurisdiction and Recognition of Judgments Regulations or regulation 5 of the 2014 Regulations (as the case may be) as a decision that the judgment is recognised. 

66. Rule 31.15 provides that:

(1) An appeal against the court's decision under rules 31.10, 31.11 or 31.14 must be made to a judge of the High Court –

(a) within one month of the date of the service of the notice of registration; or
 
(b) if the party bringing the appeal is habitually resident in another Member State, or a Contracting State, within two months of the date of service.

67. Rule 31.17 provides that:

(1) Subject to paragraph (1A), the court will not enforce a judgment registered under rule 31.11 until after –

(a) the expiration of any applicable period under rules 31.15 or 31.16; or

(b) if that period has been extended by the court, the expiration of the period so extended.

(1A) The court may enforce a judgment registered under rule 31.11 before the expiration of a period referred to in paragraph (1) where urgent enforcement of the judgment is necessary to secure the welfare of the child to whom the judgment relates.  

THE GROUNDS OF APPEAL
68. On behalf of the mother, Mr Devereux challenges the recognition of the Romanian order under the first four limbs of Article 23 and on the basis of shortcomings in the process of registration and re-registration.  I will address these arguments in turn.  Some of them range widely and raise issues that may require determination on another occasion.

The mother's grounds of appeal under Article 23(a)-(d)
Article 23(a)
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;

69. Mr Devereux did not train his bigger guns on this issue but he and Mr Anderson, on behalf of David, argue that this is a wholly exceptional situation.  A seven-year-old boy who has only ever lived with his mother has been transferred not only away from her care but also from the only environment he knows.

70. The proper approach to this provision is set out in Re L (Brussels II Revised: Appeal) [2013] 1 FLR 430, where the Court of Appeal, through Munby LJ at [46], said this:

Article 23(a), in my judgment, contains a very narrow exception and, consistently with the entire scheme of BIIR and with the underlying philosophy spelt out in Recital (21), sets the bar very high.

71. The Court of Appeal conducted a review of domestic decisions and of the CJEU case of Krombach v Bamberski (Case C-7/98) that I need not repeat, except to note that in the latter case at paragraph [37] the European Court stated that:

Recourse to the public policy clause in article 27(1) of the Convention [in that case Brussels 1] can be envisaged only where recognition or enforcement of the judgment delivered in another contracting state would be at variance to an unacceptable degree with the legal order of the state in which enforcement is sought in as much as it infringes a fundamental principle.

72. The authorities caution against an application of the public policy clause (even one that takes account of the interests of the child) that crosses the prohibited line and becomes a review of the original decision.

73. I agree with Ms Renton that this case does not engage Article 23(a).  It is of course possible to envisage a decision so ridiculous in child welfare terms that it would offend public policy.  For example, this might arise if the beneficiary of the order was a gangster, a drug addict or a paedophile.  Such a decision would be so offensive to the court's conscience that the article would most likely be engaged.  Here, however, even though a change in custody and country would be painful and might be damaging, David has a substantial relationship with his father and the mother has not raised any concerns about the father's abilities.  Romania is the country of origin of both parents and the country of residence of both sets of grandparents.  If the mother were unable to care for David for any reason, he would almost certainly pass into his father's care.

74. Taking all these matters into account, I conclude that the decision of the Bucharest Court of Appeal is not so extreme as to require recognition to be withheld on this ground.

Article 23(b)
A judgment relating to parental responsibility shall not be recognised:

(b)  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;

75. The decision of the Romanian court was not taken in urgency.  On the contrary, it was reached after litigation that had lasted exactly six years, the father's original application of 27 November 2007 being ultimately determined on 27 November 2013.  It is in that context that it must be determined whether David was given an opportunity to be heard.  One must look at the process as a whole, bearing in mind that this was an appeal decision, and not focus exclusively on the final leg of the legal journey. 

76. The first task is to establish what reliable information was available to the Romanian court. 

77. In the decision of 8 December 2009 (Onesti Court) there is a reference to a social work report from England dated 20 July 2009.  This was a report by a CAFCASS officer when David was two years old.  It was commissioned by this court during the father's first set of enforcement proceedings in order to inform the decision about the father having staying contact.  The author, Bola Ogunnaike, saw David twice.  She reported that he was too young to express his views but showed a good level of attachment to both parents.  It was likely that he felt more emotionally secure with his mother but he was happy and relaxed with his father.  A gradual introduction of staying contact was recommended, and this is what in fact happened.  

78. In the judgment of November 2013, brief reference is also made to an assessment report carried out by the 'British Authorities'.  This refers to an Initial Assessment carried out by David's local authority over the course of a fortnight in April 2012, when he was 5½  years old.  The assessment was carried out in response to concerns raised by the father about the mother's care.   David was seen on his own.  The report's author, Kim Brownlie, described him as a bright and articulate boy, who spoke positively about his relationship with his mother and was excited to describe games that he played with his father.  Ms  Brownlie found David to be a well-loved and happy child and the mother to be a caring and loving mother who was focused on his needs.  She considered the father's referral to be malicious and the local authority took no further action in relation to it.  I reach no view about the father's motivation (the report's author did not engage with him when reaching that conclusion), but note that this assessment took place in the context of a child protection investigation, and was not a report in relation to the father's proposal to take David to Romania.

79. There is no other independent source of information about David's wishes and feelings in the extensive Romanian proceedings. 

80. The record of the hearing on 28 February 2013 before the Third Civil Section of the Bucharest Court shows that the father asked for "the hearing of the minor who will turn 7 years old".  In reply, it is recorded that the mother "opposes to the hearing of the minor".  The judgment of the court "dismisses the claim for hearing the minor, which it deems not useful given the age of the minor".

81. In these proceedings, the mother says that she was told by her lawyer that the father's lawyer was requesting, at the door of the court, that David should be heard.  She says that she opposed this because he did not speak Romanian and she could not bring him to Romania without travel documents.

82. The central finding of the Court of Appeal on this question is that David "constantly craves for [his father's] permanent presence".  This can only have come from the father himself at a time when David had not seen him for about a year.  It is not found in any professional or independent assessment, let alone a recent one, nor was it the conclusion of the various courts at any of the earlier hearings down the years.  The father says in evidence in these proceedings that he tape-recorded David in 2011/2012, but there is no reference to that in the Romanian judgments.

83. In summary, the Romanian court's conclusion about David's wishes and feelings cannot be said to have arisen from any direct or indirect enquiry involving David himself.  

84. I next approach the concept of "an opportunity to be heard" in the context of this court's "fundamental principles of procedure". 

85. Different parents and legal systems take a variety of approaches to hearing a child's point of view.  Indeed, the recent report from the Commission to the European Parliament on the application of BIIR (Com (2014) 225, 15 April 2014) at page 10, states that:  

[A] frequently raised ground of opposition has been the fact that the judgment was given without the child having been given an opportunity to be heard. In this connection, particular difficulties arise due to the fact that Member States have diverging rules governing the hearing of the child.

The report goes no further than to identify the issue.

86. In interpreting Article 23(b) it is the fundamental principles in this jurisdiction that must be applied.  These are not formed in isolation; they have been influenced by international instruments and their pedigree can be clearly traced.

87. Article 12 of the United Nations Convention on the Rights of the Child 1989 provides that:

(1) States Parties shall assure to the child who is capable of forming his or her own views the rights to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of national law.

88. The recognition and enforcement provisions of the 1996 Hague Convention prefigure those of BIIR in a wider geographical context.  In the explanatory report of Paul Lagarde at paragraph 123 it is said that:

This ground for refusal is directly inspired by Article 12, paragraph 2, of United Nations Convention on the Rights of the Child.  It does not imply that the child ought to be heard in every case.  It was pointed out, with good reason, that it is not always in the interests of the child to have to give an opinion, in particular if the two parents are in agreement on the measure to be taken.  It is only where the failure to hear the child is contrary to the fundamental principles of procedure of the requested State that this may justify a refusal of recognition.

89. Article 11(2) of BIIR itself imports this concept into child abduction cases:

When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

90. These principles are now firmly established in our law.  Section 1(1) of the Children Act 1989 requires that when a court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration.  Section 1(3) requires the court to have regard in particular to a number of matters, including the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).

91. The importance of listening to children was articulated by the House of Lords in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619.  This was, as it happens, a child abduction case in which a father sought the return to Romania of an eight-year-old boy who had lived in Romania until the age of four before being abducted to England by his mother.  I note in passing the observations of Lord Hope at paragraph [4]:

The assumption on which the remedy of prompt return proceeds is that the state to which the child will be returned is the state of his habitual residence.  Through no fault of his own, the child whose return is being sought in this case has now been settled for so long in this country that this assumption is scarcely tenable.
 
For what it is worth, in the present case, if the mother had abducted David to England in 2007 (which she did not), it is inconceivable that such a settled child would be returned to Romania under the child abduction convention, either now or for many years past.

92. Baroness Hale, describing the facts of Re D as extraordinary, said this at paragraph [57]:

[T]here is now a growing understanding of the importance of listening to the children involved in children's cases.  It is the child, more than anyone else, who will have to live with what the court decides.  Those that do listen to children understand that they often have a point of view which is quite distinct from that person looking after them.  They are quite capable of being moral actors in their own right.  Just as the adults may have to do what the court decides whether they like it or not, so may the child.  But that is no more reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.

93. At paragraph [60], she considered the range of possible ways of hearing a child: interview by a social worker, meeting with a judge, and, in a few cases only, by separate representation.

94. Very shortly after the decision in Re D, the Court of Appeal decided the case of Re F (Abduction: Child's Wishes) [2007] 2 FLR 697.  This was concerned with Article 11(2) of BIIR in the context of an application for the summary return of a seven-year-old.  The case is of assistance for certain observations of Thorpe LJ at paragraphs [16], [17], [19] and [24]:

[T]here was no enquiry as to J's wishes and feelings, which is the ordinary interpretation of the court's obligation to 'hear the child'. 

[T]he court is not concerned and certainly not ruled by the litigation strategy of either of the parties.  It has an obligation ... to hear the child, whatever may be the consequences.

[T]he deficiency… cannot be ignored.  It is a fundamental deficiency and it cannot be shored up or papered over.

[I]t seems to me to be necessary that in future the question of how and when the court will hear the child, in discharge of its obligations under Article 11(2), must be considered at the first directions appointment and any subsequent directions appointment to ensure that have that this central ingredient of the case is never out of the spotlight.

95. It is further clear from decisions such as Re W (Abduction: Acquiescence: Children's Objections) [2010] EWHC 332 (Fam), [2010] 2 FLR 1150, that the views of children as young as David must be taken into account. 

96. The opportunity for a child to be heard therefore requires an age-appropriate enquiry into his wishes and feelings to enable the decision-maker to understand the child's distinct point of view.  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. 

97. Although David has been in England throughout, he could readily have been given an opportunity to be heard in the Romanian proceedings.  A request could have been made for an English social worker to speak to him, whether formally under Article 55(a) of BIIR, or informally.  Likewise, the Evidence Regulation (Regulation (EC) No 1206/2001), which facilitates cooperation between courts of Member States in taking evidence directly in the other Member State, could have been invoked to ensure that David's wishes and feelings were made known to the Romanian court. 

98. By their participation in the Romanian proceedings, the parents had prorogued  jurisdiction to the Romanian court.  Nevertheless, that court was not limited by the parents' choices and it might also have invoked Article 15 and requested the English court to assume jurisdiction as a way of ensuring that David's voice was heard.  Bearing in mind that he has been habitually resident in England all his life, an Article 15 request would have been bound to succeed.

99. Ms Renton's submissions on this issue can be summarised in this way:     

• An opportunity to be heard is not the same thing as being heard. 

• David was given an opportunity to be heard, but that opportunity was not taken up by the mother.

• The Court of Appeal was reviewing the evidence provided at earlier hearings and had both sides of the case before it when it made its decision.

• The refusal to hear from a 6-year-old is 'borderline' and does not amount to a violation of fundamental principles of English procedure. "It would be unusual for a 6 year old to be heard independently (for instance, by way of a Cafcass report) in private law children proceedings in this jurisdiction."

100. I do not accept any of this.  As to the first point, it is possible to imagine a case where a child, asked for his view, declines to give one.  But he has had the opportunity and it has been his choice not to use it.  Here, David was never given the opportunity: how and why that happened is immaterial. 

101. The fact that the mother opposed David being heard is neither here nor there.  The obligation to hear the child falls on the court and not the parties.

102. Next, no doubt the Court of Appeal was entitled to rely on evidence gathered in the lower courts.  But, as seen above, it reached a new conclusion about David's wishes and feelings that was not based on anything contained in the lower courts' judgments or in evidence from any other source.

103. Lastly, I firmly disagree with Ms Renton's fourth point.  An English court, faced with a striking application of this kind (peremptory change of lifelong carer, country and language) would as a minimum seek a report from a court social worker that would, among other things, contain the child's perspective on such a momentous change of circumstances.  Far from being unusual, such a report would be fundamental.  Any decision reached without such information would immediately be vulnerable on procedural and substantive grounds.    
      
104. For these reasons, I find that the mother and the Guardian have decisively made out their case under Article 23(b).

105. This, my central conclusion, means that the mother succeeds in her appeal, but her other grounds for appeal must also be considered.   

Article 23(c) and (d)
A judgment relating to parental responsibility shall not be recognised:

(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;

(d)  on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;

106. These two grounds are distinct but overlapping and it is convenient to address them at the same time.

107. The facts concerning service of the father's final Romanian appeal are these.  The appeal was launched on 11 June 2013 and was listed for hearing on 11 September.  On that occasion the hearing was adjourned until 6 November on account of the ill-health of the father's lawyer.  On 6 November, the case was again adjourned until 13 November, then 20 November and finally to 27 November.  The reason for these three further adjournments was said to be to allow the parties to file further written arguments.

108. The mother played no part in the father's appeal.  She was not personally served, nor were any documents sent to England, nor to the lawyer that had been acting for her in the proceedings earlier that year.  Such service as took place involved the delivery of a summons to the mother's own mother's address in Romania in accordance with the provisions of Article 156 of the Romanian Code of Criminal Procedure, which provides that citizens from abroad should choose a domicile in Romania for service.  The mother had elected to use her mother's address in the previous proceedings since 2012.

109. The process server records that on 5 July 2013, he delivered the judicial summons informing the mother of the hearing on 11 September.  It was delivered to a relative of the mother's, who signed for it.  The document bears a signature said by the father to belong to the mother's mother.  The mother says that her mother did not receive the documents and that the signature on the certificate of service is not her mother's signature.

110. On 27 September, the process server returned with a summons for the hearing on 6 November, which was posted at the main entrance of the address.

111. There was no attempt to notify the mother of the subsequent adjourned hearing dates on 13 November, then 20 November and finally on 27 November.

112. I first consider the service of documents that the father relies upon.  It was rightly not suggested that oral evidence should be heard about this.

113. There is in my view no reason to doubt the certificates of service and I proceed on the basis that the court summonses were in fact delivered to the mother's mother's address on the two occasions described above.

114. I also proceed on the basis that such service satisfied the requirements of Romanian law.  This is the opinion of two Romanian lawyers engaged by the father.  I do not have, and do not require, independent expert evidence about this.  The Court of Appeal must have considered that the mother was sufficiently served in accordance with Romanian law, albeit that its judgment does not mention her striking non-engagement in the proceedings.

115. The next question is whether the mother knew about the documents that had been served.  The mother says that the first she knew about the appeal proceedings was when she received a text message from the father (who has known her mobile phone number throughout), saying that he had been granted custody of David.  This was two days after the proceedings had ended.  She then went onto the court's website and was shocked to discover the existence and outcome of the appeal.  She points out that she has never previously avoided or failed to take part in the litigation and says that she would never have risked the consequences of ignoring such important proceedings. 

116. The father accepts that there was no direct contact with the mother, saying that he had no reason to contact her sooner as she had been properly served under the rules.  He says that the mother can be taken to have known about the proceedings, having engaged with every hearing in the Romanian courts over the previous six years.  She has accepted that all documents in those proceedings had been passed on to her by her mother, who remains at the same address.  Why should it be different this time?  Moreover, she filed a mediation request in December 2013, giving it as her address.  He says that she put her head in the sand, perhaps because she could not afford to pay her Romanian lawyers.

117. Although I am far from sure, I conclude that it is more likely than not on the available evidence that the mother did not become aware of the proceedings in the Bucharest Court of Appeal until after they had concluded.  She has fought for years to keep David in her care and I do not believe that she would knowingly have stood aside from a series of hearings that might have such profound consequences.  

118. If I am wrong in this conclusion, the father has only himself to blame.  It suited him that the mother did not defend the appeal.  He did the barest minimum to inform her of it and as a result he is unable to show that he succeeded in giving her actual, as opposed to technical, notice.

119. The meaning of Article 23(c) has recently been closely considered by Mr Justice Mostyn in MD v CT [2014] EWHC 871 (Fam).  I propose to follow his analysis that:

i. 'Default of appearance' does not merely mean that the respondent was physically absent but that he has not participated in the proceedings at all;

ii. 'Not served' – where the address of the respondent is known, the Service Regulation applies to allow transmission of judicial documents from one member state to another: (EC) No 1393/2007 on the service in the member states of judicial and extrajudicial documents in civil or commercial matters;

iii. 'In sufficient time and in such a way as to enable that person to arrange for his or her defence' – the court is entitled to examine whether on the ground and in the real world there was actual service or an acceptable substitute sufficiently ahead of the hearing to enable the defendant to arrange for his defence.

120. This analysis led Mostyn J to refuse recognition on this ground in a case where the respondent had far more knowledge of what was going on in the overseas court than I have found this mother to have had. 

121. Ms Renton argues that the domestic service procedure is all that has to be complied with when the court is considering Article 23(c).  As she puts it, service on a legal level is sufficient – it does not have to be on a human level.   Following MD, I do not accept this.  The true test is whether the respondent has been served at the outset in a way that actually enables him or her to defend the case.  

122. In this case, I find that

i. The Court of Appeal judgment was given in default of appearance.

ii. 'The proceedings' are the father's appeal, launched in June 2013, and not the previous proceedings.  

iii. I am not satisfied on the limited information available that the judicial summons to attend court that was served at the mother's mother's address was the document which instituted the proceedings or an equivalent document.  Even now, the father has not produced the document that was served. 

iv. Service did not take place in such a way as to enable the mother to arrange for her defence.  

123. Moving to Article 23(d), non-recognition follows the more strongly from my factual conclusion that the proceedings were over before the mother knew of them.  Further, in adjourning the delivery of its decision three times in November 2013, neither the father nor the court took any steps to notify the mother of this opportunity.   

124. I therefore allow the mother's appeal under the provisions of Article 23(c) and (d) and respectfully decline to recognise the Court of Appeal decision on those grounds also.  

The mother's grounds of appeal concerning the registration process
125. The application for registration has not been at all straightforward, due to procedural shortcomings for which neither parent bears responsibility.

126. On 6 February 2014, the father's lawyers made a without notice application to the Family Division urgent applications judge, who granted orders for the location of David and for disclosure of information by the mother.

127. On 7 February, the father's lawyers formally issued his application, which included an application for the registration of the order of the Bucharest Court of Appeal.  The application for registration was placed before a Circuit Judge at the Principal Registry (Her Honour Judge Hughes QC), who granted the application.  The court drew up (i) an order that the Romanian order be registered; (ii) a Notice of Registration informing the mother that she had a right to appeal; and (iii) an order granting permission for the Romanian order to be enforced notwithstanding that the time for appealing against it had not expired. 

128. It appears that the court may have sent these documents to the mother at the father's mother's address in Romania, this having been a service address for her up to 2011, but not since.  The first time the mother actually received the documents was when they were served on her by the father's solicitors at a hearing in this court on 3 March.  It will be recalled that David had in the meantime been removed from the mother's care on 26 February.

129. The documents accompanying the father's application of 7 February were as follows: the application in form C69; a statement by the father dated 5 February that exhibits a translation (only) of a certificate produced by the Bucharest Court of Appeal confirming that residence of David had been established to be with his father on 27 November 2013.  There was no judgment, either in the original or in translation, nor any Annex II certificate.  The explanation for that is that the documents had not yet been produced by the Romanian court.

130. When the matter came before me on 1 May, the mother was unrepresented.  I was troubled by the apparent multiple anomalies in procedure and made an order that identified some of the issues that seemed to arise.  However, as the matter had to be put over until 19 June for final hearing, I gave permission to the father to apply to re-register the Romanian order in the hope that future arguments could focus on matters of substance under Article 23 rather than on an investigation of the domestic registration procedure.

131. This proved to be a forlorn hope, through no fault of the father or his representatives.  On 16 May, his solicitor lodged a fresh application and a witness statement exhibiting the Romanian judgment in original and in translation.  She did not exhibit an Annex II certificate as the Romanian court had not yet produced one.

132. On 19 May, District Judge Robinson made an order that the Romanian order should be registered.  This order was drawn up in a timely manner and received by the father's solicitor on 20 May, who served it on the mother by email, as permitted by the order of 1 May.

133. However, it took until 9 June for the court to produce a Notice of Registration following continuous chasing by the father's solicitor.  On that date, the court office also produced two other orders, being reiterations of two of the three documents that have been produced on 7 February, i.e. (i) another order that the Romanian order be registered, and (ii) an order granting permission for the order to be enforced notwithstanding that the time for appealing against it had not expired.  Neither of these orders had been requested.

134. On 6 June, the Bucharest County Court (not the Court of Appeal) finally produced an Annex II certificate.

135. This ragged trail has allowed the mother to argue that her appeal should also be allowed on the ground of non-compliance with the procedural requirements of BIIR and the FPR.  Mr Devereux alleges a number of anomalies, which I tabulate in this way:

Item

Anomaly

Orders of 7 February

Order made by Circuit Judge (not district judge) 

r.31.4 (2)(a)

No judgment exhibited (original or in translation)

PD31A  para 2.2

No Annex II certificate

PD31A para 3.2(a)

No service of application on respondent

r.31.8(2)(a)

No service of endorsed order on parties

r.31.11(3)(c)

Time for enforcement abridged when no urgency

r.31.17(1A)

 

Orders of 19 May

No Annex II certificate

PD31A para 3.1(a)

Duplicate order for registration produced

-

Time for enforcement abridged when no urgency

r.31.17(1A)



136. Mr Devereux argues that these multiple shortcomings should in themselves lead the mother's appeal against registration to succeed.  He contends that the court's task is to scrutinise the application carefully to ensure that the procedural requirements of BIIR and FPR are fully met, and to give reasons for its decisions.  This is because:

(1) The process of recognition and registration under BIIR is a one-sided exercise in that the respondent is not allowed to be heard (Article 31(1)). 

(2) The consequences of registration are drastic, particularly if the registration is granted in error.

137. As to the latter submission, Mr Devereux, relying on Articles 21(1) and 28(1), argues that once an order has been registered and the time for appealing has passed, the beneficiary can act upon it without requiring any further legal authority.  So, for example, someone in the father's position could simply arrive from abroad and take the child from school to the airport without telling anyone.  Ms Renton disagrees saying that there is a working assumption that a further order of a High Court judge is required before the order can be enforced.

138. I instinctively favour Ms Renton's position.  Rule 31.7 provides that the court will not enforce a judgment until after the expiration of the time for appeal, showing that enforcement is a separate step from registration and implying that it is a necessary one.  However, it is unnecessary in this case to resolve the issue of whether registration of an order allows it to be acted upon without further authority.  It may be unsatisfactory for there to be ambiguity on the question, but this father did not in fact engage in self-help, but sought to enforce the Romanian order by means of a further order.  I accept that the registering of an order under BIIR is an important step; there is no need to go further.

139. What does need to be addressed is Mr Devereux's argument about the nature of the registration process.  He describes this as a judicial act whereby the district judge ensures that the application is compliant.  If it is not, he must reject it, give directions (r.31.6), or dispense with production of documents (r.31.5).  The core documents that are required are the translated judgment and Annex II certificate.  These documents prove the foreign judgment and provide reassurance that the procedural safeguards in Article 23 have been met.  Mr Devereux submits that there can be no room for any significant defect in the process nor any retrospective curing of defects in the registration process under Art. 38(1) or r. 31(5).  
 
140. There have been a number of observations on the nature of the registration exercise.  In Re S (Foreign Contact Order) [2009] EWCA Civ 993, [2010] 1 FLR 992, Thorpe LJ said this:

It is essentially administrative, although it requires a judicial act.  The judicial officer has only to check that the order of the foreign court is apt on its face and that the application falls within the general provisions of the Regulation.

141. The task of the district judge faced with a BIIR registration application is therefore to apply the Part 31 rules and Practice Direction with a broad appreciation of the nature and effect of the BIIR process and of the grounds for non-recognition under Article 23.  This will normally involve checking that the documents are in order and that there is no evident reason why registration should be refused.  It does not call for an exhaustive or sceptical examination of the underlying documentation with a view to unearthing possible grounds for challenge.  Issues of that kind will be determined on appeal.

142. I also refer to the decision in Re D (Brussels II Revised: Contact) [2007] EWHC 822 (Fam), [2008] 1 FLR 516 [2007] EWHC 822 (Fam), where Black J held that fundamental shortcomings in the registration process would lead to an order not being enforceable, but that other matters of non-compliance would not necessary be fatal.  The same pragmatic approach, designed to achieve fairness to both parties, is seen in the decision of Wood J in ET v TZ [2013] EWHC 2621 (Fam).  He dispensed with the need for an Annex II certificate where there was an abundance of information from other sources.

143. So I agree with Mr Devereux when he says that the court is not a rubber stamp.  It seems to me that the degree of care with which these applications should be considered must bear some relationship to the consequences of registration.  If there are substantial shortcomings, registration should not occur without them being corrected.  If any significant departure from normal procedure is permitted, the reason for it should be expressed in the order.

144. On the other hand, it is clear that in the right case a defective registration can be cured by a subsequent order of the district judge or of the High Court on appeal.  The process must be fair to both parties, even if special consideration is due to the position of the party who cannot be heard at the registration stage.  An insistence on faultless compliance could lead to absurd and unfair results. 

145. Applying this approach to the facts of this case, the orders of 7 February must be set aside for cumulative failures of procedure.  There were four fundamental defects in the application and the consequent order:

No judgment exhibited (original or in translation)

PD31A  para 2.2

No Annex II certificate

PD31A para 3.2(a)

No service of application on respondent

r.31.8(2)(a)

Time for enforcement abridged when no urgency

r.31.17(1A)

 

146. When the application was made, any protection for David or for the mother rested on the court proceeding correctly.  Instead, the manifold shortcomings in the documentation were not noted, nor were any remedial directions given. 

147. I do not consider that any difficulty is caused by the first registration in this case having been made by a Circuit Judge.  Rule 31.4(2) requires the application to be made to a district judge: it does not specify who can make the order.  There are good reasons why such applications will normally be determined by a district judge, but what matters is that the application is properly dealt with, not the identity of the judge.

148. In contrast, an effective right of appeal is a fundamental part of the process.  The power to abridge the time for enforcement arises under rule 31.17(1A), a provision inserted into the Rules following the decision of the Court of Justice of the European Union in Health Service Executive v SC and AC Case C-92/19 PPU.  That provision is necessary in a case where the seamless transfer across borders of a child in local authority care is necessary.  In the present case there was no urgency from the point of view of David's welfare in enforcing the judgment, and consequently no basis for abridging the time for enforcement. 

149. Looking at the matter overall, I am troubled at the consequences of a registration that should never have occurred.  The mother was arrested and David's life was turned upside down.  In all the circumstances, the mother is entitled to have these orders set aside as of right (ex debito justitiae).   

150. The position in relation to the order of 19 May is different.  It is true that there was still no Annex II certificate and that the court produced two superfluous orders and then delayed in producing the Notice of Registration.  However, the court and the mother were by then fully in the picture.  It would be pedantic and unfair to the father to allow the mother's appeal on procedural grounds beyond his control where they had no practical effect.  I accordingly dismiss that ground of appeal against the order of 19 May.

151. I understand that what has happened in this case may not be an isolated instance.  Urgent attention needs to be given to the operation of the registration process, and I will send a copy of this judgment to the Central Family Court. 

152. There is no reason to believe that the registration process cannot be consistently and effectively operated.  According to information provided by the Principal Registry, the number of applications for registration is low: 27 in 2012, 31 in 2013 and 31 so far this year.

CONCLUSION
153. The mother's appeal against the orders of 7 February and 19 May 2014, whereby the order of the Bucharest Court of Appeal of 27 November 2013 was recognised and registered for enforcement in England, is allowed on the grounds that:

(1)        In the case of both orders, recognition must be refused under Article 23(b), (c) and (d); and

(2)        The order of 7 February must be quashed for fundamental procedural defects.

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