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W v W [2005] EWHC 1811 (Fam)

Comment by Tacey Cronin of Albion Chambers

This lengthy judgment (118 paragraphs) is a real tribute to the care and scholarliness of the Judge (Singer J) and a distinguished group of advocates, although it does leave the professional reader aghast at the delay the process introduced into the lives of children aged 12, 10 and 8 when this judgment was given, a year after a "final" order had been made but not complied with – and that's before guessing what the costs might have been.

The childrens' Father refused to comply with the order of the Irish court requiring the children to return to their Mother's care in Dublin. The relevant arguments were to do with the Court's jurisdiction to make the order in the first place and the enforceability of the order once made. Many of these arguments are based on the particular facts of the case and the timing of the hearings relative to the adoption of Brussells II and Brussells II Revised (BRIIR). Sadly, therefore, little of the decision will be useful as precedent, but the central message is very clear: decisions of overseas courts will be upheld by the English courts, whether under the 1980 European Convention or Brussells II or Brussells II Revised unless one of the exceptions provided for in the respective treaties applies and the public policy reasons in Art.15 B II or Art 22 BRII will not easily stretch to include welfare considerations. The decision (and the flow chart attached) are well worth reading for the satisfaction of seeing a complex question clearly analysed, but the conclusion is straightforward and certain.

Read the full text of the judgment here