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W v W (Foreign Custody Order: Enforcement) [2005] EWHC 1811 (Fam)

Enforcement under European Convention, Brussels II or Brussels II Revised, where a father resident in England was in continuing breach of Irish custody orders.

W v W (Foreign Custody Order: Enforcement) [2005] EWHC 1811 (Fam)

Family Division: Singer J (5 August 2005)

Summary
Enforcement under European Convention, Brussels II or Brussels II Revised, where a father resident in England was in continuing breach of Irish custody orders.

Background
This case concerned three children, who lived in Ireland with their mother ('M') following their parents' separation in 1998. When M was hospitalised in December 2001, their father ('F') brought the children to live with him in England.

In July 2002, the Dublin Circuit Family Court granted decrees of judicial separation and ordered joint custody with primary care and control to F. On M's appeal, the Dublin High Court ordered that the children remain in joint custody, with primary care and control passing to M ('the April 2004 order'). F did not comply. In July and August 2004 the Irish court made declarations that F was in breach of the April 2004 order, and ordered him to bring the children to Ireland. F did not comply.

M issued an originating summons in the English High Court for the recognition, registration and enforcement of the Irish orders.

In September 2004, F applied for a specific issue order to decide where the children should continue their education. F argued inter alia that the Irish court had lacked jurisdiction to entertain M's application and that the entirety of the Irish proceedings were a nullity.

In October 2004 Singer J ordered that contact resume with M in Ireland, with the children returning to England at its conclusion.

When the matter returned before Singer J in May 2005, the question arose whether the Irish orders were enforceable in this jurisdiction under the European Convention, Brussels II or Brussels II Revised (which had repealed Brussels II between the October 2004 and May 2005 hearings). F argued that neither the European Convention nor either of the Brussels Regulations was applicable, alternatively that the 'escape provisions' thereof should apply.

Judgment
Held, that the Irish orders failed the transitional provision tests for both Brussels Regulations.

The 'escape provisions' of art 10(1)(a) of the European Convention had not been met, as the effects of the Irish decisions were not remotely, still less 'manifestly', incompatible with the fundamental principles of English law relating to the family and children. The Irish court had clearly reached its conclusions based upon a search for the outcome which best met the children's welfare. Nor had the stringent requirements of the escape provisions of art 10(1)(b) of the European Convention been met. The European Convention applied, and the Irish orders should be recognised, registered and enforced at the earliest practicable opportunity.

The same conclusion would be reached if either Brussels II or Brussels II Revised applied.

Although in no circumstances could the foreign decision be reviewed as to its substance, if no enforcement regime had been applicable, the court would not have ordered peremptory return of the children in exercise of its inherent jurisdiction, as it would not have felt sufficiently satisfied that an order for them to move to Ireland made without some investigation of the merits would be in their best interests.

Article 7 of the European Convention made enforceability in this jurisdiction of a decision relating to custody dependent upon its enforceability in Ireland. Even if the Irish court had not had jurisdiction, the Irish orders as a matter of Irish law remained enforceable until set aside.There had been ample opportunity for F to pursue the point, which he had not.

For a clear understanding of this complex matter see the exceptionally helpful flowchart masterfully constructed by Singer J at the end of the judgment which will steer you through the morass of legislation – UK, Irish, BRI and BRII.

Read the full text of the judgment here