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K & Ors v K [2021] EWHC 1846 (Fam)

An appeal heard by Mr Justice Cobb brought under Chapter III (Recognition and Enforcement) of Council Regulation (EC) No.2201/2003 ('BIIR') concerning whether a Polish custody order from December 2016 should be recognised and enforced. Post-Brexit, BIIR continues to apply under the transitional arrangements for cases issued on or before 31 December 2020.


In July 2020 a Deputy District Judge registered a Polish custody order made in December 2016 which vested the custody and care of the three children (now aged 15, 11 and 9) with the mother in Poland, when they were living with their father in England. The appeal was brought by the father and separately the children.  The mother had previously issued proceedings under the Child Abduction and Custody Act 1985 (incorporating the 1980 Hague Convention on the Civil Aspects of International Child Abduction) and sought a summary return. This application was dismissed by Mr Alex Verdan sitting as a Deputy High Court Judge.

In December 2016, the Family Court in Poland made an order that the children live with their mother and provided for contact between the children and the father (who was living in England).

After summer holiday contact in 2019, the father did not return the children to Poland. He applied in Poland for variation of the December 2016 order. His application failed, and his appeal was refused. The mother issued proceedings for summary return under the 1980 Hague Convention in England and in July 2020 applied for registration of the December 2016 order under Article 28(2) of BIIR. This was granted by the Deputy District Judge. The father issued a notice of appeal pursuant to r 31 FPR 2010.

Mr A Verdan QC Judge heard the combined applications, determining the 1980 Hague Convention application should be determined first, deciding against summary return.

The father sought permission to amend his Notice of Appeal in the BIIR appeal process to rely upon Article 23(e) BIIR. Meanwhile in May 2021 the Polish Court reconsidered the circumstances, and heard directly from the children. The Court varied the December 2016 order on an interim basis so the children remained with the father in England. The father sought further permission to amend his Notice of Appeal again to rely on Article 23(f) BIIR.

Mr Justice Cobb sets out the law from paragraph 22, highlighting at paragraph 23 the provisions of Article 23 of BIIR by which judgments relating to parental responsibility shall not be recognised including: Article 23(e) "if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought" and Article 23(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."

The court concluded at paragraph 33 that the December 2016 order was 'irreconcilable' with 'the later judgment relating to parental responsibility' given in Poland in May 2021, accepting that Article 23(f) 'another Member State' refers to a Member State 'other' than that in which recognition is sought. The Court concluded there were no grounds in Article 23 for not recognising the May 2021 decision, notwithstanding it was an interim order because it explicitly varied the December 2016 order. Secondly, the Court found the decision of Mr Verdan QC would have been a later judgement that was 'irreconcilable' with the December 2016 order. The Court did not hear detailed argument on a third point, but accepted that the judgment of Mr Verdan QC in the 1980 Hague Convention proceedings was given in respect of matters 'relating to parental responsibility' [§36].

Finally the Court found it would be contrary to public policy (Article 23 (a) BIIR) to recognise and enforce an order made in a Member State that was contrary to both (a) a finding of the 1980 Hague Convention court that the Article 13(b) defence was made out in respect of the 15 year old; and (b) a subsequent order of the same Member State,  contradictory to the order that is sought to be enforced.

Case summary by Sarah Tyler, Barrister, Coram Chambers

For full case, please see BAILII