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English court refuses to enforce foreign custody order

Holman J refuses to enforce Turkish custody order because, in the circumstances, to do so would be incompatible with English family law principles

AA v TT [2014] EWHC 3488 (Fam) has been published at and concerns an application by a father who is of Turkish origin and a Turkish citizen from birth, for the recognition and enforcement of a Turkish court order in relation to his children.

The background to the case is set out in Holman J's extensive judgment. 

The Turkish court had made an order in favour of the Father.  Holman J was invited to apply the "the relatively underused" European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration on Custody of Children. ("the 1980 European Convention").

Turkey is not a signatory to the Hague Convention nor is it a member of the EU so that the EU Regulation Brussels ii and Brussels ii Revised did not apply. However, the 1980 European Convention did apply because it is an instrument of the Council of Europe of which Turkey is a member state.

The last reported decision on the 1980 European Convention was in 2005 (a judgment of Singer J in W v W [2005] EWHC 1811 (Fam),  which is quoted in Holman J's judgment.

The background to the case is that an order had been made in Turkey based on a misconception, namely that, " the mother had chosen to live with her new husband in Turkey and had abandoned the children to her parents in England and was not looking after them." That was not the case. 

Whilst recognising that it was clearly undesirable for there to be a proliferation of litigation in different states concerning the same children, the judge concluded that the overriding consideration set out in the preamble to the 1980 European Convention and throughout Article 10 is the welfare of the child or children.

The judge went on to say,

"it is fundamental to our law that if, in truth, a parent is living in England and actually caring for her children here, a decision is not made and implemented which is based on a mistaken proposition that she is living in Turkey and has effectively abandoned her children to their grandparents here."

The 1980 European Convention has the force of law in the UK to the extent provided for in s.12 of the Child Abduction and Custody Act 1985 and Schedule 2 to that Act.

Article 7 of the 1980 European Convention provides that:

"A decision relating to custody given in a Contracting State shall  be recognised and, where it is enforceable in the State of origin, made enforceable in every other Contracting State."

His Lordship concluded that the welfare of the children required that the so called "Defence" to the 1980 European Convention applied in this case and also found the defence under 10(1)(b) made out i.e. change of circumstances.

Accordingly, he dismissed the Father's application for recognition and enforcement of the Turkish decision and order.

This case is thought to be the only instance, where the 'incompatibility defence' (under Article.10(1)(a) of the 1980 European Convention has succeeded.

The judge paid tribute to Edward Bennett of Field Court Chambers, counsel for the Mother and to his instructing solicitors Freemans Solicitors (Jenny Moore) who acted pro bono.  The judge pointed out that it would have been quite impossible for the mother to represent herself in this "technical and complex matter" (the mother could not afford to pay for legal representation and did not qualify for legal aid).