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Re D (A Child): a decision of its time?

Katy Chokowry and Nicholas Anderson, barristers of 1 King’s Bench Walk, explain the rationale of the Supreme Court’s judgment in Re D (A Child) and consider the lessons that survive form the Court of Appeal’s judgment.

Katy Chokowry
and Nicholas Anderson, barristers of 1 King's Bench Walk

The decision of the Supreme Court in In the Matter of D (A Child) [2016] UKSC 34 concerning the enforcement and recognition of a Romanian custody order in favour of the father came days before the referendum taking the United Kingdom out of the European Union. The judgment is based on a notification given by the British Government to the European Commission pursuant to Article 34 of Brussels II Revised ('BIIR'). Following 'Brexit' the status of European Regulations such as BIIR is arguably unsettled.

This decision dealt with two matters (1) a narrow issue as to the jurisdiction of the Supreme Court to deal with appeals arising out of applications to recognise, register and enforce custody orders made in other Member States; and (2) a wider issue, which is relevant to all private law applications in England and Wales relating to the principles which should be applied by the court when considering a child's right to be heard.

Under BIIR, the scheme for the recognition and enforcement of orders relating to parental responsibility is governed by sections 1 and 2 of Chapter III. The General Principle is that orders relating to parental responsibility made in one Member State shall be recognised in other Member States; that the original decision may not be reviewed as to its substance and that the order shall then be enforced in other Member States. Article 23 of BIIR contains seven grounds upon which a court may refuse to recognise such a judgment. One of those grounds is that, except in urgent circumstances, the child was not given an opportunity to be heard: Article 23(b). The Supreme Court in this case was due to hear an appeal dealing with Article 23(b), having given permission to the father to appeal against an order of the Court of Appeal upholding a decision of Mr Justice Peter Jackson.

The facts
The child, called David by the judge and the Court of Appeal, was born in Romania at a time when his parents lived in England. The mother returned to England with David when he was just under 8 weeks old. David has lived in this jurisdiction since. The parents separated and the father returned to live in Romania. In 2007, when David was approximately a year old, the father began divorce and custody proceedings in Romania. In 2008, the Romanian court granted the father custody of David. A series of appeals and re-hearings in Romania followed on several issues including the jurisdiction of the Romanian court to make orders in relation to a child who had never lived in Romania and was habitually resident in England and Wales.

When David was nearly 7 years of age, in November 2013 the father obtained an order from the Bucharest Court of Appeal (the highest court in Romania) that David should live with him and should move from England to Romania.

The father sought the recognition and enforcement of the order in England and Wales. In accordance with the procedure laid down in Part 31 of the Family Procedure Rules 2010, the order was administratively recognised and registered by a District Judge at the Principal Registry of the Family Division . There were several defects in the procedure followed by the judge which are addressed both in the High Court judgment and the judgment of the Court of Appeal.

The recognition of the Romanian order led to David being unexpectedly removed from the care of his mother in England despite a lengthy interruption in contact between the father and David. A shared care arrangement was subsequently implemented.

Thereafter, the mother appealed against registration relying on the first four limbs under Article 23, those are: (a) recognition was manifestly contrary to public policy taking into account the best interests of the child; (b) David was not given an opportunity to be heard in violation of the fundamental principles of procedure under English law; (c) the order was made in default of the mother's appearance – the mother was not served with the documents that instituted the proceedings in Romania and she was not afforded sufficient time to prepare a defence; and finally, (d) it was given without the mother being afforded an opportunity to be heard .

The High Court proceedings
The first "inter partes" hearing in recognition and enforcement proceedings under Article 33 takes place at the first appeal. The High Court is the designated court to hear the first appeal. The mother's appeal was allowed on three grounds. Peter Jackson J considered that recognition could not be withheld on the ground of Article 23(a). His decision is reported as MD v AA & Another [2014] EWHC 2756 (Fam).

Despite the change in custody and country, David had a substantial relationship with his father and the mother had not raised concerns about his ability to care for David. Whilst the change might be damaging, it was not such as to offend against public policy which required a high threshold to be crossed. The judge acknowledged that "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". A high threshold indeed.

Article 23(b)
Whilst there was some evidence concerning David before the Bucharest District Court, this came in the form of a Cafcass report prepared when David was 2 years of age, and a later initial assessment conducted by a local authority when David was 5½. Whilst the order of 27 November 2013 was made following appellate proceedings, Peter Jackson J considered that the whole process had to be evaluated and it was in the context of the six years of litigation between the parties that Article 23(b) had to be considered.

It is of note that the fact that the mother herself had at one point objected to David being heard did not absolve the court of its obligation to hear the child in proceedings concerning him or her. Having reviewed the authorities from Re D (A Child) (Abduction: Custody Rights) [2006] UKHL 51 and the provisions concerning hearing children, Peter Jackson J found that the child's entitlement to a voice is a fundamental principle of procedure within the English legal system. He found that David was never given an opportunity to be heard and how and why it happened was immaterial.

On this basis, the Romanian order would not be recognised and could not be enforced.

Article 23(c)
Peter Jackson J allowed the mother's appeal on this ground, accepting her case that she had not been aware of the appellate proceedings until two days after the order was made by the Bucharest appeal court, when the father alerted her to the order made by text message. This was later reversed by the Court of Appeal.

Article 23(d)
As Peter Jackson J found that the mother had not been aware of the proceedings, he also found that the Romanian order was made without the mother being afforded an opportunity to be heard. This, too, was reversed by the Court of Appeal.

The Court of Appeal's decision
In a second appeal from the recognition and registration, the father appealed the refusal to recognise and enforce the Romanian order to the Court of Appeal. He argued that Peter Jackson J had been wrong to find Article 23(b)-(d) made out. In particular, the father contended that the judge was wrong in his approach to what constituted a violation of a fundamental principle of domestic procedure and to conclude that the child not being heard in this case was a violation of fundamental principles of procedure of English law. He maintained that the mother had been validly served and could have participated in the Romanian appellate proceedings had she chosen to. The mother sought to cross-appeal in relation to her argument that public policy had been violated pursuant to Article 23(a). She also sought to advance a new argument concerning the finality of the Romanian order and the end of prorogation. She was denied permission to do so.

The Court of Appeal decision, reported as D (A Child) (International Recognition) [2016] EWCA Civ 12, recognised that there is no direct authority in this jurisdiction that assists in construing what is a fundamental principle of procedure for the purposes of Article 23(b). Lord Justice Ryder therefore considered what constitutes a fundamental principle of policy and whether the failure to hear David was a violation of a fundamental principle of English procedure.

The father argued that a fundamental principle is one which every court in the jurisdiction of enforcement would have to adhere to. He submitted that a fundamental principle of procedure is a reference to the child's Article 6 rights and the procedural aspect of his Article 8 rights, which includes principles of due process. He accepted that this also includes the child's rights under Article 12 of the UNCRC. Given that David was aged 5 at the time of the first instance decision in Romania and 7 by the time of the appeal, the father argued that a final appeals court in this jurisdiction would not necessarily have given him an opportunity to be heard. Thus, there was neither a fundamental principle engaged nor was there a violation. The mother and David, who was a party at first instance and on the appeal, opposed the appeal and argued that Peter Jackson J was correct.

The Court of Appeal rejected the father's arguments. As indicated above, Peter Jackson J was upheld save in relation to Article 23 (c) and (d). The father was thus unsuccessful in his appeal. The Romanian order would not be recognised nor enforced by the courts in England and Wales.

The lessons from the Court of Appeal's decision
The Court of Appeal found that whether a child is to be heard is both a welfare question and a fundamental principle. Time for a child passes quickly such that what might be clear at 5 or 6 is not necessarily so at 7 or 8. Therefore, each court must be astute to consider participation in context. This is a significant decision which will require practitioners to consider the question of whether the child should be heard and, if so, how at every stage of proceedings. Additionally, the question will have to be kept under review in light of a child's age and evolving degree of maturity.

This decision is additionally significant in light of the fact that Lord Justice Ryder states that the rule of law in England and Wales includes the child's right to participate in the process that is about him or her. His Lordship adds that this is a fundamental procedure that is reflected in our legislation, our rules and practice directions and our jurisprudence.  In so stating, the Court of Appeal has drawn together several strands which, for some time, have established that to the extent that a child's Article 8 rights are engaged, then this right carries with it the procedural right of the child to be involved in the decision making to a degree sufficient to protect his or her interests. From 2005 onwards, there has been a growing acceptance that the right of children to be heard outweighs the paternalistic judgment about any harm which they may face by their engagement in the proceedings.

It is important to note that this decision is not confined to cases with an international element. Ryder LJ dismissed the assertion that child's right to be heard is not adhered to in all domestic proceedings. His Lordship stated that there was no evidential basis for the assertion and that indeed the procedural practice to be followed is laid down in PD 12B to Part 12 of the FPR 2010. Para 14.13 states in terms that the court should ask 'is the child aware of the proceedings' and 'how is the child to be involved in the proceedings'. Previously, in Re S (A Child) (Abduction: Hearing the Child) [2015] 2 FLR 588, the Court of Appeal had confirmed the obligation on the High Court sitting in its inherent jurisdiction in relation to abduction proceedings to consider whether and how to hear the child concerned.

Where does all this leave us? The decision of the Court of Appeal emphasises the two-pronged question to be considered.

The first question is whether the child should be heard. There is an obligation on the court to ensure that a child is heard unless this is deemed inappropriate in light of his or her age and degree of maturity. The question of whether the child should be heard must be raised at the earliest possible stage of the proceedings: see Re S (above). There is no prescribed minimum age limit for a child 's views or wishes and feelings to be ascertained. In Re D (A Child) (Abduction: Custody Rights) (above) the child aged 8 was separately represented for the first time in the House of Lords. The authorities demonstrate that children as young as 6 years have had their wishes and feelings ascertained in the context of child abduction proceedings.

The second question relates to how the child should be heard. The ways in which children are heard include through a welfare report and/or by being separately represented. They can also include being heard through the parents who are parties to the proceedings. However, Ryder LJ, and as the House of Lords has previously stated, said that that cannot be assumed to be good enough. The pros and cons of the different modes of representation for children were recently considered by Mr Justice MacDonald in Ciccone v Ritchie (No 1) [2016] EWHC 608 (Fam). Whether party status is in the best interests of a child will depend on the facts of the individual case.

At first instance, Mr Justice Peter Jackson made David a party to the appeal. There was no precedent for such a step to be taken as the application for recognition and enforcement is a strict technical procedure in which the welfare of the child plays at most a contingent role. However, the learned judge considered that in this case it would be in David's best interests to be separately represented although not for the purposes of making enquiries into his welfare. The reasons for making the child a party were that: his "rights as an individual child are engaged in his father's application and … whatever has happened in this case he bears no responsibility for it". His interest was not being represented and the facts were "egregious" as neither the judge, nor counsel, nor the Children's Guardian had experienced 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".

The Supreme Court decision
The Supreme Court had given the father permission to appeal, considering that the issue, whether in all cases concerning children it was a fundamental principle of procedure in England and Wales that they should be given an opportunity to be heard, was of general importance. However, the Court was then called upon to examine its own jurisdiction pursuant to Article 34 of BIIR in a point raised on behalf of the mother after the Supreme Court had given permission.

In accordance with Section 40 of the Constitutional Reform Act 2005, the Supreme Court has jurisdiction to hear appeals from the Court of the Appeal subject to provision under any other enactment restricting such an appeal. Article 34 of BIIR states that a judgment given on appeal may be contested only by proceedings referred to in the list notified by each Member State under Article 68.

The United Kingdom notified the Commission that in England and Wales, a judgment given on appeal can only be contested by a further single appeal to the Court of Appeal. As the Supreme Court noted, the position under BIIR is quite clear. The first stage is intended to be a largely formal stage when the judgment will usually be declared enforceable. There, then, follows a first "appeal" to the High Court when the enforceability decision can be contested. Thereafter, the decision on that appeal can only be contested by the notified proceedings. The UK's Government notification expressly limits the "proceedings" to "a single further appeal on a point of law". In England and Wales, this must be made to the Court of Appeal. No mention is made of a further appeal to the Supreme Court of the United Kingdom. Thus, the Supreme Court was bound to conclude that it had no jurisdiction to hear a further appeal from the Court of Appeal.

Baroness Hale, delivering the unanimous judgment of the Supreme Court, contrasts the position adopted by the UK Government with the Republic of Ireland. The latter notified the Commission that its Supreme Court will continue to have jurisdiction to hear appeals from the High Court in cases where this is warranted by exceptional circumstances. Again by contrast, jurisdictions such as Cyprus and Malta do not allow any appeal from recognition and enforcement.

The purpose behind limiting the number of appeals is to prevent delaying tactics by the party opposing recognition and enforcement and thus hinder the free movement of judgments among Member States. It has been the consistent policy of the UK to limit the number of appeals to one tier of further appeal in all European instruments dealing with the free movement of judgments and judicial cooperation among European Member States.

Certain commentators have bemoaned the "missed opportunity" by the Supreme Court to clarify the significant issue of whether it is a fundamental principle of our domestic law that a child has to be heard in proceedings concerning him or her. This criticism of the Supreme Court is to misunderstand the decision in Re D. The opportunity to consider the wider question as to the fundamental principles of procedure in relation to engaging a child simply did not arise as the Supreme Court does not have jurisdiction. This was intended by Parliament in making its notification under Article 68. Unless BIIR is repealed as part of the potential reforms that will follow on from Brexit, the Supreme Court will not be determining the issue in recognition and enforcement proceedings although there are a number of potential types of proceedings in which the issue is likely to arise.

In summary
The Supreme Court does not have jurisdiction to hear a second appeal from recognition and enforcement of an order relating to parental responsibility by virtue of Articles 34 and 68 of BIIR.

The Court of Appeal decision's in this case is final and there can be no doubt that it is a fundamental principle of procedure in England and Wales that children should be heard in proceedings in which their welfare is engaged. This domestic principle is itself based on jurisprudence developed over the last decade or so in line with the UK's international obligations under international conventions and European regulations. The contributions made by these instruments are deeply enmeshed into our own domestic jurisprudence such that, in this instance, we consider it a fundamental principle of procedure in this jurisdiction. However, it is not clear how long we will continue to follow the precedents established through instruments such as BIIR. It is possible that, following Brexit, the direct effect of BIIR will cease and the knock-on effect could include a revision of the principles we currently apply in family law.

Katy Chokowry and Nicholas Anderson appeared together with Penny Logan in the Supreme Court (instructed by Cafcass Legal).