The Supreme Court struck out a father’s appeal against the Court of Appeal’s refusal to enforce a Romanian custody order in England. Under the Brussels II Revised Regulation, the United Kingdom had notified only one further challenge: a single appeal on a point of law to the Court of Appeal. The Supreme Court therefore had no jurisdiction to decide whether the child should have been given an opportunity to be heard.
The Romanian order and the English proceedings
DD lived in England. His parents disputed the care arrangements, and the father sought enforcement here of a Romanian order.
Although DD was habitually resident in England, the parents litigated in Romania. After several hearings and appeals, the Bucharest Court of Appeal decided in November 2013 that DD should live with his father, who could provide “the best moral and material conditions”. In February 2014 the father asked the English court to recognise and enforce that order under the Brussels II Revised Regulation (BIIR).
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The High Court considered the enforcement application while arrangements for contact and shared care were being made in England. One issue was the absence of an opportunity for the child to be heard in the Romanian proceedings.
Registration under BIIR is essentially administrative. The dispute is considered on the first appeal. Article 23 sets out grounds for refusing recognition. Peter Jackson J rejected the mother’s public-policy argument under article 23(a): that ground is narrowly construed, and the Bucharest decision was not so extreme that recognition had to be withheld. He refused recognition under article 23(b). Except in a case of urgency, that ground applies where the judgment was given without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure in the country asked to recognise it.
The English judge refused recognition on grounds including the failure to give the child an opportunity to be heard.
The Court of Appeal dismissed the mother’s public-policy cross-appeal and allowed the father’s appeal on service and on the mother’s opportunity to be heard. It dismissed his appeal on article 23(b). It treated the child’s right to participate as separate from the weight given to the child’s wishes and feelings, and as part of the rule of law in England and Wales. The qualifications in section 1(3)(a) of the Children Act 1989 and article 12(1) of the United Nations Convention on the Rights of the Child, it said, concern weight, not participation.
Why the Supreme Court could not decide the point
On 21 March 2016 the Supreme Court gave the father permission to appeal. The panel thought the Court of Appeal had raised an arguable point of general public importance, relevant to all children’s cases: how far it is a fundamental principle of procedure in England and Wales that a child be given an opportunity to be heard. The mother had not raised jurisdiction when objecting to permission. Once the point was taken, the Court heard it urgently. The Ministry of Justice intervened to explain the history.
Lady Hale, with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hughes agreed, said that the Court was not deciding whether the judge and Court of Appeal had been right. They may very well have been. Nor was it deciding the extent of the child’s right to be heard. The sole question was whether the Supreme Court could hear an appeal against the refusal to register and enforce the Romanian order.
Section 40 of the Constitutional Reform Act 2005 allows an appeal from the Court of Appeal in civil proceedings, with permission, but subject to any other enactment restricting it. BIIR provides that an enforceable judgment on parental responsibility is enforced in another member state once declared enforceable there. The initial application is decided quickly, without submissions from the person opposing enforcement or the child, and without a review of the substance. Either party may then appeal to a High Court judge.
Article 34 states that the judgment given on that appeal may be contested only by the proceedings notified to the European Commission under article 68. The United Kingdom notified a single further appeal on a point of law and, in England and Wales, only to the Court of Appeal. It did not mention the Supreme Court. Lady Hale held the result clear. If a member state notifies no route, as Cyprus and Malta had not, there is no further challenge. The United Kingdom had notified one appeal, and not to the Supreme Court.
That limit reflects the purpose of BIIR and its predecessors: member states should recognise and enforce one another’s judgments, grounds for refusal should be kept to the minimum, and enforcement should not be delayed by too many appeals. From the 1968 Brussels Convention, the further challenge was confined to a cassation-type appeal because extra appeals could be used as delaying tactics. Lady Hale noted that this concern is directed particularly at the person resisting enforcement, but that the same limit must apply to both sides.
The Regulation allowed each member state to notify the route of further appeal. The UK notification provided for the Court of Appeal in England and Wales.
The father’s arguments
Richard Harrison QC, for the father, faced article 34’s statement that the appeal decision may be contested only by the notified proceedings. Hugh Mercer QC, for the Ministry of Justice, submitted that without a notification there would be no further challenge at all.
The father argued that an executive notification, made without Parliamentary scrutiny, could not restrict section 40. Lady Hale agreed that the notification alone could not amend an Act of Parliament. What mattered was article 34 together with the notification. European regulations are directly applicable. Section 2 of the European Communities Act 1972 requires restrictions arising under the Treaties to be recognised and followed, and requires other enactments — including section 40 — to have effect subject to that.
He next argued that articles 34 and 68 were not directly applicable because they needed national measures of application, relying on two Court of Justice decisions. In those cases a regulation could not be operated until a member state defined a term or conferred specific enforcement powers, and the relevant national measure was absent or incomplete. Lady Hale distinguished them. Article 34 does not depend on a member state choosing an avenue of appeal: if none is notified, none exists. In any event the United Kingdom had made a notification. Those cases did not suggest that, once a required measure is adopted, the regulation ceases to be directly applicable.
Finally, he argued that a notification may only describe existing appellate rights, not cut them down. Lady Hale held that this would contradict the purpose of the challenge provisions since 1968: to limit appeals so that delay and manoeuvring do not defeat enforcement. That purpose may have been slightly diluted in later instruments, but BIIR still contemplates notifications which reduce routes of appeal otherwise available.
Verdict: The Supreme Court unanimously struck out the father’s appeal for lack of jurisdiction. The Court of Appeal’s refusal of recognition stood. The Supreme Court did not decide whether the child should have been heard or where he should live.
