G (children), Re

Under the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, the grounds for refusing recognition or enforcement under Articles 10(1)(a) and (b) are exceptional and must be applied stringently. Article 11(2) permits practical conditions for implementing an access order, including gradual implementation, provided that the court does not review the foreign decision’s substance.

However, Brussels II takes precedence where the order concerns parental responsibility and was given on the occasion of matrimonial proceedings. That expression extends to orders made while the matrimonial court retains jurisdiction over parental responsibility. Enforcement must then proceed under Brussels II, making proceedings brought solely under the European Convention a nullity.

The Italian parents’ marriage was dissolved in Paris, where orders were made for the father’s contact with the children. The mother was later authorised by the French court to relocate with the children to London. After contact arrangements failed, the father obtained registration and enforcement directions from Wall J under section 15 of the Child Abduction and Custody Act 1985 and the European Convention.

The father appealed against the implementation arrangements. The mother cross-appealed against rejection of defences under Articles 10(1)(a) and (b), and later raised the French court’s jurisdiction. During the appeal, the court reopened the matter to consider whether Article 37 of Brussels II displaced the European Convention. The central issues were whether enforcement was governed by the European Convention or Brussels II, and, conditionally, the proper scope of Articles 10 and 11.

1. Appeal and cross-appeal dismissed; proceedings a nullity. The order of 11 December 2002 was a judgment relating to parental responsibility given on the occasion of matrimonial proceedings within Articles 1 and 13 of Brussels II. Article 37 therefore gave Brussels II precedence, so the originating summons issued under section 15 of the Child Abduction and Custody Act 1985 was a nullity.
2. Meaning of “on the occasion”. The phrase denotes a lineal connection between the matrimonial proceedings and parental-responsibility proceedings, rather than merely a temporal connection. The relevant period extends from the inception of the proceedings until the cessation of jurisdiction under Article 3(3). Orders concerning contact may remain within the Regulation where the parental-responsibility jurisdiction continues.
3. Parental responsibility includes contact. The court rejected a narrow construction based on the Children Act 1989 which would exclude contact orders. The preambles to Brussels II, read together, required a wider construction sufficiently broad to give effect to the Regulation’s recognition and enforcement objectives.
4. Alternative European Convention reasoning. The Article 10(1)(a) and (b) exceptions had to be construed and applied stringently because “manifestly” required a clear case. Article 11(2) permitted gradual implementation and the use of a CAFCASS officer to assist restoration of contact, without reviewing the substance of the French order. These conclusions were unnecessary once the proceedings were held to be governed exclusively by Brussels II.
5. The father was left to choose between fresh enforcement proceedings under Brussels II and an application under section 8 of the Children Act 1989, the latter requiring a full merits investigation. The Court of Appeal made no future case-management directions.

• Court of Appeal (Civil Division): the appeals from Wall J’s decision were dismissed. The court held that the enforcement proceedings under the European Convention were a nullity because Brussels II had precedence.
• High Court, Family Division: Wall J rejected the mother’s Article 10 defences, registered the French access order and directed staged visiting contact in London under Article 11(2).