W v W (Foreign Custody Order: Enforcement)

Foreign custody orders within the European Convention must be enforced unless a stringent exception is established. A change of circumstances, including the passage of time, must make immediate enforcement manifestly inconsistent with the child’s welfare. The court must not review the foreign decision on its substance. The child’s views may inform the decision but do not determine it.

Under the Brussels Regulations, welfare is not a free-standing ground for refusing recognition. Recognition may be refused only where it is manifestly contrary to public policy, taking the child’s best interests into account.

The mother sought recognition, registration and enforcement in England of Irish High Court orders requiring the three children to move from England to Ireland and live primarily with her. The orders followed Irish judicial separation proceedings and a rehearing in which the Irish court made welfare-based findings.

The father resisted enforcement. He argued that the European Convention did not apply, that the Brussels II Regulation or Brussels II Revised should govern instead, that the Irish proceedings were jurisdictionally defective, and that changed circumstances made enforcement contrary to public policy or the children’s welfare.

The central questions were which enforcement regime applied and whether any applicable exception justified refusing enforcement.

1. Disposition. The Irish orders were to be recognised, registered and enforced at the earliest practicable opportunity. The court concluded that the European Convention applied and stated that it would reach the same result under either Brussels Regulation.
2. Under article 10(1)(b) of the European Convention, the father had to establish a change of circumstances and show that, in consequence, immediate enforcement was manifestly no longer in accordance with the children’s welfare. The word manifestly imposed a very high threshold. The provision was to be applied stringently and was likely to arise only in exceptional cases.
3. The children’s wishes were genuine and significant, but they did not determine the outcome. The passage of time, integration into the father’s household and schooling, and the breakdown of contact were insufficient. Much of the asserted change resulted from non-compliance with the Irish orders and consequent delay.
4. The court was prohibited from reviewing the Irish decision on its substance. It had to treat the Irish welfare findings and the conclusion that the children should live with the mother as the starting point for any escape-provision analysis. Even if article 10(1)(b) had been established, the court would have exercised its discretion to enforce because refusal would damage the Convention’s policy objectives.
5. Under the Brussels Regulations, welfare was not a free-standing basis for non-recognition. The public-policy exception required recognition to be manifestly contrary to English public policy, taking the children’s best interests into account. The jurisdiction and substance of the Irish judgment could not be reviewed.
6. The Irish jurisdictional rules were sufficiently similar to the Brussels matrimonial rules to satisfy the transitional provisions, but the additional parental-responsibility jurisdictional requirements were not met. The Irish orders remained enforceable in Ireland and any challenge to Irish jurisdiction had to be made there.
7. If none of the regimes applied, the court would not have ordered peremptory return under the inherent jurisdiction without a welfare investigation.