D v D & Anor

For rights-of-access enforcement under Council Regulation (EC) 2201/2003, the relevant judgment is the original decision determining the rights, not a later order merely making it final and enforceable. A judgment given before the state of origin became an EU Member State is not an enforceable judgment given in a Member State under Article 41(1), even if it is later certified after accession. The question is governed by the Regulation, not solely by national law. The transitional provisions address the relationship between Brussels II and Brussels II Revised, and do not supply a literal answer to new-member-state accession. The appeal was dismissed.

Romanian parents were divorced in Romania. A Romanian court made a contact order on 24 October 2006. The father appealed within time but withdrew the appeal on 19 March 2007. The order was then sealed and a certificate under Article 41 of Brussels II Revised was issued on 27 April 2007, after Romania had joined the European Union.

The father sought enforcement in England. Munby J held that the relevant judgment was the original Romanian order, that Article 64 concerned transition between Brussels II and Brussels II Revised, and that the order was unenforceable. The appeal concerned whether the later appellate order was the relevant judgment, whether the transitional provisions applied to a pre-accession order, and whether the certificate required automatic enforcement.

The Court of Appeal, in a judgment to which all three members contributed, dismissed the appeal. Permission to appeal was granted, the Children Act proceedings were remitted to the High Court for urgent directions, and there was no order as to costs except for detailed assessment of the minor’s publicly funded costs.

1. The issue was governed by Brussels II Revised, not solely by Romanian law. On Romania’s accession on 1 January 2007, Article 2 of the Act of Accession made the Regulation binding and applicable in Romania. The accession adaptations did not affect the Regulation.
2. The relevant judgment was the original Romanian judgment determining contact rights. A later appellate order which merely made that judgment final and enforceable was not itself the relevant judgment. The distinction between a judgment and an enforceable judgment in Articles 28(1), 41(1), 41(3) and 42(1) supported that conclusion.
3. Because the original judgment was given before Romania became a Member State, it was not an enforceable judgment given in a Member State within Article 41(1). Its later enforceability and certification could not cure that defect.
4. The court treated Article 64 as addressing principally the transition between Brussels II and Brussels II Revised. It considered that a literal interpretation would produce manifestly absurd results in relation to new Member States. It was unnecessary to decide the point, but the court tentatively favoured a purposive interpretation or application by analogy for post-accession judgments in proceedings commenced before accession, subject to jurisdiction under Chapter II.
5. The European Court ruling considered in the judgment did not alter the result. It concerned states already subject to both Regulations, and the Swedish court’s order was treated as a confirmation of the underlying decision rather than merely a certificate of enforceability.

• Court of Appeal (Civil Division): Permission to appeal granted. Appeal dismissed. The Children Act proceedings were remitted to the High Court for urgent directions.
• High Court of Justice, Family Division: Munby J held that the relevant judgment was the Romanian order of 24 October 2006 and that it was unenforceable under Brussels II Revised.