S (A Child) , Re

Under Brussels II bis, the court designated for the first appeal against registration is determined by the list notified under article 68. In England and Wales, an article 33 appeal lies to the High Court of Justice, Principal Registry of the Family Division, without permission. A further article 34 appeal lies to the Court of Appeal and requires permission. Domestic procedural rules cannot alter those designated routes. The initial registration application is administrative and should ordinarily be dealt with by a district judge; an article 33 appeal is heard at the higher tier of the same court. No further appeal is available beyond the procedure specified under article 34.

The Milan Court of First Instance made an order concerning the custody and placement of S, whose parents were involved in Italian proceedings concerning contact and parental responsibility. The father obtained permission from Macur J to register the order in England and Wales under article 28(2) of Brussels II bis. The mother sought to appeal, and uncertainty arose over whether her first appeal lay to the High Court or the Court of Appeal.

Charles J made directions preserving both possible appellate routes. The Court of Appeal was asked to determine authoritatively the proper route for the initial application, an article 33 appeal against registration, and any further article 34 appeal.

1. Disposition and appeal route. The mother’s first appeal against registration under article 33 had to be lodged with the High Court of Justice, Principal Registry of the Family Division. No permission to appeal was required. Any second appeal under article 34 lay to the Court of Appeal, where permission was required. No further appeal was available.
2. Registration process. Articles 29 to 35 governed the process. The initial application for permission to register under article 29(1) was without notice and essentially administrative. It could be refused only on the grounds specified in articles 22 to 24, and the foreign judgment could not be reviewed as to its substance under article 31.
3. Binding court designations. The courts and redress procedures specified in the lists notified under article 68 were binding. Domestic procedural law governed the making of the application, but the domestic courts could not depart from the appellate routes designated by the Regulation.
4. Judicial hierarchy. The initial registration process should ordinarily be dealt with by a district judge at the Principal Registry. An article 33 appeal should be heard by a Family Division judge or a section 9 judge at the higher tier.
5. Further directions. The appeal was remitted to the High Court. The stay was extended until determination of the mother’s first appeal. A CAFCASS assessment was requested, if resources permitted, because welfare evidence might assist the High Court’s consideration of the public-policy objection under article 23(a). The court also made obiter observations encouraging mediation in cross-border family disputes.

• High Court of Justice, Principal Registry, Family Division: Macur J granted permission to register the Milan order on 24 February 2009 under article 28(2) and granted a temporary stay. Charles J subsequently directed that the mother’s notice be treated as filed in the Family Division and preserved both appellate routes.
• Court of Appeal (Civil Division): The court held that the first appeal lay to the High Court under article 33 and remitted the appeal to the High Court. A further appeal under article 34 would lie to the Court of Appeal with permission.