LAB v KB (Abduction: Brussels II Revised)

Recognition of a judgment from another Member State under Council Regulation EC 2201/2003 may be refused on public-policy grounds only where the case presents exceptionally grave and cogent circumstances. Mere passage of time and a fresh assessment of the child’s welfare are insufficient. The recognising court must not review the foreign judgment’s substance or substitute its own welfare evaluation. At the enforcement stage, the court has an overriding duty to give effect to the foreign judgment, subject only to the limited grounds in the regulation. Welfare is relevant but is not paramount, and enforcement proceedings do not permit a full welfare inquiry or variation of the foreign order.

The Spanish courts made orders transferring residence of two children to their mother after the father had removed them from Spain to England. The Spanish order was certified and registered as enforceable in England. The father appealed against recognition and sought a stay, a fresh welfare report, non-recognition or non-enforcement, and transfer of later Spanish variation proceedings to England under Article 15. He argued that the order had become stale and that the children had not been properly heard. The central issues were whether recognition was barred by Article 23 and whether enforcement could be resisted by reference to changed circumstances, welfare, or the children’s current wishes.

1. Recognition. The appeal against recognition was dismissed. Article 23 required a high threshold. Recognition had to be manifestly contrary to public policy, taking account of the children’s best interests. The passage of time, without substantially more, did not satisfy that threshold. The Spanish judgments showed that the children had been heard through the psychologist’s evidence and that their wishes and feelings had been carefully considered. Recognition therefore did not infringe Article 23(a) or (b).
2. Non-review of substance. Articles 26 and 31(3) prohibited examination of the substance of the Spanish decision. The English court could not reconsider the welfare merits, substitute its own assessment, or use current wishes and feelings to reopen the foreign court’s factual and welfare determination.
3. Enforcement. Under Articles 28, 31 and 47, the recognised judgment was to be enforced in England in the same conditions as a domestic judgment, subject to the limited statutory grounds. The court had an overriding duty to make the foreign judgment effective. Welfare and the children’s position remained relevant, but welfare was not paramount and could not justify a general welfare inquiry, variation, or refusal of enforcement. The exceptional possibility of non-enforcement remained confined by Article 23 and required circumstances of the utmost seriousness.
4. A CAFCASS report was unnecessary. The children’s current views had been received, but they were not determinative. The father was allowed a short period to make arrangements for the children’s transfer before formal enforcement was considered.
5. The request to invite the Spanish court to transfer the later variation proceedings to England under Article 15 was declined. Any such application was for the Spanish court, within its discretion, to determine.

• Senior District Judge: registered the Spanish residence order as enforceable in England on 15 May 2009.
• High Court (Family Division): dismissed the father’s appeal against recognition and refused the applications for a fresh welfare report and transfer of the Spanish variation proceedings.