L (A Child), Re

A judgment concerning parental responsibility given in one EU Member State could be denied recognition under article 23(a) of Brussels II Revised only in an exceptional case. Recognition had to be manifestly contrary to public policy, taking account of the child’s best interests. A mere disagreement with the foreign court’s welfare assessment could not justify reviewing the judgment’s substance.

For jurisdiction under article 8, a child’s habitual residence required sufficient permanence and integration in a social and family environment. Temporary residence in different states on a repeating two-month cycle did not cause habitual residence, and therefore jurisdiction, to alternate continually.

The unmarried parents of an infant agreed in Portugal that their son would live alternately with each of them for two months in Portugal and England. A Portuguese court homologated the agreement. After returning lawfully to England with the child, the mother commenced proceedings under the Children Act 1989.

Macur J dismissed the father’s applications to enforce the Portuguese decision. She held that recognition would be manifestly contrary to public policy because of the mother’s mental and emotional condition when she agreed to the arrangement. She also held that the child had acquired habitual residence in England and that the English court had jurisdiction: Re LSdC [2012] EWHC 983 (Fam).

The father appealed on recognition under article 21 of Brussels II Revised and jurisdiction. Permission to appeal the refusal of enforcement under article 41 was refused. The principal questions were whether article 23(a) prevented recognition and whether the child’s habitual residence changed during the agreed two-month stay in England.

1. Appeal allowed. The Portuguese order was to be recognised under article 21 of Council Regulation (EC) No 2201/2003. The child remained habitually resident in Portugal, so the English court lacked jurisdiction and the Portuguese court alone had jurisdiction.

2. Article 23(a) created a very narrow exception to recognition. Its public-policy threshold was deliberately high because the Regulation rested on mutual trust and prohibited review of the foreign judgment’s substance. The approach in Re S (Brussels II: Recognition: Best Interests of Child) (No 1) [2003] EWHC 2115 (Fam) was approved, together with the qualification in LAB v KB (Abduction: Brussels II Revised) [2009] EWHC 2243 (Fam) that successful welfare objections would be extremely rare and their consequences would have to be of the utmost seriousness.

3. Macur J had properly found that disagreement with the rotating-care arrangement on welfare grounds fell far short of article 23(a). She had erred, however, in treating the mother’s mental and emotional condition as sufficient. Although an egregious failure of fundamental procedural fairness could engage article 23(a), the findings about the Portuguese process and the mother’s condition did not approach that standard. Refusing recognition on those facts amounted to an impermissible substantive review under article 26.

4. The interim prohibited steps order was not an irreconcilable judgment under articles 23(e) or 47. It merely held the position pending determination of the Brussels II Revised issues and could not prevent enforcement of the earlier Portuguese judgment.

5. Habitual residence under article 8 had an autonomous EU meaning, and a person could have only one such residence at any time. It depended on all the circumstances and required physical presence accompanied by sufficient permanence or regularity and some integration in a social and family environment. The child’s temporary and intermittent stays in England on a constantly revolving two-month cycle lacked the required permanence. His habitual residence therefore remained in Portugal.

6. Article 13 applied only exceptionally where habitual residence could not be established. This was not such a case. A presence-based jurisdiction following the child between states would also undermine the Regulation’s coherent allocation of responsibility.

• Court of Appeal (Civil Division): The father’s appeal was allowed on recognition under article 21 and jurisdiction: [2012] EWCA Civ 1157. Permission to appeal on enforcement under article 41 was refused.
• High Court, Family Division: Macur J dismissed the father’s enforcement applications, held that the English court had jurisdiction, and stayed the Portuguese proceedings: Re LSdC [2012] EWHC 983 (Fam).
• Oxford County Court: The mother commenced proceedings under the Children Act 1989. Interim protective relief was granted before the proceedings were transferred to the High Court.
• Aveiro Family and Minors Court: The Portuguese court homologated the parents’ agreement concerning parental responsibility, alternating residence and contact.