ET v TZ

Recognition and enforcement of a foreign child-residence order may be refused on public-policy grounds only in exceptional circumstances. The test under Article 23(a) of Brussels II Revised is narrower than whether enforcement would merely conflict with the child’s welfare. The foreign welfare decision must not be substantively reviewed. The court must apply the exception strictly and require a very high degree of disparity between enforcement and the child’s current welfare interests. A child’s non-participation will not necessarily prevent recognition where the child’s age and the circumstances of the foreign proceedings make the objection unsustainable.

The mother sought recognition and enforcement in England of a Polish interim residence order made in her favour in 2010. She also issued an application under the Convention on the Civil Aspects of International Child Abduction. The father opposed recognition, relying principally on public policy and the alleged failure to give the child an opportunity to be heard under Articles 23(a) and 23(b) of Brussels II Revised.

Because Article 60(d) gave the Regulation precedence over the Convention, the court determined the enforcement application first. The central questions were whether the Polish order was manifestly contrary to public policy, taking account of the child’s best interests, and whether it had been made without the child having an opportunity to be heard in breach of fundamental procedural principles.

1. Enforcement considered first. By Article 60(d) of Brussels II Revised, the Regulation took precedence over the relevant parts of the Convention. The court therefore determined recognition and enforcement before considering the abduction application.
2. Annexe II certificate. The absence of an Annexe II certificate was not fatal. Articles 37(1)(b), 38(1) and 39 permitted the court to allow time for production, accept equivalent documents, or dispense with the certificate where sufficient evidence was available. The court exercised that discretion.
3. Public policy exception. Article 23(a) created a narrow exception. Recognition had to be manifestly contrary to public policy, taking account of the child’s best interests. The court could not review the substance of the Polish welfare decision under Article 26. The exception required an exceptional case and a very high degree of disparity between immediate enforcement and the child’s current welfare interests. The relevant principles from Re S (B 2: Recognition: Best Interests of the Child) No. 1, [2004] 1 FLR 571, W v W (Residence) (Enforcement of Order), [2005] EWHC 1881 (Fam), and Re L (Brussels II Revised) (Appeal), [2013] 1 FLR 430, were applied. The court also applied the strict and exceptional approach described in Krombach v Bamberski, (KC-7/98) [2000] ECR I 1935.
4. Opportunity to be heard. The Article 23(b) objection failed. The child had been only five when the Polish order was made, and the Polish court had obtained a Guardian’s report addressing the relevant issues.
5. Outcome. The Polish interim residence order was recognised and enforced. The court declined to give general guidance on severing or combining the enforcement and Convention issues, and declined to determine the possible power to order a phased return because that issue had become irrelevant to the decision.