MD v AA & Anor

Under the Brussels II Revised Regulation, recognition of a judgment concerning parental responsibility is subject to mutual trust and a prohibition on reviewing its substance. The public-policy exception is narrow and applies only in an exceptional case where recognition would offend a fundamental principle of the forum’s legal order.

A child’s opportunity to be heard requires an age-appropriate enquiry into the child’s wishes and feelings. The obligation rests on the court, not on the parties. In default proceedings, service must enable the respondent in reality, and not merely in accordance with domestic technical rules, to arrange a defence.

Registration is principally administrative but requires judicial scrutiny. Fundamental procedural defects may invalidate registration, although defects may be cured where fairness permits.

The applicant father sought recognition and registration in England of a Bucharest Court of Appeal order transferring the residence of the parties’ seven-year-old son from the mother in England to the father in Romania. The Romanian proceedings had lasted six years. The child had lived in England since infancy and had not been given an opportunity to express his wishes and feelings in the Romanian proceedings.

The mother appealed against recognition and registration under Articles 23(a)–(d) of the Brussels II Revised Regulation. She also relied on defects in the English registration process, including missing documents, defective service and premature enforcement. The central issues were whether recognition was barred by the child-hearing, service and parental-responsibility safeguards, and whether the registration orders should stand.

1. Outcome. The mother’s appeal was allowed. Recognition of the Bucharest Court of Appeal judgment was refused under Articles 23(b), (c) and (d). The registration order of 7 February 2014 was quashed for fundamental procedural defects. The appeal against the later registration order was dismissed insofar as it relied only on procedural defects.
2. Public policy. Article 23(a) establishes a very narrow exception. It must be applied consistently with mutual trust and Article 26’s prohibition on reviewing the substance of the foreign judgment. The circumstances were distressing but were not so extreme as to make recognition manifestly contrary to public policy.
3. Opportunity to be heard. Article 23(b) required consideration of the proceedings as a whole. The Romanian decision was not urgent, yet no reliable enquiry had been made into the child’s wishes and feelings. An age-appropriate enquiry is required to enable the decision-maker to understand the child’s distinct point of view. The child’s entitlement to a voice is a fundamental procedural principle.
4. The mother’s opposition to the child being heard did not discharge the court’s obligation. The Romanian Court of Appeal reached a new conclusion about the child’s wishes without material independent evidence. The child could have been heard through an English social worker, the Evidence Regulation or an Article 15 request. Recognition was therefore refused under Article 23(b).
5. Service and hearing of the mother. The relevant proceedings were the father’s 2013 appeal, not the earlier litigation. The judgment was given in default of appearance. Technical compliance with Romanian service law did not establish service in a manner that actually enabled the mother to defend the appeal. The father had not shown that the document served instituted the proceedings or was an equivalent document, or that service enabled a defence. Articles 23(c) and (d) were therefore engaged.
6. Registration. Registration under Part 31 of the Family Procedure Rules is essentially administrative but requires a judicial act and a broad appreciation of the consequences of registration. The court is not a rubber stamp. Substantial shortcomings should be corrected before registration, particularly where the respondent cannot be heard. However, insistence on faultless compliance is unnecessary where later correction produces a fair result.
7. The first registration order was invalidated by cumulative fundamental defects, including failure to exhibit the judgment, failure to produce the Annex II certificate, failure to serve the application and unjustified abridgement of the enforcement period. The later registration order was not set aside because the remaining defects had no practical effect and were not attributable to the father.

This was an appeal to the High Court against English orders recognising and registering the Bucharest Court of Appeal judgment of 27 November 2013. The appeal was allowed on the recognition grounds under Articles 23(b)–(d), and the order of 7 February 2014 was quashed.