AA v TT

Recognition and enforcement of a foreign custody decision may be refused where enforcement would be manifestly incompatible with fundamental principles of family law or manifestly contrary to the children’s welfare after a material change of circumstances. The prohibition on reviewing a foreign decision as to its substance does not prevent the court from identifying that the decision rests on a fundamentally mistaken essential fact. Article 10 confers a discretion, rather than requiring refusal whenever a gateway defence is established. Reciprocity and the avoidance of conflicting litigation remain important, but the overriding consideration is the welfare of the children concerned.

The father sought recognition and enforcement in England of a Turkish custody order made on 26 November 2013, by which custody of the parties’ three children had been transferred from the mother to him. The children had been living in England with the mother since September 2012. The Turkish decision proceeded on the factual premise that the mother was living in Turkey with her second husband and had left the children in England with their grandparents.

The mother disputed that premise and relied on the defences in Article 10 of the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children. The central issues were whether the court could consider the true essential facts without impermissibly reviewing the Turkish decision on its substance, and whether recognition and enforcement should nevertheless be refused.

1. Application dismissed. The application for recognition and enforcement of the Turkish custody order was dismissed.
2. Article 9(3) imposed a freestanding prohibition against reviewing the foreign decision as to its substance. The court could not reconsider the merits of the Turkish custody decision. That prohibition did not prevent the court from recognising that the decision was fundamentally founded on a completely mistaken essential fact or facts. Identifying the true factual matrix in that limited way was not a review of the decision as to its substance. The court relied on Re A (Foreign Access Order: Enforcement) [1996] 1FLR 561 and Re G (Foreign Contact Order: Enforcement) [2003] EWCA Civ 1607, [2004] 1FLR 378.
3. The Turkish order was based on the mistaken premise that the mother lived in Turkey with her second husband, had sent the children to England, and was not caring for them. The court was sure that those facts were wrong. The mother had lived in England with the children and had cared for them, apart from short periods when they were appropriately cared for by their grandparents.
4. The gateways in Article 10(1)(a) and (b) were established. Enforcement on the mistaken factual foundation would be manifestly incompatible with fundamental principles of family and child law. In addition, the passage of time, the children’s settled life in England, their changed wishes and feelings, and the absence of a safe and assessed arrangement in Turkey meant that immediate enforcement was manifestly no longer consistent with their welfare.
5. The court adopted and applied the principles stated in W v. W [2005] EWHC 1811 (Fam): the burden lay on the person resisting enforcement; the change and resulting welfare disparity had to be established cogently; Article 10 was to be applied stringently; and the children’s views informed but did not determine the outcome. Establishing a gateway did not automatically require refusal, since the court retained a discretion.
6. The Convention’s objectives included reciprocity and avoidance of conflicting litigation, but the overriding consideration remained the welfare of the children. Immediate enforcement would abruptly remove settled children from the care of their mother and place them in an uncertain and unassessed situation with a father whom they feared. Recognition and enforcement would therefore be contrary to their welfare to an intolerable degree.
7. The court declined to base its decision on Article 10(1)(c) or (d). It expressed no concluded view on the meaning of the timing requirement in Article 10(1)(d), because the discretion would not have been exercised in favour of enforcement in any event.