N (A Minor), Re

Recognition and enforcement of a judgment from another Member State under Brussels II Revised are distinct and ordinarily mandatory stages. They may be refused only on a specified ground, here whether recognition or enforcement would be manifestly contrary to public policy, taking into account the child’s best interests. That is a stringent test concerned with public policy, not a general welfare review or the paramountcy of welfare.

A later change in the child’s residence, passage of time and the child’s settled circumstances do not by themselves justify refusal. The enforcing court must not review the foreign judgment’s substance. A concurrent domestic residence application does not require a full welfare inquiry before recognition and enforcement are determined.

The father sought recognition and enforcement in England of a Spanish appeal judgment ordering that the child live with him in Spain. The child had been brought to England under provisional enforcement of an earlier Spanish order granting custody to the mother, on the basis of her commitment to comply with the appellate decision.

The mother had not returned the child after the Spanish appeal judgment. She issued a domestic application for a residence order and argued that the English court should first conduct a full welfare investigation. The central issues were whether the Spanish court retained jurisdiction, whether recognition and enforcement were mandatory under Brussels II Revised, and whether delay, settlement in England or the child’s welfare made enforcement contrary to public policy.

1. Recognition and enforcement required. The Spanish appeal court had been validly seised while the child was habitually resident in Spain. Its jurisdiction continued notwithstanding the child’s later residence in England. The successive Spanish orders did not create a jurisdictional break; they affirmed the continuing jurisdiction of the Spanish courts.
2. Domestic residence application. The English court could have jurisdiction to determine the mother’s residence application if the child was habitually resident in England. That did not require a full welfare hearing before determining recognition and enforcement. The Regulation had to be read as requiring the court first to decide whether the Spanish judgment had to be recognised and enforced.
3. Applicable test. Under Articles 21, 23(a), 28 and 31.2 of the Regulation, recognition and enforcement were mandatory unless the stringent public-policy ground applied. The test was not a general welfare test, and welfare was not paramount. Article 26 and Article 31.3 prohibited review of the Spanish judgment on its substance.
4. The child’s settlement in England, the passage of approximately 15 to 22 months and the disruption of returning him to Spain did not establish that recognition or enforcement would be manifestly contrary to public policy. The delay substantially resulted from the mother’s failure to comply with her commitment and the father had taken steps to enforce the order.
5. The Spanish order was therefore recognised and enforced. The return was to be phased in accordance with the parents’ agreed timetable and mechanism.