MD v CT (Rev 1)

Recognition of a foreign parental-responsibility judgment may be refused under Article 23(c) of Brussels II Revised where the judgment was given in default of appearance and the respondent was not served in sufficient time and in a manner enabling a defence. Formal service under the law of the state of origin is not conclusive. The registering court must examine the practical reality, including whether the originating application actually reached the respondent and whether there was a genuine opportunity to prepare a defence. The public-policy exception in Article 23(a) has a very high threshold and cannot be used to review the substance or jurisdiction of the foreign judgment. Article 23(c) deliberately omits the separate defence based on subsequent failure to challenge the foreign judgment; later inaction is therefore irrelevant to the appeal.

The respondent mother appealed orders registering and permitting enforcement of a French judgment awarding the residence of the parties’ child to the father. The orders had been made under Article 28(2) of Brussels II Revised. The appeal was confined to the public-policy and non-service grounds in Article 23(a) and (c). A linked application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 proceeded in tandem. The central questions were whether the French judgment was given in default of appearance, whether the mother had been served in sufficient time and in a manner enabling her to arrange her defence, and whether her failure to challenge the French judgment after notification was relevant.

1. Appeal allowed. The public-policy ground failed. An order made in the mother’s absence awarding residence to the father was not exceptional, and nothing in the procedure or judgment approached the high threshold required by Article 23(a). Article 26 also prohibited review of the substance of the French judgment.
2. Article 23(c) requires a three-stage inquiry: whether the judgment was given in default of appearance; whether the originating document or an equivalent was served in sufficient time and in a way enabling the respondent to arrange a defence; and whether the final conjunctive proviso applies. The first stage is not confined to physical absence. A party may have appeared by formally defending the proceedings or challenging jurisdiction, as explained in Tavoulareas v Tsavliris & Ors.
3. For the second stage, formal validity under foreign law is not decisive. The court must assess service in the real world. The relevant question is whether the respondent had a proper opportunity to contest the proceedings before judgment. The court may consider all the circumstances, including the method of service, the parties’ relationship and whether non-service was attributable to the respondent. The principle that function matters more than form was adopted from the summary in British Seafood Ltd v Kruk & Anor, drawing on Klomps v Michel and Debaecker v Bouwman.
4. The mother’s failure to appeal or otherwise challenge the French judgment after learning of it was irrelevant under Article 23(c). The differently worded proviso in Article 34(2) of the Judgments Regulation could not be imported into Brussels II Revised.
5. Although the mother’s conduct was foolish and the balance was exceedingly fine, the father had refused to provide the originating application to her solicitor and had arranged an artificial attempt at service at his own address. The mother therefore had not been served in sufficient time and in a manner enabling her to arrange her defence. The appeal succeeded under Article 23(c). The linked Hague proceedings were to continue.

The judgment describes an appeal from orders made by District Judge Bowman on 26 February 2014 registering and permitting enforcement of the French judgment. No separate citation for the appealed decision is stated.