D (A Child) (International Recognition)

Under article 23(b) of the Council Regulation (EC) No 2201/2003, a court considering recognition of a parental-responsibility judgment must identify the fundamental procedural principle, rather than require uniform domestic practice. English law recognises a fundamental principle that the court must consider, at an early stage, whether and how the child should be heard. The manner of participation may depend on age, maturity and welfare, and hearing the child does not require the court to follow the child’s views.

Failure even to consider that question can require non-recognition. The exception remains narrow because mutual recognition is central to the Regulation. Under article 23(c), valid service and sufficient opportunity to defend are distinct safeguards. Actual knowledge is relevant but unnecessary; exceptional circumstances are required before valid service is treated as inadequate.

A nine-year-old child had lived in England with his mother since shortly after birth. His father lived in Romania. Following prolonged Romanian proceedings, the Bucharest Court of Appeal made a final order transferring custody to the father, although the child had not been given an opportunity to be heard.

Peter Jackson J allowed the mother’s appeal against recognition and enforcement. He held that non-recognition was required under articles 23(b), (c) and (d) of the Council Regulation (EC) No 2201/2003, but rejected the public-policy ground in article 23(a): Re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam).

The father appealed. The principal issues were whether the Romanian court’s failure to consider hearing the child violated a fundamental principle of English procedure, and whether service upon the mother afforded a sufficient opportunity to defend the Romanian appeal.

1. Appeal dismissed. The Romanian judgment could not be recognised because article 23(b) of the Council Regulation (EC) No 2201/2003 was established. Ryder LJ gave the leading judgment. Briggs and Moore-Bick LJJ agreed with the disposition and the article 23(b) reasoning.

2. The right of a child to participate in proceedings concerning that child is a fundamental principle of English procedure. The court must ask at an early stage whether, and if so how, the child should be heard. That obligation is distinct from the weight ultimately given to the child’s wishes and feelings. Age, maturity, welfare and the circumstances may affect the appropriate form of participation or justify a decision against obtaining the child’s views, but the court itself must address the question.

3. Article 23 exceptions must be construed narrowly because mutual recognition rests on mutual trust. Nevertheless, a failure even to consider whether a seven-year-old should be heard violated article 23(b), particularly where the proposed order entailed a change of lifelong carer, country and language. Once that violation was established, non-recognition was mandatory. Briggs LJ emphasised that the violation consisted in the complete absence of consideration, rather than necessarily in the ultimate failure to hear the child.

4. The mother’s article 23(a) public-policy argument failed. Although procedural and public-policy grounds overlap, article 23(a) requires something more than the established procedural violation: a conflict with the legal order of an unacceptable degree, such as breach of a substantive principle.

5. The judge’s conclusions under articles 23(c) and (d) were wrong. “Default of appearance” has an autonomous meaning, and an Annex II certificate does not bind the recognising court on that issue. Article 23(c) separately requires valid service of a document instituting proceedings and sufficient time and means to arrange a defence. Actual receipt is unnecessary. The court may consider knowledge, method of service and conduct, but ordinarily only exceptional circumstances make valid service inadequate. Nearly four months afforded sufficient time on the facts.

6. Recognition proceedings are summary proceedings. Extensive factual investigation should be avoided, and the judge was not obliged to hear oral evidence. The father bore the burden of proving the nature and delivery of the documents said to institute proceedings.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed under article 23(b) of the Council Regulation (EC) No 2201/2003. The High Court’s conclusions under articles 23(c) and (d) were held to be wrong.
2. Family Division of the High Court: Peter Jackson J allowed the mother’s appeal against recognition and enforcement under articles 23(b), (c) and (d), but rejected article 23(a): Re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam), [2015] 1 FLR 1272.
3. Romanian Court of Appeal: On 27 November 2013 it allowed the father’s appeal and made the custody order whose recognition and enforcement were sought in England and Wales.