R v E

On an appeal concerning registration and enforcement of foreign child-welfare orders, the enforcing court must have the information necessary to exercise its statutory discretion fairly. Where an ordinary appeal is pending in the state of origin, the court may stay recognition and enforcement proceedings. A failure to disclose that appeal may justify setting aside registration and enforcement orders. The court may then reconsider the matter itself and impose an indefinite stay pending further directions. In child proceedings, the court may join an older child as a party and direct a CAFCASS guardian to ascertain the child’s wishes and feelings where the child has expressed a strong, current and potentially conflicting view. The court must avoid reviewing the substance of the foreign judgment when considering reciprocal enforcement.

The father sought registration and enforcement in England of two Spanish orders concerning the residence and schooling of the parties’ two children. A district judge registered the orders and permitted enforcement on 5 October 2016. The mother appealed to the High Court. An ordinary appeal against the Spanish judgment had already been lodged, but the enforcement application did not clearly disclose that fact.

The children had lived in England for nearly three years. The elder child, aged 13, had recently expressed a strong wish to remain in England and applied to be joined and represented. The issues were whether the district judge’s orders should stand, whether enforcement should be stayed pending the Spanish appeal, and whether the elder child should be joined.

1. The district judge’s orders were set aside. The enforcement application had not clearly disclosed the pending Spanish appeal. That omission deprived the district judge of information relevant to the discretion under rules 31.9 and 31.16 of the Family Procedure Rules 2010. On the circumstances, the district judge might have stayed enforcement until the Spanish appeal was determined.
2. The High Court could reconsider whether the Spanish orders should be registered and enforced, or whether the proceedings should be stayed. Under article 26 of the EU Council Regulation (EC) Number 2201/2003, the Spanish judgment could not be reviewed as to its substance. It was nevertheless permissible to consider the judgment’s reasons for the limited purpose of addressing the enforcement issues.
3. The proceedings were stayed until further order. An indefinite stay was appropriate at this stage, subject to a further directions hearing in late January 2017. A stay lasting a year or more without review would be intolerable given the children’s need for certainty.
4. The 13-year-old daughter was joined as a party and was to be represented by a CAFCASS guardian of the High Court Team. The guardian was to ascertain her wishes and feelings and assess whether they were authentic or had been inculcated. The same CAFCASS officer was directed to interview the 10-year-old son and report whether he too should be joined and represented.
5. The court made no ruling on the proposed lumbar puncture. There was no formal application or medical evidence before the court, although the judge stressed the importance of parental responsibility, communication and informed participation in significant medical decisions.

• High Court (Family Division): The mother’s appeal from the district judge’s orders of 5 October 2016 was allowed. The orders were set aside, the proceedings were stayed until further order, and further directions were listed.
• District judge, Principal Registry of the Family Division: On 5 October 2016, the Spanish orders were registered and permission for enforcement was granted.