In the matter of D (A Child)

Under the Brussels II (Revised) Regulation, a judgment on the first appeal against registration or enforcement may be contested only through the procedure notified by the member state. The United Kingdom notified a single further appeal on a point of law to the Court of Appeal. The Supreme Court therefore has no jurisdiction to hear a further appeal.

The Regulation and the notification operate together. As directly applicable EU law, given domestic effect by the European Communities Act 1972, they restrict the jurisdiction otherwise conferred by the Constitutional Reform Act 2005. The need for a member-state notification does not prevent the Regulation from being directly applicable where the required notification has been made.

A Romanian court ordered that a child, who had lived in England since infancy, should live with his father. The father sought recognition and enforcement in England under the Brussels II (Revised) Regulation. The High Court refused recognition on several grounds, including that the child had not been given an opportunity to be heard: In re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam), [2015] 1 FLR 1272.

The Court of Appeal upheld the refusal under article 23(b), although it reversed the High Court on other grounds: [2016] EWCA Civ 12, [2016] 1 WLR 2469. The father obtained permission to appeal. The sole issue ultimately before the Supreme Court was whether article 34 of the Regulation, read with the United Kingdom’s notification under article 68, excluded any further appeal from the Court of Appeal to the Supreme Court.

1. The appeal was struck out for want of jurisdiction. Lady Hale, with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hughes agreed, held that article 34 of the Brussels II (Revised) Regulation permits a judgment given on the first appeal to be contested only through the procedure notified by the member state under article 68. The United Kingdom notified a single further appeal on a point of law to the Court of Appeal. It did not notify an appeal from that court to the Supreme Court. Accordingly, the Regulation’s scheme ended at the Court of Appeal: paras 15–19.

2. The purpose and history of the European instruments supported that construction. Their object was the prompt recognition and enforcement of judgments founded on mutual trust. The restriction of further challenges prevented delay and tactical obstruction. Although the more recent instruments allowed member states greater flexibility in specifying appeal routes, the United Kingdom had not used that flexibility to provide for a Supreme Court appeal in family matters: paras 20–28.

3. A notification made by the executive could not, by itself, amend or qualify the jurisdiction conferred by section 40(2) of the Constitutional Reform Act 2005. The relevant legal effect arose instead from article 34 combined with the notification. EU regulations were directly applicable under article 288 of the Treaty on the Functioning of the European Union. Sections 2(1) and 2(4) of the European Communities Act 1972 required domestic enactments, including section 40(2) of the 2005 Act, to have effect subject to directly applicable EU law: paras 29–33.

4. Articles 34 and 68 were directly applicable notwithstanding the need for a member-state notification. They differed from EU provisions which could not operate until national measures supplied an essential definition or enforcement power. If no appeal route were notified, none would exist. In any event, the United Kingdom had made the required notification: paras 34–37.

5. Article 68 did not merely require an accurate description of appeal rights existing under domestic law. That reading would defeat the scheme’s purpose. The Regulation contemplated notifications which restricted routes that would otherwise have been available: para 38. The Supreme Court therefore struck out the appeal without deciding whether the lower courts were correct about the child’s right to be heard: paras 10 and 39.

1. United Kingdom Supreme Court: Held unanimously that article 34 of the Brussels II (Revised) Regulation, combined with the United Kingdom notification under article 68, excluded an appeal from the Court of Appeal. The appeal in [2016] UKSC 34 was struck out.
2. Court of Appeal: In [2016] EWCA Civ 12, [2016] 1 WLR 2469, dismissed the father’s appeal under article 23(b), allowed his appeal under article 23(c) and (d), and dismissed the mother’s cross-appeal under article 23(a).
3. High Court: In In re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam), [2015] 1 FLR 1272, refused recognition under article 23(b), (c) and (d), but rejected the objection under article 23(a).