M (Children) (Rev 1)

A certified foreign judgment granting rights of access must be recognised and enforced without reviewing its substance. The enforcing court may fill practical gaps under Article 48, but must preserve the judgment’s essential elements and apply domestic enforcement law under Article 47. It cannot invent powers or compel a public agency to supervise contact where domestic law provides no such power. A requirement for supervision by a competent child-welfare authority may be an essential element. If that requirement cannot be implemented domestically, enforcement fails in its existing form. The enforcing court need not turn enforcement into a welfare inquiry or replace the mandated supervision with independent arrangements; the court of origin must reconsider the order.

The father, an Estonian national living in Estonia, sought enforcement in England of an interim Estonian contact order concerning his two daughters. The order required monthly contact in England in the presence of a competent United Kingdom child-welfare authority or a person appointed by it. The English local authority and CAFCASS were unwilling to supervise contact.

Mr Justice Moylan declared the order enforceable but made no order because it was incapable of practical enforcement in its current terms. The father appealed, arguing that the English court was required to make the order happen, including by using Article 48 of Brussels IIA, the inherent jurisdiction, or provisions of the Children Act 1989. The central issues were whether the order’s supervision requirement was an essential element and whether English law supplied any means of compelling supervision.

The appeal was dismissed. Lady Justice Black gave the leading judgment, with Lord Justice Treacy and Lord Justice Simon agreeing.

1. Scope of enforcement. Under Council Regulation (EC) No 2201/2003 (Brussels IIA), a certified enforceable access judgment is recognised and enforceable without a declaration of enforceability or opposition to recognition. Articles 26, 41, 47 and 48 prohibit review of the substance and permit only practical arrangements which respect the judgment’s essential elements.
2. Essential element. The requirement that contact be supervised by a competent child-welfare authority was an essential element of the Estonian order. The enforcing court could not replace that requirement with direct appointment of an independent social worker or an organisation such as the Anna Freud Centre.
3. Domestic enforcement law. Article 47 requires enforcement in the same conditions as a domestic judgment. It imports domestic law governing available enforcement methods, subject to practical flexibility where necessary to accommodate the foreign order. It does not authorise the court to invent a remedy, particularly where enforcement would impose obligations or public-resource burdens on a non-party government agency.
4. Children Act powers. Section 16 of the Children Act 1989 permits a family assistance order requiring advice, assistance and befriending, including assistance with establishing, improving or maintaining contact. It does not empower the court to require a local authority or CAFCASS to supervise contact. Sections 11A–P concern activities undertaken by parties and monitoring or reporting by CAFCASS; they do not authorise CAFCASS or a local authority to provide or supervise contact.
5. Inherent jurisdiction and alternatives. The inherent jurisdiction could not be used to impose an obligation omitted from the carefully structured statutory scheme. Exploring independent supervision or the Anna Freud Centre would have moved beyond practical enforcement into welfare assessment and would have departed from the essential element imposed by the Estonian court.
6. Result. Since English law provided no route to compel the required government-agency supervision, the Estonian order had no practical means of enforcement in its current form. The father’s remedy was to seek modification from the Estonian court, or pursue any appropriate jurisdictional route.

1. Court of Appeal (Civil Division): Appeal dismissed.
2. High Court of Justice, Family Division: Mr Justice Moylan declared the Estonian interim contact order enforceable but made no order because it was incapable of practical enforcement in its current terms. The Court of Appeal upheld that conclusion.