F v M

Recognition of a foreign child-welfare measure may be refused under Article 23 of the Hague 1996 Convention where the child was not given an opportunity to be heard in breach of fundamental procedural principles, or where recognition would be manifestly contrary to public policy having regard to the child’s best interests.

A child holding refugee status cannot be ordered by the family court to return to the country of origin, whether the status was granted personally or as a dependant. Where Article 23 grounds are established, the court retains a discretion whether to recognise the foreign measure. The registration process is essentially administrative, but a district judge may refuse registration where an evident procedural deficiency is identified.

The father appealed against District Judge Gibson’s refusal to register an order of the Zamoskvoretsky District Court in Moscow determining that the child should live with him in Russia. The order had been upheld on appeal in Moscow. The child had lived in England with her mother, the mother’s partner and her half-brother, and held refugee status in the United Kingdom as a dependant.

The parties agreed that the High Court should determine the Article 23 objections as a unitary hearing. The central issues were whether the child had been given an opportunity to be heard and whether recognition or enforcement would be contrary to public policy, including in light of the child’s refugee status and best interests.

1. The appeal was dismissed. The mother’s objections under Article 23(2)(b) and (d) of the Hague 1996 Convention were made out, and the court exercised its discretion not to recognise the Russian order.
2. Under Article 23(2)(b), the child must have been provided an opportunity to be heard unless the case was urgent. The child’s views could have been obtained through alternatives to bringing her to Russia, including an independent report in England or a remotely conducted interview. Those alternatives were not considered, and the Russian judgment did not address the child’s voice. The omission breached a fundamental procedural principle of England and Wales.
3. The court treated refugee status as an absolute bar to an order by the family court requiring the child’s return to an alternative jurisdiction. There were no different tiers between refugees: the principle applied whether the child had refugee status in her own right or as a dependant.
4. Alternatively, recognition would have been manifestly contrary to public policy, taking into account the child’s best interests. The balance overwhelmingly favoured non-return because removal would separate the child from her mother and established family life, while continued residence in England preserved contact with her father.
5. The district judge’s function in a registration application is essentially administrative and normally involves a light-touch review of the documents. That did not prevent District Judge Gibson from identifying an evident gap concerning the child’s opportunity to be heard and acting upon it. Her reasons were brief but sufficient.

• High Court (Family Division): Appeal against refusal to register the Russian order dismissed. The court made its own findings under Article 23 and declined recognition.
• Moscow Municipal Court: The mother’s appeal was dismissed and the order of the Zamoskvoretsky District Court was upheld.
• Zamoskvoretsky District Court: Order dated 27 September 2016 determining that the child should live with the father in Russia.