E (Biia: Recognition And Enforcement) (Rev 1)

Under Article 23(e) of Council Regulation (EC) No. 2201/2003, a later judgment is one given after the foreign judgment by a court possessing general jurisdiction. It need not pre-date the application for recognition or enforcement.

Neither an enforcement application nor a domestic welfare application has automatic priority. The court must recognise and enforce the foreign order unless a ground for non-recognition is established. It may nevertheless conduct a tailored welfare assessment where changed circumstances justify doing so. It must act cautiously, avoid reviewing the foreign judgment’s substance, respect mutual trust, give proper weight to the foreign court’s findings and determine enforcement without delay.

The father sought enforcement of Spanish orders granting him custody of two children. The Spanish proceedings had ended, and the children had long been habitually resident in England. The mother brought domestic welfare proceedings seeking orders that the children live with her.

Russell J made child arrangements orders for the children to live with their mother and held that these later English orders were irreconcilable with the Spanish orders under Article 23(e) of Council Regulation (EC) No. 2201/2003. She therefore allowed the mother’s appeals against enforcement: [2020] EWHC 162 (Fam).

The father appealed in relation to the younger child. He argued that Article 23(e) could apply only where the later judgment existed before the enforcement application, and that the restricted welfare inquiry had been procedurally unfair.

1. Appeal dismissed. Article 23(e) did not require the later irreconcilable judgment to have been given before the application for recognition or enforcement. A later judgment is a judgment given after the judgment sought to be enforced by a court possessing general jurisdiction. The English court had that jurisdiction because the children were habitually resident in England and the Spanish court was no longer seised.

2. Council Regulation (EC) No. 2201/2003 gives orders of Member States equivalence, not automatic temporal priority. Nothing in the Regulation required domestic welfare proceedings to be stayed pending determination of enforcement. Making the availability of Article 23(e) depend upon the filing date of an enforcement application would produce arbitrary results.

3. Where enforcement and welfare applications coexist, neither automatically takes precedence. The court must recognise and enforce the foreign order unless a ground for non-recognition is established. Mutual trust must remain central, and enforcement is not itself a welfare process. The prohibition against substantive review prevents the requested court from ruling again on the foreign court’s decision. It does not prevent a court with general jurisdiction from making a new welfare order following a material change of circumstances.

4. The court must first confirm its general jurisdiction and that the foreign court is no longer seised. It must then decide whether it is appropriate to assess matters already determined abroad, using an earlier domestic order as an analogy. Any welfare inquiry must be focused and managed so that enforcement is determined without delay. Before making an irreconcilable order, the court must act cautiously and give full weight to the foreign court’s conclusions and to mutual trust.

5. The judge’s welfare process lacked clarity and did not explicitly integrate the Spanish judgments into the overall assessment. Nevertheless, the deficiencies caused no injustice. The children’s long residence and integration in England, their ages, their emphatic wishes and the Guardian’s opposition to separating them were of magnetic and almost certainly decisive importance. A fuller process would inevitably have produced the same result.

6. No reference to the Court of Justice was required. The interpretation of Article 23(e) admitted of no reasonable doubt, and the proposed wider question concerning foreign findings did not directly arise.

1. Court of Appeal (Civil Division): The father’s appeal was dismissed. The later English welfare order could engage Article 23(e), and the shortcomings in the welfare process caused no injustice: [2020] EWCA Civ 1030.
2. High Court (Family Division): Russell J made child arrangements orders for the children to live with their mother and allowed her appeals against enforcement of the Spanish orders under Article 23(e): [2020] EWHC 162 (Fam).
3. Spanish courts: The Court of First Instance granted custody to the father in 2016. The Provincial High Court of Navarra dismissed the mother’s appeal in July 2018, concluding the Spanish proceedings.