B v C (No 2) (1996 Hague Convention Art 22)

Under Article 22 of the 1996 Hague Convention, the law designated by Chapter III may be refused where its application would be manifestly contrary to public policy, taking the child’s best interests as a primary consideration.

The public-policy exception remains a high and exceptional threshold, particularly in conflicts cases. It may nevertheless apply where foreign law would perpetuate a fraudulent status giving an unrelated stranger parental responsibility, with serious consequences for the child’s identity, legal status and welfare. The court must distinguish criticism of the foreign law itself from the effect of applying it in the particular case.

The mother sought to prevent parental responsibility being recognised in England and Wales in favour of D, who was recorded as the child’s father in Spain. The registration resulted from C’s use of D’s stolen identity. DNA testing established that D was not the child’s biological father. C was subsequently convicted of serious sexual offences and imprisoned.

The child had become habitually resident in England and Wales. The central issue was whether parental responsibility arising under Spanish law subsisted here under Article 16(3) of the 1996 Hague Convention, or whether application of Spanish law had to be refused under Article 22 as manifestly contrary to public policy, taking the child’s best interests into account.

1. Article 16(3) and Article 18. If Spanish law were applied, parental responsibility arising by operation of Spanish law would subsist in England and Wales after the child’s change of habitual residence. It could then be terminated or modified by protective measures under Article 18, applying the law of the forum under Article 15(1), insofar as domestic law permitted.
2. Article 22 test. Article 22 applies to Article 16(3). The question is whether applying the designated law would be manifestly contrary to public policy, taking the child’s best interests as a primary consideration. The exception is a high one and must be kept within proper limits, but the assessment is fact-specific.
3. Application. Applying Spanish law would perpetuate a fraudulent registration and leave an unrelated stranger with the rights, duties, powers and authority of a parent. It would create continuing uncertainty about the child’s identity, civil status and the stranger’s ability to intervene in fundamental decisions. That outcome was incompatible with the child’s best interests, the fundamental public policy of English law and relevant international human-rights norms concerning identity and accurate birth registration.
4. The court distinguished the effect of applying Spanish law in this case from any criticism of Spanish law in the abstract. Fraudulent circumstances and their consequences, rather than the foreign law generally, engaged the exception.
5. It was inappropriate to exercise any possible discretion to apply Spanish law after concluding that its application would be manifestly contrary to public policy. Consequently, D did not have parental responsibility for the child in England and Wales. The court also found, under section 55A(2)(b) of the Family Law Act 1986, that D was not the child’s father and requested rectification of the Spanish Civil Registry.

First-instance proceedings in the High Court. The judgment refers to an earlier judgment in the same proceedings, [2023] EWHC 291 (Fam), concerning notice to D.