(Court of Appeal, Moore-Bick, Ryder, Briggs LJJ, 27 January 2016)
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  2 FLR 347]
Enforcement – Recognition – Romanian order – BIIR, Art 23 – Whether the child had been given the opportunity to be heard – Whether the mother had been served with the application to transfer custody
The father’s appeal from a decision denying recognition of the Romanian order transferring custody of the child to him was dismissed.
The 9-year-old child had lived in England with his Romanian mother since shortly after his birth. His father lived in Romania but he spent substantial periods of time in England and had regular contact with the child. Litigation in Romania resulted in interim orders being made which provided for the child dividing his time equally between the parents in England.
The Romanian court ordered a transfer of custody to the father. The order was recognised and registered in England. The mother appealed to the High Court seeking a denial of recognition and enforcement of the Romanian order in reliance of Art 23 (a)-(d) of BIIR and based upon the facts that the child had spent the vast majority of his life in England and he spoke only very little Romanian.
The guardian supported non-recognition on the basis that the child had not been given the opportunity to be heard in the proceedings and that recognition would be contrary to public policy taking into account the child's best interests. The mother's appeal was allowed under Art 23(b) and also Art 23(c) on the ground that the mother had not been served with the father's application for a transfer of custody and that she, therefore, had not been able to present a defence. Pursuant to Ar 23(d) the mother had also not been given the opportunity to be heard in the recognition proceedings. The father appealed.
The appeal was dismissed.
The decision of whether a child should be involved in litigation was one for the courts, not the parents. In some cases the welfare implications of a child being involved might necessitate the child being excluded from the proceedings. The failure to hear the child in this instance constituted a violation of a fundamental principle and s 1(3)(a) of the Children Act 1989.
Case No: B4/2014/2790 & B4/2014/2790(B)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT
Mr. Justice Peter Jackson EWHC 2756
Royal Courts of Justice
LORD JUSTICE MOORE-BICK
Vice President of the Court of Appeal (Civil Division)
LORD JUSTICE RYDER
LORD JUSTICE BRIGGS
- - - - - - - - - - - - - - - - - - - - -
In the Matter of D (A Child) (International Recognition)
- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -
Mr. David Williams QC and Ms. Jacqueline Renton (instructed by Wedlake Bell LLP) for the Father
Mr. James Turner QC and Mr. Edward Devereux (instructed by Osbornes) for the Mother
Mr. Nicholas Anderson (instructed by Cafcass Legal) for the Child
Mr. Henry Setright QC and Mr. Michael Gration (instructed by Dawson Cornwell) for Reunite Child Abduction Centre
Hearing date: 20 May 2015
- - - - - - - - - - - - - - - - - - - - -Re D (A Child) (International Recognition)  EWCA Civ 12