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International Family Law

The leading authority on international family law

30 OCT 2012

England & Wales - Hague Convention 1996

Jaqueline Renton

There will be separate Central Authorities for England and Wales under the 1996 Hague Convention.

BIIR: Recognition of orders and habitual residence

Whilst we were all enjoying our summer holidays Lord Justice Munby was delivering the judgment of the Court of Appeal in Re L (A child) [2012] EWCA Civ 1157 in which the decision of Macur J not to recognise a Portuguese order and to accept jurisdiction in England was over-turned. The two principle issues were:

(a)     the interpretation of Art 23(a) Brussels II Revised (BIIR) ‘manifestly incompatible with public policy having regard to the best interests of the child', and

(b)     habitual residence.

The Court of Appeal (CA) confirmed the very high threshold for non-recognition that is set by Art 23(a). They considered that BIIR already incorporated the best interests of the child in the same way the UK Supreme Court (UKSC) considered the 1980 Hague Convention incorporated them. Only in exceptional cases would it be possible to say that the enforcing court's assessment of the child's best interests meant Art 23(a) was engaged. In order to meet the very high bar the court would have to conclude that there was a very high degree of disparity between the orders effects if enforced and the child's current welfare interests. The CA endorsed the previous approaches of Holman J in Re S, Singer J in W v W and Roderic Wood J in LAB v KAB.

The court considered that a procedural flaw in the process by which the order was originally generated could (theoretically) meet the Art 23(a) test (as well as (b) and (d)) but only where it was so fundamental it resulted in an ‘egregiously unfair trial'.

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