Summary
The case was concerned with ‘a little boy, L, who was born in England in 2011.
The child had an English mother and a Portuguese father, who had met in England where the father was working. The parents never married.
A few months after L was born, the couple with the child moved to Portugal where they lived with the father’s parents. There was a breakdown in the parties’ relationship. The mother and the child attempted to leave Portugal in November 2011, but this was prevented following police intervention.
An agreement as to the parental care arrangements was reached on 23 November 2011. The agreement, which had been ratified by Assistant Scrivener Costa in the Aveiro Family and Minors Court on 7 December 2011, provided for “exactly equal shared care on a rotating 2 monthly basis in England and Portugal to endure until the child’s third birthday”. [5]
As per the agreement, in December 2012 the English mother returned to England with her child.
In February 2012, the mother applied for a prohibited steps order and a residence order under the Children Act 1989.
In March 2012, the father made an application for the registration of the Portuguese decision under Article 41 of Brussels IIa, and consequential orders for stay of the legal proceedings in the UK. The Counsel for the English mother argued that the agreed caring arrangements for the child in the Portuguese decision were manifestly contrary to the public policy in so far as they did not factor in the best interests of the child at a crucial age of the child’s development.[29]
Although Mrs Justice Macur noted that she would not have ratified this agreement, she held that this was not enough to refuse recognition under Article 23(a) of Brussels II bis.[30] However, she went on to state:
“[Mother’s] mental/emotional health at the time gives me far more reason to concern myself as to her ostensible consent to the arrangement, or the ability to make any dissent known. I bear in mind that parental agreement was seen as key to the CPCJ officer, Ms Verissimo and the caveat expressed by the Assistant Scrivener indicated above and in the circumstances of this particular case, I have tentatively but no less certainly decided that, without any review of the substance of the Judgment, it would be manifestly contrary to public policy to recognise this Judgment pursuant to Article 23(a) of the Regulation.”[34]
Subsequently, the Court of Appeal reversed the High Court’s judgment, and held that “this case, insofar as it is based on the mother's complaints about … the state of her emotional and mental health, falls far short of what is required to bring Article 23(a) into play.” [2012] EWCA Civ 1157 [56] It also held that L was habitually resident in Portugal, so that the English court did not have jurisdiction.[78-80 and 87-88] “On the facts of the case the child could equally easily be said to be having alternate habitual residences in Portugal and England and Wales.” See more: Beaumont and Danov, (2015) MJECL 701, 718-9.