Summary
The proceedings were in respect of a French judgment in relation to a child who was born in France in July 2012.
The French court awarded residence to the father, with generous contractual arrangements in place for the mother.
This was an appeal against the order of DJ Bowman, dated 26th February 2014, registering the French Court judgment.
The mother did not attend the hearing in France, raising the service ground defence.
The appeal was allowed on the ground that the mother was not able to organise her defence. As a result, the registration and enforcement of the French judgment was refused. Mr Justice Mostyn held:
“34 I am satisfied that for the purposes of art.23(c) this was a judgment given in default of appearance of the mother. It is true that the Annex II certificate states that the judgment was not rendered by default. This reflects, I imagine, the undeniable fact that under French law the mother was properly served. It may also reflect the fact that the mother was a joint applicant in the first application (although the court issued an order that that application had lapsed due her non-appearance). Be that as it may, the authorities make very clear that I am to judge the reality of the situation, and I have no doubt that the mother did not “appear” (in either sense of the verb) on the father’s application for sole custody.
35 In my judgment, although the balance is exceedingly fine, the conduct of the father is more culpable than that of the mother. In circumstances where the mother had not laid eyes on the father’s originating application for sole custody and where the father had refused to supply it to her solicitor I am satisfied, notwithstanding her own foolish conduct, that she was not served in sufficient time and in such a way as to enable her to arrange for her defence.
36 I therefore hold that the mother’s appeal succeeds under art.23(c) . Although the result will be that I now must move on to the linked Hague Convention proceedings I would observe that this case has demonstrated the merit of my observations in JRG v EB (Abduction: Brussels II Revised) . The submissions on the appeal were made very economically and with high quality. There was no oral evidence. None of the familiar and, it must be said, emotion-laden matters which are the hallmarks of Hague proceedings featured at all. The facts here were exceptional and have led to the very unlikely result of a successful appeal; in the great run of cases that will not be so and the case would have stopped at this point.” [34-36]