EUPillar In the Matter of D (A Child) (International Recognition) [2016] EWCA Civ 12

Summary

The proceedings were concerned with the recognition and enforcement of a Romanian judgment in England. The parties to the proceedings were both Romanian nationals. They were living together in England from 2004 until November 2007 when they separated. Their child, David, was born in Romania in November 2006. The mother and the child had lived in England since January 2007. The parties were divorced in Romania in April 2008. The Romanian court was seised, and had jurisdiction over the custody rights. On a father’s appeal, a final judgment was rendered by a Romanian Court of Appeal on 27th November 2013. The Romanian judgment, which awarded custody rights to the father, was registered in England. The mother made an appeal against the registration order. On 31st July 2014, the appeal was allowed by the English High Court on the ground that the child was not given the opportunity to be heard in the Romanian proceedings as well as on the ground that the mother was not properly served with the proceedings before the Romanian Court of Appeal. On 27th January 2016, despite holding that the High Court judge was not entitled to refuse recognition and enforcement on the ground of Article 23(c) and (d) of Brussels IIa, the father’s appeal was dismissed because the child was not given the opportunity to be heard in the Romanian proceedings. In the latter context, Mr Justice Peter Jackson, sitting at the English High Court, had held: “96 The opportunity for a child to be heard therefore requires an age-appropriate enquiry into his wishes and feelings to enable the decision-maker to understand the child's distinct point of view. The child's entitlement to a voice is a fundamental procedural principle in our system. If he is old enough, it will be his voice and his words. An adult voice will convey the younger child's point of view. Younger children are less able to articulate their wishes, but their feelings may be more vivid than those of older children and of adults, whose views we canvass without a second thought. 97 Although David has been in England throughout, he could readily have been given an opportunity to be heard in the Romanian proceedings. A request could have been made for an English social worker to speak to him, whether formally under Article 55(a) of BIIR, or informally. Likewise, the Evidence Regulation ( Regulation (EC) No 1206/2001 ), which facilitates cooperation between courts of Member States in taking evidence directly in the other Member State, could have been invoked to ensure that David's wishes and feelings were made known to the Romanian court. 98 By their participation in the Romanian proceedings, the parents had prorogued jurisdiction to the Romanian court. Nevertheless, that court was not limited by the parents' choices and it might also have invoked Article 15 and requested the English court to assume jurisdiction as a way of ensuring that David's voice was heard. Bearing in mind that he has been habitually resident in England all his life, an Article 15 request would have been bound to succeed.” [96-98] - [2014] EWHC 2756 (Fam). On appeal, Lord Justice Briggs held: “108 […] I do regard the failure even to consider whether to give David an opportunity to be heard as fully deserving being described as a violation of a fundamental principle of the procedure of our courts. Although some might regard the age of seven as lying near the borderline above which the giving of such an opportunity might be regarded as routine, the very large implications for him of the decision sought by his father, namely a complete change in his main carer and a move to a country in which he had not lived since very soon after his birth, cried out for consideration of the question whether he should be heard, all the more so since the mother, who might have been supposed to be likely to put the case for preserving the status quo, appeared to be taking no part in the appeal.” [108] - [2016] EWCA Civ 12.