Supreme Court

In re D (A Child) (Recognition of Foreign Order) (Reunite Child Abduction Centre and another intervening)

[2016] UKSC 34; [2016] WLR (D) 340

2016 June 22

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Hughe JJSC

Supreme Court — Appeal to — Jurisdiction — Parental responsibility order made by court of another European Union member state — Recognition of order by High Court — Council Regulation providing for appeal to judge and further appeal in accordance with notification by each member state — United Kingdom notifying “single further appeal …to …Court of Appeal” — Whether precluding further appeal to Supreme Court — Council Regulation (EC) No 2201/2003, arts 33, 34, 68 — Constitutional Reform Act 2005 (c 4), s 40(6)

Facts

In litigation in Romania concerning the care and custody of a 10 year-old child born to Romanian parents who had lived most of his life with his mother in England, the Bucharest Court of Appeal awarded custody of the child to his father. The father obtained an order in the High Court for recognition and registration of that decision under article 21(2) of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. The mother appealed to a High Court judge pursuant to article 33 of the Regulation. The judge, allowing the appeal, refused recognition of the Romanian court order under article 23(b) on the ground that the order had been made without the child having been given an opportunity to be heard. The father, having unsuccessfully appealed to the Court of Appeal, obtained leave for a further appeal to the Supreme Court. Upon the mother challenging the father’s right to a further appeal, the Supreme Court convened a preliminary hearing to determine whether it had jurisdiction to proceed with the appeal.

Held

Held, appeal struck out. By section 40 of the Constitutional Reform Act 2005, an appeal lay to the Supreme Court from any decision of the Court of Appeal of England and Wales in civil matters but “subject to provision under any other enactment restricting such an appeal”. The Regulation was such an enactment. It provided for the enforcement in one member state of a judgment on parental responsibility given by the courts of another member state by allowing for an application for a declaration of recognition and enforcement to be made under an essentially administrative process but allowing, by article 33, for an appeal against that declaration to a judge which could in turn be contested, under article 34 by “proceedings … notified by each member state” pursuant to article 68, which in the case of the United Kingdom was “a single further appeal on a point of law … in England and Wales, to the Court of Appeal.” The meaning of the Regulation, combined with the notification made by the United Kingdom, was quite clear and its effect was to restrict the jurisdiction which the Supreme Court would otherwise have had under the 2005 Act. It followed that the Supreme Court had no jurisdiction in the matter and the appeal for which permission had originally been given would be struck out (post, paras 13–17, 28, 39).

Appearances

Richard Harrison QC, Stephen Jarmain and Samantha Ridley (instructed by Wedlake Bell Solicitors LLP) for the father.

James Turner QC and Edward Devereux (instructed by Osbornes Solicitors LLP) for the mother.

Nicholas Anderson and Katy Chokowry (instructed by CAFCASS Legal Services) for the child.

Henry Setright QC and Michael Gration (instructed by Dawson Cornwell) for Reunite International Child Abduction Centre, intervening by written submissions only.

Hugh Mercer QC and Alistair Mackenzie (instructed by the Treasury Solicitor) for the Ministry of Justice, intervening.

Reported by: Colin Beresford, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.