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Edward Bennett
Edward Bennett
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Hayley Trim's Analysis: BIIR Rules, OK?
Date:12 JUL 2012
Senior Associate Solicitor

Hayley Trim, Family Law PSLWhat would your instinct be if a client came to you with a classic case of wrongful retention? A speedy application for a return order under the Hague Convention? A recent judgment of Mostyn J JRG v EB [2012] EWHC 1863 (fam) highlights the importance of making the right application at the outset.

After a dispute between the parents as to who the three children should live with following their separation, the French court had made a residence order in the father's favour. The family had been living in France since 2008 prior to which they had lived in England. Shortly after the residence order was made, the children had contact with their mother in England and the mother retained them following that contact. 

The perhaps understandable reaction of the father (and presumably his lawyers) was to bring an application for the immediate return of the children under the Hague Convention. He would be entitled automatically to legal aid and such applications are usually dealt with very swiftly by the courts.

The mother raised several defences including the objections of the older child. There were three directions hearings in front of three different High Court judges and a full Cafcass report was carried out.

But when the application came before Mostyn J, he refused to adjudicate upon it calling it a waste of time and money.

Why? Because the father should have applied for recognition and enforcement of the French order under BIIR which takes precedence over the Hague Convention.

Mostyn J points out that the process of registration is an administrative one, the court is obliged to handle it expeditiously and the circumstances in which it can successfully be appealed are very limited. The judgment of the court of a fellow Member State may not be reviewed as to its substance under any circumstances, and the only grounds on which the mother in this case could possibly have challenged its recognition were if it was manifestly contrary to public policy or that the child had not been heard in violation of fundamental principles of procedure in this jurisdiction. The defences raised by the mother to the Hague Convention application would not be relevant. The English court would almost certainly have been obliged to enforce the French order.

Even if the mother successfully defended the Hague application, the father could then have applied to register and enforce the French order, or he could have sought an order from the French court under Art 11 for the return of the children.

The judge also took into account the overriding objective (particularly saving expense and allotting an appropriate share of the court's resources), and the requirement of the Senior Courts Act 1981 to ensure all matters in dispute are completely and finally determined and multiplicity of proceedings is avoided. He concluded that the Hague Convention application would be adjourned and that the father would apply for registration with some directions to facilitate the smoothest possible running of that process (including booking a slot for the mother's apprehended appeal).

So the lesson to be learned is that if you have a residence or other relevant parental responsibility order from another Member State, your first action should usually be to register it using the procedure in Part 31 FPR 2010.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

Contact Hayley on Twitter: @HayleyTrim

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