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Kara Swift
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Re D (Recognition and Enforcement of Romanian order) [2014] EWHC 2756 (Fam)

Date:5 AUG 2014
Third slide
Law Reporter
(Family Division, Peter Jackson J, 31 July 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 1 FLR 1272]

Recognition and enforcement – Romanian order grantingcustody to the father – Child had lived with mother in England for 7years – Whether Art 23, BIIR had been complied with – Whether the registrationprocess had been defective

The full judgment is attached below

Since he was 8 weeks old the child had been cared for by hisRomanian mother in England.He had regular contact with the father and they had a good relationship.Proceedings had been ongoing in Romaniafor 6 years and concluded by the Court of Appeal ordering that custody of thechild should be transferred to the father in Romania. The order was registeredfor enforcement in this jurisdiction and the mother appealed.

The child was now 7 years old and attended school in England. He hadnever been back to Romaniaand spoke only a few words of Romanian.

Recognition of the Romanian order was refused on the groundsof Art 23(b) of BIIR that the child was not given the opportunity to be heardin the Romanian proceedings and also under Art 23(c) and (d) that the motherwas not effectively served and given the opportunity to be heard.

The Romanian court had no up to date report on the child’swishes and feeling yet found that he constantly craved for his father’spermanent presence. That finding was not taken from any professional orindependent assessment nor was it the conclusion of the various courts inearlier hearings.

The child’s entitlement to a voice in proceedings was afundamental procedural principle in our system and well established case lawrequired an age appropriate enquiry into his wishes and feelings to enable thedecision make to understand the child’s distinct point of view. Although thechild had remained in Englandthroughout the Romanian proceedings he could readily have been given theopportunity to be heard.

It was more likely than not on the available evidence thatthe mother had not been notified of the date of the appeal hearing in Romania. Shehad engaged with the Romanian courts during the 6 years litigation had beenongoing and fought to keep her child within her care. It was unlikely she wouldknowingly have stood aside from a series of hearing that could have suchprofound consequences. The father had done the barest minimum to inform her ofthe hearing and was unable to show that he succeeded in giving her actual asopposed to technical notice.

The mother’ssubmission that recognition should be withheld on the grounds of
public policywas rejected. Although a change of custody and country would be painful andmight be damaging, the child had a substantial relationship with the father andthe mother had not raised any concerns about his parenting abilities. Romania was thecountry of origin of both parents and if the mother were otherwise unable tocare for the child he would almost certainly pass into the father’s care.

In addition to thesubstantive grounds of appeal, the order for recognition and enforcement wasdefective for cumulative failures of procedure. There was no judgmentexhibited, no Annex II certificate, no service of application on the respondentand the time for enforcement was abridged where there was no urgency. This casewas not an isolated instance of such failures and urgent attention needed to begiven to the operation of the registration process.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

Case No: FD08P01701

Neutral Citation Number: [2014] EWHC 2756 (Fam)

Date: 31 July 2014

Before :
Sitting at the Royal Courts of Justice
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Between :

(1) AA
(2) DD (by his Children’s Guardian
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Jacqueline Renton (instructed by Wedlake Bell LLP) for the Applicant Father
Edward Devereux (instructed by Osbornes) for the First Respondent Mother
Nicholas Anderson (instructed by Cafcass Legal) for the Second Respondent Child

Hearing dates: 19 and 20 June
Judgment date:   31 July 2014

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 This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the persons concerned must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
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Please see attached the full judgment
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