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A day in the life Of...
Edward Bennett
Edward Bennett
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Date:16 JUN 2009

(Court of Appeal; Thorpe and Wall LJJ; 16 June 2009)

Although the mother and child were habitually resident in England and Wales, the Italian courts had priority in the contact proceedings between the parents. The mother, who was convinced that the father had sexually abused the child, refused to allow contact between the child and the father, in breach of Italian court orders. The Italian court directed that the custody of the child be assigned to the Italian authorities and required the mother to return the child to Italy immediately to enable the child to be placed in foster care; in the alternative, subject to the mother choosing to arrange a therapeutic programme and to organise meetings between the child and the father, the Italian authorities would arrange to place the child with the mother. The father applied in England for permission to register the order in England. Permission was granted by a Family Division judge, who provided that the mother might seek to appeal and had one month to do so, and granted a stay until expiration of the time for filing the notice of appeal. The mother issued a notice of appeal to the Court of Appeal. The court was required to decide what the proper procedural steps were when there was an application for permission to register, when there was a first appeal against registration and, perhaps when there was a second appeal against registration.

The application for permission to register was brought under Art 29(1) and was a without notice application. It was essentially administrative, although it required a judicial act; the judicial officer had only to check that the order of the foreign court was apt on its face and that the application fell within the general provisions of the regulation.

Once an order had been made for permission to register, the respondent had, under Art 33, a month within which to appeal. Lists within Art 68 specified the court at which an Art 33 appeal was to be lodged; in England and Wales this was 'the High Court of Justice - Principal Registry of the Family Division'. If the respondent failed in this first appeal, an appeal under Art 34 in England and Wales could be brought only in the Court of Appeal. As a matter of principle it was not open to any English court to depart from the court designations incorporated within the lists attached to Art 68. Any question as to the construction and application of a Brussels Regulation was ultimately for the European Court of Justice, not the English courts; although Art 31 provided that the procedure for making applications was to be governed by the law of the member state of enforcement, the routes of appeal were clearly established by the Regulation itself and it was not open to the domestic court to depart from that designation.

Given that the task of the judicial officer who considered an application for permission was essentially administrative, the process of registration should go to a district judge in the Principal Registry, avoiding the uncomfortable and certainly counter-intuitive prospect of a Family Division judge hearing an appeal from another judge of the Division. An appeal against registration under Art 33 of Brussels II Revised must then be directed to the Family Division of the High Court. No permission to appeal was required. In relation to a second appeal, that manifestly lay to the Court of Appeal, and, given that such an appeal would not involve the liberty of the subject, permission to appeal would be required. No further appeal would be permissible beyond that provided for in Art 34.