D (A Child) (International Recognition)

D (A Child) (International Recognition)

The Romanian Court of Appeal failed to consider whether and how the child should be given the opportunity to be heard, which constitutes a violation of a fundamental principle of procedure under Article 23(b) BIIR as understood in English law and international obligations. This failure justified refusal to recognise and enforce the Romanian custody order, regardless of the adequacy of service or opportunity to be heard for the mother. The appeal was therefore dismissed on this ground alone.

Parties
Appellant: David's Father; 1st Respondent: David's Mother; 2nd Respondent (by Guardian): David (the Child); Intervener: Reunite Child Abduction Centre
Jurisdiction
England and Wales
Judgment Date
27 January 2016
Procedural Posture
Appeal (family/children) / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal dismissed
Legal Topics
Recognition and Enforcement of Foreign Judgments, Parental Responsibility, Child's Right to Be Heard, Service of Process, Public Policy Exception, Procedural Fairness
Family Law International Private Law Children Law Recognition and Enforcement of Foreign Judgments Parental Responsibility Child's Right to Be Heard Service of Process Public Policy Exception +1 more

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Parties

David's Father

Appellant

David's Mother

1st Respondent

David (the Child)

2nd Respondent (by Guardian)

Reunite Child Abduction Centre

Intervener

Procedural Posture

Appeal (family/children) / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether failure to consider hearing the child in foreign proceedings violates a fundamental principle of procedure under Article 23(b) BIIR
  2. 2 Whether lack of service or opportunity to be heard for the mother justified non-recognition under Article 23(c) and (d) BIIR
  3. 3 Whether public policy exception under Article 23(a) BIIR applies

Ratio Decidendi

The Romanian Court of Appeal failed to consider whether and how the child should be given the opportunity to be heard, which constitutes a violation of a fundamental principle of procedure under Article 23(b) BIIR as understood in English law and international obligations. This failure justified refusal to recognise and enforce the Romanian custody order, regardless of the adequacy of service or opportunity to be heard for the mother. The appeal was therefore dismissed on this ground alone.

Court Disposition

Appeal dismissed

Orders

  • Romanian custody order not recognised or enforced in England and Wales
  • Status quo of shared care between parents in England continues pending further litigation