England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY

		Courtroom No. 40 The Royal Courts of Justice Strand London WC2A 2LL
		30th April 2014

MR JUSTICE MOYLAN:

Application for Registration

1. This is an application for the registration of an Order made in The Family Court of Australia by the Honourable Justice Bennett under the Family Law Act 1975. The application for registration is made pursuant to the provisions of the 1996 Hague Child Protection Convention (the full title of which is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children) ("the 1996 Convention").
2. I am giving this judgment to explain the procedure available when an application for recognition or registration is made pursuant to the 1996 Convention to the courts of England and Wales.
3. The application is made by a father who is resident in Australia. He is neither present nor represented. Pursuant to a notice of hearing issued by this court the mother has attended today in person. She has indicated that she agrees to the registration of the relevant provisions of the Australian Court's Order pursuant to the 1996 Convention so that those provisions are treated by this court as though they had been made by a court in England and Wales. Given that the mother agreed to the Order being registered, I determined the application at the hearing. This is my approved judgment.

Background

4. The brief background is as follows: on the 6^th June 2013 the Honourable Justice Bennett made a consent Order in the Family Court of Australia sitting at Melbourne ("the Order"). Under the Order the mother is given permission to relocate the residence of the parties' child to the United Kingdom as from December 2013. There are included within the Order a number of provisions stipulating what time the child will spend with the father and what other forms of contact will take place following the child's relocation to England.
5. The Order specifically provides that the parents will take all steps necessary to procure the recognition of the Order in England and Wales. In addition, pursuant to my responsibilities as one of the two judges for England and Wales (with Lady Justice Black) designated to the International Hague Network of Judges ("the IHNJ"), I was made aware of the Order in this case by Justice Bennett (who is, with the Honourable Chief Justice Bryant, designated to the IHNJ for Australia). She requested my assistance in seeking to procure the registration of the Order.
6. Regrettably, very considerable delays were then encountered. These were caused by a number of factors including, but not limited to, establishing whether any fee would be payable in respect of the application for registration and whether the application could be made by email. It was surprising that the process appeared to lack clarity, given that a registration process for orders has been in existence for many years, and it certainly did not create the appearance of being a "simple and rapid procedure" as required under the 1996 Convention (as referred to below). It was ultimately determined that no fee is payable and I made arrangements for the application to be accepted by email.
7. The unsatisfactory nature of these delays, which did not reflect well on the courts of England and Wales, caused me, unusually and not in accordance with the rules, to list the application for hearing before me to enable me to address these broader issues in a judgment. I provide practical guidance in paragraphs 34 to 38 below.

The 1996 Hague Child Protection Convention

8. The 1996 Convention came into force in the United Kingdom on 1^st November 2012, following its ratification on 27^th July 2012. It is directly effective pursuant to the European Communities Act 1972, section 2 and SI 2010 No. 232. Additional provisions, dealing with the manner in which the 1996 Convention has been implemented and to assist with its operation in this jurisdiction, have been made by the Parental Responsibility and Measures for the Protection of Children (International Obligations)(England and Wales and Northern Ireland) Regulations 2010 ("the 2010 Regulations").
9. There are a number of guides to the operation of the 1996 Convention, in particular: Paul Lagarde's Explanatory Report on the 1996 Hague Child Protection Convention ("the Lagarde Report") (http://www.hcch.net/upload/expl34.pdf); a Practical Handbook on the operation of the 1996 Convention published by the Permanent Bureau ("the Practical Handbook") (http://www.hcch.net/upload/handbook34en.pdf); and The 1996 Hague Convention Practice Guide published by the Ministry of Justice (http://www.justice.gov.uk/downloads/protecting-the-vulnerable/official-solicitor/international-child-abduction-and-contact-unit/1996-hague-convention-guide.pdf). States which have ratified the 1996 Convention can be found at hcch.net.
10. The relevant provisions of the 1996 Convention, for the purposes of this judgment, are contained in Chapter IV, Recognition and Enforcement:

"Article 23

(1)  The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.

(2)  Recognition may however be refused –

a) if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II;
b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;
c) on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard;
d) if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child;
e) if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State;

f)  if the procedure provided in Article 33 has not been complied with.

Article 24

Without prejudice to Article 23, paragraph 1, any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State.

Article 25

The authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction.

Article 26

(1)  If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State.

(2)  Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure.

(3)  The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 23, paragraph 2.

Article 27

Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken.

Article 28

Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child.

The Convention refers to measures but in this judgment I use the word order.

11. It is important to note that, pursuant to the above provisions (Art 23(1)), an order is recognised automatically in England and Wales without any steps having to be taken by any party. However, although recognition is automatic, there is scope for one party to seek to challenge recognition under Art 23(2), without limit of time. Such a challenge could, for example, be mounted when an application is made under Art 26. This issue is addressed in the Practical Handbook (derived from the Lagarde Report para 129):

"10.17 Since recognition of measures from other Contracting States occurs by operation of law, it is only at the time when the measure is invoked that a possible dispute over the existence of a ground for non-recognition may be the subject of a ruling. It may cause inconvenience and hardship to have to wait until this point for a determination of whether or not an order can be recognised, and various people may have a legitimate interest in dispelling any doubt which may exist about recognition. Therefore, an interested person can apply to the competent authority of a Contracting State for a decision regarding the recognition of measures taken in another Contracting State."

12. Since the hearing in this case, Justice Bennett has given comprehensive guidance on the manner in which the provisions of the 1996 Hague Convention have been implemented in Australia in Merrick & Wellington [2014] Fam CA 514.. Although it post-dates the hearing, I propose to refer to her judgment in this approved judgment. As in the extract quoted above, Justice Bennett also refers (especially at para 32) to the disadvantages of delayed determination. She says, and I respectfully agree:

"The interests of children of families who live and parent across international borders are best served by predictability and certainty in arrangements and confidence that the courts in the jurisdiction between which the children live and spend time will work co-operatively and swiftly to implement parenting arrangements."

13. The steps which can be taken under the 1996 Convention to procure certainty about the efficacy of an order made in one Contracting State in another are:

(a) a request for a decision on recognition or non-recognition under Art 24;

(b) a request that an order be declared enforceable or registered for the purpose of enforcement under Art 26.

The latter must be undertaken before an order can be enforced. The procedure under both Articles is governed by the law of the requested State. It is expressly provided that the procedure under Art 26 must be "simple and rapid". This requirement is obviously intended to ensure expedition..

14. Regulation 8 of the 2010 Regulations provides that the High Court has jurisdiction:

(a) to entertain an application under Art 24 for recognition or non-recognition (Reg 8(1)) and;

(b) to entertain an application under Art 26 to register a measure for enforcement (Reg 8(3)(a)).

Regulation 8 (2) provides that recognition or non-recognition can be determined by another court when raised as an "incidental question".

15. It will be seen that there is no provision which deals with an application for a declaration that a measure is enforceable. The rules, as referred to below, also contain no provisions dealing with such an application. I have not had the benefit of argument on the reasons for this. However, my view is as follows.
16. The procedure to be applied under Arts 24 and 26 is for each State to determine. In respect of Art 26, this would appear to give a State the option of providing a procedure for either a declaration or registration or, possibly, both. In England and Wales, the option adopted is to provide only for registration. This mirrors the position under Art 28 of Brussels II Revised (Council Regulation (EC) No 2201/2003) which specifically provides that the procedure in the United Kingdom is registration rather than declaration.

Procedure: Applications for Recognition and Registration

17. I propose to deal only with applications for recognition and registration under the 1996 Convention.
18. The procedure is governed, principally, by Family Procedure Rules 2010, Part 31 and PD31A. These provisions need to be applied in a manner which ensures they effect a "simple and rapid" procedure and which recognises the importance of courts working "co-operatively and swiftly to implement parenting arrangements": per Justice Bennett. In achieving these aims, I would draw attention to the valuable role for judges of the IHNJ in promoting and supporting cross-border co-operation.
19. Turning to the specific provisions of Part 31 and PD31A.
20. Rule 31.3 provides that every application for registration or recognition is to be made to the Principal Registry. The application is by Form C 69 (which can be found at: https://www.justice.gov.uk/courts/procedure-rules/family/formspage). I deal below (para 34) with the manner in which such an application can, in practice, be sent to the court.
21. Rule 31.4 is headed Application for registration, recognition or non-recognition of a judgment:

"(1) Any interested person may apply to the court for an order that the judgment be registered, recognised or not recognised.

(2) Except for an application under Rule 31.7, an application for registration, recognition or non-recognition must be –

(a) made to a district judge of the Principal Registry; and

(b) in the form, and supported by the documents and the information required by a practice direction".

22. I will deal first with the documents and information required by the rules and then with the procedure.

Documents and Information

23. The required documents and information, as referred to in r. 31.4(2)(b), are set out in PD31A. In summary, PD31A stipulates:

(1) Para 2.2: The application must be supported by a statement that is sworn to be true or an affidavit exhibiting the judgment, or a verified, certified or otherwise duly authenticated copy of the judgment;

(2) Para 2.3: Where any required document is not in English, a translation must be supplied certified by a notary public or a person qualified for the purpose or accompanied by a witness statement or affidavit confirming that the translation is accurate;

(3) Para. 4: The application must be accompanied by a witness statement or affidavit exhibiting the following (as provided by para 4.2 and 4.4):

In support, only, of an application for registration:

(a) those documents necessary to show that the judgment is enforceable according to the law of the Contracting State in which it was given;

In support of both an application for recognition and an application for registration:

(b) a description of the opportunities provided by the authority which gave the judgment in question for the child to be heard, except where that judgment was given in a case of urgency;

(c) where the judgment was given in a case of urgency, a statement as to the circumstances of the urgency that led to the child not having the opportunity to be heard;

(d) details of any measures taken in the non-Contracting State of the habitual residence of the child, if applicable, specifying the nature and effect of the measure and the date on which it was given;

(e) in so far as not apparent from the copy of the judgment provided, a statement of the grounds on which the authority which gave the judgment based its jurisdiction, together with any documentary evidence in support of that statement;

(f) where appropriate, a statement regarding whether Article 33 of the 1996 Hague Convention has been complied with, and the identity and address of the authority or authorities from which consent has been obtained, together with enforcement of that consent; and

(g) the information referred to at 3.2(c) to (e) above."

Paras 3.2(c) and (d) are not relevant to this judgment. Para 3.2(e) requires the provision of an address within the jurisdiction of the court for service of process on the party making the application (my emphasis).

24. The Lagarde Report notes that the Convention does not subordinate recognition "to the production of a written document, dated and signed by the authority of origin" in order to "avoid any bureaucratic diversions" (para 120). This was intended to assist with expedition and on the basis that an order or measure would be proved "normally from the written document emanating from the authority of origin" (para 120).
25. I have set out the requirements imposed by PD31A in detail because they appear, to me, to challenge the concept of "simple". What documents are necessary to show that a judgment is enforceable? What documentary evidence might be produced in support of a statement of the grounds on which jurisdiction was based? How will an applicant who, as in the present case, will often live in another Contracting State, be able to provide an address for service in England and Wales? Some other aspects of the rules seem to be based on an assumption that the applicant will be present in England and Wales (such as, r. 31.11(2)).
26. Given the increasing number of litigants in person and given the need for our process to be simple and rapid, these requirements need to be applied with a light touch. As Thorpe LJ said in Re S (Foreign Contact Order) [2010] 1 FLR 982, in respect of the registration process for Brussels II Revised orders (para 12):

"It is essentially administrative, although it requires a judicial act. The judicial officer has only to check that the order of the foreign court is apt on its face and that the application falls within the general provisions of the Regulation".

The ability to apply these provisions with a light touch is specifically permitted by the rules, to which I now turn.

Procedure

27. First, Rule 31.5 provides that:

"(1) … where the person making an application under this Part does not produce the documents required by rule 31.4(2)(b) the court may –

(a) fix a time within which the documents are to be produced;

(b) accept equivalent documents; or

(c) dispense with production of the documents if the court considers it has sufficient information."

I draw particular attention to (c). Although this rule only refers to documents, it must be taken as including the information required by rule 31.4(2)(b).

28. Secondly, the rules provide that the court will not (my emphasis) accept submissions from the respondent to the application or any child Rule 31.6 deals with directions which the court might give including as to service on the respondent (which is also addressed in r. 31.8(2)(a)). However, even though served with the application, r. 31.8 provides that submissions cannot be made by the respondent or any child at this stage of the process. The opportunity to challenge recognition or registration is provided later in the process, namely by appealing the decision to recognise or register the order. The absence of any right of challenge prior to this could be said to increase the obligations on the court. However, in my view, this does not undermine the need to apply the provisions with a light touch by reference to whether the court has sufficient information for the "essentially administrative" purposes of recognising or registering the order.
29. Rules 31.11, 31.14 and 31.15 deal with the procedure after the court has decided to recognise or register an order. These provisions might appear not to deal with what happens if an application to recognise or register has been refused but they are clearly intended to apply in such a situation (see r. 31.11(2) and r. 31.15(3)). I propose to refer only to limited aspects of these provisions.
30. Notice of the court's decision must be served (by sealed order) on the parties. The order must contain certain specified information (r. 31.11(3), (4) and (5)). This includes the period within which an appeal may be made, namely one month of the date of service of the order or two months if the appellant is habitually resident in another Contracting State. The appeal is to a High Court Judge.
31. Rule 31.12 provides:

"Registration of a judgment under rule 31.11 will serve for the purposes of … Article 24 of the 1996 Hague Convention … as a decision that the judgment is recognised."

Determination in the present case.

32. In the present case, the only document I have been provided with, on behalf of the applicant father, is his completed Form 69. This document in itself requires a certain amount of information to be provided including, in particular. the nature of the application being made. As referred to above, the father is seeking registration for the purposes of enforcement of the relevant provisions of the Consent Order made Justice Bennett. He has also produced a copy of the child's birth certificate, as required by the Form (for reasons that are not entirely clear to me). In addition, I have been provided by the Chambers of Justice Bennett with a copy of her Order.
33. I do not have a statement or affidavit as required by PD31A para 2.2 or para 4. It is clearly not necessary for any additional documents or information to be provided given the background to the application and that the mother is present and does not oppose the application. In that respect, I am in an unusual position. Accordingly, I dispense with all the requirements of the Rules in so far as they have not been fulfilled and I order that Justice Bennett's Order be registered for enforcement.

General Guidance

34. Application Procedure

Some of the functions that were previously performed by the Principal Registry of the Family Division at First Avenue House have now, following the creation of the single Family Court, been transferred to the High Court at the Royal Courts of Justice. One of these is the issue of an application for the recognition or registration of an order under the 1996 Convention. Given that no fee is payable in respect of such applications, it has been agreed that, at present exceptionally, such applications (in Form C69) can be submitted by email. The relevant address is rcj.familyhighcourt@hmcts.gsi.gov.uk. The Form and all supporting documents need to be sent as scanned documents (such as a pdf file).

35. The application will be considered by a district judge of the Principal Registry. However, I do not consider, and the practice has not been, that the order for recognition or registration must itself be made by such a judge. Despite this, the allocation clearly needs to take into account the provisions of the 2010 Regulations and that any appeal from the order is to a High Court Judge.

Documents and Information

36. In addressing the subject of documents and information, as required by PD31A, I am dealing only with the process leading to recognition or registration. Applications will be made in a wide range of circumstances but these provisions must be interpreted and applied so as to ensure we have a "simple and rapid" procedure. I recognise, of course, the importance of due process. However, to repeat what I say above, in my view this does not undermine the need to apply the provisions with a light touch by reference to whether the court has sufficient information for the "essentially administrative" purposes of recognising or registering the order. I would suggest that, when what is being sought is what might be termed, somewhat inaptly, a mirror order, it will often not be necessary to have the raft of documents and information as required by the rules. They can be dispensed with pursuant to r. 31.5(c). This will be even more so when the application follows a direct request for assistance from a Judge of the International Hague Network of Judges. The Network is founded on mutual respect, trust and co-operation.
37. Justice Bennett refers (para 8) to the relationship between and the role of Network Judges as addressed in the Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges published by Permanent Bureau of The Hague Conference on Private International Law in 2013.
38. Finally, in many cases, I do not see how it will be possible for the applicant to provide an address for service within the jurisdiction of England and Wales.