Re D (A Child) [2016] UKSC 34

A Romanian father sought to enforce a Romanian custody order in England under Brussels IIR. After the Court of Appeal refused enforcement, the Supreme Court held it had no jurisdiction to hear a further appeal, as the UK's notification under article 34 limited appeals to the Court of Appeal only.

Facts

DD, a nine-year-old boy born in Romania to Romanian parents, had lived in England with his mother since January 2007. His parents separated in November 2007 and the father returned to Romania in 2009. Despite DD being habitually resident in England, the parents litigated custody in Romania. After protracted Romanian proceedings, the Bucharest Court of Appeal in November 2013 ordered that DD should live with his father.

The father applied in February 2014 for recognition and enforcement of the Romanian order in England under the Brussels II (Revised) Regulation (“BIIR”). Peter Jackson J refused recognition under article 23(b) BIIR, on the basis that the order had been given without DD being given an opportunity to be heard, in violation of fundamental principles of English procedure. The Court of Appeal upheld that refusal. The father obtained permission to appeal to the Supreme Court, but it subsequently emerged that the question of the Supreme Court’s jurisdiction itself required determination.

Issues

The sole issue before the Supreme Court was whether it had jurisdiction to entertain an appeal from the Court of Appeal’s decision under BIIR, having regard to article 34 of BIIR and the United Kingdom’s notification under article 68, read with section 40 of the Constitutional Reform Act 2005.

Arguments

Father (Appellant)

Mr Harrison QC argued: (i) the UK notification, being an executive act without Parliamentary scrutiny, was not an “enactment” capable of restricting the Supreme Court’s jurisdiction under section 40(6) of the 2005 Act; (ii) articles 34 and 68 of BIIR were not directly applicable as they required measures of application by member states, relying on Azienda Agricola Monte Arcosu (Case C-403/98) and OBB-Personenverkehr (Case C-509/11); and (iii) article 68 only permitted member states to supply information about their existing appellate structure, not to alter it.

Ministry of Justice (Intervener)

Mr Mercer QC submitted that article 34 clearly stated that the decision on appeal could only be contested by the notified proceedings, and where no notification existed (as with Cyprus and Malta) no further appeal was possible.

Judgment

Lady Hale, with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hughes agreed, held that the Supreme Court had no jurisdiction to entertain the appeal.

Construction of BIIR

Article 28 BIIR provides for enforcement of parental responsibility judgments. The initial process under article 29 is essentially administrative. Article 33 provides for a first inter partes “appeal”. Article 34 then states that the judgment given on appeal “may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68”. The UK’s notification expressly limited further challenge to “a single further appeal on a point of law” to the Court of Appeal in England and Wales. No mention was made of any onward appeal to the Supreme Court.

The Court noted that this approach was consistent with the policy underpinning the 1968 Brussels Convention and successive instruments, namely to limit avenues of appeal so as to prevent delays defeating the free movement of judgments. Although the UK’s policy had not been entirely consistent (the Brussels I regime permitted “leap-frog” appeals), the fact remained that the UK had chosen, in its BIIR notification, not to provide for further appeal to the Supreme Court.

Effect in UK law

Section 40(2) of the 2005 Act gives the Supreme Court general jurisdiction over appeals from the Court of Appeal, but section 40(6) makes this subject to provision under any other enactment restricting such an appeal. By section 2(1) and 2(4) of the European Communities Act 1972, directly applicable EU law takes effect in the UK and other enactments must be construed subject to it. Article 34 BIIR, as a directly applicable Regulation, combined with the UK’s notification, therefore restricted the otherwise available appeal route.

Rejection of the father’s arguments

Lady Hale rejected the argument that the notification alone needed to be an “enactment”: the relevant restriction came from article 34 BIIR combined with the notification. The argument that articles 34 and 68 were not directly applicable was rejected; the cases relied upon (Azienda and OBB) concerned different situations where the Regulation required substantive definitions or powers to be created at national level. By contrast, article 34 operated by reference to whatever notification a member state made (or did not make). The argument that article 68 only permitted accurate description of existing rights was rejected as inconsistent with the purpose of the Regulation, which clearly contemplated that notifications would cut down the otherwise available routes of appeal.

Implications

The decision establishes that, in relation to enforcement of parental responsibility orders under BIIR, there is no right of appeal from the Court of Appeal to the Supreme Court of the United Kingdom in England and Wales. The Court of Appeal is the final court of appeal under article 34 BIIR as notified by the UK.

The judgment confirms that a directly applicable EU Regulation, combined with a member state’s notification under that Regulation, is capable of restricting jurisdiction otherwise conferred on the Supreme Court by section 40 of the Constitutional Reform Act 2005, by operation of section 2 of the European Communities Act 1972.

Lady Hale observed that the UK’s approach has been inconsistent across instruments: under the Brussels I regime and its recast, “leap-frog” appeals to the Supreme Court remain possible, but under the Brussels II regime no such route was notified. She noted Ireland’s contrasting notification under the Maintenance Regulation, which preserves potential Supreme Court appeals, suggesting it might have been open to the UK to make a different notification. However, that was a matter for government and not for the Court.

The decision has significant practical consequences for practitioners and litigants in international family law: contested BIIR enforcement decisions cannot be taken beyond the Court of Appeal, which may produce difficulties where inconsistent decisions emerge between different parts of the UK on a Regulation applying throughout. The Supreme Court expressly did not address the substantive question of the extent to which the child’s right to be heard is a fundamental principle of English procedure in children’s cases, leaving the Court of Appeal’s analysis on that point as the authoritative ruling for the time being.

Verdict: The Supreme Court held that it had no jurisdiction to entertain the appeal under the Brussels II (Revised) Regulation. The appeal was struck out.

Source: Re D (A Child) [2016] UKSC 34