Thursday, July 05, 2012

JRG v EB: Brussels beats The Hague

Mr Justice Mostyn
A very brief note on JRG v EB [2012] EWHC 1863 (Fam), heard today by Mr Justice Mostyn.

The case involved an application by the father ("F") under the Hague Convention concerning three children who he alleged the mother ("M") had wrongfully retained in this country. A French court had already made an order awarding residence to F.

Mr Justice Mostyn sets out the procedure for registration (and thereafter enforcement) of the French judgment in this country under Brussels II Regulation ("B2R"), and concludes (at paragraph 8) that: "had F ... applied for registration that would unquestionably have been granted, and that by now, in all probability, the appeal process would have concluded, very likely in his favour, with an order that the children be returned to France".

However, F did not take this route, despite the fact that Art 60 B2R makes it clear that B2R shall take precedence over the Hague Convention.

In the circumstances, even if M had been successful in her defence to the Hague application, F could then have mounted an application to register and enforce the French order, which would, as Mr Justice Mostyn explained, be highly likely to succeed, thus overreaching M's successful Hague defence.

In the circumstances, Mr Justice Mostyn declined to adjudicate on the Hague application, instead adjourning it so that F could apply for registration under Art 28(1) and FPR 2010 rule 31.8. He concluded:
"It is my opinion that where there is a residence or other relevant parental responsibility order made in a fellow member state the route of registration/appeal should normally be adopted. Time and again I have been confronted with a similar state of affairs where Hague proceedings have instead been taken. The cost to the tax payer and the demands on court time is heavy indeed. And, as I have sought to explain, the time and money is likely completely wasted."

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