Mother’s appeal against orders which registered, and permitted enforcement of, a judgment made the Tribunal de Grande Instance d’Evry. Those orders for registration and enforcement were made pursuant to Article 28(2) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
Held: Mostyn J pointed out that there were no reported cases about Articles 22(b) or 23(c) but there were an appreciable number under the corresponding provision, Article 45, of Council Regulation No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) and its predecessor, Article 34 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘the Judgments Regulation’).
After considering the relevant authorities, a defendant who is resisting the recognition of an EU divorce or parental responsibility judgment must prove three things:
i) First, the defendant must show that the divorce was obtained in default of his or her appearance. This does not mean merely that the defendant was physically absent. If the defendant has already chosen to take part in the proceedings by defending them or even by challenging the jurisdiction, he or she may be said to have already ‘appeared’ and thus not be in default of appearance.
ii) Second, the defendant must show that he or she was not served in sufficient time and in such a way as to enable him to arrange for his or her defence. Even where there has been formal valid service the court of registration is entitled to examine whether on the ground and in the real world there was actual service of the originating application or an acceptable substitute sufficiently far ahead of the hearing to enable the defendant to arrange for his defence. In an exceptional case the court can so conclude.
iii) Third, it must be shown that the defendant has not accepted the divorce judgment unequivocally. I observed that it is hard to imagine a state of affairs where this comes into play. It is irrelevant under B2R if the defendant failed to commence proceedings to challenge the judgment when it was possible for him or her to do so (in contrast to the Judgments Regulation) or if he or she had concealed his or her whereabouts from the person who instituted the proceedings in the overseas court (in contrast to the Luxembourg Convention).’
Judges:
Mostyn J
Citations:
[2014] EWHC 871 (Fam), [2015] 1 FLR 213
Links:
Statutes:
Council Regulation (EC) No 2201/2003
Jurisdiction:
England and Wales
Children, International
Updated: 29 September 2022; Ref: scu.523361