D (A Child), Re

Trinity Term

[2016] UKSC 34

On appeal from: [2016] EWCA Civ 12

LADY HALE: (with whom Lord Neuberger, Lord Clarke, Lord Wilson and Lord Hughes agree)

1.                   On 21 March 2016, this court gave a father permission to appeal against the decision of the Court of Appeal that a custody order which he had obtained in Romania should not be enforced in this country under the Brussels II (Revised) Regulation (“BIIR”), because it had been given “without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure” in this country. In the view of the panel giving permission to appeal, the judgment of the Court of Appeal raised an arguable point of law of general public importance, as to the precise extent to which it is a fundamental principle of the procedure relating to all cases about children in the courts of England and Wales that the child should be given an opportunity to be heard. This is a question of importance in all children’s cases, not just those where the court here is asked to enforce a judgment given in another member state of the European Union.

2.                   However, it has now become clear that under BIIR this court has no jurisdiction to entertain such an appeal. This point was not raised by the respondent mother in her notice of objection to the application for permission to appeal. No doubt, had she done so, the court would have listed it for oral argument before deciding whether or not to give permission. In the event, once it was raised, we were able to arrange a hearing at short notice, in advance of the date set for the substantive appeal. As a point of jurisdiction, it could not be ignored, however inconveniently late in the day it was raised. We are grateful to the parties for the speed with which they have prepared their written and oral arguments and, in particular, to the Ministry of Justice, whom we asked to intervene in order to give us an account of the relevant history.

The history of the case

3.                   The circumstances in which this question arises are deeply unfortunate, not least because of the delays there have been, not only in Romania but also in this country, but they are…