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How are foreign orders relating to children dealt with by the Family Court of England & Wales?

This question will be particularly relevant for international families who have moved, or who are contemplating a move, to this country and who have been engaged in children proceedings in their country of origin or another country. The answer will depend on what international arrangement exist between the UK and the country where the order was made.

For as long as EU law remains in force in the UK, orders made in EU Member States will be recognised and capable of enforceable in the UK under Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa). When EU law no longer applies, the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention) will apply to foreign orders made in contracting states which includes all EU Member States. Both Brussels IIa and the 1996 Hague Convention provide a means for orders relating to children that are made in one signatory state to be recognised and enforceable in another signatory state subject some limited exceptions. This provides certainty and reassurance for international families in respect of orders made in those countries.

Orders made in states that are not a party to the 1996 Hague Convention, may still be considered in the Family Court of England & Wales and common law principles will apply. This was recently considered by the High Court in the case of AB v EM (Jurisdiction Foreign Custody Order) [2020] EWHC 549. The case was heard in March 2020 and the matters in dispute included the child’s habitual residence, and whether England & Wales had jurisdiction to consider the matter. The father was opposed to the Family Court of England & Wales having jurisdiction to determine issues concerning his daughter but he also argued that, if jurisdiction was established, the Court should apply the terms of an order made by the Court in Lebanon in November 2018. Lebanon is not a party to either Brussels IIa or the 1996 Hague Convention.

The Court reminded itself that it can make orders in respect of a child, notwithstanding the existence of a foreign order, if the Court thinks that it fit to do so having regard to the child’s welfare. Two key principles were highlighted to support this position. First, that by its nature no order relating to children is final and will always be subject to review. Second, that the welfare of the child is the Court’s paramount consideration which is set out in statute and so can trump the existence of a foreign order.

This is not to say that foreign orders will never be relevant in proceedings relating to the subject children. The case confirmed that foreign orders will need to be considered and the weight attributed to them will depend on the circumstances of the case. It will be relevant, for example, how recently the order was made and what, if at all has changed since then. In this case, despite the Lebanese order being made only 16 months earlier, the Court concluded that it was not bound by the terms of the Lebanese order when considering the child’s welfare.

For families looking to move to England & Wales, who either have the benefit of a foreign order, or are contemplating obtaining one in their country of origin, it is important to understand how that order may be viewed in this jurisdiction and whether it will be capable of enforcement. Even for those coming from countries where Brussels IIa and the 1996 Hague Convention are relevant they will need to take steps to ensure that existing orders are  registered for enforcement (where this is necessary)  and for those coming from non-signatory countries, an English order mirroring the terms of the foreign order may  be advisable. In any event, local advice in the UK in relation to children matters is always advisable due to the non-permanent nature of any order made in relation to a child.

Emma Nash
The International Family Law Group LLP
© May2020