22 Wednesday Jun 2016
On appeal from:  EWCA Civ 12.
The Supreme Court has unanimously held that it does not have jurisdiction to hear the appeal of a father against the refusal of the High Court to recognise and enforce a custody order granted by the Bucharest Court of Appeal. The proceedings were governed by the Brussels II (Revised) Regulations (BIIR).
Lady Hale gave the only substantive judgment.
The Supreme Court considered the Constitutional Reform Act 2005, s 40, which provided that appeals to the Supreme Court were subject to provision under any other such enactment restricting such an appeal. BIIR applications had their own administrative and appeals process, including the stipulation that judgment given on such an appeal may be contested only be the proceedings referred to in the list notified by each member state to Commission, pursuant to art 68. The UK’s list of notifications provided that appeals may be brought only by a single further appeal on a point of law to the Court of Appeal. The purpose of having one tier of further appeal was to reduce the avenues for challenge, allowing for easier recognition and enforcement of other member state judgments.
The BIIR provisions and art 68 notifications were directly applicable in the UK. There was no need for further implementation under art 34. BIIR was thus an enactment restricting an appeal, as referenced by the Constitutional Reform Act 2005, s 40.
The Supreme Court therefore had no jurisdiction to entertain an appeal in this case.