Exceptions to the principle of mutual recognition of judgments
The EU wants judgments to circulate freely throughout the Member States so there are very limited defences available to the recognition of a judgment on parental responsibility emanating from another Member State. As exceptions to the general principle of recognition, they are interpreted very strictly and there are further restrictions on what can be considered as an aspect of the defence:
Article 23 – A judgment relating to parental responsibility shall not be recognised:
(a) If such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought
taking into account the best interests of the child;
(b) If it was given, except in case of urgency, without the child having been given an opportunity to be heard, in
violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) It was given in default of appearance where the person in default was not serviced with the document in time
to arrange a defence;
(d) The judgment was given without a holder of parental responsibility being heard;
(e) There is a later irreconcilable judgment.
(a) If such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought
taking into account the best interests of the child;
(b) If it was given, except in case of urgency, without the child having been given an opportunity to be heard, in
violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) It was given in default of appearance where the person in default was not serviced with the document in time
to arrange a defence;
(d) The judgment was given without a holder of parental responsibility being heard;
(e) There is a later irreconcilable judgment.
The recognising court is prohibited from considering:
- The jurisdiction of the court of origin
- Differences on the substance of the judgment, even if the recognising court would have reached a different decision on the facts or on the welfare of the child
The court asked to recognise a judgment from another Member State under Brussels IIbis cannot re-consider the decision taken in the originating court or the decision it would have taken under national law.
- A defence of ‘public policy’ cannot be used to re-assess the decision of the foreign court; there must be some aspect of the judgment that is sufficiently offensive to the legal system of the recognising court to refuse recognition of the judgment, for example that the rights of the parties were not protected during the original proceedings. The right of the child to be heard in proceedings is accepted as a defence under Article 23(b).
- The restrictions on the available defences reflect the aim of Brussels IIbis to ensure that the great majority of judgments will be recognised without difficulty by the Member States.
Question
Would these judgments be recognised? (choose)
- A judgment where one party claims that the court issuing the judgment did not have jurisdiction under Brussels IIbis
Yes - This is the correct answer
Harmonising jurisdiction through Brussels IIbis means that all courts have to trust that foreign courts have correctly assumed jurisdiction. The recognising court cannot review the jurisdiction of the court of origin. - A judgment where a child of 14 was not heard during the proceedings
- A judgment refusing access between a father and his child where the father has previously been violent to
the mother