MacDonald J underlines the limited circumstances in which the registration of a maintenance order pursuant to the Hague Convention 2007 may be appealed successfully.

The judgment marks the latest, and hopefully final, saga in an epic of litigation spanning nine years, including appeals across two countries and various divisions of the Court of England and Wales.

Background

In 2016 the mother was granted permission in this jurisdiction under the Children Act 1989 to relocate to the US with the parties’ only child. Upon relocation, the mother sought a mirror order in the US. The English order was registered for enforcement in the District Court of Colorado. A separate English order records that the father accepted that, upon relocation, the District Court had jurisdiction in relation to the child.

Both parties then filed for divorce. The father in the UK. The mother in the US. A dispute on forum followed. The mother’s petition was stayed. In August 2017, the English court permitted the father’s petition to proceed, declaring England to be the appropriate forum.

In September 2017, the mother filed a child support petition in the US. In response, the father applied for financial remedy orders in the UK and filed a motion to the US court to dismiss the mother’s application for child support on several grounds, including the argument that the issue of child maintenance was then – as a consequence of his financial remedies application – being litigated in the UK. The District Court in the US granted a stay to the mother’s child support proceedings pending determination of forum conveniens by the Family Court in Liverpool.

The financial remedies application was determined in 2018. There was no order for child maintenance. No application for child maintenance had been made and that issue was not expressly determined by the judge.

Following the final hearing in the English court, the mother notified the District Court of the decision. Her application for child support was revived. The District Court concluded that it had jurisdiction to entertain the petition for child support.

The petition was determined by the District Court in 2019. The father did not attend and contended that he was not properly served with notice of the hearing, yet he had filed a number of motions (as recently as the evening before the hearing) and sent an email on the morning of the hearing requesting that the judge be notified that he would not attend.

The hearing proceeded in the father’s absence. The court acceded to the mother’s petition, making a child support order. The father subsequently appealed to the Colorado Court of Appeals.

The father’s appeal was dismissed, rejecting the father’s arguments that the District Court was wrong to conclude that (i) it had personal and subject matter jurisdiction; (ii) the matter was res judicata by virtue of the English financial remedies proceedings; (iii) he had been given proper notice of the proceedings; and (iv) it was wrong to make an order based on the mother’s evidence. The father’s attempt to apply to the Colorado Supreme Court was denied in February 2023.

The appeal

At the centre of the appeal is a maintenance order made by the District Court of Colorado in 2019. That order was subsequently registered in this jurisdiction under the 2007 Convention. The father appealed the registration, and that appeal was first heard and refused by magistrates sitting at the Family Court sitting in Leyland.

The father subsequently applied for permission to appeal the magistrates’ decision. Permission was refused on paper.

That decision was then appealed by the father to the Court of Appeal. The appeal was allowed, and the matter remitted to MacDonald J for allocation as the Family Presiding judge of the Northern Circuit. The father successfully applied for the appeal to be heard by a judge of High Court level, and thus the appeal was heard by MacDonald J.

It is plain that the father mistakenly conceived the appeal as a moment to mount not only an extensive critique of the merits of the District Court’s decision to make an order in the terms that it did based on the evidence available, but also to mount a wider attack on decisions made by the US court in relation to the child.

The father’s approach to the litigation clouds what is a relatively straightforward legal and procedural history: (i) the mother issued a petition for child maintenance in the US, which was stayed pending the resolution of financial remedies proceedings here; (ii) when no order for child maintenance was made, the stay was lifted and the mother’s petition resolved; and (iii) the attempts to appeal that decision were unsuccessful.

The question on appeal was similarly straightforward: with regard to the limited grounds set out at art. 22 of the 2007 convention, was the registration of that order wrong?

The appeal was conducted as a re-trial rather than a review of the magistrates’ decision. Broadly, the father’s case at this appeal mirrored that pursued before the magistrates and lodged with the Colorado Court of Appeals. It is best understood as four essential propositions:

1. Res judicata: The child support order of the made by the District Court was incompatible with a decision rendered in this jurisdiction between the parties having the same purpose as the District Court’s child support order (art. 22(d));
2. Procedural unfairness: the father was not present and not served with notice of the hearing at which the order for child support was made (art. 22(e)(i));
3. Fraud: the child support order was obtained by fraud on the part of the mother and/or the District Court (art. 22(b)); and
4. Public policy: the recognition of the child support order was manifestly incompatible with the public policy of this jurisdiction (art. 22(a)).

Art. 28 of the Convention makes clear that there may be no review by the receiving court of the merits of the substantive decision for maintenance (in this case the District Court).

The father’s appeal was dismissed for the reasons summarised below:

1. The court was not satisfied that the English court ever reached a definitive decision in respect of jurisdiction or forum in relation to child maintenance. Moreover, art. 22(d) is concerned with conflicting decisions. For the father to succeed on this ground the English court must have exercised jurisdiction in respect of child maintenance by making an order which was incompatible with the District Court’s order; no such order was made by the English court and accordingly there is no incompatibility.
2. For the purposes of the term ‘proper notice’ at art. 22(e)(i) it is not necessary for a party to have been duly served, rather notification which gives a party the opportunity to react is sufficient. Given the father’s engagement with the court in advance of the hearing at which the child support order was made, it was clear that he did have proper notice within the meaning of the Convention.
3. The father’s arguments that the decision was reached as a consequence of a fraud by the mother or the District Court were similarly rejected. Fraud in the context of art. 22(b) demands a subjective element of wilful misrepresentation or fraudulent machination, which precludes mistake or negligence. There is no evidence of such a fraud.
4. The court underlined that the public policy exception at art. 22(a) is of very limited application. The question is whether recognition of the decision would lead to an intolerable result in the State addressed. There was nothing to justify the conclusion that the recognition of the order was manifestly incompatible with the public policy of this jurisdiction.