A British judge has overturned a Turkish custody order, having said that the original order was made based on a misconception. The order stated that the Mother of a Turkish born child had essentially handed over the care of her children to Grandparents in the UK, and concluded that the Father should be given custody. However, Holman J declared that this was a misconception, because the Mother of the child was living in the UK and caring for the child, and went on to judge that applying the original court order would be incompatible with UK laws.
Turkey’s position outside both the Hague Convention and the EU meant that Holman J was invited to apply the rarely used 1980 European Convention, which would apply because Turkey is a member of the Council of Europe.
The judge did recognise that it was not desirable to have different judgments made in different states, but concluded that it would not be possible to enforce the original court order, due to the fact that it was based on a misconception that had been proven untrue, and that to enforce the order would contradict UK family law. The judge praised the work done by the Mother’s legal team, who took the case on as pro bono work. This is thought to be the first time that the incompatibility defence of the 1980 European Convention has been successfully used.
Article 7 of the 1980 European Convention states that a decision made in a Contracting State should be recognised in every other Contracting State, but it also states that the decision should be enforceable in the State of origin. The existence of the Hague Convention and the EU Regulation Brussels ii means that this particular Convention is very rarely used, and it is believed that 2005 was the last time that it was cited and used in such a case.
The ruling means that the original court order, which gave the Father custody of his child, will not be enforced here in the UK, where the Mother lives with the child, and she will be permitted to retain custody.