BIIR: Recognition of orders and habitual residence

Whilst we were all enjoying our summer holidays Lord Justice Munby was delivering the judgment of the Court of Appeal in Re L (A child) [2012] EWCA Civ 1157 in which the decision of Macur J not to recognise a Portuguese order and to accept jurisdiction in England was over-turned.
The two principle issues were
(a) the interpretation of Article 23(a) BIIR  'manifestly incompatible with public policy having regard to the best interests of the child', and
(b) habitual residence

The Court of Appeal confirmed the very high threshold for non-recognition that is set by Art 23(a). They considered that BIIR already incorporated the best interests of the child in the same way the UKSC considered the 1980 Hague Convention incorporated them. Only in exceptional cases would it be possible to say that the enforcing court's assessment of the child's best interests meant Art 23(a) was engaged. In order to meet the very high bar the court would have to conclude that there was a very high degree of disparity between the orders effects if enforced and the child's current welfare interests. The CA endorsed the previous approaches of Holman J in Re S, Singer J in W-v-W and Roderic Wood J in LAB -v-KAB.
The court considered that a procedural flaw in the process by which the order was originally generated could (theoretically) meet the Art 23 (a) test (as well as (b) and (d)) but only where it was so fundamental it resulted in an 'egregiously unfair trial'.

In respect of habitual residence Munby LJ confirmed
(i) habitual residence for BIIR has an autonomous meaning (and interestingly that it is different from our domestic interpretation)
(ii) that a child cannot have 2 habitual residences within the EU,
(iii) that a child who moves between two countries on a 2 monthly cycle will retain his habitual residence in the country where he was habitually resident before the cycle commenced and which had the original jurisdiction to make the order sought to be enforced. To hold either that habitual residence switched every 2 months or that the child had no habitual residence was a recipe for jurisdictional chaos and was contrary to the principle of BIIR.