Re- A (A Child) (Enforcement of a Foreign Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lord Justice Moylan |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWCA Civ 904 |
| Docket Number | Case No: CA-2021-003276 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 904
Lord Justice Moylan
Lord Justice Nugee
and
Lord Justice Birss
Case No: CA-2021-003276
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE MacDONALD
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Hames QC and Margaret Parr (instructed by MSB Solicitors) for the Appellant
Mother Henry Setright QC and Emma Spruce (instructed by Access Law) for the Respondent Father
Hearing date: 24 February 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2pm on 1 st July 2022.
This case concerns an application by a father to enforce a parental responsibility order made by the Court of Appeal in La Réunion, France on 21 October 2020 (“the October 2020 Order”). Réunion is a French overseas department and is part of the EU. The application predates the UK's withdrawal from the EU and is, therefore, governed by Brussels IIa ( Council Regulation (EC) No 2201/2003) pursuant to the provisions of article 67 of the UK/EU Withdrawal Agreement.
The October 2020 Order was registered by District Judge Alun Jenkins pursuant to the provisions of Part 31 of the Family Procedure Rules 2010 (“the FPR 2010”). That was essentially an administrative process from which there was a right of appeal. The mother's appeal was determined by MacDonald J (“the Judge”) on 3 December 2021. He dismissed the mother's appeal and also summarily dismissed her application which had been issued under the Children Act 1989 (“the CA 1989”) on 17 July 2019 for a child arrangements order.
The effect of the Judge's order is that the parties' child, A, now aged 5, who has lived with the mother in England since February 2019, having been given permission by the High Court in Réunion to relocate with A to England, is to move to live with her father in Réunion.
The mother appeals from that decision and advances four grounds of appeal:
(1) the Judge was wrong to find that the court in Réunion remained seised of proceedings as at 17 July 2019 which took precedence over the mother's application and was, therefore, wrong to find that the lis pendens provisions of BIIa applied;
(2) the Judge was wrong summarily to dismiss the mother's application under the CA 1989 and should have undertaken a welfare inquiry to determine what order was in A's best interests leading, potentially, to the application of article 23(e) of BIIa;
(3) the Judge should have decided that article 23(a) of BIIa applied because the October 2020 Order was manifestly contrary to English public policy;
(4) the Judge wrongfully elided the registration of the October 2020 Order with its enforcement and, as a result, failed to consider A's welfare when determining how it should be enforced.
The mother is represented by Mr Hames QC, who did not appear below, and Ms Parr. The father is represented by Mr Setright QC and Ms Spruce who both also appeared below.
Background
A detailed account of the relevant history is set out in the judgment below: G v K [2021] EWHC 3240 (Fam). I propose, therefore, only to set out a summary in my judgment.
The mother is English. Her immediate family all live in England. The father was born in South Africa but is a Dutch national. He has family living in Europe, including in England. Their relationship started in 2010 when the father was living in Belgium and the mother in England. The father then obtained employment in Réunion and the parties moved there in 2012. Their only child, A, was born there in October 2016. The parties' relationship ended in August 2018.
The parties commenced parental responsibility proceedings in the High Court of Saint-Denis, Réunion. As part of these proceedings, a “social investigator” prepared a welfare report dated 22 January 2019. This was a detailed report based on the social investigator having undertaken inquiries including by meeting the parents and the child. At that time the father was living alone and was “not currently in a relationship of any kind”. The conclusion of the report was: “A's age, the fact that her mother has always taken care of her, and the close bond that exists between them, would make it difficult, from the point of view of the child's stability, to separate her from her mother”.
The Family Court Judge of the High Court gave her decision on 6 February 2019. She decided that A should live with her mother and she gave the mother permission to relocate with A to England. Her order also contained provisions for contact between the father and A, including 15 days in Réunion every two months, with the father being responsible for travelling with A between Réunion and England. The order provided, somewhat surprisingly, that this was to end when A was 5 on the basis that this was the age at which airlines accept children travelling alone.
The mother and A duly moved to England on 9 February 2019.
The mother issued an application in England on 14 March 2019. She asserted that there was a risk of abduction. The application was dismissed by the court as set out in the judgment below, at [9]–[11].
The father and A had contact for two weeks in England in March 2019 and for two weeks in Réunion in June 2019. That was the last time that A has been to Réunion. Since then, at [14] of the judgment below, “beyond a short contact on 25 June 2021, the father has now had no substantive direct contact with A since October 2019”.
On 17 July 2019 the mother issued another application in England seeking to vary the contact provisions in the French court's order. As set out in the judgment below, at [12]: “The grounds of the mother's application were that the order of 6 February 2019 was not working, was too vague and was having an emotional and physical impact on A's welfare based on her alleged response to contact with her father in March 2019”.
This application was adjourned, pursuant to orders made by the English court which referred to, but did not decide, issues of jurisdiction and lis pendens. It was not substantively determined until the hearing before the Judge. Quoting from the judgment below:
“[12] On 17 July 2019, the day on which the father was due to collect A for summer contact pursuant to the terms of the order of the High Court of Saint-Denis of 6 February 2019, the mother issued a further application in the Family Court sitting at Liverpool, again seeking to vary that order. That application was again made without notice to the father, although the justification for this course taken by the mother is unclear. The mother's application dated 17 July 2019 asserted, in contrast to the earlier without notice application in March 2019, that there had not been any form of domestic violence and that there was no risk of child abduction. The grounds of the mother's application were that the order of 6 February 2021 was not working, was too vague and was having an emotional and physical impact on A's welfare based on her alleged response to contact with her father in March 2019.
[13] The statement of the mother in support of her application argued for a wholesale revision of the arrangements for contact put in place by the High Court in Saint-Denis in the order of 6 February 2019. On 17 July 2019 HHJ De Haas QC made a prohibited steps order to maintain the status quo and listed a return date on 18 July 2019 to enable the father to be given notice. In the event, the father was served with the application with insufficient time for him to attend the hearing but was able to speak briefly with the mother's counsel. The father indicated that he wished to secure legal representation and requested an adjournment. Within this context, HHJ De Haas QC adjourned the matter until 16 August 2019 and continued the prohibited steps order preventing the father from removing A from the jurisdiction pending the further hearing. HHJ De Haas QC further directed that each party file and serve Skeleton Arguments addressing the question of whether the English Court had jurisdiction to vary the order made by the High Court of Saint-Denis dated 6 February 2019.
[14] The mother did not facilitate the contact between A and the father in July and August 2019 required by the terms of the order made by the High Court of Saint-Denis. Within this context, beyond a short contact on 25 June 2021, the father has now had no substantive direct contact with A since October 2019, a period of over 2 years. In these circumstances, on 2 August 2019 the father lodged an application in the Family Division of the Court of Appeal of Saint-Denis in Réunion appealing the order of the court in La Réunion made on 6 February 2019. The father contends that this was done in response to the mother's refusal to comply with the contact provisions of that order.”
On 13 August 2019, the father filed a notice of appeal to the Court of Appeal of Saint-Denis in Réunion from the Family Court Judge's decision of 6 February 2019. It can be seen from the Court of Appeal's judgment that the father argued that “the mother (had) infringed his right to exercise parental authority and disregarded his visiting and accommodation rights”. As set out in the judgment below, at [21]:
“It would appear that the father's appeal to the Court of Appeal in Réunion was by way of a re-hearing, the judgment being expressed as setting aside the judgment of the High Court of Saint-Denis and the Court of Appeal recording itself in its decision to be “ruling again”. The appeal appears to have proceeded on submissions only.”
The mother raised a number of jurisdictional issues, namely that article 9 of BIIa meant that the court in England...
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