G v K

In this matter I am concerned with proceedings with respect to A, born in 2016 and now aged 5. A’s mother is G (hereafter, “the mother”), the applicant and appellant in these proceedings. She is represented by Mr Teertha Gupta of Queen’s Counsel and Ms Margaret Parr of counsel. A’s father is K (hereafter, “the father”), the respondent in these proceedings. The father is represented by Mr Henry Setright of Queen’s Counsel and Ms Emma Spruce of counsel. The following applications are before the court:

The mother’s appeal against the order registering the judgment of the Court of Appeal, St Denis, La Réunion dated 21 October 2020 made by made by District Judge Alun Jenkins on 6 July 2021.

The mother’s application for orders in this jurisdiction under the Children Act 1989 issued on 14 March 2019.

The father’s application for orders facilitating the enforcement of the registered French order of 21 October 2020, which provides for A to reside with him.

The court has had the benefit of a court bundle containing the papers relevant to the father’s application to enforce the order of the Court of Appeal on Réunion dated 21 October 2020 and the mother’s application for orders under the Children Act 1989. A separate appeal bundle pertaining to the mother’s appeal against the registration order dated 6 July 2021.

Given the nature of the issues raised in the applications before the court, having heard submissions from leading and junior counsel I reserved judgment.

The background to this matter is as follows. The parties commenced their relationship in 2010. At that time, the father lived in Belgium and the mother in England. The father obtained employment in La Réunion and the parties cohabited in Réunion from 2012. Réunion is an oversees département of France and is governed by French law. Then parties entered into a civil partnership in 2014. Neither the mother nor the father holds French nationality. As I have noted, A was born in Réunion, in October 2016. The parties’ relationship broke down in August 2018.

On 15 November 2018 the mother left Réunion with A without the consent of the father. The mother was refused entry into the United Kingdom in circumstances where the father had obtained orders from the court in Réunion preventing the mother removing A from that territory. On 28 November 2018, the father made an application to the court in Réunion for a determination in respect of parental rights. The mother made a cross-application in the same terms. On 21 December 2018 the High Court of Saint-Denis in Réunion made a order establishing joint custody and directed a welfare report.

On 6 February 2019 the Family Court Judge of the High Court of Saint-Denis gave judgment. The court has before it a translation of the decision of the court. The court awarded residence of A to the mother and lifted the prohibition on the mother removing A from Réunion. The latter decision was made on the basis of the High Court’s conclusion that the mother “must be free to settle where she wishes, insofar as her actions are not contrary to the child’s welfare and are not intended to deprive the father of his rights.” Within that context, the High Court concluded that there was nothing to prevent the mother from settling in England, her country of origin, if she wished to.

As I have noted, the decision of the High Court of Saint-Denis rested its conclusion on the determination that the mother must be free to settle where she wishes provided, inter alia, her actions were not intended to deprive the father of his rights. Within this context, with respect to contact between the father and A, the order of the High Court provided that A was to spend two weeks every two months with the father until she commenced education, plus one month in July to August, and thereafter all half term holidays and half of school holidays. The order further permitted the father to have contact with A in England “freely” subject to him giving 15 days notice.

The order of the High Court of Saint-Denis further noted that Art 373-2(3) of the French Civil Code required any change of residence by one of the parents that modified the terms of the exercise of parental responsibility must be the subject of notice to the other parent and, in case of disagreement, determination by the court. In addition, the order noted that all important decisions regarding residence were to be taken by the parents jointly and that any request to amend the provisions of the order was subject to a prior attempt at mandatory family mediation pursuant to Art 7 of the French Law of 18 November 2016, failing which an application to vary would be declared inadmissible.

On 9 February 2019, the mother left Réunion for the jurisdiction of England and Wales. The father contends he was given little notice of this move. The mother and A have remained in England and Wales since that date. Some five weeks later, on 19 March 2019 and notwithstanding the terms of the order of the High Court of Saint-Denis dated 6 February 2021 regarding the requirement for mandatory family mediation prior to any application to vary the terms of that order, the mother made a without notice application to the Family Court sitting in Liverpool to vary the order made by the High Court and for a prohibited steps order under the Children Act 1989 to prevent the father from removing A from the jurisdiction of England and Wales. The application form alleged that there was a risk of abduction. However, the application also states that the father wished to take A for 15 days, which action was on the face of it consistent with the contact order made by the High Court of Saint-Denis on 6 February 2021 that A was to spend two weeks every two months with the father. In her first statement, the mother says she had changed her mind regarding the appropriateness of the level of contact she had agreed before the High Court and which that court had ordered.

In the Form C1A that accompanied her application, the mother alleged domestic abuse against the father by way of him “trapping” her in Réunion in November 2018 and being verbally abusive to her. Exhibited to the mother’s statement is an email from the mother’s lawyer confirming that in December 2020 the Disciplinary Chamber of the Medical Board of La Réunion sanctioned two doctors for wrongly representing the position in respect of the mother’s mental health. The mother contends that the father, who is also a doctor, was the instigator of this conduct.

The mother’s application came before District Judge Doyle on 15 March 2019 who, properly, declined to deal with it and re-allocated the matter to HHJ De Haas QC, then the Designated Family Judge for Cheshire and Merseyside. In doing so, District Judge Doyle rightly reminded the mother of the duty on a litigant making an application without notice to make known all matters relevant to the application, whether or not those matters support the making of the order sought. On 22 March 2019 HHJ De Haas QC declined to make an order on the grounds that the court had no jurisdiction to vary an order made by the High Court in Réunion having regard to the provisions of Art 9 of Counsel Regulation (EC) 2201/2003 (hereafter BIIa). Within this context, the contact between A and her father went ahead for two weeks in March 2019 in London, the mother stating in her written evidence that she told the father that she had lost A’s passport. A further period of two weeks contact took place in June 2019 in Réunion.

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.

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-Dennis 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.

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 Reunion 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.

The mother’s second application came before HHJ De Haas QC on 14 August 2019. On that date, the parties lodged a consent order which provided for the proceedings in this jurisdiction to be stayed for a period of 3 months to permit the parties to engage in mediation. Mr Gupta produced at this hearing the letter from the solicitors for the mother dated 12 August 2021 which enclosed the consent order. That letter informed the court that “the parties have agreed to engage in mediation in an attempt to resolve the issues outside the court arena”. Within this context, the letter asked for the English proceedings to be adjourned with liberty to restore were mediation to be unsuccessful.

This court has a copy of the consent order approved by HHJ De Haas QC dated 16 August 2019. The prohibited steps order was continued and that continuation was expressed to be “until agreement is reached between the parties or further order”. In the circumstances, the question of the jurisdiction or otherwise of the English court, on which HHJ De Haas QC had directed Skeleton Arguments on 17 July 2019, was left in abeyance. Within this context, I note again at this point that, as recorded in the order of 6 February 2019, it was a requirement of the Art 7 of the French Law of 18 November 2016 that the parties mediate as a condition of any application to vary the terms of that order.

The matter returned to court on 25 November 2019 following mediation being unsuccessful. The mother sought to reinstate the proceedings in England and Wales. The father sought to for the proceedings in England and Wales to be adjourned or stayed pending the outcome of his appeal to the Court of Appeal in Réunion. Her Honour Judge De Haas QC again directed the parties to file and serve Skeleton Arguments as to the jurisdiction of the English court to vary the order of the High Court in Saint-Denis dated 6 February 2019. Within this context, on 7 January 2020 the mother submitted that her application was first in time (when compared to the father’s appeal to the Court of Appeal in Réunion), that A was now habitually resident in England, that the father had engaged in the English proceedings and that his appeal to the Court of Appeal in Réunion was out of time. Against this, the father contended that the court was required to stay the proceedings pursuant to Art 19 of BIIa as his appeal remained extant before the court first seised on the original proceedings relating to parental responsibility in respect of the same child and involving the same cause of action.

Having heard the parties, on 7 January 2020 Her Honour Judge De Haas QC adjourned the English proceedings to await the result of the outcome of the appeal to the Court of Appeal in Réunion. The order of the English court of 7 January 2020 records that the Court of Appeal in Réunion would consider the issue of competing jurisdictions. The English proceedings were adjourned again on 27 February 2020, on 6 May 2020, on 1 July 2020 and on 24 September 2020 pending the outcome of the appeal to the Court of Appeal in Réunion. The order of Cohen J dated 27 February 2020 recorded that the father disputed the jurisdiction of the English court having regard to the terms of Art 19 of BIIa. The orders of 6 May 2020 and 1 July 2020 contained the same recital.

It is apparent from the papers before the court that, in addition to seeking to prosecute proceedings in this jurisdiction, the mother engaged fully in the appellate proceedings in Réunion and was represented in those proceedings. During the appellate proceedings the mother argued that the father had accepted the jurisdiction of England and Wales and, thus, that the Court of Appeal in Réunion should declare itself to lack jurisdiction. As a result of administrative delay, the father’s appeal was not heard and determined until 21 October 2020. The father’s appeal was successful and the order of 6 February 2019 was overturned. In its place, the Court of Appeal in Réunion made an order stipulating that A’s main residence be with her father. This court has before it a translation of the French appellate decision. The following aspects of the decision fall to be noted within the context of the applications now before this court.

The Court of Appeal in Réunion was expressly invited to deal with the mother’s assertion that it lacked jurisdiction on the basis that the father had accepted the jurisdiction of the courts of England and Wales. Within this context, the Court of Appeal held that an objection based on jurisdiction must be raised in limine litis but that it had not in this case been raised before the court of first instance; that the mother was not assisted by the provisions of Art 9 of BIIa in circumstances where that provision concerned access rights and the issue on appeal was residence; that there was nothing on the face of the order made by HHJ De Haas QC on 18 July 2019 that indicated the father had accepted the jurisdiction of the English court for the purposes of Art 12 of BIIa; and that the filing of the appeal by the father on 13 August 2019, before any hearing on the merits in the English court, supported the contention the father had not conceded jurisdiction. In these circumstances, the Court of Appeal in Réunion declared the mother’s objection to the jurisdiction of the Court of Appeal to be inadmissible.

By way of his appeal, the father further invited the Court of Appeal in Réunion to determine that the mother was, due to her obstruction of contact, interfering with the father’s parental authority and, within that context, that it was in the best interests of A to establish A’s main residence as being with the father. The father further sought to persuade the court that the provisions for contact between A and her mother should mirror those to which he was subject under the first instance order of 6 February 2019.

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. Within this context, the central reasoning of the Court of Appeal for granting the father’s appeal is expressed as follows in the translation of the judgment before the court:

On the foregoing basis, the Court of Appeal made the following order on 21 October 2020, which is the order that the mother now appeals against the registration of and the father now seeks to enforce:

Within the foregoing context, on 18 January 2021 His Honour Judge Sharpe reallocated the English proceedings to a Judge of the Family Division. HHJ Sharpe’s order of that date again records that the father contested the jurisdiction of the English court to make welfare orders in respect of A, the operative order being that made by the Court of Appeal in Réunion on 21 October 2020.

The mother lodged an appeal against the decision of the Court of Appeal in Réunion with the French Supreme Court, the Cour de Cassation, in January 2021. Within this context the proceedings in this jurisdiction came before Russell J on 1 February 2021 and were listed for a further hearing to be fixed following the decision of the French Cour de Cassation. The order of Russell J again makes clear that the father contested the jurisdiction of the English court to make welfare orders in respect of A. The matter was further adjourned by the order of Keehan J on 11 May 2021 as the outcome of the mother’s appeal to the Cour de Cassation was still awaited.

On 14 May 2021 the Cour de Cassation handed down judgment refusing the mother’s application to appeal and upholding the decision of the Court of Appeal in Réunion of 21 October 2021. Once again, the court has before it a translation of the judgment of the Cour De Cassation. The mother argued before the Cour de Cassation that the English court had exclusive jurisdiction in respect of A having regard to Art 9 of BIIa; that the Court of Appeal in Réunion breached the requirement for impartiality in Art 6(1) of the ECHR in the manner in which it expressed itself regarding the mother in its judgment; that in determining that the mother was seeking to frustrate contact the Court of Appeal failed to consider the alternative contention that the mother was acting in A’s best interests by limiting instances of long-haul travel; and that the Court of Appeal had failed to consult the social investigator’s conclusions and the impact on A of separating her from her primary carer. However, the Cour de Cassation declared the mother’s grounds of appeal “clearly not such as to allow the decision to be quashed” and stipulated that, pursuant to Art 1014 of the Civil Code no ruling on the specific grounds of appeal was required.

Within the foregoing context, the French order of 21 October 2020 providing that A live with her father remains operative and in force. On 6 July 2021 District Judge Alun Jenkins registered the judgment of the Court of Appeal in Réunion and the order of 21 October 2020 (as pointed out by Mr Gupta on behalf of the mother, the accompanying Annex II Certificate misstates the date of the judgment and the order as 21 October 2021). The father now seeks enforcement of the same. By a Notice of Appeal issued on 16 August 2021 the mother appeals the registration order of 6 July 2021 on the grounds that (a) the decision taken by the Court of Appeal in Réunion on 21 October 2021, over 18 months after the mother lawfully relocated with A to the jurisdiction of England and Wales and without any further welfare enquiry, is manifestly contrary public policy and (b) the judgment was made without the opportunity for the child to be heard. As I have noted, the mother further seeks for welfare orders in respect of A to be made by this court on the grounds that A is now habitually resident in this jurisdiction and that the French courts are no longer seised.

The court has before it a report from an expert in French Law on the question of lis alibi pendens authored by Alice Meier-Bourdeau, a lawyer at the Council of State and Court of Cassation, directed by order of Keehan J dated 2 July 2021. That report is dated 15 July 2021 and concludes, with admirable brevity, as follows:

There has been no period between the commencement of the first instance hearing before the High Court of Saint-Denis, which led to the order of 6 February 2019, and the making of the order following the decision of the Cour de Cassation in which the French Court was not seised of proceedings.

The filing of an appeal does not have a suspensive effect on the order being appealed where that order constitutes a measure relating to the exercise of parental responsibility having regard to Art 1074-1 of the French Civil Code, meaning that the order can be enforced notwithstanding the appeal.

The appellate order of the Court of Appeal in Réunion did not have retrospective effect but was effective from the date it was delivered.

Upon the appeals process being exhausted following the making of the order following the decision of the Cour de Cassation, the French Court ceased to be seised, the order being made by the Cour de Cassation on 14 May 2021.

The mother’s case is advanced on two fronts. First, the mother seeks to establish that at the time the Court of Appeal in Réunion made its order on 21 October 2020 it did not have substantive jurisdiction in respect of A but, rather, the English court had jurisdiction. Second, and as I have noted, the mother appeals against the order of 6 July 2021 registering the order of the Court of Appeal in Réunion. Within this latter context, the mother seeks for this court to make welfare orders in respect of A.

With respect to the jurisdiction of the Court of Appeal in Réunion the mother submits that at the time she issued her application in the English court on 19 July 2019 A was habitually resident in this jurisdiction. In this respect, the mother relies on the fact that the High Court of Saint-Denis gave her permission to remove A to Réunion and, therefore, that removal was lawful. In this regard, Mr Gupta and Ms Parr pray in aid the decision of the House of Lords in In Re KL (A child) [2013] UKSC 75. Whilst conceding that Art 9 of BIIa would have maintained jurisdiction with the court in Réunion with respect to access rights for a period of 3 months, Mr Gupta and Ms Parr point to the fact that this period had expired by the time the mother made her application.

The mother further submits that in circumstances where, on the mother’s submission, A gained habitual residence in England and Wales upon her lawful arrival in this jurisdiction, the operation of Art 8 of BIIa ‘trumps’ the operation of the lis pendens provisions of Art 19(2) with respect to proceedings relating to parental responsibility, again depriving the Court of Appeal in Réunion of jurisdiction in respect of A as at 21 October 2020. In support of this submission, Mr Gupta and Ms Parr point to the fact that Art 19 is not one of provisions of BIIa to which the operation of Art 8(1) is expressly subject under the provisions of Art 8(2). In the alternative, they submit that it is unclear how Art 8 and Art 19 interact when child’s habitual residence for the purposes of Art 8 changes during the currency of the lis under Art 19. Within this context, Mr Gupta raised the possibility of a referral being made to the CJEU on this question. I am satisfied this is not necessary for reasons I will come to.

The mother in any event seeks to persuade this court that the Court of Appeal in Réunion did not have jurisdiction to make the order it did on 21 October 2020 by reason of the fact that the parents had prorogued jurisdiction pursuant to Art 12 of BIIa. The mother submits that the parents prorogued by way of entering into the consent order approved by HHJ De Haas QC on 14 August 2021 providing that the English proceedings would be adjourned for three months to permit mediation and a prohibited steps order would continue in force during that period.

With respect to the appeal of the registration order of 6 July 2021, Mr Gupta and Mr Parr submit that (a) the decision taken by the Court of Appeal in Réunion on 21 October 2021, over 18 months after lawfully relocated to the jurisdiction of England and Wales and without any further welfare enquiry, is manifestly contrary public policy and (b) the judgment was made without the opportunity for A to be heard. Within this context, the mother submits that the grounds of non-recognition for judgments relating to parental responsibility in Art 23 of BIIa are made out, specifically those in Art 23(a) and Art 23(b).

In their oral submissions, but not in their Skeleton Argument, Mr Gupta and Ms Parr further contended that to enforce the French order would represent a disproportionate interference with A’s Art 8 rights in circumstances where she is a five year old child who has been in the care of her mother in England for nearly three years. Within this context, Mr Gupta and Ms Parr submit the court is under a positive duty to ensure the efficacy of A’s Art 8 rights, which can be achieved in this case only by ensuring she is not subjected to the upheaval that would come from now enforcing a French order made, on the mother’s submission, without any or any sufficient welfare analysis or account of A’s wishes and feelings.

Finally, and within the foregoing context, Mr Gupta and Ms Parr invite the court to take the approach to a case involving an enforcement application alongside a welfare application outlined by the Court of Appeal in Re E (BIIa: Recognition and Enforcement) [2020] EWCA Civ 1030 where the foreign court is no longer seised of proceedings in respect of the subject child. In this regard Mr Gupta and Ms Parr rely on the conclusion of the expert in French law that, upon the appeals process being exhausted following the making of the order following the decision of the Cour de Cassation, the French Court ceased to be seised, the order being made by the Cour de Cassation on 14 May 2021. I will consider the approach taken in Re E (BIIa: Recognition and Enforcement) in more detail below.

The father submits that the French courts retained jurisdiction in respect of A at all material times and that, accordingly, as at 21 October 2020, the Court of Appeal in Réunion had jurisdiction to make the welfare orders that it did.

Within this context, the father does not accept that by 17 July 2019, when the mother issued proceedings in the English court, A was habitually resident in this jurisdiction. The father contends that the decision of the House of Lords in In Re KL (A child) can be readily distinguished from the present case in circumstances where it concerned a return to this jurisdiction pursuant to an incorrectly made return order under the 1980 Hague Convention and not a substantive welfare decision engaging BIIa. Within this context, Mr Setright and Ms Spruce submit that In Re KL (A child) cannot provide a valid analogy in this case in circumstances where, had BIIa been operative in that case the resulting lis under Art 19 would have led to a very different jurisdictional outcome.

With respect to the effect of Art 19 of BIIa and its inter-relationship with Art 8 of that Regulation, on behalf of the mother it is submitted that Art 19 is engaged in circumstances where the proceedings in Réunion both relate to A and to the same cause of action, namely her residence. Within this context, Mr Setright and Ms Spruce submit that the English court was obligated to defer to the French court during the currency of the lis and that the former should have stayed its proceedings.

Mr Setright and Ms Spruce further submit that even had A’s habitual residence changed following her arrival in this jurisdiction (which is not accepted by the father), pursuant to Art 19 a lis continued to operate notwithstanding that position for the currency of the French proceedings. In this respect, they note that, unlike the 1996 Hague Convention, BIIa operates the principle of perpetuatio fori and that, as such, the jurisdiction of the court continues during the currency of the lis notwithstanding a change of habitual residence. Within this context, the father once again relies on the fact that, following the making of the French order in her favour, and with the French lis continuing to run, the mother affirmed her participation in the proceedings in Réunion, having engaged in the first appeal and, in due course, herself launching a second appeal to the Cour de Cassation.

With respect to the mother’s assertion that the father prorogued jurisdiction by his agreement to the making of the consent order dated 16 August 2019, Mr Setright and Ms Spruce remind the court that the consent order was made at a hearing without the parties or their legal representatives in attendance. Further, they submit that the ‘consent’ evidenced in that order was simply in respect of an agreement to mediate. In particular, Mr Setright and Ms Spruce submit that there is nothing on the face of that order, as would be required, that indicates that jurisdiction had been ‘expressly’ or ‘unequivocally’ accepted by the father, still less is there any reference to Art 12 of BIIa, and that had the mother wished for prorogation she should have sought the same from the father expressly. Finally, it is submitted on behalf of the father that the Court of Appeal in Réunion was invited to, and did, deal expressly with the mother’s assertion that the father had accepted the jurisdiction of England and Wales and determined that he had not. Within this context, Mr Setright and Ms Spruce submit that this conclusion, made in inter partes appellate proceedings in which the mother fully participated in the Member State of jurisdiction, and preceding in time any assertions made by the mother to this court, is conclusive of the question of prorogation.

In response to the mother’s submissions in support of her appeal against the registration order of 6 July 2021, Mr Setright and Ms Spruce submit that, in respect of Art 23(a) of BIIa, the public policy ground is expressly exceptional in its nature, with a specific threshold. Within this context, they submit that the registration of the order (which order has been considered by both the Court of Appeal and the Supreme Court in France in inter partes hearings with the full engagement of the mother to be the correct order) cannot fit within the narrow confines of Art 23(a) as being manifestly contrary to the public policy of this jurisdiction. Further, Mr Setright and Ms Spruce submit that the same conclusion is reached when cast in terms of A’s welfare, in circumstances where it is, they submit, clear from the French judgment in the Court of Appeal that the court heard arguments and reached a decision primarily motivated by considerations of welfare. Within this context, it is submitted on behalf of the father that the mother was able to advance any welfare arguments that she considered appropriate at both levels of appellate court in the French proceedings, that A and her father already enjoy a relationship and that the father has presented the court with details as to his plan for A were she to return with him to Réunion.

With respect to the impact of the delay in the appellate process in France reaching its conclusion, Mr Setright and Ms Spruce rely on the decision of Holman J in Re N (A Minor) [2014] EWHC 749 (Fam) as authority for the proposition that delay caused by an appeal process will not establish the high threshold set by Art 23(a).

With respect to Art 23(b) of BIIa, Mr Setright and Ms Spruce submit on behalf of the mother that, in circumstances where A was aged 2 years and 3 months at the first instance decision of the High Court of Saint- Denis and aged 3 at the appeal hearing in Réunion which produced the French order dated 21 October 2020 that the father seeks to register and enforce, A was too young for her wishes and feelings to have been ascertained directly. Further and in any event, if she was denied the opportunity to be heard, Mr Setright and Ms Spruce submit that in the context of her age and concomitant degree of her maturity and communication skills, this situation cannot be said to have been a violation of fundamental principles of procedure of the Member State in which recognition is sought, namely England and Wales.

Mr Setright and Ms Spruce submit that the tension that the mother seeks to set up between the consequence of the French appellate process and the Art 8 rights of A is an entirely illusory one in circumstances where the French court was seised at all times with A’s welfare in the jurisdiction of the child’s habitual residence and the mother participated fully in those proceedings, deploying such arguments with respect to A’s welfare as she considered appropriate.

In the foregoing circumstances, on behalf of the father, Mr Setright and Ms Spruce submit that the French court was responsible for making welfare decisions in respect of A, the French court has determined that A should be living in Réunion with the father, the mother has engaged with that process throughout, has unsuccessfully challenged it both as to jurisdiction and substance and has thus far failed to comply with the resulting order, making the father’s application necessary.

With respect to the decision of the Court of Appeal in Re E (BIIa: Recognition and Enforcement) [2020] EWCA Civ 1030 relied on by the mother, Mr Setright and Ms Spruce seek to distinguish that decision from the present case on the grounds that in Re E (BIIa: Recognition and Enforcement) the foreign court was no longer seised of proceedings in respect of the child. Within this context, Mr Setright and Ms Spruce note that the mother has never sought to advance her appeal on Arts 23(e) or 23(f) of BIIa.

Finally, with respect to the enforcement of the order, Mr Setright and Ms Spruce submit that it is open to the court to put in place, on making orders with a view to enforcing the French order, provisions that ensure a ‘soft landing’ for A in Réunion, the father proposing that A returns to that jurisdiction during the December school holidays with the mother, with transition to the father’s care pursuant to the French order taking place over the course of that holiday, and with the father being faithful to the contact provisions of the original order of the High Court of Saint-Denis that previously regulated contact between himself and A.

In circumstances where the sets of proceedings with which this court is concerned were each commenced prior to 11pm on 20 December 2020, BIIa continues to be engaged in this matter notwithstanding the departure of the United Kingdom from the European Union. The relevant general jurisdictional provisions of Chapter II section 1 of BIIa for the purposes of the mother’s submissions with respect to the jurisdiction of Court of Appeal in Réunion are as follows:

Finally, within the foregoing context, paragraph [12] of the preamble to BIIa provides as follows with respect to the jurisdictional provisions of the Regulation:

The habitual residence of a child is a question of fact, being the place which reflects some degree of integration by the child in a social and family environment (see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2014] AC 1). With respect to the question of habitual residence following a lawful move from one jurisdiction to another, in Re LC [2014] UKSC 1, Lord Wilson noted that where a child of any age goes lawfully to reside with a parent in a state in which that parent is habitually resident, it will be highly unusual for that child not to acquire habitual residence there. In the case of Mercredi v Chaffe (Case C497/10PPU) [2012] Fam 22, relied on by Lord Wilson in Re LC, the CJEU noted that, as a general rule, the environment of a young child is essentially a family environment determined by the reference person or persons with whom the child lives, by whom the child is in fact looked after and taken care of and that this is even more true where the child concerned is an infant as an infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Finally in J (A Child) (Finland) (Habitual Residence) [2017] EWCA Civ 80 the Court of appeal held that assessment of a child's habitual residence after permanent relocation under BIIa requires consideration of the child's circumstances both prior to and following relocation. Within this context, in J (A Child) (Finland) (Habitual Residence) Black LJ (as she then was) noted that a lawful basis for a child going to live in another jurisdiction is one factor that may remove the sort of insecurity that might attend an unauthorised move, and which might interfere with integration in the new country, albeit all cases fall to be decided on their own facts.

In order for there to have been a prorogation of jurisdiction, Art 12 requires the jurisdiction of the relevant court to have been “accepted expressly or otherwise in an unequivocal manner…by the holders of parental responsibility”. The domestic authorities with respect to Art 12 of BIIa make clear need for an unequivocal acceptance of jurisdiction by the holders of parental responsibility. Within this context, I note that in Re A (Removal Outside Jurisdiction: Habitual Residence) [2011] 1 FLR 2025 the Court of Appeal held that the fact that the question of the residence of the child remained in issue between the parties acted to prevent there being an “unequivocal” acceptance of jurisdiction. In this regard, Munby LJ (as he then was) held as follows at [46]:

The “Common provisions” from Chapter II, Section 3 of BIIa that are relevant to the mother’s submissions as to the jurisdiction of the Court of Appeal in Réunion are as follows:

During the course of submissions, Mr Gupta and Ms Parr sought to establish that a change of residence of the subject child acted, in circumstances where Art 8 is not expressed to be subject to the operation of Art 19, to ‘trump’ the operation of the lis pendens provisions of Art 19(2) with respect to proceedings relating to parental responsibility. Within this context, and as I have noted, Mr Gupta and Ms Parr relied on the decision of the Supreme Court in In Re KL (A child).

That case concerned a child brought to the jurisdiction of England and Wales pursuant to a return order made in the United States under the 1980 Hague Convention that was subsequently overturned on appeal and an order made for the child’s return to the US. In circumstances where the Supreme Court declined to criticise the decision of the first instance judge that the child was now habitually resident in England, the court held that it was open for the domestic court to decide whether it was in the child’s best interests to remain in this jurisdiction notwithstanding the order made following the successful appeal in the US. In determining to return the child to the US, Baroness Hale concluded as follows at [36]:

The case of In Re KL (A child) is however, distinguishable from the instant cases on a number of grounds. In particular, the case did not concern the operation of the provisions of BIIa as between Member States. Within this context, and most importantly, the question of the existence of, and the effect of a lis under BIIa did not arise in In Re KL (A child).

Whilst habitual residence is a question of fact, whether that fact of habitual residence grounds the jurisdiction of the court is a question of law. Just because, as a matter of fact, a child is habitually resident in a country jurisdiction does not automatically mean that that country has a jurisdiction it can exercise. Rather, the conclusion as to jurisdiction will depend on the application of the relevant legal principles to the fact of habitual residence. Within this context, and as is plain on their face, Art 8 and Art 19 are concerned with different things. Art 8 provides one of a number of bases (set out in Arts 8, 9, 10, 13 and 14 of BIIa) on which a court may establish jurisdiction under BIIa, namely the fact of habitual residence. Art 19 however, is concerned with which court is first seised of proceedings and which court, therefore, should first have the opportunity to establish its jurisdiction on one of the bases provided for in BIIa, during which time a court second seised is mandated to stay its proceedings.

Within the foregoing context, in Re G (A Child) [2014] EWCA Civ 680 at [32] Black LJ (as she then was) made clear that the operation of Art 19 of BIIa does not depend on the question of which court has jurisdiction (whether under Art 8 or otherwise) but rather which court is first seised:

In the foregoing circumstances, on the question of the extent to which the various bases of jurisdiction set out in BIIa, including that of habitual residence under Art 8, are subject to the provisions of Art 19, in Dicey, Morris & Collins, Conflict of Laws, 15th ed. the following analysis is provided at 19-038:

Also of relevance with respect to the question of the interrelationship between Art 8 and Art 9, Dicey, Morris & Collins make the following observation at 19-040 regarding the impact of the principle of perpetuatio fori operated by BIIa on the subsistence of the jurisdiction when established by the court first seised:

With respect to the effect of an appeal on the foregoing position, in Case C-296/10 Purrucker v Vallés Pérez (No 2) [2011] Fam 312 at [72] and [73] the Court of Justice of the European Union held as follows with respect to Art 19(2) of BIIa:

Within this context, I further note that in Moore v Moore [2007] EWCA Civ 361 the Court of Appeal held at [103], in the context of the similarly worded Art 27 of Brussels I and with respect to the effect of an appeal against a decision to decline jurisdiction, that:

Within this context, the authorities suggest that a loss of jurisdiction by the court first seised will only occur when the court first seised brings proceedings under a properly established jurisdiction to an end, including any appellate process, at which time the court second seised can correctly assume jurisdiction (see C v S (Divorce: Jurisdiction) [2011] 2 FLR 19 and A v B [2016] 1 FLR 31). I discuss the consequences of this situation further below when considering the decision of the court of appeal in Re E (BIIa: Recognition and Enforcement).

With respect to law applicable to the mother’s appeal against the order registering the judgment of the Court of Appeal in, the recognition and enforcement provisions from Chapter III, Sections 1 and 2 of BIIa that are relevant to the issues before this court are as follows:

Within the foregoing context, paragraph 21 of the preamble to BIIa provides as follows with respect to the application of the provisions relating to recognition and enforcement:

The exception contained in Art 23(a) of BIIa should only operate in exceptional circumstances. In Case C-7/98 Bamberski v Krombach [2001] QB 709 the CJEU held in relation to the similar provision in Brussels I that:

In Re L (Brussels II Revised: Appeal) [2013] 2 FLR 430 the Court of Appeal again emphasised at [46] that Art 23(a) of BIIa “contains a very narrow exception and, consistently with the entire scheme of [BIIa] and with the underlying philosophy spelt out in Recital (21), sets the bar very high”. In Re P [2016] 1 FLR 337 the CJEU held that the court is not entitled under Art 23(a) to refuse to recognise the judgment in the absence of a manifest breach (having regard to the best interests of the child) of a rule of law regard as essential in the legal order of a Member State or of a right recognised as being fundamental within that legal order. A mere error of law will not suffice to establish that a judgment is contrary to public policy. Within this context, the test is public policy not welfare as such, still less the paramountcy of welfare itself (see Re N (Abduction: Brussels II Revised) [2015] 1 FLR 227).

Within the foregoing context, in LAB v KB (Abduction: Brussels II Revised) [2010] 2 FLR 1664 Roderic Wood J held as follows at [32] with respect to the question of the extent to which welfare factors might be capable of meeting the very narrow public policy exception contained in Art 23(a) of BIIa:

In Re L (Brussels II Revised: Appeal) the Court of Appeal also considered the type of circumstances that might meet the very high hurdle set by Art 23(a) of BIIa:

In Re D (Recognition and Enforcement of Romanian Order) [2015] 1 FLR 1272 Peter Jackson J (as he then was) held as follows with respect to the question of whether the adverse impact on the child of a change of residence would meet the imperative of Art 23(a):

With respect to the question of delay in the context of the application of Art 23(a), in Re N (Abduction: Brussels II Revised) Holman J observed as follows at [52]:

With respect to Art 23(b) in BIIa in Re D (A Child) (International Recognition) [2016] EWCA Civ 12 at [44], having considered he decision of the House of Lords in In Re D (A Child) [2007] 1 AC 619, Ryder LJ (as he then was) held as follows with respect to providing the child with the opportunity to be heard for the purposes of Art 23(b) of BIIa:

Within the foregoing context, Art 26 of BIIa makes clear that under no circumstances may this court review substance of decision of the French Court, i.e. whether that decision was right or wrong. Rather, the task for this court under Art 23 is to ask whether the judgment of the French court was procedurally deficient on one of a number of narrow grounds, has been superseded by the decision of another court of competent jurisdiction or is objectionable on public policy grounds, taking into account the best interests of the child. Reaching one or more of these conclusions does not constitute jurisdictional overreach on the part of the State requested to recognise and enforce the judgment in circumstances where all signatories to the instrument have agreed the matters to which regard must be had, namely those set out in Art 23, and that the bench mark is the principles of the enforcing State with respect to those matters.

With respect to the legal principles relevant to question of enforcement under Art 28, as made clear by Black J (as she then was) in Re D (Brussels II Revised: Contact) [2008] 1 FLR 516 at [50], having regard to the terms of Art 28 of BIIa, an application in the United Kingdom for registration of a judgment for enforcement is the same as an application in any other Member State for a declaration of enforcement. Within this context, the application for registration is the mechanism in the United Kingdom by which the party benefiting from the order seeks enforcement under BIIa and the appeal against registration is the mechanism by which the party against whom the order has been made resists enforcement under BIIa:

Within this context, and subject to the outcome of any appeal, if validly registered for enforcement then, in accordance with Art 28(2) of BIIa, the order “shall be enforced”. In approaching the enforcement, Black J (as she then was) held in Re D (Brussels II Revised: Contact) offered the provisional view at [57] that:

Finally, with respect to the law, alongside the mother’s appeal against the registration order and the father’s application for enforcement, the mother seeks welfare orders in the Family Court in respect of A based on her habitual residence in this jurisdiction. With respect to the effect of a change of residence prior to the application for recognition and enforcement of a foreign order made by a court of competent jurisdiction, as contended for by the mother in this case, the authors of Rayden & Jackson on Relationship Breakdown, Finances and Children note as follows at [47.71]:

In Re E (BIIa: Recognition and Enforcement) [2020] EWCA Civ 1030 the English court at first instance refused recognition of Spanish orders made in favour of a father (both at first instance in Spain and following the dismissal of the mother’s appeal in that jurisdiction) on the basis that they were irreconcilable with a welfare order that the English made on the same occasion, which provided for the children to live with the mother. Dismissing the subsequent appeal, the Court of Appeal held as follows where the English court is faced with an application for recognition and enforcement alongside an application for welfare orders:

In dismissing the father’s appeal in Re E (BIIa: Recognition and Enforcement), Lord Justice Peter Jackson set out the following discipline where the court is faced with a an appeal against registration and an application for welfare orders:

I have found this a very difficult case indeed to decide. By reason of the time that has passed since the original order made by the High Court of Saint-Denis, nearly three years ago, and the opposite order made on appeal by the Court of Appeal in Réunion over one year ago, this court is faced with the choice of enforcing that latter order, with the result that A will now move from her primary carer and a jurisdiction in which she has been settled for nearly three years to a jurisdiction she has not seen since she was two years old and a parent with whom she has had (through no fault of the father) had no contact in the manner ordered by the French court; or exercising the welfare jurisdiction I am satisfied that this court now has to make an order that is entirely inconsistent with the order made by a court of competent jurisdiction in another BIIa Member State in favour of a father with whom A has been denied the contact mandated by the order of the French Court. On balance, I am satisfied that the order of the Court of Appeal on Réunion dated 20 October 2021 should be enforced. My reasons for so deciding are as follows.

I am not able to accept the submissions of Mr Gupta and Ms Parr that the Court of Appeal on Réunion did not have jurisdiction in respect of A at the time it made the order it did on 21 October 2020. In this context, I am prepared to proceed on the basis that, at the time the mother issued her application in the English court on 19 July 2019, A was habitually resident in this jurisdiction, A having been brought lawfully to this jurisdiction pursuant to the order of the High Court of Saint-Denis. However, I am satisfied that neither that state of affairs, nor the actions of the father in the context of the domestic proceedings acted to confer jurisdiction on the English court at that time or at any time prior to the judgment of the French Cour de Cassation on 14 May 2021, at which time, having regard to the expert report on French law, the French courts ceased to be seised on the matter.

I am satisfied that a change of a child’s habitual residence for the purposes of Art 8 of BIIa during the currency of a lis under Art 19 of BIIa does not act to confer jurisdiction on the courts of the child’s new habitual residence. As I have noted above, just because, as a matter of fact, a child is habitually resident in a country does not result automatically in that country having jurisdiction it can exercise. The conclusion as to jurisdiction will depend on the totality of the relevant legal principles against which the claim of jurisdiction falls to be evaluated. In the context of the competing contentions in this case, as made clear by Black LJ (as she then was) in Re G (A Child), the operation of Art 19 of BIIa does not depend on the question of which court has jurisdiction, whether under Art 8 or otherwise, but rather on which court is first seised, in this case the French court. Within this context it is further clear, as confirmed in Dicey, Collins & Morris, that the bases of jurisdiction under BIIa operate subject to any lis under Art 19. This is, as again recognised in Dicey, Collins & Morris, consistent with the fact that, unlike the 1996 Hague Convention on which BIIa is substantially modelled, BIIa does operate the principle of perpetuatio fori. In circumstances where BIIa abides by this principle, a child may relocate from a Member State, but proceedings will nevertheless properly continue in the former Member State of habitual residence until they are completed or a transfer made under Art 15 of BIIa.

In the foregoing circumstances, it is in my judgment clear on the face of BIIa that where a court is first seised for the purposes of Art 19, and has thereafter established jurisdiction one of the other bases of jurisdiction provided for by BIIa, a subsequent change of the subject child’s habitual residence will not, because of the operation by BIIa of the principle of perpetuatio fori, result in the court first seised losing jurisdiction during the period for which the lis subsists. In this case, on the basis of the unchallenged expert report on French law, the lis under Art 19 of BIIa continued until the Cour de Cassation handed down judgment on 14 May 2021.

I am likewise satisfied that it cannot be said that the parties prorogued jurisdiction in favour of the English court for the purposes of Art 12 of BIIa. As I have set out above, Art 12 requires the jurisdiction of the relevant court to have been “accepted expressly or otherwise in an unequivocal manner…by the holders of parental responsibility”. Whilst the acceptance of jurisdiction can be express or otherwise, it must be unequivocal for the purposes of Art 12, there is no indication of unequivocal acceptance by the father of the jurisdiction of the English court on the face of the orders made by the English court. Further, it is plain from each of the orders made by the English court that the father continued to seek to argue the question of jurisdiction and sought to do so both in the English proceedings and the French proceedings. Indeed, both parents argued the point fully in the French proceedings and the Court of Appeal in Réunion concluded that the father had not accepted the jurisdiction of the English court, which decision was left undisturbed by the French Cour de Cassation. There is no evidence before this court that would justify this court now going behind that conclusion.

Within the foregoing context, I am satisfied that the Court of Appeal on Réunion had substantive jurisdiction in respect of A when it made its order of 21 October 2020. It follows that I am satisfied that, subject to the outcome of the mother’s appeal against registration on one or more of the grounds set out in Art 23 of BIIa, the order of the Court of Appeal on Réunion was amenable to registration and falls to be enforced pursuant to Art 28(2) of BIIa. Within this context, it is to mother’s appeal to which I now turn.

The mother relies on two grounds of appeal, the first of which is that, pursuant to Art 23(a) of BIIa, recognition of the judgment of the Court of Appeal on Réunion would be manifestly contrary to the public policy of the United Kingdom taking into account the best interests of A. When considering this ground, it is important to recall that under no circumstances may this court review the substance of decision of the French Court i.e. whether it was right or wrong. It is further important to recall that the Preamble to BIIa makes clear that recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required. Within this context, the authorities make clear that non-recognition on the grounds of public policy is only envisaged where recognition or enforcement of the judgment delivered in another contracting state would be at variance to an unacceptable degree with the legal order of the state in which enforcement is sought in as much as it infringes a fundamental principle. Within this context, there should be no tendency in the enforcement process under BIIa to fail to recognise, and hence enforce orders, made by Member States. I reject the tentative suggestion of Mr Gupta, made during his oral submissions, that the departure of the United Kingdom from the European Union has changed this position. In cases begun prior to 11pm on 31 December 2020, BIIa will continue to apply in full, as will each of the principles governing its application set out in the authorities.

The mother advances her appeal under Art 23(a) primarily on the basis of an asserted failure by the Court of Appeal on Réunion to consider A’s welfare at the time of the judgment of 21 October 2020. The mother submits that this approach is contrary to the clear public policy of this jurisdiction. I am not able to accept this submission. The Court of Appeal in Réunion began its judgment as to parental responsibility with respect to welfare by expressing recognising the welfare provisions of the French Civil Code as follows:

Both parents were represented before the Court of Appeal in Réunion and had the opportunity fully to advance their respective arguments as to welfare. Within this context, whilst a brief analysis, it is plain that the Court of Appeal in Réunion evaluated the competing welfare submissions of the parents:

Within this context, I am not satisfied that the mother’s primary submission under Art 23(a) comes close to demonstrating that recognition or enforcement of the judgment delivered by the Court of Appeal in Réunion on 21 October 2020 would be at variance to an unacceptable degree with the legal order of this jurisdiction in as much as it infringes a fundamental principle. There is likewise nothing in the welfare outcome endorsed by the Court of Appeal in Réunion that makes it manifestly contrary to the fundamental principles applied in this jurisdiction. Orders that seek to enforce contact between a child and their non-resident parent in the context of the resident parent refusing to promote such contact are well known in this jurisdiction and the enforcement of contact orders following a failure to comply with the same is consistent with the public policy of this jurisdiction.

During the course of their submissions, Mr Gupta and Ms Parr also sought to suggest that enforcing the order after a period of over a year would, having regarding to the adverse the impact on A of a move from the care of her mother to the care of her father, also be manifestly contrary to the public policy of this jurisdiction for the purposes of Art 23(a). However, the authorities make clear that this argument is difficult to make good in the context of recognition and enforcement as between Member States of BIIa. It is correct that the avoidance of delay in proceedings concerning children is central to the legal order in this jurisdiction. However, I am not satisfied that delay engendered by a lawful appellate process in a foreign jurisdiction can amount, particularly in circumstances where similar delays arise in this jurisdiction, to a manifest breach (having regard to the best interests of the child) of a rule of law regard as essential in the legal order of this jurisdiction or of a right recognised as being fundamental within that legal order. This much was recognised by Holman J in Re N (Abduction: Brussels II Revised). Whilst I accept that the impact on of enforcing the order a significant time after it was made A may be adverse, at least in the short term, in the context of recognition and enforcement this has also previously been held not to be objectionable on public policy grounds where child has a substantial relationship with the parent seeking enforcement, the other parent has not raised any substantial concerns regarding parenting capacity and the child is returning to the country in which he or she was born, per Peter Jackson J (as he then was) in Re D (Recognition and Enforcement of Romanian Order). Within this context, I am unable to accept that the short term adverse impact on A resulting from the enforcement of the French order would result in recognition or enforcement being at variance to an unacceptable degree with the legal order of the state in which enforcement is sought in as much as it infringes a fundamental principle of domestic public policy.

I am also not persuaded that the mother has made good her ground of appeal under Art 23(b) of BIIa. Art 23(b) becomes operative where a child has not been given the opportunity to be heard, in violation of the fundamental principles of procedure of this jurisdiction. A was three at the time the order of 21 October 2020 was made by the Court of Appeal on Réunion. That is not an age that, in the context of the public policy of this jurisdiction, falls near the borderline above which giving the child an opportunity to be heard in private law proceedings through the direct gathering of his or her wishes and feelings might be regarded as routine. Rather, the wishes and feelings of a child of A’s age in October 2020, in so far as they might be capable of being established, would ordinarily be communicated to the court by the respective parties. Within this context, at the time of the order of 21 October 2021 A was of an age where, had the proceedings been in this jurisdiction, she would have been considered too young for her wishes and feelings to have been ascertained directly and both parents would have had the opportunity to make such representations as were open to them on the subject of her ascertainable wishes and feelings. Such opportunity was open to the parents in the French proceedings, who were each represented in those proceedings. Within this context, I am satisfied that it cannot be said that the enforcement of the French order would result in recognition or enforcement being at variance to an unacceptable degree with the legal order of the state in which enforcement is sought in as much as it infringes a fundamental principle concerning the participation of the child in private law proceedings.

In the circumstances, I am satisfied that neither of the grounds for non-recognition under Art 23 of BIIa relied on by the mother are made out. However, whilst not raised expressly as a ground, by reason of her reliance on the principles set out by the Court of Appeal Re E (BIIa: Recognition and Enforcement) a third ground of non-recognition will necessarily fall, ultimately, to be considered in this case if the court accedes to the mother’s application for welfare orders in respect of A. Namely, pursuant to Art 23(e) of BIIa, that the judgment of the Court of Appeal in Réunion of 21 October 2021 is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought, being the welfare judgment that the mother now seeks from this court that it is not in A’s best interests to move to the care of her father on Réunion and in her best interests to remain in the care of her mother and the order she invites the court to make accordingly.

As set out above, the appellate courts of this jurisdiction have held in two contexts that, in appropriate circumstances, it is open to the domestic court to decide it is in the child’s best interests to remain in this jurisdiction notwithstanding the existence of a foreign order made by a court of competent jurisdiction, whether that court be sitting at first instance or on appeal. The Supreme Court endorsed such an approach in Re KL in context of proceedings under the 1980 Hague Convention. I agree with Mr Setright and Ms Spruce that Re KL can be distinguished from this case, not least of which is that Re KL did not concern the operation of BIIa. However, a similar approach was also endorsed in the context of BIIa by the Court of Appeal in Re E (BIIa: Recognition and Enforcement).

As recognised in Re E (BIIa: Recognition and Enforcement), when a child's habitual residence changes, the new Member State of habitual residence will have jurisdiction and the courts of that Member State will, if seised of an application concerning the child for the purposes of Art 16 of BIIa, have jurisdiction to make welfare orders under domestic law with differing provisions to earlier orders made in the previous jurisdiction of the child’s habitual residence provided, as is the case in respect of domestic orders, there has been a change in circumstances which warrant making different provision. If, in this context, court does make different provision on the grounds that the same is in the child’s best interests, an earlier order made by a foreign court will not be susceptible to registration and enforcement as there will exist a ground for non-recognition under Art 23(e) of BIIa, the later domestic order being a judgment of a court with general jurisdiction that is given after the judgment which it is sought to enforce. In Re E (BIIa: Recognition and Enforcement), the Court of Appeal declined to criticise the judge at first instance for first considering on an enforcement application whether a welfare order was merited and then, having concluded that it was, determining that the resulting judgment met the imperatives of Art 23(e).

As made clear in Re E (BIIa: Recognition and Enforcement), three questions arise when the domestic court is considering whether to make orders in the foregoing context different from those made by the foreign court and based on a change of circumstances, namely:

Does the court have the power to make welfare orders on the basis that (a) the child is habitually resident in England and Wales or general jurisdiction arises on some other basis, and (b) the court of the other Member State is no longer seised?

If there is a power to make welfare orders, to what extent is it appropriate on the facts of the individual case to embark upon a welfare assessment of matters that were decided by the court of the other Member State, taking an earlier domestic order as an analogy?

If the welfare assessment suggests that an order might be made that is irreconcilable with a foreign order, would it be right to make such an order, taking a cautious approach and giving full weight to the conclusions and findings of the foreign court and to the principle of mutual trust that informs BIIa?

I am satisfied that A is now habitually resident in the jurisdiction of England and Wales. As I have noted, the question of habitual residence under Art 8 and effect of a lis under Art 19 are separate questions. The lis operates to prevent the English court from exercising jurisdiction in place or a court first seised. It does not prevent a child who has moved from one jurisdiction to another during the currency of the lis from achieving habitual residence in the latter jurisdiction, although the existence of proceedings in the former jurisdiction will be a matter to be taken into account when considering whether a new habitual residence has been established. Within this context, the question of whether A is now habitually resident in this jurisdiction falls to be considered by reference to her position in this jurisdiction since her arrival on 9 February 2019. In such circumstances, it cannot now seriously be disputed that a child who arrived in this jurisdiction nearly three years ago with her primary carer; with the intention of settling in this jurisdiction; pursuant to an order permitting relocation to England; and who has remained in this jurisdiction since in the care of the mother who is a native of this jurisdiction, now demonstrates some degree of integration in a social and family environment here sufficient to amount to habitual residence, notwithstanding that that A was born in Réunion and that her father remained there.

I am further satisfied that, following the handing down of judgment by the Court de Cassation on 14 May 2021 that the French court is no longer seised. This is made clear in the unchallenged expert report on French law, which concludes that on the appeals process being exhausted following the making of the order upon the decision of the Cour de Cassation, the French Court ceased to be seised. Within this context, the domestic authorities establish also (as recognised by Dicey, Morris & Collins at 19-040) that when the court first seised brings proceedings to an end, the court second seised can correctly assume jurisdiction (see C v S (Divorce: Jurisdiction) [2011] 2 FLR 19 and A v B [2016] 1 FLR 31. Within this context, in addition to A now being habitually resident in the jurisdiction of England and Wales, I am satisfied that the French court is no longer seised of proceedings in respect of her.

Within the foregoing context, considering the first question posed in Re E (BIIa: Recognition and Enforcement), I am satisfied that the court does have power to make welfare orders in respect of A. However, in accordance with Re E (BIIa: Recognition and Enforcement), the question remains whether it is appropriate on the facts of this case to embark upon a welfare assessment of matters that were decided by the Court of Appeal in Réunion based on a change of circumstances. On balance, I am satisfied that it is not appropriate to do so.

The mother invites the court to embark on a reconsideration of the welfare assessment of the Court of Appeal in Réunion. That assessment was that it was in A’s best interests to move to the care of her father in circumstances where her mother was not permitting A to have the contact with her father that had been assessed by the French court to be in her best interests and in circumstances where it was not accepted that the father was incapable of meeting A’s needs. Within this context, and with the full participation of the mother in the proceedings, the court ordered that A should live with her father and have contact with her mother. Within this context, beyond the passage of time that has passed as the appellate process in the French courts has been completed, it is difficult to identify any change of circumstances that could ground a proper reconsideration by this court of the French order based on a change of circumstances. The father is still without the substantive contact with A ordered by the French court and, within that context, A continues to be deprived of a full relationship with her father in the manner contemplated by the terms of the original order made by the High Court of Saint-Denis. Whilst the mother contends that she has offered contact to the father which has not been taken up, those offers do not reflect the level or nature of contact which the French court considered to be in A’s best interests. Beyond her own statements relating matters that would have been substantially within her knowledge at the time of the hearing before the Court of Appeal in Réunion, the mother has adduced no additional welfare evidence before this court to suggest that the conclusion of the Court of Appeal in Réunion that the father could meet A’s needs requires revisiting by this court due to a change of circumstances.

The Court of Appeal in Re E (BIIa: Recognition and Enforcement) was clear that any revisitation of a foreign welfare order in circumstances where the English court now has jurisdiction must take place in a manner akin to that adopted when reconsidering a domestic welfare order, namely by asking whether there has been a change of circumstances sufficient to justify a different welfare conclusion to that reached by the foreign court. For the reasons set out in the foregoing paragraph, I am not satisfied that such a change of circumstances justifying reconsideration of the French welfare order has occurred in this case. In those circumstances, I decline to revisit the French order on welfare grounds.

I accept that this conclusion means that A will now move from the care of her mother in this jurisdiction to the care of her father in Réunion. I likewise accept that this will have a significant, and potentially adverse, impact on A in the short term. However, I am further satisfied that it is possible to put in place so called ‘soft landing’ provisions in the context of A having a pre-existing relationship with her father that has been maintained to a degree by indirect contact and in circumstances where no substantive concerns have been made out regarding the father’s parenting capacity. In particular, the parties will obviously wish to consider A being accompanied by her mother to Réunion, a period of gradual transition to the father’s care whilst the mother is in Réunion and a clear agreement with respect to future direct contact between A and her mother following her move to the father’s care pursuant to the French order which this court is enforcing.

I am not satisfied that this course of action amounts to an unnecessary and disproportionate interference in the Art 8 rights of A. I accept that the court is under a positive duty to ensure the efficacy of A’s Art 8 rights. As I have noted, I cannot accept the submission that the French order was made without any or any sufficient welfare analysis or without providing A an opportunity to be heard. Within this context, I am not able to accept the argument that enforcing the order constitutes a disproportionate breach of A’s Art 8 rights. Indeed, it is eminently arguable, in light of the decision of the Court of Appeal in Réunion and the absence, as I have found, of any change of circumstances sufficient to justify revisiting that welfare decision, that not to enforce the French order would constitute a breach of A’s Art 8 right to respect for private and family life.

In conclusion, I am satisfied for the reasons I have given that it is not appropriate for this court to exercise a welfare jurisdiction in respect of A on the basis of a change of circumstances and that the mother’s appeal against the registration order of 6 July 2021 must be dismissed for the reasons I have given. Further, I am satisfied for the reasons I have given that this court must now enforce the order of the French court pursuant to the application of the father.

That latter course will involve this court making an order that the mother now return A to Réunion in accordance with the order of the Court of Appeal of Réunion dated 20 October 2021, with such ‘soft landing’ provisions as are appropriate to mitigate the short term impact on A of that course of action. I will invite leading and junior counsel to agree and submit an order for the court’s approval giving effect to the court’s decision.

That is my judgment.