England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TRURO COUNTY COURT AND FAMILY COURT
HIS HONOUR JUDGE VINCENT
TR15C00183

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/08/2016

Lady Justice Black:

1. This is an appeal against orders made by His Honour Judge Vincent concerning a boy who is now 12 years old and to whom I shall refer in this judgment as A. Following argument at the appeal hearing, we immediately informed the parties that the appeal would be allowed, for reasons which would be provided later in writing. The purpose of this judgment is to set out my reasons.
2. The appellant is A's father. The respondents are A's mother, with whom A is living, the local authority for the area in which she is living, and A himself. The father and the local authority were represented by counsel at the appeal hearing. The mother acted in person, participating in the hearing by video-link. The guardian was not present or represented, the child's solicitors having contacted the court to say that the guardian's position accorded with that of the local authority and that the child did not have legal aid to participate in the appeal.
3. The proceedings before Judge Vincent were public law proceedings brought by the local authority in relation to A. On 1 June 2015, he made the following final orders, concluding the proceedings:

i) A child arrangements order providing for A to live with the mother;

ii) A supervision order in favour of the local authority for 12 months;

iii) An order providing for the father to have no direct contact with A but to have indirect contact with him by cards and letters sent via the local authority.

4. The father was given permission to appeal against the order of 1 June 2015 on two grounds. The first ground arose from the substantial connection that the family has had with France and concerned whether, in light of the fact that A had been living in France and proceedings about him had been taking place in the French court, Judge Vincent had jurisdiction to make the orders that he did ("the jurisdiction ground"). This ground required a consideration of the jurisdiction provisions of Council Regulation (EC) No 2201/2003 (hereafter "Brussels IIA"). The second ground for which permission was given was that the judge was wrong not to have adjourned the proceedings on 1 June 2015 in order that the father could be legally represented.
5. We heard argument on the jurisdiction ground separately first and reached the conclusion that Judge Vincent did not have jurisdiction to make the orders that he made on 1 June 2015 so the appeal would have to be allowed and those orders set aside. There was accordingly no need to hear argument on the second ground and we did not do so.
6. It was necessary for us urgently to make provision for A in the vacuum left by the setting aside of the 1 June orders. Exercising the powers of the court below, in accordance with Rule 52.10 of the Civil Procedure Rules 1998, we therefore made various interim child arrangements orders providing that :

i) A was to live with the mother;

ii) There was to be no direct contact between A and the father;

iii) There was to be indirect contact between A and the father through cards and letters sent via the local authority.

All of these interim arrangements are to last only until further order by a judge in any proceedings commenced following the appeal hearing in relation to A's welfare.

7. We heard an application by the father for his costs of the appeal to be paid by the local authority and declined to make that order, for reasons which we gave immediately. I therefore say no more about that aspect of the case here.

The history

8. A and his parents are all UK citizens but A was born in France in 2004 whilst his parents were living and working there. A few years later the relationship between the parents finally broke down. When the mother returned to England in 2008, A stayed on in France with the father. In February 2009, the French court made an order for A to live with the father and have contact with the mother. Contact proved problematic and the French courts remained involved in relation to it. In September 2014, in response to reports of a major and long-standing conflict between the parents, of behavioural problems on A's part, and of particularly impulsive behaviour by the father, the French court decided on a "mesure judiciare d'investigation éducative" in relation to A. The father's attitude during the investigation was found to be disruptive and it was considered that A was suffering by being at the centre of parental conflict. The father was not properly observing the contact arrangements imposed by the French court and it was considered that it was vital that there should be intervention by a third party, above all by way of educational assistance. However, as the father was vigorously opposed to this, a placement away from the father's care was recommended for A, the investigators recommending that this be with the mother.
9. The case came before the Juge des Enfants in the relevant Tribunal de Grande Instance in March 2015. Her judgment is available and records that she had witnessed the father's extreme resentment towards the mother and his failure to respect the proper process during the hearing before her. She found that he was obsessed by the conflict with the mother to the point of not being able to protect A, who had become a pawn in the conflict. Rather than transfer A immediately to the care of the mother, moving him in the middle of the school year and risking plunging him into more conflict and destabilising him, the judge decided to remove A from the full time care of his parents and place him under the protection of the regional Department of Child Services for a year. The father was to have visits with A only in the presence of a third party and the relationship with the mother was to be maintained by A spending a significant proportion of the school holidays with her. The judge's order was made on 23 March 2015. Before A was collected by the French authorities pursuant to it, the father brought him to England. A further development in France was that, on a date which has not been established, the mother lodged an appeal against the order.
10. Contact was made between the authorities of both countries. On 27 March 2015, care proceedings were issued by the English local authority, which already had knowledge of the case, having assisted the French court with a report about the mother's circumstances. The local authority considered that A was at risk of harm in the father's care but not in the mother's and proposed that A should live with her for the moment. It immediately obtained an interim care order from Judge Vincent and an order excluding the father from the mother's address so that A could continue to live there with her. The order of 27 March 2015 shows that, at that stage, the court assumed jurisdiction under Article 20 of Brussels IIA on the basis that the situation was "a child protection emergency". I can see no reason to criticise this approach and it was not these urgent provisional measures that were the subject of the appeal but the purported exercise, later in the process, of jurisdiction in relation to parental responsibility.
11. A number of further hearings followed the 27 March 2015 hearing. As well as directions being given in preparation for the final hearing in June 2015, they addressed immediate issues such as contact. During this preparatory phase, Judge Vincent was alive to the jurisdictional issue and, as can be seen from the order that he made on 2 April 2015, he intended to address it by seeking a formal transfer of jurisdiction from the French court under Article 15 of Brussels IIA and also of the papers prepared for the French proceedings. Paragraph 7 of the order of 2 April 2015 provides:

"7. Permission to the local authority to send a copy of this order to the [French judge] and request that the French court:

a. discharge the order 23 March 2015 [sic] and transfer jurisdiction in this case to this court; and

b. provide copies of the case files prepared further to the proceeding in the French court…"

12. No one suggested to us that Judge Vincent was wrong to analyse the jurisdiction question in terms of Article 15 in this way. I think everyone proceeded upon the basis that, at all material times, the French court remained seised of the substantive proceedings relating to parental responsibility. However, even if that was not so, there was no suggestion that A was habitually resident in England and Wales by 27 March 2015 when the English court was seised with the English proceedings, as would have been a necessary pre-requisite for any argument that the English court had substantive jurisdiction under Brussels IIA without the need for an Article 15 transfer. I propose therefore to concentrate on Article 15 in considering whether Judge Vincent had jurisdiction in relation to the substance of the case by 1 June 2015.
13. Following the 2 April hearing, the local authority wrote to the French judge by letter of 16 April 2015. That letter should be read in the context of a communication dated 31 March 2015, which had been received from the French judge. The French judge said this (as translated):

"I acknowledge safe receipt of your letter dated March 30 2015 by which you informed me of the new developments regarding [A], namely that he and his father had been found and that the minor was temporarily residing with his mother, a new hearing being scheduled for April 2^nd.

I have taken good note of these new elements. I inform you that I have no objection to the judicial investigation report being forwarded to you in order for it to be translated and served at the hearing on Thursday.

Furthermore, I indicate that depending on the decision made on Thursday by the British Judge, and especially in the eventuality of a confirmation that [A] can reside with his mother, I will be able, if needed, to take note of these facts and order the release of the judicial placing pronounced on March 23^rd."

14. The local authority's letter of 16 April 2015 said:

We are writing further to the order of His Honour Judge Vincent sitting in the Family Court at ….2 April 2015.

Judge Vincent has noted your letter 31 March 2015 and at the hearing 2 April 2015 made the order enclosed. The English court believes that further to the order 23 March 2013 jurisdiction in this case currently rests with the French court. The English court understands that in your letter 31 March 2015 you indicated that the French court would be prepared to transfer jurisdiction in this matter to the English court.

Judge Vincent has thus far exercised the jurisdiction of the English court in accordance with Brussels II Article 20. Having noted the contents of your letter 31 March 2015 and the facts of this case, Judge Vincent now respectfully seeks formal transfer of jurisdiction in this case under Brussels II Article 15.

Further to your kind offer to disclose the papers prepared in the proceedings before the French court to the English court, Judge Vincent would ask that in transferring jurisdiction you also give permission for the disclosure of all the papers to the English court.

We are directed by Judge Vincent to write to you making this request on behalf of the English court. Should you prefer to communicate directly with the English court the address is …."

15. There does not appear to have been a response to this. On 7 May 2015, the local authority wrote again, seeking a response as soon as possible, and also stating that the final hearing was due to take place in the English court on 1 June 2015 and that they:

"would be grateful if you could confirm transfer of the case to that Court's jurisdiction, in time for that hearing."

16. By a further letter of 13 May 2015, they again asked for a response as soon as possible and added that it would be helpful "if we could have confirmation of your agreement that jurisdiction is transferred to the Family Court in [England], and for the court papers filed in the proceedings [before the Juge des Enfants in France] in March 2015."
17. The French judge responded on 18 May 2015 to the Senior Legal Officer at the local authority. The letter is important as it was the last word on the subject of jurisdiction prior to the June 2015 hearing. I will set the body of it out in full, both in French, and as translated in English:

"Pour faire suite à votre courier du 13 mai dernier, je vous indique ne pas être opposée à la transmission auprès de vos services de l'intégralité du dossier de [A] pour competence.

Toutefois, je ne peux clôturer la procedure d'assistance éducative ouverte à mon cabinet tant que la Cour d'Appel d'…. n'a pas statué sur l'appel interjeté par [the mother] concernant le jugement du 23 mars 2015.

Dans l'attente, je vous transmets copie des rapports d'investigation réalisés par le service de la PROTECTION JUDICIAIRE DE LA JEUNESSE DU ….et du service anglais d'investigation."

"Further to your letter of 13 May 2015, I am pleased to advise you that I shall be happy to hand over the whole of [A's] file to your services and legal jurisdiction.

However, I am unable to conclude the child protection proceedings still in process in my offices while the ….Court of Appeal has not ruled on [the mother's] appeal against the decision of 23 March 2015.

In the meantime, I shall send you a copy of the investigation reports drafted by the ….Youth Legal Protection Service and the UK investigation service."

18. After permission to appeal was given in February 2016, and in an effort to clarify the effect of this letter, and in particular to discover whether it was intended to be a request to the English court to assume jurisdiction forthwith, the local authority wrote to the French judge again, the terms of the letter having been approved by me at the oral hearing of the permission application. Unfortunately, however, the response received did not take matters any further in relation to what the French judge had intended in relation to jurisdiction. It did reveal that the mother's appeal against the decision of 23 March 2015, to which the French judge had referred in the 18 May letter, had been withdrawn by the mother by a letter received by the French Court of Appeal on 16 June 2015 and that following that, on 22 July 2015, the French Court of Appeal had made an order noting the discontinuance of the appeal proceedings. It seems that as soon as the French judge got the file back from the Court of Appeal thereafter, it was sent to the local authority in England but, mysteriously, returned to the sender as "refused".

The jurisdiction argument

The relevant provisions of Brussels IIA

19. The scheme of jurisdiction under Brussels IIA should by now be familiar and I need only refer to those provisions which are of particular importance in this case.
20. The fundamental jurisdictional provision is Article 8 which provides that, in general, jurisdiction in matters of parental responsibility lies with the courts of the Member State where a child is habitually resident at the time the court is seised. It was accepted by all that this was the jurisdiction which the French court was exercising in the proceedings before it.
21. Article 17 provides that where a court of a Member State is seised of a case over which it has no jurisdiction under the Regulation, and over which the court of another Member State has jurisdiction, it shall declare of its own motion that it has no jurisdiction.
22. Article 19 regulates the position when proceedings relating to parental responsibility relating to the same child are brought before courts of different Member States. Where the same cause of action is involved, the court second seised shall of its own motion stay its proceedings and, where the jurisdiction of the court first seised is established, shall decline jurisdiction in favour of that court.
23. Article 15 sets up an exception to the general jurisdictional rules. It enables the transfer of proceedings from the courts of the Member State having jurisdiction as to the substance of the matter to the courts of another Member State which is better placed to hear the case. Given its central importance in the appeal, I will set it out in full here:

"Article 15

Transfer to a court better placed to hear the case

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court's own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child's nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.

If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53."

24. Article 20, which was used appropriately by Judge Vincent, makes provision for the taking of "provisional, including protective, measures" in urgent cases by the courts of a Member State, even if the court of another Member State has jurisdiction as to the substance of the matter.

The application of Brussels IIA in this case

25. There was plentiful justification for a transfer of this matter from the French courts to the English courts. The child certainly has a particular connection with England and Wales, at least one of the connecting factors mentioned in Article 15(3) being present, and it is easy to see that the view could validly be taken that, as the whole family was now in England, the English court would be better placed to hear the case, and that this would be in A's best interests. Furthermore, it was plain from the correspondence that the French judge was not opposed to a transfer of jurisdiction. The only question was whether or not the French court had in fact requested the English court to assume jurisdiction. Ultimately, the answer to this depended on the import of the French judge's letter of 18 May 2015, read in the light of the earlier correspondence.
26. Article 15 is not the most accessible article in Brussels IIA and it may assist the debate if its structure is first understood, particularly as the interpretation of the correspondence from France which Mr Cameron, counsel for the local authority, invited us to adopt drew substantially upon the sequence of events involved in an Article 15 transfer. In what follows, in order clearly to convey the scheme of things, I will express myself rather broadly; reference must be made to the Article itself for the technical detail.
27. Article 15(1) deals with the situation of the courts of the Member State with jurisdiction as to the substance of the matter (here, France). It provides that, if the requisite conditions are satisfied, either the French court can stay the case and invite the parties to request the better placed court (the English court) to take the matter (Article 15(1)(a)), or it can itself request the English court to take it (Article 15(1)(b)). The French court can take either of these steps of its own motion (Article 15(2)(b)), or be provoked to do so by an application from a party (Article 15(2)(a)), or by an application from a court of another Member State (Article 15(2)(c)), although a transfer made of the court's own motion or on an application from the court of another Member State must be accepted by at least one of the parties.
28. Categorising the steps taken in this case in the terms used in these provisions of Article 15, I think the proper analysis is that the English court applied directly to the French court, via the local authority's letter of 16 April 2015, for it to transfer the matter to the English court. If it was in agreement, the next step for the French court was, under Article 15(1)(b), to request the English court to assume jurisdiction in accordance with Article 15(5).
29. If such a request was made by the French court, it was then the turn of the English court to determine whether to accept jurisdiction which it may do where "due to the specific circumstances of the case, this is in the best interests of the child" (Article 15(5)). In the event of the English court accepting jurisdiction within six weeks of (as I interpret the article) the request from the French court, the French court "shall decline jurisdiction" (ibid).
30. The interpretation of the communications received from the French judge advanced by Mr Conrath on behalf of the father was that a request was never made by the French court for the English court to assume jurisdiction. He submitted that it all turned upon the letter of 18 May 2015, and that in that letter, the French judge was expressing willingness to hand over the case to the English courts but explaining, in the second paragraph of the letter, that she could not do so at present because there was an appeal outstanding against the decision of 23 March 2015. In the meantime, she was sending copies of the investigation reports which had been requested as well as the transfer of the matter itself.
31. For the local authority, which was intent on establishing that Judge Vincent had in fact had jurisdiction, Mr Cameron eschewed that basic reading of the correspondence. In his submission, properly read in the context of the earlier letter from the French judge of 31 March 2015, the 18 May letter amounted to a request to the English court to assume jurisdiction. He did not contend that the 31 March letter was itself a request, but submitted that it was important nevertheless. It indicated the French judge's willingness to transfer the matter, and it was significant, in his submission, that it also signalled her recognition that the child had moved to England and her acknowledgment that temporary measures had been imposed by the English judge and that he would be the one dealing with the substantive welfare issues in relation to A in the future. Mr Cameron relied also upon the French judge's expressed willingness to discharge her order if needed. Against this background, he submitted, the letter of 18 May should be seen as an actual request by the French judge that the English judge should accept jurisdiction.
32. Mr Cameron's principal submission was that the request was made by the first paragraph of the 18 May letter, which was more than an expression of willingness. Addressing the suggestion that in that paragraph the French judge appeared to be looking into the future, he submitted that the French judge had expressed herself in the terms that she did ("je vous indique ne pas être opposée à la transmission…"; "I am pleased to advise you that I shall be happy to hand over…") because she was acknowledging that it was up to Judge Vincent, not her, whether this transfer actually took place. This was because it was the English court's duty to decide under Article 15(5) whether to accept jurisdiction, as Judge Vincent duly did when he dealt with the case on 1 June.
33. Mr Cameron advanced a secondary argument which drew upon something I said in Re N (Children)(Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 2 WLR 713 at paragraph 189(i), which reads as follows:

"i) Article 15 is not a provision which facilitates the transfer of particular proceedings, as such, to another jurisdiction. It cannot be, because other jurisdictions do not share our child protection arrangements. What is transferred is, putting it bluntly, the problem, for which the other jurisdiction will, if the transfer is made, take responsibility, leaving our proceedings either stayed or discontinued. "

34. Here, submitted Mr Cameron, "the problem" was the ongoing welfare issues in relation to A, and the French judge had handed that on to the English judge. He pointed out that Article 15 contemplates that there can be a transfer of a "specific part" of a case rather than the whole of the case. So, he submitted, even if the whole case had not been transferred, because the mother's outstanding appeal in the French appeal court made that impossible, part of it (the ongoing welfare issues) had been. That is why, he said, the French judge referred to "the whole" of the file in paragraph 1, in contrast to "part" of the case, which she was impliedly transferring. As Mr Cameron put it in his skeleton argument (paragraph 37(ix)), "The 'child protection proceedings' may still have been in process in France due to the outstanding appeal but, it is submitted, the French court had transferred the ongoing welfare issues for A to the English court." He submitted that this analysis explained the opening words of the second paragraph ("However, I am unable to conclude the child protection proceedings….") which did not therefore signify that the French judge was not yet able to make any request to the English court to assume jurisdiction, just that she was not yet able to hand over the whole of A's file, although she was happy to do so, as she had said in the first paragraph.
35. As to the third paragraph of the letter, referring to what the judge would do "In the meantime", Mr Cameron submitted that "the meantime" was the period between the French judge's request that the English court assume jurisdiction and the English judge's acceptance of jurisdiction.
36. This proposed construction of the letter of 18 May obviously required careful consideration. However, I could not persuade myself that it was a proper interpretation of the words used by the French judge. Even taken together with the letter of 31 March, the obvious reading of the letter, to my mind, was that the judge was not opposed to handing over jurisdiction, "However" she was not able to do so yet because of the outstanding appeal, and "In the meantime", that is pending the conclusion of the appeal, she was sending the investigation reports which had also been requested.
37. True it is that a part of a case can be transferred. On one view of things, Mr Cameron's approach results in the child protection proceedings being divided up into the first instance part (which was transferred) and the appeal part (which was not). I think, however, that Mr Cameron would prefer us to view the division of the proceedings from a temporal point of view, with the French court handing over the jurisdiction to make future welfare decisions, leaving behind that part of the case which related to the past.
38. Whilst I do not feel entirely comfortable with the idea of a parting of the jurisdictional ways which leaves behind, in the Member State first seised, an extant appeal relating to the parental responsibility proceedings so far, I do not rule it out as a possibility. I would not wish to endorse Mr Cameron's submission that what I said about the transfer being of "the problem" assists in this regard as it was not addressed to this point. However, I recognise that, as circumstances go on developing in relation to a child, it can be necessary to continue to take decisions about the child's welfare during the currency of an appeal about earlier decisions, and I can see that the court with jurisdiction may wish to, and might possibly be able to, transfer the jurisdiction to deal with the evolving welfare problems to a court that is better placed. Such a transfer may give rise to other questions, for instance as to the enforceability of any order that finally results from the appeal, but it might nevertheless be something that can be done. My real difficulty is that I do not think that that was what the French judge did here.
39. The whole of the letter of 18 May 2015 must be read together, in my view. As I have said, as I see it, the first paragraph confirmed the judge's earlier willingness to hand over jurisdiction, the second paragraph explained the existence of an obstacle in the form of the appeal ("However…."), and the third paragraph set out what the judge could and would do whilst awaiting the removal of the obstacle, that is to say send the reports ("In the meantime….").
40. The judge expressed her letter as a response to that of the local authority of 13 May and it has to be seen in the light of that letter. In it, the local authority had asked for confirmation of her agreement "that jurisdiction is transferred", treating the case/jurisdiction as a whole entity, as had the local authority's earlier correspondence. The French judge's statement in her first paragraph that she was not opposed to the transmission of the whole file was a response to that request. Mr Cameron's interpretation would require us to assume that the French judge was approaching matters in a more sophisticated way than had the local authority, splitting it into parts and, at least impliedly if not expressly, requesting the English court to proceed with part. It is, of course, entirely possible that she did see it in this way but, if so, it does not emerge from her letter. There is nothing in paragraph 1 about a part of the case. Paragraph 1 is all about her willingness to transfer of the "whole of A's file", and flows naturally into paragraph 2, which explains why, however, she cannot actually end her office's involvement with the case whilst the Court of Appeal has not decided on the appeal. I can find no support for the idea that this amounted to a request to the English court, express or implied, to assume jurisdiction immediately in so far as it could, with the intent that the French file would be closed once the appeal was finished.
41. Without a request under Article 15, there was no basis on which Judge Vincent could exercise substantive jurisdiction in relation to A. He was not therefore entitled to do more than continue to take provisional, including protective, measures under Article 20. He should have declined jurisdiction in so far as the proceedings related to longer term welfare issues. It is now known that the appeal in France came to an end within weeks of the 1 June 2015 hearing and that the French judge attempted to send over the file to the English court. Had matters unfolded as they should have done, therefore, a further interim order (whether care or child arrangements) could have been made on 1 June 2015 which could relatively soon have been followed by a transfer of the case under Article 15 and the making of final orders in whatever form the court determined was appropriate having heard from all the parties.
42. The position as to jurisdiction has, of course, moved on since June 2015, as has the situation in relation to A. The local authority no longer sees itself as having a role and it is to be anticipated, therefore, that if fresh proceedings are necessary, they will be private law proceedings brought by one or other of the parents. Everyone will, of course, be alive to the question of jurisdiction and any issue about it will need to be decided in the context of those proceedings. It will also be a matter for the judge seised of those proceedings to give whatever directions are required as to their conduct; we declined to give any indications about this.

Lord Justice Tomlinson:

43. I agree.

Lord Justice David Richards:

44. I also agree.