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KN (A Child) (Art 15 Transfer) [2020] EWCA Civ 1002 (30 July 2020)
URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1002.html
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[2020] EWCA Civ 1002
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IN THE COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
HH Judge Wright
ZC18C00759
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF COUNCIL
REGULATION
(EC) 2201/2003
AND IN THE MATTER OF
KN
(A CHILD) (
ARTICLE
15
TRANSFER)
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
30 July 2020 |
B e f o r e :
LORD JUSTICE MOYLAN
LORD JUSTICE BAKER
and
LORD JUSTICE PHILLIPS
____________________
Between:
|
MK
|
Appellant
|
|
- and -
|
|
|
A LOCAL AUTHORITY (1) TN (2)
KN (by his children's guardian) (3)
|
Respondent
|
____________________
David Sharp (instructed by Bindmans LLP) for the Appellant
Ann Courtney (instructed by Local Authority Solicitor) for the First
Respondent
The Second and Third
Respondents
were not present or
represented
Hearing date : 14 July
2020
____________________
HTML VERSION OF JUDGMENT APPROVED
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down
remotely
by circulation to the parties'
representatives
by email,
release
to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand down is deemed to be 2pm on Thursday 30 July
2020
LORD JUSTICE BAKER :
- This is an appeal by a mother against a decision in care proceedings concerning her son to
request
a French family court to assume jurisdiction under
Article
15
of Council
Regulation
(EC) 2201/2003 ("BIIa").
- At the conclusion of the hearing before us, we informed the parties that the appeal would be allowed and the order authorising the
request
set aside. This judgment sets out the
reasons
for our decision.
Background
- I am grateful to the legal
representatives
for their helpful chronologies which set out the lengthy history of these proceedings.
- The child ("K"), now aged 13, was born and raised in France and is a French national. His mother is French and continues to
reside
in Paris. His father is of Nigerian origin and now lives in England.
- After the parents'
relationship
broke down, the father moved to England and K
remained
living with his mother in France. Over time, the mother found it increasingly difficult to look after K. He displayed increasing emotional and behavioural difficulties at home, in school and with his friends. The mother
received
help from French children's services and mental health services but there was no improvement.
- In September 2018, it was agreed between the parents and French children's services that K would move to live with the father in England. A few weeks after K arrived in this country, the father took the child to hospital because he had become so concerned about his behaviour and had started to notice symptoms of emerging psychosis. The local authority in England became involved with the family and in November 2018 issued care proceedings. K was placed with foster carers under an interim care order, but his behaviour continued to cause concern and he was admitted to a child psychiatric unit.
- At the first interim hearing, HH Judge Wright had included in the order a
request
to the French court to assume jurisdiction under
Article
15
of Brussels IIA, but at the next hearing in December 2018, following the deterioration in K's mental health, the
Article
15
request
was stayed. The proceedings were listed for an issues
resolution
hearing in April 2019 and a final hearing in the following month.
- The mother underwent psychiatric and parenting assessments in France and K was assessed by a child and adolescent psychiatrist which was completed in March 2019. At the issues
resolution
hearing on 12 April 2019, the listing of the final hearing in May was
retained.
The order made following the hearing included a direction to the local authority to send a letter to the International Child Abduction and Contact Unit ("ICACU") and the French Central authority agreed between the parties raising the following issues:
(1) What French agency would be
responsible
for commissioning, funding and finding a
residential
placement in France for K were these proceedings to be
transferred
under
Article
15
or in the event that the local authority sought to place K in France under
Article
56.
(2) What the procedure is for a child to be placed in a
residential
placement in France, including what, if any, agencies, courts or bodies need to approve any such placement either before or after the placement begins and how, if at all, the procedure differs if the child is placed there by the French courts/authorities or by the English authorities under
Article
56.
(3) Information about what placements there are in France which might be able to meet K's needs and in
respect
of any such placements information about the placement generally (to include the therapeutic and education services offered to the child in that placement), the location of the placement and whether the placement is capable of being a long-term placement and how quickly K could move to such placement.
The French Central Authority was asked to
respond
to this
request
for information within 14 days (an, at best, optimistic expectation for the
reasons
given by Moylan LJ below). In passing, it should be noted that the order also included, amongst other provisions, a
recital
that the court and all parties accepted that any further
Article
15
request
"would need to be by way of fresh application".
- The French Central Authority
replied
on 9 May 2019, the first day of the listed final hearing (the official having been on leave when the
request
for information had been
received).
In the
response,
the French Central Authority sought clarification of the meaning of "
residential
placement";
recorded
that if the English judge (I emphasise) was contemplating the placement of the child in institutional care or with a foster family in France, the procedure to be followed was laid down in
Article
56; but added that, if the English judge was considering a placement of the child with a family member in France, the appropriate procedure was to issue a certificate under
Article
39. It was also made clear that a different French Central Authority to that competent to deal with
requests
under
Article
55 was competent to deal with
requests
under
Article
56 for consent to proposed placements (i.e. in institutional care or with a foster family), namely the Direction de la protection judiciaire de la jeunesse, Bureau des affaires juridiques et de la legislation (hereafter "the French child protection agency").
- The "final" hearing on 9 May 2019 was listed before a different judge,
Recorder
Cooper. On this occasion, the court found the threshold criteria under s.31 to be satisfied on the basis of an agreed threshold document but the court concluded that it was not possible to make a final order and the hearing was adjourned part heard. Directions were given facilitating an assessment of the option of placing K with a maternal uncle in France (which turned out to be negative). Further directions were given for the translation and disclosure to the French authorities of certain documents from the proceedings, "pursuant to
Article
56 Brussels IIA". The order also
recorded
by way of
recital
that the local authority intended to seek legal advice from a French qualified lawyer on the issue of placement of the child in France. It seems, however, that no such advice was obtained. The hearing was
relisted
in June but in the event adjourned.
- Meanwhile, in May 2019, K had moved to a specialist
residential
placement in the south of England where he
remains.
He was diagnosed with a psychotic illness and was placed on medication which helped to alleviate his symptoms. Until the Covid pandemic, the mother travelled from France to have
regular
staying contact at the
residential
unit, with her expenses paid by the local authority. The father, however, has had no contact with K for several months and has now disengaged from the court proceedings.
- At the next hearing in July, the final hearing was adjourned again until September. Further case management directions were given, including directions to the local authority (1) to "confirm [by] 11 August 2019 whether they are seeking an
Article
15
transfer
or to place him in France under
Article
56 or any other application" and (2) to "make a written
request
to the UK Central Authority to liaise with the Central Authority in France to
request
information and assistance under
Article
55 in order to apply
Article
56 (information as to identifying potential placement in France and the procedure to follow)". On 9 August, the local authority submitted to ICACU a "
Request
for Co-Operation Form" (described in the index to the supplementary bundle filed for this appeal as "
Article
56
transfer
request")
in which it stated that "the local authority seeks information as to suitable placements for K in France, and for assistance in planning a move for K to a suitable unit or
resource
in France, pursuant to
Article
56".
- There followed further email correspondence between ICACU and the local authority, and between ICACU and the French Central Authority. In emails to the local authority, ICACU
reiterated
the observation of the French Central Authority that, if the English judge was contemplating the placement of the child in institutional care or with a foster family in France, the procedure to be followed was laid down in
Article
56 but that, if the English judge was considering the placement of the child with a family member in France, the appropriate procedure was to issue a certificate under
Article
39. Importantly, ICACU also informed the local authority, in
response
to their
requests
for information from the French authorities, that additional information was
required,
namely "a
referral
detailing who you are looking to place the child with …, as this isn't stated and, if it is, it isn't clear".
- In September 2019, the local authority filed a final care plan proposing that K
remain
at his current placement under a full care order with a view to either
transferring
to a placement in France or a foster carer in England at some time in the future. This course was opposed by the mother and the children's guardian, both of whom wanted to pursue a placement in France within the currency of the proceedings before a final order was made. At the adjourned hearing, the
recorder
made an order
transferring
the proceedings back to Judge Wright. In the event, they were next listed before a different circuit judge, HH Judge Brasse, on 2 October. She directed that the final hearing should be
re-listed
back before the
recorder
in December. The
recitals
to the order made on 2 October include a
record
that no party was seeking the
transfer
of the proceedings under
Article
15.
It was further
recorded
that, had an application under
Article
15
been made, the court would have dismissed it for the following
reasons:
"(a) the court had heard considerable evidence and made findings about threshold and started part of the welfare hearing;
(b) all the evidence and information which would go to the child's mental well-being is in this country and so this is the more convenient court;
(c) it is the court's view that this would be against the child's best interests for there to be significant delay that would flow from
transfer;
(d) this court has the best possible information to conclude decisions on the child's welfare, notwithstanding the best placement for him might be in France."
It is
recorded
that the court also expressed the view that what was currently needed was "information to be obtained via
Articles
55 and 56 Brussels IIA so that the court is in the best position to determine the child's welfare and it is not necessary for there to be an
Article
15
application for the court to obtain the same".
- The order made on 2 October 2019 also
recorded
that the local authority and children's guardian considered that they were having difficulties obtaining information via ICACU and from different agencies. The court agreed to "progress a
request
through the Office of the Head of International Family Justice to obtain information from the
relevant
French authorities, the terms of that
request
being the same as that in
relation
to ICACU that is set out below". The order included a direction to the local authority to send to ICACU and the French child protection agency a series of questions and
requests
for information set out in the order, including:
(a) whether it was expected that the Central Authority in the UK should identify a suitable placement for the child in France in either institutional care or a foster family or whether that was the role of the French child protection agency;
(b) in the event that the French child protection agency was
responsible
for identifying such a placement, how long would the search take and whether the placement would be funded;
(c) what places were available for K and would they meet K's needs;
(d) detailed information about each possible placement (therapeutic services, education, number of children present, staffing levels, activities, location etc);
(e) whether the competent authority in France would accept a placement in the event that the English court decides that it would be in K's best interests;
(f) in the event that the Central Authority in the UK is
responsible,
information as to the appropriate procedure to identify a placement and how such a placement could be secured.
- On 17 October, the French child protection agency
replied
via email to ICACU stating that it was expected that the UK Central Authority would identify an appropriate placement; that the French Agency would provide assistance; that no timescale could be given, given the thorough search that would be
required
for an appropriate institution; and that as the case was not being
transferred
under
Article
15,
the place would be funded by the UK authority. The agency said that it was impossible to provide details of possible placements at that point, adding that "the child protection service in Paris is currently searching for a suitable placement". Subsequently, ICACU was informed that a meeting had been arranged to consider placement options in Paris on 4 December. On being informed about the meeting, the court adjourned the final hearing listed before the
recorder
and instead listed the matter for an issues
resolution
hearing on 6 December.
- At the meeting in Paris on 4 December, which was attended by the social worker and the children's guardian but not K's mother, the French child protection agency
requested
a meeting with K and his mother in early
2020
to assist with the identification of an appropriate placement. At the hearing on 6 December, the
recorder
again
transferred
the case to be listed before a circuit judge so that consideration could be given to whether any directions were
required
from the court in France to facilitate the proposed assessment of K in Paris.
- The local authority approached the International Family Justice Office ("the IFJO") proposing communication between the
respective
Network judges to facilitate any protective orders that might be
required
while K was visiting France. The Office initially
responded
that, because the
respective
Central Authorities were already involved in the case, it was appropriate that information should continue to be sought via ICACU rather than involve the Network judges. It was further suggested that the local authority should obtain legal advice on what steps were
required
in order to expedite matters. In
response,
the local authority
repeated
its
request,
leading to the IFJO sending a
request
for assistance to the French Network Judge. This, not unexpectedly, led to the French Network Judge
transferring
the
request
to the French Central Authority which, in
response,
gave the contact information which had already been provided earlier in the proceedings.
- At the next hearing on 14 February
2020,
HH Judge Hughes QC made an order
transferring
the proceedings to the Family Division of the High Court. In the event, however, the Family Division concluded that the case should not be
transferred
and directed that it should
remain
at the Central Family Court.
- Later in February
2020,
K, accompanied by his mother and the key worker from his
residential
unit in England, attended a specialist hospital in Paris for an assessment with a view to identifying an appropriate placement for him in France. He also had staying contact with his mother in France over half term.
- On 1 April, the case was listed for a further hearing before Judge Wright. By this point, the lockdown following the Covid-19 outbreak was in force and the hearing took place
remotely.
On this occasion, the proceedings were once again adjourned as the outcome of K's assessment in Paris was not
known.
At that hearing, the possibility of making an
Article
15
transfer
request
was raised again, although there is some uncertainty about what precisely was said – nothing was
recorded
about that aspect on the court order. The judge listed the case for an issues
resolution
hearing on 28 May and gave consequential case management directions. The order included a
recital
that the court
requested
"that the French authorities should provide the parties with as much information as possible as to a potential long-term placement in France by
15
May even if the child is unable to travel to France until the current
restrictions
have been lifted"
- On 7 May
2020,
the local authority
received
an email via ICACU from a social worker in the Paris social services department stating that she did not favour a placement for K in France. She pointed out that, due to the quarantine
restrictions
imposed because of the pandemic, K would be
required
to stay in an emergency placement in an unsafe environment until an appropriate placement could be found. She also expressed the view that K was better placed in his current
residential
placement. The mother was critical of this
recommendation
and the
reasons
and continued to press for the
return
of K to France.
- The next hearing took place by telephone on 28 May
2020.
The order made at the conclusion of that hearing is the subject of this appeal. We had the benefit of
reading
a transcript of the hearing. The local authority, mother and guardian were
represented.
The father was neither present nor
represented,
his solicitors having come off the
record
some months earlier. In the course of the hearing, the judge decided, of her own motion, to make an order authorising a
request
under
Article
15
BIIa for the French Court to assume jurisdiction. This was accepted by children's guardian but opposed by the mother. The local authority
remained
neutral on the issue. No judgment was delivered, but in the course of the hearing, the judge identified the
reasons
why the
request
was being made, by
reference
to the provisions of
Article
15
itself, and subsequently summarised those
reasons
in the court order. Subsequently, following the grant of permission to appeal, the judge drafted a document dated 8 July setting out her
reasons
for her decision. I shall consider the
reasons
given for the
Article
15
request
later in this judgment. Following the order, a
request
was duly sent to the French Central Authority. At the date of the hearing of this appeal, no
reply
had been
received.
- On 4 June
2020,
the mother filed a notice of appeal against the order authorising a
request
under
Article
15,
together with an application for a stay of the order pending appeal. The following day, my Lord Moylan LJ
refused
the application for a stay, observing that there would be no prejudice to the mother to justify the stay because, if the
Article
15
request
were ultimately set aside on appeal, jurisdiction would
remain
with the courts of this country even if the French court had, in the meantime, accepted the jurisdiction. Conversely, if the
Article
15
request
were not set aside on appeal, the imposition of a stay would have caused an additional delay to the detriment of the child. On 23 June, Moylan LJ granted permission to appeal and gave permission to the mother to file amended grounds of appeal and a skeleton argument. The appeal was opposed by the local authority. The children's guardian did not participate in the appeal but indicated through her solicitor that she agreed with the local authority's position.
- Shortly before the hearing of the appeal, the Paris children services department sent a
report
which, by agreement between the parties, we admitted as fresh evidence. The writer
recorded
that, following the discussion in December 2019, the French professionals who were consulted about the case had expressed concern about the proposal to place K in France. It was pointed out that he already benefits from his placement in England where he has become more stable, a factor described as an important element in his treatment. It was further pointed out that in France there were no structures similar to those available for K in England – "the organisation of the homes does not allow for a professional to oversee the child, as is the case in England." It also seems that the French professionals have concluded that the
relationship
between K and his mother is not as positive as it seems to those in England. The Paris social services were unable to guarantee that a placement would be available or a specific timeframe. It was possible that, upon arrival in France, K would be placed in emergency housing in Paris while his needs were assessed. Overall, the
report
raised a number of potential difficulties about the proposal to place K in France.
The law
- Under
Article
8 of Brussels IIa, jurisdiction lies with the courts of the Member State in which the child is habitually
resident.
It is agreed by all parties that the Family Court of England and Wales has jurisdiction for K's case.
Article
15
provides:
"
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 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."
Article
55 of Brussels IIa, headed "Cooperation on cases specific to parental
responsibility",
provides:
"The central authorities shall, upon
request
from a central authority of another Member State or from a hold of parental
responsibility,
cooperate on specific cases to achieve the purposes of this
Regulation.
To this end they shall, acting directly or through public authorities or other bodies, take all appropriate steps in accordance with the law of that Member State in matters of personal data protection to:
(a) collect and exchange information
(i) on the situation of the child;
(ii) on any proceedings underway; or
(iii) on decisions taken concerning the child;
(b) provide information and assistance to holders of parental
responsibility
seeking the
recognition
and enforcement of decisions on their territory, in particular concerning rights of access and the
return
of the child;
(c) facilitate communications between courts, in particular for the application of
Article
11(6) and (7) and
Article
15;
(d) provide such information and assistance as is needed by courts to apply
Article
56; and
(e) facilitate agreement between holders of parental
responsibility
through mediation or other means, and facilitate cross-border co-operation to this end."
Article
56, headed "Placement of a child in another Member State", provides, so far as
relevant
to this appeal:
"(1) Where a court having jurisdiction under
Articles
8 to
15
contemplates the placement of the child in institutional care or with a foster family and where such placement is to take place in another Member State, it shall first consult the central authority or other authority having jurisdiction in the latter State where public authority intervention in that Member State is
required
for domestic cases of child placement.
(2) The judgement on placement
referred
to in paragraph (1) may be made in the
requesting
State only if the competent authority of the
requested
State has consented to the placement.
(3) The procedures for consultation or consent
referred
to in paragraphs (1) and (2) shall be governed by the national law of the
requested
State …."
- In AB v JLB (Brussels II
Revised;
Article
15)
[2009] 1 FLR 517 at paragraph 35, Munby J (as he then was) identified the three questions to be considered by a court when deciding whether to make a
request
under
Article
15:
"First, it must determine whether the child has, within the meaning of
Article
15(3),
'a particular connection' with the
relevant
other Member State. . . . .Given the various matters set out in
Article
15(3)
as bearing on this question, this is, in essence, a simple question of fact. For example, is the other Member State the former habitual
residence
of the child (see
Article
15(3)(b))
or the place of the child's nationality (see
Article
15(3)(c)).
Secondly, it must determine whether the court of that other Member State 'would be better placed to hear the case, or a specific part thereof'. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.
Thirdly, it must determine if a
transfer
to the other court 'is in the best interests of the child.' This again involves an evaluation undertaken in the light of all the circumstances of the particular child."
- In this case it is not disputed that K has a particular connection with France. The issue focuses on the second and third questions. These questions are interrelated, but separate. As Baroness Hale of Richmond observed in
Re
N (Children) (Adoption: Jurisdiction) [2016] UKSC 16 at para 43:
"It is the case … that the "better placed" and "best interests" questions are inter-
related.
Some of the same factors may be
relevant
to both. But it is clear that they are separate questions and must be addressed separately. The second one does not inexorably follow from the first".
- In
respect
of the second question, "the court having jurisdiction must determine whether the
transfer
of the case to that other court is such as to provide genuine and specific added value, with
respect
to the decision to be taken in
relation
to the child, as compared with the possibility of the case
remaining
before that court": per CJEU in Child and Family Agency v D [2016] EUECJ C-428/
15,
[2017] 1 FLR 223 para 57. The approach to the third question was described in these terms by Baroness Hale in
Re
N, supra, at para 43:
"The question is whether the
transfer
is in the child's best interests. This is a different question from what eventual outcome to the case will be in the child's best interests. The focus of the inquiry is different, but it is wrong to call it "attenuated". The factors
relevant
to deciding the question will vary according to the circumstances. It is impossible to be definitive. But there is no
reason
at all to exclude the impact upon the child's welfare, in the short or the longer term, of the
transfer
itself. What will be its immediate consequences? What impact will it have on the choices available to the court deciding upon the eventual outcome? This is not the same as deciding what outcome will be in the child's best interests. It is deciding whether it is in the child's best interests for the court currently seised of the case to
retain
it or whether it is in the child's best interests for the case to be
transferred
to the
requested
court."
In that case, the Supreme Court, in holding that the judge at first instance had been wrong to make an
Article
15
request
for the
transfer
of the proceedings to Hungary, observed that he ought to have addressed his mind to both the short-term and the long-term consequences for the children of doing so and of not doing so. A
transfer
of the proceedings would have ruled out consideration of the placement options available to the children in this country.
- The scope of
Article
56 was considered by Sir Stephen Sedley, with whom Thorpe and Black LJJ agreed, in
Re
AB (BIIR: Care Proceedings) [2013] 1 FLR 168 and by the CJEU in Health Service Executive -v- SC and AC (Case C-92/12); [2012] 2 FLR 1040. In
Re
AB Sir Stephen Sedley, at [8], described
Article
56 as imposing a consultative obligation on the English court: its function was:
"not [one] which ties the hands of the English court or excludes or
reduces
its obligation to arrive at its own judgment as to the child's best interests."
In the Health Service Executive case, the CJEU held that the consent
required
by
Article
56(2) had to be given, prior to the making of the judgement on placement of a child, by a competent authority governed by public law, not merely by the institution with whom the child was going to be placed.
The decision
- In considering the judge's decision to make a
request
to the French court under
Article
15,
it is important to note the problems which she faced in trying to find the right way of
resolving
the difficult issues in the case. She described the difficulties in the course of the hearing in these terms:
"I am faced with a care plan that has no details of when and how K will go back to France. So, my difficulty in concluding the case on that basis in August, is either I accept the local authority's care plan - in which case that's it, I make a care order; or I don't accept the local authority's care plan and potentially I adjourn the case which causes further delay; or I make no order and K goes back to France with his mum but there is no support, nothing there because I can't do anything about it. So, I'm not -- it's not an easy position to be in, to say, "Well, the case should go ahead at the end of August and those are the options". The local authority's care plan, care order, K is in the UK, but at some point he might go to France; secondly, if I adjourn it, which I don't think anyone wants given that K's been in the UK for so long; or thirdly, I make no order. Obviously that would mean that [the mother] would be free to take K back to France, but there's no support plan there. There's nothing. That's -- those are the three options I have."
- In the course of the hearing, the judge indicated that she had
received
an email from the liaison judge at the French Embassy but had not had time to
respond.
She added, however:
"whatever the French liaison judge says or does, if an
Article
15
request
is made, there has to be a
response
within six weeks. That's the law. So, if there is an application made for welfare to be determined in France, then the French authorities have to decide whether or not they'
re
prepared to do that. It doesn't mean that K necessarily needs to move straightaway. He can stay where he is. But at least the French authorities then take
responsibility
for sorting out his welfare, which is what everyone I think wants, don't they?"
Counsel for the mother agreed that his client wanted K
returned
to France but expressed concern that an
Article
15
request
would cause further delay. The judge
responded:
"if the French authorities accepted - and they have to give a decision within six weeks … they accept it and they sort out welfare and they find a place for K, whether that's with his mum now that he's stabilised and he's on these drugs and it looks like things are getting better, or they find a place in care and then they have a plan, but they sort it out because it's their problem."
The judge
referred
to previous discussions about using
Article
56, but said that that proposal had been abandoned because "it determined that K should be in state care" and on the evidence it was unclear whether he should be in state care or not.
- The judge then considered the terms of
Article
15.
She observed that the child had "a particular connection" with France because "it's the place of the child's nationality, is the habitual
residence
of the mother who holds parental
responsibility,
and it's the former habitual
residence
of the child." She then established that the guardian supported the
transfer
of proceedings to the French court so that the
requirement
in
Article
15(2)
that a
transfer
of the court's own motion had to be accepted by at least one of the parties was satisfied, notwithstanding the opposition of the mother.
- There was no further analysis of the detailed provisions of
Article
15
in the course of the hearing, but the order
recorded
that the "criteria are met for the French court and authorities to determine K's long-term welfare interests on the following basis:
(1) The child has a particular connection with France (former habitual
residence,
nationality, mother's habitual
residence).
(2) The
transfer
request,
of the Court's own motion (opposed by the Mother, LA neutral) is accepted by the child's Guardian.
(3) It is in the child's best interests that the French court determines the long-term welfare interests of the child given the following:
a) Consensus between the parties that the child should eventually
return
to live in France,
b) English court has very little information as to support services and placement options for the child in France,
c) Local authority care plan unclear as to how child will
return
to France,
d) Child has expressed wish to
return
to France,
e) Child's mother and maternal uncle in France, child's father in England has disengaged, child has little connection to England,
f) Child appears to be
responding
well to medication, has stabilised, longer term placement for child will
require
detailed
knowledge
of child's history, and welfare needs,
g) No clear plan as to how child can
return
to France,
Article
56
requests
not acknowledged,
h) Child can
remain
in current placement in England whilst welfare assessments and decisions are taken in France (no need for child to move to emergency placement in France), child can visit France if necessary during assessment process (as he did in February
2020),
i) Substantial delay already incurred, child needs
resolution
of placement and welfare needs."
- In addition to the
Article
15
request,
the order also contained the direction to the local authority to make further urgent enquiries of ICACU, asking the French Central Authority inter alia to:
(a) explain what steps have been taken and were currently being taken by the French children's services and mental health experts in France to find a placement for K in France "pursuant to the
request
made under
Article
56";
(b) outline the process involved in finding such a placement and the timetable for each step in that process - "where are we in that process now, and what are the next steps?"
(c) state whether it is envisaged that there should be any further meetings between those investigating a placement in France and K, his mother and/or [his current
residential
placement], and if so what are the proposals as to where and when this should occur;
(d) provide a list of the documents which have been provided to prospective placement providers in France;
(e) answer supplementary questions arising from emails copied to ICACU from French professionals;
(f) identify the educational, mental health and therapeutic services and support which would be made available in France in the event that K
returned
to live with his mother.
- As I have mentioned, shortly before the hearing of the appeal the judge produced a document headed "Decision and
Reasons
concerning
Article
15
BIIA
request
authorised on 28 May
2020
approved 3 June
2020".
We are grateful to the judge for taking the trouble to prepare this detailed document. During the hearing before us, Mr David Sharp on behalf of the mother pointed out that the document includes
reference
to information which was not before the court at the hearing on 28 May and on which the judge appeared to have made findings about matters contested by the mother and on which she has not had an opportunity to make
representations.
In those circumstances, the "Decision and
Reasons"
document must be treated with a degree of caution. I notice, however, that the
reasons
given for the judge's decision to authorise a
request
under
Article
15
substantially
reflect
those contained in the order which I have set out above.
- On behalf of the mother, Mr Sharp put forward the following grounds of appeal.
- First, it was contended that the judge was wrong to authorise the
Article
15
request
before first clarifying the progress of the
Article
56 process. It was submitted that it was essential for the court to have this information before deciding whether or not to ask the French court to assume jurisdiction. Having agreed to put further questions through ICACU, the court ought to have
refrained
from making the
Article
15
request
until those questions were answered. It was possible that the French authorities were in the process of deciding whether or not to offer K a placement. There was therefore a risk that, were the French court to assume jurisdiction, the case might be delayed unnecessarily. The court needed the further information before deciding which course would involve the minimum delay.
- Secondly, it was submitted that the judge was wrong to make the
Article
15
request
at a point where neither she nor the parties had a clear picture of how the French courts were functioning in the Covid-19 pandemic and were therefore unable to evaluate where and how those courts might be able to determine the issues in the child's best interests. Without
knowing
whether the French court would be sitting at all, and, if it was, whether its processes would be truncated (for example, conducted on the basis of written material alone without an oral hearing), it was impossible for the judge to conclude that the French court would be better placed to hear the case.
- Thirdly, it was argued that the judge was wrong to authorise the
request
when there was a potential route available to progress the proceedings by way of judicial liaison. The judge had been contacted by the French liaison judge but had not had an opportunity to
respond
before the hearing on 28 May. It was submitted that this avenue should have been pursued before
requesting
a
transfer
under
Article
15
because it might have led to a much speedier
resolution
of the case.
- Fourth, it was submitted that, in considering which court was best placed to hear the matter and what was in the best interests of the child, the judge failed to take into account a number of factors which pointed to the English courts
retaining
jurisdiction. These included the following matters.
(a) A
transfer
of the proceedings to France would deprive K of the services of the children's guardian, with whom he has built a valuable
relationship
and who has a detailed
knowledge
of the case and has been proactive in liaising with the French authorities.
(b) A
transfer
of the proceedings would also
result
in the loss of judicial continuity.
(c) The French authorities, who had appeared slow to accommodate K, may well decide that K should
remain
at his current placement in England thereby creating further complications and delay and ultimately further use of
Article
56.
(d) The proceedings were at a late stage and a
transfer
could cause additional unwarranted delay.
(e) K might be adversely affected if told that the proceedings were being adjourned for an indefinite period. He might also be affected if
required
to undergo interviews with a series of new professionals if the proceedings were
transferred.
(f) If the French court accepted jurisdiction, it may decide to move K from his current placement in the interim to conduct further assessments. Conversely, if he did not move, the French court would have difficulties dealing with the case at a distance.
(g) If the case was
transferred,
K and his mother would be likely to lose the family therapy that had
recently
been arranged by the local authority.
Mr Sharp argued that there was little sign from the transcript of the hearing that the judge took any of these factors into account when conducting the necessary balancing exercise before deciding whether to make a
request
under
Article
15.
- Finally, Mr Sharp drew attention to the provisions of FPR 12.64 which stipulate that, where a court proposes to exercise its powers of its own initiative under
Article
15,
it should give the parties not less than five days' notice of the hearing. It was submitted that the mother, who was participating at the hearing by telephone, had insufficient notice of the court's intention to make the
request
and insufficient opportunity to discuss the matter with her legal team.
- In
reply,
Ms Ann Courtney for the local authority submitted that the judge was right to adopt the course of an
Article
15
request,
given the delays and difficulties that had arisen through the attempts to
resolve
the issues using
Article
56. Ms Courtney went so far as to describe the French authorities as having been dilatory and obfuscating in their
response
to
requests
for information and assistance. She accused them of an intractable lack of cooperation. She submitted that the arguments raised by the appellant based on difficulties caused by the Covid pandemic were flawed because the difficulties arose in both jurisdictions. She contended that the points
relied
on by the appellant in support of her case that the English court was better placed to hear the
remainder
of the proceedings and that a
transfer
was not in K's best interests were of no
real
substance given the ongoing delays in the English proceedings which could not be concluded satisfactorily, given the failure of the French authorities to cooperate.
Discussion and conclusion
- I acknowledge that this is an extremely difficult case for everyone involved in trying to identify the right placement for a child with very considerable mental health and behavioural problems. The local authority is to be commended for the support it has provided to K and his mother. It is clear, however, that the course adopted by the local authority so far has not yet achieved its stated aim. It does not seem to me to be necessary to apportion blame for this failure. But having
read
carefully through the email correspondence which has passed between the local authority, ICACU and the French authorities, I emphatically
reject
Ms Courtney's characterisation of the French authorities'
response.
It seems to me that the French authorities have
responded
fairly and
reasonably
to the
request
for information. They have tried to help locate a suitable placement for K. They have held meetings with their English counterparts and with K and his mother. The fact that some professionals in France have expressed concern about the proposal to place K in that country is, to my mind, a legitimate exercise of professional judgement and not an example of obfuscation.
- I well understand the judge's frustrations at the lack of progress in the case. I can see why she thought that, on one view, if the consensus of the parties is that K should move to France, it would be appropriate to
transfer
the proceedings in the hope that the French courts will succeed where the English court has failed in identifying a suitable placement in that country. It is, however, to my mind plain that the order for the
request
under
Article
15
should not have been made.
- In my view, a
transfer
of proceedings at this stage would be contrary to the provisions of
Article
15,
in that the French court is not better placed to hear the
remainder
of the case and the
transfer
would be contrary to K's best interests.
- The principal
reasons
for this conclusion are as follows.
(1) The English proceedings have been continuing for nearly two years. There is a substantial body of professional
knowledge
about the complexities of this difficult case held by the local authority, the treating clinicians, the expert witnesses, the children's guardian, and the court. It would be impossible for a French court or the French authorities to build up an equivalent body of
knowledge
quickly. Given the complexities of the case, this would place the French court and authorities, and therefore the parties, at a significant disadvantage.
(2) A
transfer
of the proceedings will, almost inevitably, add significant delay, particularly in the current circumstances of the Covid pandemic. The proceedings have already been continuing for far too long. Any unnecessary further delay risks causing further harm to K.
(3) The
transfer
of proceedings would be likely to involve a further round of professional assessments for the purposes of which K would be
required
to undergo interviews with new professionals with whom he is unfamiliar.
(4) Once the English court has sufficient information about the options for placement in France, it will be fully equipped to make the difficult decision about his long-term future. The options under consideration will include maintaining the placement in his current
residential
unit in England as well as options for placement in France. It is by no means clear to me that the French court would have the same range of options available.
(5) If the proceedings were
transferred,
it might be necessary for K to move to France in the short-term while decisions about his future were taken. The French authorities have identified a number of practical difficulties about this course. A peremptory move to France would deprive him of the
resources
of his current unit. On the other hand, if K were to
remain
in this country following the
transfer
of proceedings, the French court could equally face difficulties making decisions about a child in another jurisdiction.
- To my mind, the factors identified by the judge in the court order, as
repeated
subsequently in her "Decision and
Reasons"
document, do not amount to a substantial argument for
transfer
of proceedings. The fact that K wishes to move to France, and that there is a consensus amongst the professionals at present involved with K that he should move to live there, do not amount to a significant
reason
for
transferring
the proceedings, given the strong
reasons
for
retaining
jurisdiction in this country set out above. It is true that, given the unfortunate disengagement of the father, K's connections with this country have been diminished, but he is at present in a secure placement where his complex needs are being well cared for. It is by no means clear that a French placement will be identified that is able to meet his needs to the same extent.
- It is correct that the English court and local authority have not so far been able to obtain sufficient information about placements in France, but as my Lord Moylan LJ observed in the course of the hearing, that is substantially because of the measures adopted to date. It seems to have been assumed by the parties, and perhaps the court, that
Articles
55 and 56
represent
a means by which information about possible placements can be obtained. But as a study of the terms of the two
articles
demonstrates, this is not the case. It is not the role of the French authorities, through a
request
for information under
Article
55, to identify possible placements which could be adopted by the English court. The French authorities have
responded
as much as they fairly can to the
requests
made of them to date but, put bluntly, it is not their role to find a placement. The right course, in my view, would be for the local authority to instruct a French professional – either a child psychiatrist or a specialist social worker – to advise as to the type of placement which might be suitable and to identify a specific placement option which would meet K's needs. Armed with this expert opinion, the English court could evaluate that option and, as part of that evaluation, consult the French authorities under
Article
56. The approach adopted by the parties and the court hitherto, though well-intentioned, is to my mind flawed. The fact that this approach has not worked is not, therefore, a good
reason
for seeking the
transfer
of proceedings under
Article
15.
- It is notable that as long ago as October 2019, the issue of a possible
transfer
of the proceedings under
Article
15
was considered by the court, albeit by a different judge, who concluded that a
transfer
was not appropriate for
reasons
clearly
recited
in the court order. To my mind, the
reasons
given by the judge on that occasion
remain
apposite. The family court in this country has already heard a considerable amount of evidence and made findings. All the evidence and information about the child's mental health is in this country. A
transfer
under
Article
15
would create additional delays. With appropriate directions, the English court ought to be able to obtain all the information necessary to make a decision about K's long-term future, notwithstanding that the best placement for him may be in France. Applying the test proposed by the CJEU in Child and Family Agency v D to identify whether the French court would be better placed to hear the case, a
transfer
of jurisdiction would manifestly not "provide genuine and specific added value". Asking the questions posed by Baroness Hale in the Supreme Court in
Re
N to identify whether a
transfer
would be in the child's best interests, the short-term consequences would be an extended delay. As to the long-term consequences, the options for a French court deciding the eventual order would certainly not be greater and might in fact be
reduced.
- In addition, it was in my judgment wrong of the court to raise the option of an
Article
15
transfer
at the hearing without proper notice being given under rule 12.64. In her "Decision and
Reasons"
document, the judge said that she had indicated at the previous hearing on 1 April that she would consider the issue of an
Article
15
transfer
at the hearing in May. It is not, however, clear from the other documents exactly how the matter was left after the April hearing. There is no
reference
to
Article
15
in any
recital
to the order made following the hearing and, in the position statements for the hearing on 28 May, none of the parties
referred
to
Article
15
at all. The transcript of the hearing on 28 May suggests that the parties were to some extent taken by surprise when the issue was raised. In the light of what is said in the "Decision and
Reasons"
documents, I accept that the judge intended to leave the issue on the table for the hearing in May. I am, however, satisfied that it was insufficiently clear to the parties that it would be considered at that hearing.
- For these
reasons,
I concluded that the appeal should be allowed on grounds 4 and 5 and the order for a
request
under
Article
15
set aside.
- In the order drawn up after the appeal hearing, we included a
recital
in which we invited the parties, at the next hearing before the judge listed shortly after the appeal, "urgently to consider applying to the court below for an order authorising the instruction of a French mental health or social work expert to advise on (a) the identity of specific placement options for the child in France, (b) the availability of such placements, (c) which placements might best suit K's individual needs, or (d) alternatively if K should be placed with his mother the nature and identity of legal and support structures which might facilitate and strengthen such a placement." We included a further
recital
inviting the parties "urgently to consider applying to the Court below for an order authorising the instruction of an expert on French Law as to the available legal routes to underpin any such placements and the obtaining of consent from the appropriate body in France pursuant to
Article
56." It seems to this Court that the course suggested might
represent
the best way of obtaining information about the placement options in France. In making those observations, however, I stress that it is ultimately a matter for the judge to determine the best way forward, exercising her case management powers.
LORD JUSTICE PHILLIPS
- I agree that the appeal should be allowed for the
reasons
given by Baker LJ.
LORD JUSTICE MOYLAN
- I also agree with Baker LJ's judgment and have nothing to add to the
reasons
he gives for allowing this appeal save that I would also want specifically to commend the local authority for the high quality of the care and support they have provided for K.
- I propose, however, to add a short judgment dealing with some elements of the
requests
made by the court of the French authorities. This is not intended to be more than a brief summary, principally to highlight some practical points which need to be taken into account when such
requests
are being made. More general guidance is available in the Guide published by ICACU (Guide to Completing the
Request
for Co-Operation Form) and in the President's Guidance of 10 November 2014, The International Child Abduction and Contact Unit (ICACU). Both of these documents
refer
to other sources of information and guidance.
- In
respect
of
Article
55, it is, of course, first necessary to ensure that the proposed
request
to be made through the
respective
Central Authorities is for information which is within the scope of its provisions. It is not a general provision which caters for every type of
request.
In saying this, I
recognise
that there is an element of uncertainty because the authorities in different states can take a different view as to whether a
request
is or is not within the scope of
Article
55. This is why, if there is doubt as to whether a proposed
request
is within the scope of the
Article,
ICACU may be able to provide assistance based on their considerable experience of its operation. However, because ICACU's limited
resources
need to be used carefully, I would first expect that, as far as possible, careful consideration should be given to the terms of
Article
55 before this is undertaken.
- In this context, I would
repeat
what I said in Leicester City Council v S [2015] 1 FLR 1182:
"[51] Central Authorities are also typically small agencies and are not equipped to deal with a broad range of enquiries. They are not enquiry agents or general evidence gatherers. Any
requests
made pursuant to the provisions of BIIR must be focused on a specific provision within that
Regulation."
- In
respect
of
Article
56, this provision, as
referred
to by Baker LJ (in paragraphs 33 and 52 above)
requires
consultation and consent before the proposed placement in the other Member State takes place. I would stress that, as he has said, it does not place any obligation on the authorities of the other Member State to find a placement.
- The understanding appears to have developed in this case that the French authorities would find a placement for K in France. It is not entirely clear how this developed, at least prior to the
responses
received
on 17 October 2019. Prior to this, I would point to the
response
given in May 2019 that it was for the English judge to determine the proposed placement. Although the specific
requests
were not answered, there was no
reference
in this
response
to the French authorities finding a placement. I would also point to ICACU's observation to the local authority in September 2019 that it needed to be made clear "who you are looking to place the child with".
- Further
responses
were
received
from the French Central Authority on 17 October 2019, to the questions set out in paragraph
15
above. In answer to the direct question
referred
to in paragraph
15(a)
(as to which authority was
responsible
for finding a placement), it was expressly stated that it was for the English authorities to identify a suitable placement for K in France. No doubt in an attempt to be helpful, it was also said that the French Central Authority could provide ICACU with "assistance in this process". It seems clear that, despite the clear answer given to the question in
15(a),
the latter offer to assist, and the subsequent steps taken to seek to assist, encouraged an existing understanding or grew into an understanding that the French authorities would take
responsibility
for finding (but not funding) a placement.
- I would also add that, even though the French authorities offered to assist in this way in this case, the difficulties with seeking to make them
responsible
for finding a placement became only too evident. First, the English court had no control over the provision of information which it would have had, at least to a greater extent, if the information (in
reality,
evidence) was sought more directly. There is no time limit for the provision of information pursuant to either
Article
55 or
Article
56 (which I deal with further below) and I would doubt whether a Central Authority is able to
require
any other domestic agency to provide information or undertake any assessment by any specific date. The ability to ensure that the information which was provided was sufficient for the purposes of the proceedings was also more limited. The more complex the
request,
as in this case, the more scope for the information not to be sufficient. Secondly, the greater the potential
reliance
placed, indirectly, on an agency in another state to find a placement, the greater the scope for miscommunications or misunderstandings or, even, differences of professional opinion to occur especially, again, in a complex case such as this case.
- The next point I address is timing. By way of example, the French Central Authority was "
respectfully
requested"
to provide answers to the information sought as set out in the order of 12 April 2019 by 26 April 2019. As
referred
to above this was, at best, an optimistic expectation. I would, in fact, say that it was unrealistic. As the ICACU Guide makes clear allowance has to be made, first, for it to process the
request.
The Guide gives the standard
response
time as 5 working days for initial analysis and a further 10 working days to process the
request.
In this case ICACU did not
receive
the
request
until 16 April 2019.
- In addition, as
referred
to above, neither
Article
55 nor
Article
56 currently stipulate any time by which a
response
must be provided (the
Recast
Regulation
includes a time limit of, save in exceptional circumstances, 3 months). This is why both the Guide and the President's Guidance emphasise that
requests
must be made as soon as possible. To quote from the Guide: "It is important that any
request
for co-operation is made as soon as you identify a need for information or assistance from the other country". The President's Guidance similarly states that: "
Requests
for co-operation should be made as early as practicably possible".
- Finally, I would simply comment that it is rarely, if ever, appropriate for the same
request
for information to be made through more than one route. I mention this because the order of 2 October 2019 proposed that the same
request be made both through the Central Authorities and through the IFJO. This is rarely appropriate because it serves to confuse the process and is an unnecessary duplication.
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