L (Child), Re

Under Brussels IIA, a court with jurisdiction over the substance of parental-responsibility proceedings cannot assume that jurisdiction merely because another Member State is better placed to hear the case. An Article 15 transfer requires a request in the form contemplated by that provision, followed by acceptance by the receiving court. A foreign court’s willingness to transfer, coupled with an explanation that proceedings cannot yet be concluded because an appeal remains pending, is not itself such a request. Until a valid transfer occurs, the other court may take only urgent provisional or protective measures under Article 20. The appeal was therefore allowed and the final orders set aside.

The local authority commenced public law proceedings concerning a child who had been living in France with his father and was subject to French child-protection proceedings. After the child was brought to England, the English court made urgent interim orders under Article 20 of Brussels IIA. On 1 June 2015, His Honour Judge Vincent made final child arrangements, supervision and contact orders.

The father appealed. The principal issue was whether correspondence from the French judge amounted to a request under Article 15 for the English court to assume substantive jurisdiction. The Court of Appeal allowed the appeal on that ground and did not hear the separate ground concerning legal representation.

The Court of Appeal allowed the appeal, set aside the orders made on 1 June 2015, and made interim child arrangements orders pending further order in any fresh proceedings.

1. Jurisdictional framework. Article 8 of Brussels IIA placed general substantive jurisdiction with the courts of the Member State where the child was habitually resident when seised. The French court was exercising that jurisdiction. Articles 17 and 19 reinforced the requirement that a court without jurisdiction should decline it and that the court second seised should defer to the court first seised where appropriate.
2. Article 15 procedure. Article 15 permits a transfer, by way of exception, where the other Member State has a particular connection with the child, is better placed to hear the case, and transfer is in the child’s best interests. The court with substantive jurisdiction may either stay the case and invite an application or request the other court to assume jurisdiction. On the proper analysis of the correspondence, the English court had applied to the French court. The next step therefore had to be an actual request by the French court under Article 15(1)(b), after which the English court could decide whether to accept jurisdiction under Article 15(5).
3. Correspondence from France. The French judge’s letter stated that she was not opposed to transferring the whole file, but explained that she could not conclude the child-protection proceedings while an appeal remained pending. Her statement that reports would be sent in the meantime showed that the requested transfer had not yet occurred. The letter contained no express or implied request that the English court assume jurisdiction immediately.
4. Effect of the failure to transfer. Without an Article 15 request, Judge Vincent had no substantive jurisdiction to determine longer-term welfare issues. He could continue only to take provisional, including protective, measures under Article 20. The Court noted, without deciding the point, that a specific part of evolving welfare jurisdiction might potentially be transferred during an appeal concerning earlier decisions. That was not what occurred here. The observation in Re N (Children)(Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 2 WLR 713 did not assist on that issue.
5. Orders. The court made interim arrangements for the child to live with the mother, with no direct contact with the father and indirect contact through cards and letters sent via the local authority. Those arrangements were to continue only until further order.

1. Court of Appeal (Civil Division) — In [2016] EWCA Civ 821, the appeal was allowed because the English court lacked substantive jurisdiction under Article 15. The final orders were set aside and interim child arrangements orders were made.
2. Truro County Court and Family Court — On 1 June 2015, His Honour Judge Vincent made a child arrangements order, a 12-month supervision order and orders restricting direct contact between the father and child.