G v K

Under Brussels IIa, a change in a child’s habitual residence during pending proceedings does not displace the jurisdiction of the court first seised. The principle of perpetuatio fori continues that jurisdiction until the proceedings, including any appellate process, end. Jurisdiction is not prorogued under article 12 without express or unequivocal acceptance.

Recognition may be refused under article 23 only on narrow grounds. The public-policy exception is exceptional and does not permit review of the foreign judgment’s substance or welfare merits. Where the foreign court is no longer seised and the child is habitually resident in England and Wales, the English court may make welfare orders, but should reconsider the foreign welfare decision only where a change of circumstances justifies doing so. The French order was therefore registered and enforced.

The mother had lawfully relocated with the child from Réunion to England and Wales. Proceedings concerning parental responsibility had first been commenced in Réunion. During the French appellate process, the mother issued proceedings in England seeking welfare orders and variation of the French arrangements.

The Court of Appeal in Réunion overturned the first-instance order and directed that the child reside with the father. The French Cour de Cassation refused the mother permission to appeal. The French judgment was then registered in England. The mother appealed registration on public-policy and child-participation grounds and sought welfare orders based on the child’s subsequent habitual residence in England. The father sought enforcement.

The central issues were whether the French court retained jurisdiction during the pending lis, whether jurisdiction had been prorogued to England, whether article 23 prevented recognition, and how the English welfare jurisdiction should operate after the French court ceased to be seised.

1. Jurisdiction. The French court was first seised of proceedings concerning the same child and cause of action. Under article 19 of Brussels IIa, the English court was required to defer while the French court’s jurisdiction was determined. A subsequent change in habitual residence under article 8 did not confer exercisable jurisdiction on the English court during the currency of the lis. Brussels IIa applies the principle of perpetuatio fori, so the French court retained jurisdiction until the Cour de Cassation disposed of the appellate process.
2. Prorogation. Article 12 requires express or otherwise unequivocal acceptance of jurisdiction by all holders of parental responsibility. The English consent order concerning mediation did not establish such acceptance. The father had consistently contested English jurisdiction, and the French Court of Appeal had rejected the alleged acceptance.
3. Registration and recognition. Articles 23 and 26 prevent the English court from reviewing the substance of the French welfare decision. Article 23(a) is an exceptional public-policy safeguard, requiring an unacceptable conflict with a fundamental principle of the forum’s legal order. Delay caused by a lawful foreign appeal, the adverse effect of a change of residence, and disagreement with the foreign welfare assessment did not meet that threshold. Article 23(b) was not engaged: at the relevant age, the child would ordinarily have been too young for direct ascertainment of wishes and feelings in private-law proceedings, while both parents had been represented and could advance relevant welfare evidence.
4. Welfare jurisdiction after the French proceedings ended. Once the French court ceased to be seised and the child had become habitually resident in England, the English court had power to make welfare orders. Applying the guidance in Re E (BIIa: Recognition and Enforcement) [2020] EWCA Civ 1030, however, the court had to proceed cautiously and ask whether a change of circumstances justified reconsidering the foreign welfare determination. No sufficient change had been established. The court therefore declined to revisit the French order.
5. Outcome. The mother’s appeal against registration was dismissed. The French order was enforceable under article 28(2). The court directed that enforcement should include appropriate “soft landing” arrangements, such as the mother accompanying the child to Réunion, a gradual transition to the father’s care and arrangements for future contact.

High Court of Saint-Denis, Réunion: Made the original parental-responsibility order on 6 February 2019.

Court of Appeal, Réunion: On 21 October 2020, allowed the father’s appeal, set aside the first-instance order and directed that the child’s main residence be with him.

Cour de Cassation: On 14 May 2021, refused the mother’s appeal.

High Court (Family Division): Dismissed the mother’s appeal against registration and ordered enforcement of the French judgment.