Re A (A Child)

Where an English court has substantive welfare jurisdiction while enforcement of an earlier foreign parental-responsibility order is sought, it must make a broad evaluative judgment about whether a welfare inquiry is justified. It must give proper weight to the foreign order, mutual trust and the need to prevent inappropriate re-litigation.

The inquiry is not confined to asking whether a different outcome is likely. A material passage of time, the child’s changed situation, or substantially different evidence may justify an assessment. A justified domestic welfare inquiry does not review the foreign judgment as to its substance under Brussels IIa.

A had lived with her mother in England since February 2019, having moved there with permission of the French High Court in Réunion. In October 2020, the Court of Appeal in Réunion allowed the father’s appeal and ordered that A live with him in Réunion.

The father registered that order for enforcement in England. MacDonald J dismissed the mother’s appeal against registration and summarily dismissed her application for a child arrangements order: G v K [2021] EWHC 3240 (Fam). The mother appealed, principally contending that the English court should undertake a welfare inquiry before enforcing an order that would move A from England to Réunion.

The central issue was whether the circumstances justified an English welfare assessment despite the earlier enforceable foreign order.

Decision

1. The appeal was allowed on ground 2 and the judge’s order was set aside. If the parties could not agree, a substantive welfare inquiry was required to determine A’s best interests.
2. The court applied the approach in Re E (BIIa: Recognition and Enforcement) [2021] Fam 211. A court with substantive welfare jurisdiction must decide broadly whether it is appropriate to undertake a welfare assessment. It must give weight to the foreign order, mutual trust and the need for prompt enforcement, while treating the child’s best interests as a primary consideration. Neither the enforcement application nor the welfare application has automatic precedence.
3. The judge had asked the wrong question by treating the issue as whether there had been a change sufficient to justify a different welfare conclusion. The question was whether the current circumstances and available evidence justified an inquiry. It would put the cart before the horse to require the court first to predict that the inquiry would produce a different order.
4. The significant further passage of time in A’s life, her greater integration in England, her increased distance from her former life in Réunion, the father’s changed household, and the mother’s ability to maintain a meaningful relationship with A were material. The available evidence was also materially different from that before the French appellate court, which had no recent professional evidence about A’s situation. These were real welfare issues requiring assessment.
5. A welfare inquiry in those circumstances would not be a prohibited review of the French order as to its substance under Brussels IIa. It would be an independent decision whether the English court should exercise its present welfare jurisdiction. The first ground was a new and unfairly late seisin argument. The public-policy ground did not meet the high threshold in article 23(a). Recognition and the practical method of enforcement were separate questions, but no further decision on enforcement was needed.

• Court of Appeal (Civil Division): Allowed the mother’s appeal under ground 2 and set aside the order below. It held that a substantive welfare inquiry was required unless agreed arrangements were reached.
• High Court of Justice, Family Division: MacDonald J, in G v K [2021] EWHC 3240 (Fam), dismissed the mother’s appeal against registration of the French order, summarily dismissed her child arrangements application, and ordered enforcement.
• Cour de Cassation, Paris: Dismissed the mother’s appeal from the Réunion appellate decision on 14 May 2021.
• Court of Appeal of Saint-Denis, Réunion: On 21 October 2020, allowed the father’s appeal from the February 2019 order and ordered that A live with him in Réunion.