Mother wins appeal over request for French court to assume jurisdiction of care case

The Court of Appeal has allowed an appeal by a mother against an order secured during care proceedings by an unnamed local authority to request a French family court to assume jurisdiction of a case involving her son’s care under Article 15 of Council Regulation (EC) 2201/2003.

In KN (A Child) (Art 15 Transfer) [2020] EWCA Civ 1002 Lord Justice Baker ruled that responsibility for the case should remain in England. 

Child K was born and raised in France and his French mother lives in Paris. His father is of Nigerian origin and lives in England.

After the parents' relationship broke down, the father moved to England and K remained in France.

When he displayed increasing emotional and behavioural difficulties it was agreed he would live with his father, who a few weeks later took K to hospital having noticed symptoms of emerging psychosis.

The local authority in England became involved and issued care proceedings but K was later admitted to a child psychiatric unit.

A Paris social services report said it was unable to guarantee that a placement would be available or to a specific timeframe if K then returned to his mother.

“Overall, the report raised a number of potential difficulties about the proposal to place K in France,” the judge noted.

He said: “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.”

Baker LJ said the French authorities had responded fairly and reasonably to the request for information and tried to help locate a suitable placement for K.

“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,” the judge said.

He understood why HHJ Wright in Family Court was frustrated by the lack of progress and “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.”

This was because the French court was not better placed to hear the remainder of the case and the transfer would be contrary to K's best interests.

There was a substantial body of professional knowledge about the complexities of the case held by the local authority, clinicians, expert witnesses, the children's guardian and the court, and 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.”

Phillips LJ and Moylan LJ agreed with the judgment, with the latter adding: “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”.

Mark Smulian