French contact order final order for parental responsibility given on occasion of matrimonial proceedings - French court's exclusive jurisdiction superseded - father's enforcement summons nullity

In re G (Children) (Foreign Contact Order: Enforcement): CA (Lords Justice Thorpe, Potter and Tuckey): 11 November 2003

A French court, having granted a divorce to an Italian couple who had been living with their two children in France and made orders for contact to the father, permitted the mother to remove to London with the children and granted the father periodic staying access in Italy.

The children became habitually resident in England but contact with the father was frustrated.

He issued a summons under section 16 of the Child Abduction and Custody Act 1985 seeking registration and enforcement of the French order in England under the Convention on Recognition and Enforcement of Decisions Concerning Custody of Children.

The judge ordered that the French order be registered and enforced, but he further ordered that as a condition of implementation the father should have preliminary visiting access in England.

The father appealed the order fixing conditions, contending that it constituted a review of the substance of the foreign court's decision contrary to article 9(3) of the convention.

The mother cross-appealed on the ground that the judge should have refused registration and enforcement under article 10(1).

James Townend QC and Marie-Claire Sparrow (instructed by Pritchard Joyce & Hinds, Beckenham) for the father; Timothy Scott QC and Clare Renton (instructed by Stafford Young Jones) for the mother; Michael Nicholls (instructed by the Official Solicitor) as advocate to the court.

Held, dismissing the appeal and cross-appeal, that the judge had properly rejected the mother's defence under article 10(1); that, giving article 11(2) a liberal interpretation, the judge had not reviewed the substance of the order, contrary to article 9(3), but had sought to achieve its gradual, full implementation within the discretion permitted him; that, in any event, having regard to articles 1, 3(1)(3), 13(1) and 37 of Council Regulation (1347/2000/EC), the French court's order had been made in connection with divorce proceedings, sanctioned the permanent removal of the children from the jurisdiction, and was therefore a final order in relation to parental responsibility given on the occasion of matrimonial proceedings; that in those circumstances, and since the children were now habitually resident in England, enforcement of the order had to be sought under the regulation, not under the convention; and that the father's summons was therefore a nullity.

CH

Care proceedings - child subject to interim care order placed by local authority with relatives in another local authority's area - authority in whose area child placed to be designated local authority in care order

In re H (A Child) (Care Order: Appropriate Local Authority): CA (Lord Justice Thorpe, Lord Justice Jonathan Parker and Lord Justice Dyson): 18 November 2003

Oxfordshire County Council obtained an interim care order over a child, H, in 2001; but later in the year an order was made that H be removed to the care of his grandfather and step-grandmother in Norfolk, and he had remained there since.

At a full hearing in 2003, the court ruled that a care order be made, and named Norfolk County Council as the designated authority.

Norfolk County Council appealed.

Dermot Casey (instructed by the Solicitor, Norfolk County Council) for Norfolk County Council; Frances Judd (instructed by the Solicitor, Oxfordshire County Council) for Oxfordshire County Council; Jonathan Baker QC and Piers Pressdee (instructed by Gardner Leader, Newbury) for the guardian; Dorian Day (instructed by Faulkners, Oxford) for the mother.

Held, dismissing the appeal, that where a local authority looking after a child fulfilled its duty under section 23(6) of the Children Act 1989 to make arrangements to enable the child to live with a closely related or connected person or family, that child ceased to be 'provided with accommodation by or on behalf of a local authority' within the meaning of section 105(6)(c) of the Act, known as the 'disregard provision', and began to live with the relative or family arranged by the local authority; that accordingly, when determining where such a child was 'ordinarily resident' for the purposes of section 31(8) of the Act and designation of an authority within a care order, the disregard provision contained in section 105(6)(c) did not apply, and on the facts that meant that Norfolk was correctly identified as the designated authority.