After Brexit: Jurisdiction to make care orders when child is a foreign national

London Borough of Hackney v P and Ors [2022] EWHC 1981 (Fam)

Judgment was handed down by Mr Justice MacDonald on 29th July 2022. This case concerned a 12 year old girl who was born and lived in France until her mother’s death in 2017 when she moved to Tunisia in the care of her paternal grandmother. In 2021 she came to the UK to live with a paternal uncle but was shortly after taken into foster carer amid a variety of serious allegations made against the grandmother and H’s father by the uncle.

The court was dealing with two applications. The first was an application for a care order issued in August 2021, the second by the paternal grandmother for the summary return of H under the inherent jurisdiction of the High Court.

The court had to deal with the following preliminary issues

i) Does the jurisdictional scheme under Chapter II of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility apply to care proceedings under Part IV of the Children Act 1989 and, if so, does it apply to these proceedings notwithstanding this case involves a non-Convention State?

ii) If the jurisdictional provisions of Chapter II of the 1996 Hague Convention do not apply to these proceedings under Part IV of the Children Act 1989 involving a non-Convention State, does jurisdiction arising out of the presence of the child in the jurisdiction subsist for the purposes of care proceedings pursuant to Part IV of the Children Act 1989?

iii) If the question of habitual residence falls to be determined in this case, whether under the jurisdictional provisions of Chapter II of the 1996 Hague Convention or otherwise, what is the relevant date for that determination?

Having heard extensive erudite and comprehensive submissions, the court was satisfied that the Hague Convention did provide the jurisdictional scheme to govern this case, even though Tunisia was a non contracting State. If H was not habitually resident in England and Wales and thus the Hague Convention did not apply, the court could rely on the common law test of her physical presence to justify an order. The question of H’s habitual residence is to be determined at the date of the hearing and a further hearing was needed to determine this issue. 

Discussion 

H was born in France and said to have both French and Tunisian citizenship. Her primary language is French. She lived with her parents in France until she was 4. Her father was sent to prison and H and her mother were homeless for a long period, H was removed from her mother’s care in 2015 until returning to her mother in January 2017. Sadly, her mother then died in March 2017.

The paternal grandmother travelled from Tunisia to seek care of H and was assessed as safe to care for her in August 2017. H moved to live with her grandmother in Tunisia. Her father also moved to Tunisia and was reported to have a good relationship with H. The French proceedings were thus discontinued in June 2018. 

In June 2021, H travelled to England to stay with a paternal uncle. Shortly after, the uncle contacted the police to say that H had been sent to England to ‘ruin his life’ in the context of a family dispute. H alleged her uncle had hit her. She was taken into foster care. 

The local authority began investigation and the uncle claimed H was not safe in Tunisia as her grandmother was ‘sadistic’, physically abusing H and allowing her to be sexually abused by others. Further, he claimed H’s father was involved in people trafficking in Tunisia which led to others threatening the family. H’s grandmother denied these allegations, H herself said there were ‘good and bad’ times with her grandmother who sometimes hit and swore at her. 

H was then returned to the care of her uncle but he shortly after took her to the French Embassy in London reporting that H ‘bullies’ him. H went back to foster care. She was placed with a French speaking Algerian family on 3 August 2021 where she remains. 

H made a number of allegations against her paternal family and was noted to display a lack of understanding of socialisation and boundaries. The local authority thus issued care proceedings, correctly identifying that there may be an issue as to jurisdiction and citing the relevant provisions of the 1996 Hague Convention. A hearing was listed in December 2021 to consider “a declaration of habitual residence”. Significant delay occurred due to lack of time in the court lists and problems with the grandmother’s legal aid. The matter finally came before Mr Justice MacDonald in June 2022. 

The Tunisian authorities recommended that H be returned to her grandmother’s care but the local authority sought a care order, asserting that the court had jurisdiction to make this order based on H’s physical presence in the jurisdiction. The Hague Convention did not apply as Tunisia was not a contracting State and therefore habitual residence was not the relevant factor.

The grandmother sought summary return of H to the jurisdiction of Tunisia under the court’s inherent jurisdiction.  She argued the 1996 Hague Convention did apply and H’s habitual residence was in Tunisia. Alternatively, she argued that Tunisia was the more appropriate forum to undertake a welfare enquiry. 

The Guardian argued that the court did have jurisdiction by virtue of the 1996 Hague Convention and should make a care order. Interesting as the legal issues were, the Guardian reminded the court that the heart of the case is H, who has been clear she wishes to remain in the UK and refused to have any contact with her grandmother. 

The court first considered the relevant law. Following the UK’s departure from the European Union, jurisdiction in children’s cases is now governed by the Family Law Act 1986 and the 1996 Hague Convention. 

The Family Law Act 1986 has been described as a ‘thoroughly unsatisfactory statute’ It concerns only private law orders. Nor does the Children Act 1989 make any provision regarding jurisdiction for public law orders. This lack of statutory provision has been the subject of much discussion. The position prior to the UK joining the European Union was that where the Family Law Act was silent, the court was free to adopt such ‘territorial’ test for jurisdiction as seems most appropriate. However, this common law approach was then modified by (EC) Regulation 2201/2003 (Brussels IIa). The grandmother argued this represented a significant shift in international family law to a common jurisdictional framework premised on habitual residence, regardless of whether or not the other country is a Member State of the European Union, which survived the UK’s exit from the European Union. 

After Brexit, the courts then turned to the Hague Convention 1996, which was directly implemented in domestic law in 2020 by amendments made to the Civil Jurisdiction and Judges Act 1982. The intent behind the Convention, is to centralise jurisdiction in the authorities of the State of the child’s habitual residence and avoid the problems of competing authorities claiming concurrent jurisdiction.

The question then arose if the Hague Convention applied where the proceedings involve a non-contracting State, such as Tunisia as in H’s case.

The court noted that with regard to Brussells IIa  the Supreme Court had established that it applied in care proceedings, irrespective of whether the other country was  a Member State of the European. However, there was limited utility in considering the terms of other international Conventions, when each must be considered on its own terms and within the particular context in which it was agreed. 

A previous court decision involving a the non-contracting State of Gabon concluded that the Hague Convention would apply and in  H v R [2022] EWHC 1073 (Fam) Peel J appears to have accepted that it is the general jurisdictional provisions of Art 5 of the 1996 Hague Convention that will operate to determine whether England and Wales has jurisdiction in respect of a child who is in this jurisdiction notwithstanding the proceedings involving a non-Contracting State, in that case Libya. 

The relevant date for evaluation of habitual residence under Brussels IIa was the date on which the court is seized of proceedings. However, the Hague Convention does not specify the date on which the question of habitual residence falls to be considered. 

In re NH (1996 Child Protection Convention: Habitual Residence) [2016] 1 FCR 16 at [24], Cobb J expressed the obiter view that the relevant time was the date of the hearing as the principle of perpetuatio fori does not form part of the Convention – i.e. a change of habitual residence during proceedings leads to a change of jurisdiction. This makes it important that the question of habitual residence in such cases is determined swiftly, in order to avoid habitual residence being determined by mere effluxion of time over the course of protracted proceedings.”

Having heard extensive erudite and comprehensive submissions, the court was satisfied that 

  1. If H was habitually resident in England and Wales, the Hague Convention did provide the jurisdictional scheme to govern this case, even though Tunisia was a non contracting State
  2. If the Contracting State does not have, or loses, jurisdiction under Art 5(1) of the 1996 Convention, Art 5 ceases to apply and the national law of the Contracting State becomes operative. Therefore if H was not habitually resident in England and Wales, the court could rely on the common law test of her physical presence to justify an order
  3. The question of H’s habitual residence is to be determined at the date of the hearing. 

On behalf of the grandmother it was argued that it was no longer appropriate to argue that mere physical presence conferred jurisdiction – but the court was not willing to accept that ‘bold submission’. A particular object of the Hague Convention is that of the protection of the child and a residual common law jurisdiction with respect to public law proceedings based on presence is not incompatible with that object and, indeed, is consistent with it. 

The position of H demonstrated the point – if the court found in due course that she was not habitually resident in England and Wales, and the court could have no recourse to a residual jurisdiction based on presence, the court would be unable to make any substantive orders, notwithstanding that H had been in England for now over a year and has expressed a strong wish to stay. But it was vital to determine issues of habitual residence as soon as possible, in order to avoid establishing a habitual residence by mere effluxion of time. 

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