Tag Archives: Hague Convention 1996

Getting information from foreign countries in care proceedings

Resources

The information set out here, is a summary from the three documents below.

The President’s Guidance from 2014 The International Child Abduction and Contact Unit (ICACU) (judiciary.uk)

The ICACU’s guidance on completing the request form icacu_request-for-co-operation-guide.docx (live.com)

Protecting Children and Families Across Boarders [CFAB] Kinship assessment guidance CFAB | International Kinship Care Guide. This guidance deals with

The steps which should be taken whilst identifying, assessing and preparing potential carers overseas for an international kinship care placement when the child is in local authority care.
The complexities in ensuring that orders are mirrored and/or recognised in the receiving country.
Recommendations for the ongoing relationship between the relevant authorities in each country to ensure that responsibilities are clear and are mutually agreed.
Barriers to permanency which would need to be considered before placement, or which would need additional support for the child and carer to ensure that the child has a successful and permanent placement.

This post is primarily concerned with cases where a local authority is looking to assess a family member who lives in another country. If you are considering transferring the proceedings themselves to another country, then see this Guidance from the President from 2016.

Care proceedings with an international element – how do you get information about family members? How do you assess them?

An increasing number of cases have an international element. This brings with it almost inevitably great potential for delay and costs, in making inquiries and getting documents translated. It’s imperative that we do not add to these problems so we need to be alert when a case is likely to require consideration of the practices and procedures of another country, so we do not cause additional delay and we make sure that assessments or placement plans will be recognised by a foreign country.

As the introduction to the CFAB Kinship Care assessment guide sets out:

Both the Children Act 1989 and the UN Convention on the Rights of the Child place an emphasis on children remaining with family. The practicalities of supporting this across international borders are delicate and complex, requiring specialist guidance to ensure they are carried out properly and with the best interests of the child at the forefront. There is otherwise the risk of vulnerable children being placed with inappropriate carers, of children being returned to the originating local authority due to faulty legal procedures and of family breakdown because the right support measures were not proactively identified….Despite the risks, the scale of the problem for these vulnerable children is unknown. The charity Children and Families Across Borders (CFAB) estimates that there are 18,000 Looked After Children in England and Wales who may have family members abroad that could – and should – be explored as options for their long term care.

What is the 1996 Hague Convention?

The HCCH (Hague Conference on Private International Law Conférence de La Haye de droit international privé) is an intergovernmental organisation which aims to secure the “the progressive unification of the rules of private international law”
The HCCH’s mission is …[to provide] internationally agreed solutions, developed through the negotiation, adoption, and operation of international treaties, the HCCH Conventions, to which States may become Contracting Parties, and soft law instruments, which may guide States in developing their own legislative solutions.
Since the inception of the HCCH, it has created over 40 Conventions and instruments. One of its ‘core’ Conventions is The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children [the 1996 Hague Convention]. HCCH | About HCCH
The Hague Conference website[1] has helpful information and documents about each Hague Convention and explains which countries are party to that Convention and whether the Convention is in force between the UK and another country.
As of October 2022 the 1996 Hague Convention has 54 contracting states. HCCH | #34 – Status table and a broad scope. It aims to avoid conflicts between legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children and emphasises the importance of international co-operation. It provides the basic framework for exchange of information and collaboration by setting up ‘Central Authorities’ in each contracting state.
Article 3 sets out the issues within its scope HCCH | #34 – Full text which includes guardianship and analogous institutions, the placement of a child in a foster family or institutional care, and the supervision by a public authority of the care of a child – therefore if you want to carry out an assessment of a family member in a Hague Convention State you will be within scope.
If you want information from a country outside the 1996 Hague Convention then I am afraid we seem to be limited to the Working with foreign authorities: Child Protection cases and care orders. Advice template (publishing.service.gov.uk) This is not very informative and essentially tells you to contact the Embassy or CFAB.

What is the ICACU?

The ICACU is the operational Central Authority for England for the 1996 Hague Convention. It’s a small administrative unit and its staff are not lawyers or social workers. It is set up to make requests for co-operation to another country, for the collection and exchange of information if the other country is a State Party to the 1996 Hague Convention; and the request for co-operation is within scope of the Convention.
The ICACU is also the operational Central Authority for the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the 1980 Hague European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and Restoration of Custody of Children.
The ICACU does not become directly involved in the court proceedings. Central authorities are not under any obligation to engage in proceedings and do not require a court order before discharging their duties and responsibilities under 1996 Hague Convention
If you want to place a child in another country, this is a matter for the requested country – a placement which we may think is a private law placement, may be regarded as a public law placement by the requested country.
A request for co-operation can be made to establish if, in principle, the consent of the other country would be required for placement even if the care plan for the child is not yet fully informed.
For requests for co-operation under the 1996 Hague Convention to or from Wales, you should contact the Welsh Government. Scotland and Northern Ireland have their own Central Authorities.

What is within the scope of the ICACU?

You need information from the other country to help you formulate a care plan, for example:
1. identifying and/or assessing potential kinship carers
1. Confirmation if you need the other country’s consent to place children there
1. the other country’s procedure for progressing a request to transfer jurisdiction under Articles 8 and 9 of the 1996 Hague Convention, because its considered that another country is best placed to make decisions about the child’s future.

What is outside the scope of the ICACU?

17. Article 4 of the 1996 Hague Convention explains what is not in scope of the Convention. This includes adoption, measures preparatory to adoption, or the annulment or revocation of adoption.

If your request is not in scope of the 1996 Hague Convention, it may be in scope of another European Regulation or international Convention and another central authority or body may be able to assist.
With regard to serving documents abroad, or taking evidence abroad, the Senior Master is the central authority under Article 3 of the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (‘the 1965 Hague Convention’) and Article 2 of the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (‘the 1970 Hague Convention’). If dealing with these matters you need to contact the Foreign Process Section based in the Royal Courts of Justice. [[email protected]].
A request for copies of foreign court papers is more likely to be in scope of the 1970 Hague Convention.
If you wish to get information on someone’s criminal record outside the jurisdiction, contact the UK Central Authority for the Exchange of Criminal Records International Criminal Conviction Exchange Department ACRO Criminal Records [email protected]
If you need to let a foreign jurisdiction know that one of its citizens is involved in care proceedings, following Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 2 FLR 151, you must contact the relevant consular authorities. This applies also to inquiries about passports or other travel documents. A ‘Consular authority’ refers to an official appointed by a sovereign state to protect its commercial interests and help its citizens . It can refer to a High Commission, Embassy or Consulate.
A request for an opinion on how a foreign country might recognise an order of the English court is not a question for central authorities. You will need to think about getting permission for expert advice on the law in the relevant jurisdiction.
If you want someone to give oral evidence in the English court while they are physically present in a foreign state, for e.g. via video link or phone, you have to get permission from the foreign state. This is done via the Foreign Commonwealth and Development Office [FCDO] “Taking of Evidence Unit” [“ToE”]. HMCTS will contact the ToE on behalf of any party who notifies the tribunal that they want to rely on oral evidence from a person abroad, so all that that party needs to do is notify the tribunal of: a. the name of that person and case number; b. the country the person would be giving evidence from; c. if it is not the appellant what the evidence would be about; d. the date of any listed hearing This must be done as soon as it is known that a person wishes to give evidence from abroad, to avoid the risk of delaying any hearing.

How do I contact the ICAU?

The ICACU’s general office telephone number is 0203 681 2608 and can be used by parties seeking “in principle” advice based on the ICACU’s experience of the other country but email contact is much preferred: [email protected].
In public law children cases the ICACU prefers that the local authority contact the ICACU about a request for co-operation It is administratively more efficient and less likely to give rise to miscommunication if the ICACU is in contact with one party only.

Making a request for co-operation and timescales

The form is on line – see above. If as a social worker you are not sure if your request falls under the 1996 Hague Convention, you must get advice from your legal department as the ICACU does not give legal advice. The form requires you to identity the relevant Articles of the Hague Convention that inform your request.
But you can make a preliminary inquiry to the ICACU prior to a formal request if your legal team aren’t sure. Identify in the subject line of the email that this is a ‘general inquiry’ and set out your identity and country you are asking about. Make it clear if your request is urgent.
The ICACU does not open a case file in response to a general enquiry; it only does so when it receives a formal request for co-operation.
Article 37 of the 1996 Hague Convention says that the ICACU shall not request or transmit any information if to do so would be likely to place the child’s person or property in danger or constitute a serious threat to the liberty or life of a member of the child’s family. You will be asked to confirm that the request does not engage Article 37.
The ICACU cannot compel the requested central authority or foreign competent authorities to respond within a specific timetable and different countries have differing views as to what information or assistance can be provided. It is therefore difficult to predict how long it will take for you to get any useful information. Therefore, it is really important to do all you can at your end to keep things moving. You need to make a relevant and focused request as early as possible in the proceedings.
Do not simply send the court bundle – that is likely to slow things down. The following information is key:
- The court timetable and when hearings are listed – and remember when fixing the timetable in the English court, to build in realistic timescales for a reply from the ICACU
- The ICACU does not require a court order to act but if the court has ordered the local authority to make a request, include a copy of the sealed order – but remember that orders should not be made against foreign authorities.
- A clear background case summary, agreed by all parties if possible. If it is not agreed, make this clear.
- The full names and dates of birth of the children and relevant adults with explanation of family relationships – if complex, a genogram can help
- Explain ‘technical language’. What do you mean by ‘section 20’? What do you mean by ‘kinship care’?
- Avoid acronyms – the other country is unlikely to understand what is meant by ‘IRH’ for e.g.
- If you are trying to identify potential kinship carers, provide as much information as possible to assist the other country to trace the individuals concerned; if current contact details are not known, provide as much information as possible about last known addresses etc.
- Explain what you would find helpful for a kinship assessment to cover – but you cannot require the foreign authorities to carry out an assessment in a particular way.

A rough timeline of an approach to the ICACU can look like this. You can see how each step of the process carries with it potential for delay.
- The local authority decides to make a request for co-operation
- The ICACU receives the request
- The ICACU requests translation of necessary documents
- The request is sent by the ICACU to the other country
- The other country makes inquiries.
- Arrangements are made to translate documents
- The ICACU responds to the local authority or makes requests for further information
- the ICACU sends the response to the local authority

Translation can be a big problem – the ICACU has a limited budget. It will translate the initial request but you will have to decide at your end who is preparing and paying for translation of any supporting documents. If you are able to arrange for translation of your initial request, that can help speed things up.

Central Authority contact details

Scotland and Northern Ireland have different legal systems from England and Wales and the law in Scotland and Northern Ireland also differs in some respects. England and Wales, Scotland, and Northern Ireland each have their own Central Authority for the Regulation. Wales has its own Central Authority for the 1996 Hague Convention.

Central Authority for England (for the 1996 Hague Convention) The International Child Abduction and Contact Unit The Official Solicitor & Public Trustee Office Post Point 0.53 102 Petty France London SW1H 9AJ DX: Post Point 0.53 Official Solicitor & Public Trustee DX 152384 Westminster 8 tel: +44 (0)20 3681 2756 www.gov.uk e-mail for new requests and general enquiries only: [email protected]	*The International Child Abduction and Contact Unit (ICACU) is open Monday to Friday.* *In an emergency outside these hours you should contact the Reunite International Child Abduction Centre on tel 0116 2556 234.* *Please note that the office of the ICACU is not open to the public.* Emails received after 2.00pm will not be considered until the next working day except in cases of extreme urgency (please indicate in the subject heading whether flight risk / abduction in transit / imminent risk of harm)
Central Authority for Northern Ireland Central Business Unit Northern Ireland Courts & Tribunals Service 3rd Floor Laganside House 23-27 Oxford Street BELFAST BT1 3LA Northern Ireland United Kingdom tel: +44 (0)28 9072 8808 fax: +44 (0)28 9072 8945 Internet: http://www.courtsni.gov.uk/ email: [email protected] is used for applications under 1980 & 1996 Hague conventions along with Brussels II requests
Central Authority for Scotland Scottish Government Central Authority and International Law Branch GW15 St. Andrew’s House EDINBURGH EH1 3DG Scotland United Kingdom tel: +44 (0)131 244 4827 fax: +44 (0)131 244 4848 e-mail: [email protected]
Central Authority for Wales Welsh Government Social Services and Integration Cathays Park CARDIFF CF10 3NQ United Kingdom tel.: +44 (29) 2082 1518 fax: +44 (29) 2082 3142 email: [email protected]	*The Welsh Government is the Central Authority for Wales for the 1996 Hague Convention only.*

Other useful resources

The Foreign Process Section Room E16 Royal Courts of Justice Strand London WC2A 2LL United Kingdom tel.: +44 (0)20 7947 6691 +44 (0)20 7947 7786 +44 (0)20 7947 6488 +44 (0)20 7947 6327 +44 (0)20 7947 1741 fax: +44 870 324 0025 email: [email protected]	*The Senior Master is the transmitting agency under Article 3 of the 1965 Hague Convention and the central authority under Article 2 of the 1970 Hague Convention.* *The Foreign Process Section is the administrative unit which supports the Senior Master.*
The Hague Conference on Private International Law Permanent Bureau Hague Conference on Private International Law Churchillplein 6b 2517 JW THE HAGUE The Netherlands Fax: +31 (0)70 360 4867 www.hcch.net	*The Hague Conference does not provide legal advice but their website has copies of all the Conventions, Explanatory Reports, a status table for each Convention and other useful documents.*

[1]https://www.hcch.net: At Homepage scroll down to Sitemap, at Sitemap use the dropdown menu for ‘Instruments’ and go to ‘Conventions, Protocols and Principles’ for an interactive list of all the Conventions.

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 29^th 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

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
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
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.