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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.

Children’s wishes and feelings about their habitual residence.

This is a post by Sarah Phillimore

What happens if a local authority wants to make an application for a care order regarding a child who comes from another country? The Courts of England and Wales only have jurisdiction to make care orders if children are ‘habitually resident’ in the UK – mere physical presence is not enough. Although the Supreme Court have repeatedly said this is a ‘simple matter of fact’ it is clear that in practice it is not always easy to establish a child’s habitual residence.

I have no idea what the impact of Brexit will be on any of this; watch this space. – EDIT post Brexit we will rely on the Hague Convention 1996.

What power does the court have to make orders about children who come from another country?

Jurisdiction derives from habitual residence.

The following basic principles can be derived from these authorities Re F (A Child) [2014] EWCA Civ 789; Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] FLR:

the jurisdictional reach of the courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision.
Jurisdiction was normally determined by the habitual residence or physical presence of the child.
However, this was fundamentally modified by the Regulation Brussels II revised (BIIR) which applies to determine the jurisdiction of the English court in care proceedings, irrespective of whether the other country is a Member State of the European Union: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 3 WLR 1597, para 18..
The basic principle, set out in Article 8(1) of BIIR is that jurisdiction is founded on habitual residence. It follows that the courts do not have jurisdiction to make a care order simply because a child is physically present.
The court must deal with this matter at the outset. The court should set out explicitly the basis upon which it has accepted or rejected jurisdiction. A declaration with regard to habitual residence cannot be made by default, concession or agreement but only if the court is satisfied by evidence.
If it is necessary to address the issue before there is time for proper investigation and determination, the following suggested recital should be used: “Upon it provisionally appearing that the child is habitually resident…”.

Habitual residence is a ‘matter of fact’.

The Supreme Court have repeatedly declared that ‘habitual residence’ is no more than a ‘simple fact’ which should be determined without any gloss. That arguably optimistic declaration has to be set against the number of times in fairly recent history that cases involving habitual residence have come before the Supreme Court – suggesting that determination of this ‘simple fact’ is a far from simple exercise and reflects the greater mobility of people in recent times and the wide variety of circumstances which impact on families, their composition and their location.

The basic proposition is that habitual residence is established by the degree of integration by the child is a ‘social and family environment’. See A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] ‘

habitual residence can in principle be lost and another habitual residence acquired on the same day.
habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
the test adopted by the European Court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question. This is the preferred test.
Factors to take into account when assessing integration are
i. The duration, regularity, conditions and reasons for being in the country
ii. The child’s nationality
iii. The place and conditions of attendance at school
iv. Linguistic knowledge
v. Family and social relationships in the country
The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
it is possible that a child may have no country of habitual residence at a particular point in time.
For those children who have no habitual residence, Article 13 of Brussels II provides that where a child’s habitual residence cannot be established and jurisdiction cannot be determined under Article 12, the courts of the Member State where the child is present have jurisdiction.

Habitual residence requires physical presence.

Physical presence is a clear necessary precursor to a finding of habitual residence. In In the Matter of A (Children) (AP) [2013] UKSC 60 the Supreme Court by a majority agreed that a new born baby could not claim habitual residence in the UK even though it was his mother’s place of habitual residence and she had been coerced into leaving the country to give birth. However the Supreme Court agreed it was possible in such extreme circumstances to order the child’s return to the UK using the inherent jurisdiction. See also W v X Case C‐499/15, [2017] Fam 305, [2017] 2 FCR 389.

The Court of Justice of the European Union (CJEU) ruled in 2017 that Article 11(1) of the Brussels II bis Regulation:

must be interpreted as meaning that, in a situation in which a child was born and has been continuously residing with his or her mother for several months in accordance with the joint agreement of the parents in a Greece, while in Italy they had their habitual residence before birth, the initial intention of the parents as to the return of the mother accompanied by the child in Italy cannot allow the child to be regarded as having his or her habitual residence in Italy. The CJEU concludes that in such a situation the refusal of the mother to return to Italy accompanied by the child cannot be regarded as an ‘unlawful displacement or non-return’ within the meaning of Article 11(1).

This case seems to resolve the dilemma, dividing national courts, as to whether the physical presence of the child in the territory of a state is a necessary precondition for establishing the child’s habitual residence

Children only recently present or intermittently present in the jurisdiction

These situations require closer examination in light of the requirement of integration into a social or family environment as necessary to establish the ‘fact’ of habitual residence. It is clear that the position of young and dependent children cannot easily be seen in isolation from the position of their primary carer. See A v A (Children: Habitual Residence) [2013] UKSC 60: “The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent.”

However this does not mean that the perceptions of older children about where they habitually reside are irrelevant. See Re: LC (Reunite: International Child Abduction Centre intervening) [2014] UKSC 1.[43] Lord Wilson: It will be clear from my formulation of the question in para 1 above that in my view it is, in principle, the state of mind of adolescent children during their residence in a place that may affect whether it was habitual.

However, judicial dicta from other authorities does not support ‘state of mind’ as determinative.

See Re R (A Child) [2015] EWCA Civ 674 where the Court of Appeal considered the circumstances of a 4 year old girl S. She was born in 2010 in Morocco to an American mother, who had lived in England since the age of 13, and a Moroccan father. Shortly, after her birth, the mother travelled to England and fraudulently registered the birth in Kent. Thereafter, she travelled to and from various locations before returning to the UK in March 2013. In October 2013 S suffered serious injuries and was placed in foster care. The local authority did not commence care proceedings until April 2014.

Given by the time protective measures had been taken S and her mother had been living in the UK for over a year, there seems little doubt as a matter of fact that S was habitually resident ‘at the relevant time’ i.e. the making of the care order application but it was argued on behalf of the father that S’s life had been so unhappy with a neglectful mother, that it could not be said she was ‘integrated’ into a social environment and therefore her habitual residence was in fact Morocco.

Mr Justice Hayden decided that the court had jurisdiction to make a care order with respect to S on the basis that S’s habitual residence was, and had been throughout her life, the United Kingdom. The father’s appeal was dismissed. The CoA were critical of the judge’s finding that S had been ‘habitually resident in the UK all her life’ as all that was needed was a finding that S had habitual residence at the relevant time. However, his decision was not ‘perverse’ given the complexities of this case, including the dishonesty of the parents and the mother’s ‘frequent and erratic’ changes of location.

Mr Justice Hayden at first instance said this about integration

‘Integration’ as a concept involves a fusion of both the factual and the emotional, it is where a child feels settled, secure, happy and where the focus of his interests and attachments lie. It is not merely geographical, identifying habitual residence requires much greater nuance than that, drawing inferences from facts, the parents’ conduct, the feelings a child communicates and what the child may say. Lord Wilson encapsulated the point in Re LC (supra) at para 37 emphasising that integration encompasses more than the ‘surface features’ of a child’s life.”

This did not entirely meet with the approval of the Court of Appeal: McFarlane LJ commented:

“When determining habitual residence there is no requirement that, to be sufficient to support a finding, the individual needs to be happy, well cared for or free from abuse. The ‘social and family environment’ into which a child might be integrated may include both positive and negative factors. These will not be irrelevant.”

Thus it is conceded that it is not possible to claim that any period of time spent in another country during which a child was unhappy must then automatically preclude a finding of habitual residence in that country.

Date to determine habitual residence

See the decision of Moylan LJ in London Borough of Hackney v P & Ors (Jurisdiction : 1996 Hague Child Protection Convention) (Rev1) [2023] EWCA Civ 121, which sets out that in order to provide clarity and certainty, this should initially be determined by reference to the date on which proceedings were commenced.

Law regarding the habitual residence of a baby

The relevant legal framework following the UK’s departure from the European Union is set out in the Hague Convention. The relevant provisions for the purposes of this decision are Articles 5 and 7.

Article 5 provides:

1 The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.

2 Subject to Article 7, in case of a change of the child’s habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.

Article 7 states:

1 In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and

each person, institution or other body having rights of custody has acquiesced in the removal or retention; or

the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

2 The removal or the retention of a child is to be considered wrongful where:

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

3 So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.

There have been a large number of reported decisions on the question of habitual residence. Mr Austin refers to the case of Re B (A Minor) (Habitual Residence) [2016] EWHC 2174, and Miss Phillimore to A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC60.

The relevance of both authorities was confirmed in the more recent Court of Appeal decision of Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659 where it was said

Habitual Residence

I have referred above to what Hayden J said in Re B, at [17(i)] and [17(x)]. The former derives from what was said in A v A which, in turn, derived from what was said by the CJEU in Proceedings brought by A [2010] Fam 42, at [44], namely that:

“the concept of “habitual residence” under article 8(1) of the Regulation must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment.”

It is also right to note that Lady Hale referred to this in A v A, at [54(iii)], as being the “test adopted by the European Court”.

It is clear, however, not only from Proceedings brought by A itself but also from many other authorities, that this is a shorthand summary of the approach which the court should take and that “some degree of integration” is not itself determinative of the question of habitual residence. Habitual residence is an issue of fact which requires consideration of all relevant factors. There is an open-ended, not a closed, list of potentially relevant factors.

In Proceedings brought by A, the CJEU had earlier dealt with the issue at greater length, as follows:

“[37] The “habitual residence” of a child, within the meaning of article 8(1) of the Regulation, must be established on the basis of all the circumstances specific to each individual case.

[38] In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.

[39] In particular, the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.

[40] As the Advocate General pointed out in para 44 of her opinion, the parents’ intention to settle permanently with the child in another member state, manifested by certain tangible steps such as the purchase or lease of a residence in the host member state, may constitute an indicator of the transfer of the habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that state.

[41] By contrast, the fact that the children are staying in a member state where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that state.

[42] In the light of the criteria laid down in paras 38-41 of this judgment and according to an overall assessment, it is for the national court to establish the place of the children’s habitual residence.”

The broad nature of the analysis can also be seen from Lady Hale’s later comments (in a minority judgment but reflecting, on this issue, the majority judgment of Lord Wilson) in In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] AC 1038, when she referred, at [59], to whether the residence had “the necessary degree of stability” and when she said, at [60]:

“All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed “habitual”.” (emphasis added)

The same can be seen from what Lord Reed said in Re R:

“[17] As Baroness Hale DPSC observed at para 54 of A v A, habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses on the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The social and family environment of an infant or young child is shared with those (whether parents or others) on whom she is dependent. Hence it is necessary, in such a case, to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.”

I refer to the above, not to put forward any gloss on the meaning of habitual residence, which the Supreme Court cautioned against in In re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 (“Re B 2016”), at [46], but simply to demonstrate that “some degree of integration” is not a substitute for the required global analysis.

I would add that, self-evidently, a test of whether a child had “some degree of integration” in any one country cannot be sufficient when a child might be said to have some degree of integration in more than one State. This is why, as referred to in my judgment in Re G-E (Children) (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] 2 FLR 17 (“Re G-E”), at [59], the “comparative nature of the exercise” requires the court to consider the factors which connect the child to each State where they are alleged to be habitually resident. This is reflected in Mr Tyler’s written submissions when he referred to the relevance of a child’s “degree of connection” with the State in which he/she resided before they arrived in the new State.

In Re G-E, I also quoted the “expectations” set out by Lord Wilson in Re B 2016, at [46], which bear repeating, namely:

“(a) the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;

(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and

(c) were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.”

I have already dealt with the legal approach to habitual residence at some length in this judgment but, finally, I would refer to In re B (A Child) (International Centre for Family Law, Policy and Practice intervening) [2020] 4 WLR 149 when, at [83]-[89], in addition to Re B 2016, I referred to the CJEU’s decision of Proceedings brought by HR (with the participation of KO) (Case C-512/17) [2018] Fam 385 and to Black LJ’s (as she then was) judgment in In re J (A Child) (Finland) (Habitual Residence) [2017] 2 FCR 542 (“Re J”). Black LJ, at [57], referred to “the relevance of the circumstances of a child’s life in the country he has left as well as the circumstances of his life in his new country” and, at [62], she said:

“What is important is that the judge demonstrates sufficiently that he or she has had in mind the factors in the old and new lives of the child, and the family, which might have a bearing on this particular child’s habitual residence.”

51 In J v E (Habitual Residence) [2024] EWHC 196 MacDonald J attempted to distil these principles for the benefit of “the busy judge”:

Each of the decisions summarised above makes clear the importance of the court examining the degree of integration of the child into a social and family environment when determining habitual residence. The judgment of the Court of Appeal in this case simply recognises that although, in circumstances where full integration is not required, some degree of integration can establish habitual residence, it must still be demonstrated to the satisfaction of the court that the degree of integration contended for in the given case is sufficient to reach that conclusion. In short, “some degree of integration” must still be demonstrated to be sufficient integration if it is to establish habitual residence. Determining whether that is the position requires a global analysis of all of the relevant circumstances specific to the individual case.

Where then does this plethora of authority on the concept of habitual residence leave the busy judge who is required to determine the preliminary issue of jurisdiction, without that determination “becoming an unworkable obstacle course, through which the judge must pick his or her way by a prescribed route or risk being said to have made an unsustainable finding?” Reading the foregoing authorities together, it is tolerably clear that the task of determining habitual residence falls to be discharged by the court asking itself whether, having regard to all the relevant circumstances and as a matter of fact, the subject child has achieved a degree of integration in a social and family environment in the country in question sufficient for the child to be habitually resident there. That is the test I have adopted in this case.

The authorities further make clear that in deciding in a given case whether the degree of integration is sufficient to establish habitual residence, i.e. whether the “some” is enough, certain matters may inform the court’s global analysis of the child’s situation in, and connections with, the state in which he or she is said to be habitually resident for the purpose of determining whether a sufficient degree of integration exists. These non-exhaustive considerations, to paraphrase Lord Wilson in Re B (A Child) (Reunite International Child Abduction Centre Intervening), may include the following:

i) The factual inquiry is centred throughout on the circumstances of the child’s life that are most likely to illuminate his or her habitual residence. It is the child’s habitual residence which is in question and the child’s integration which is under consideration.

ii) The meaning of habitual residence is shaped in the light of the best interests of the child, in particular on the criterion of proximity. Proximity in this context means the practical connection between the child and the country concerned.

iii) It is not necessary for a child to be fully integrated in a social and family environment before becoming habitually resident.

iv) The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day. There is no requirement that the child should have been resident in the country in question for a particular period of time.

v) It is the stability of a child’s residence as opposed to its permanence which is relevant. This is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.

vi) Relevant matters can include the duration, regularity and conditions for the stay in the country in question; the reasons for the parents move to and the stay in the jurisdiction in question; the child’s nationality; the place and conditions of attendance at school; the child’s linguistic knowledge; the family and social relationships the child has; whether possessions were brought; whether there is a right of abode; and whether there are durable ties with the country of residence or intended residence.

vii) Where there are competing jurisdictions advanced as the child’s habitual residence, the comparative nature of the exercise requires the court to consider the factors which connect the child to each State where they are alleged to be habitually resident.

viii) Where there are competing jurisdictions advanced as the child’s habitual residence, the circumstances of the child’s life in the country he or she has left as well as the circumstances of his or her life in the new country will be relevant. What is important is that the court demonstrates sufficiently that it has in mind the factors in the old and new lives of the child, and the family, which might have a bearing on the subject child’s habitual residence.

ix) The deeper the child’s integration in the old state, probably the less fast his or her achievement of the requisite degree of integration in the new state. Likewise, the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his or her achievement of that requisite degree.

x) In circumstances where all of the central members of the child’s life in the old state to have moved with him or her, probably the faster his or her achievement of habitual residence. Conversely, where any of the central family members have remained behind and thus represent for the child a continuing link with the old state, probably the less fast his or her achievement of habitual residence.

xi) In circumstances where the social and family environment of an infant or young child is shared with those on whom he or she is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned. In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parents who effected the move.

xii) A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for her. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused.

xiii) Parental intention is relevant to the assessment, but not determinative. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. Parental intent is only one factor, along with all other relevant factors, that must be taken into account when determining the issue of habitual residence. It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent.

Conclusions

All of these discussions, while interesting, serve most usefully in my submissions to reflect the profound difficulties of applying general principles to the probably infinite variety of circumstances in which families find themselves.

I suggest that a pragmatic approach must be taken. The importance of habitual residence is clearly underpinned by asking ‘what jurisdiction is best able to make decisions about a child’s welfare’. And that jurisdiction is usually the one where the child actually lives or has spent the most time. However, the court will need to look beyond this starting point and the wishes and feelings, particularly of older children, may well be relevant.

Keep on Running

“Every family that I am aware of that have fled have kept their kid yet in the UK they wouldn’t have that – to me speaks volumes.”

This is a post from Stella, a mother who has faced many care proceedings. She is now living in France with her baby son. She explains why she is a ‘mum who runs’ and makes some suggestions for what we could do to make the situation better/safe for other mothers and children in the UK. She makes a powerful case for more targeted support for parents – given the massive impact on families when a child is removed for adoption, surely it’s worth thinking about?

They are all running abroad ????……. But WHY???

That really is the million dollar question isn’t it? All are aware the UK child protection system is failing, we the parents know it, you the professionals know, hell even the big fella president Munby admits it.

But why what’s changed in the UK from 10/20 years ago ? Why when parents flee abroad do we sing the local authority praises keep our kids and vow to never return ?

Curious that the UK say we will never be “capable” “safe” “the risks outweigh the benefits “it’s not in the child’s best interests” “not in their time scales” “haven’t got the support required” sound familiar ?

Yet abroad France, for the example I plan to use here, in particular we are given the all clear and stay with our children. Personally the differences I’ve found that stick out in my mind predominantly are the level of support offered freely from everyone here, the level of care, the community compassion and oddly that I am yet to see a single child misbehave.

It’s not a resources and funding issue – its about a way of life

This isn’t a resources and funding issue, France is very much in my view a poorer country than the UK and very much behind in a lot of ways compared to the UK. People still get water out the well, the areas are rural and many buildings in desperate need of upgrades and proper plumbing yet they are very much ahead of the UK in many areas, yet oddly are how the UK child protection services used to be years ago and flourishing from it

It’s mainly a quality over quantity difference from what I’ve seen. Everyone goes the extra mile works together, chips in, there’s no snobbery or segregation most of the shops are second hand shops and most items are bought from boot sales you can pick up some of the most fantastic well made solid wood quality furniture for under the equivalent of £20 (I’m sad yes but I’m a sod for a bargain !) women are helped with their shopping doors are opened everyone is polite and evening meals involve a get together of friends and neighbours eating together, everyone brings a little bit of something – how I remember it being back when I was a kid.

What support is offered to new mothers by the health system?

Health care is another vast difference that immediately jumps out at you when you come here. Maternity care is very, very intense – lots of appointments blood tests, scans, internals, midwifes, nurses, consultants, doctors, anaesthesiologists etc ……. All well and good until you need to translate into French you’re a wimp scared of needles, blood and need the kids numbing Emla cream put on, someone to hold your hand another to hide them doing the bloods and ten minutes to stop the crying panic attack and throwing up. Yep I am THAT wimp and it’s not fun for monthly blood tests.

Following labour, after care is amazingly different to the UK – you stay in on average 4 days which unlike the horror that is a NHS hospital stay it’s like staying at the Hilton no kicking out the door after 6 hours with a healthy dose of mrsa and the flu for good measure here nope ….

You’re given your “room” which consists of a wardrobe, a table, a bed, a chair, a nursing chair, a meal table tray, a set of drawers, a bed side table and an ensuite with your basic vanity mirror sink toilet and shower facilities and also a baby goldfish bowl bed if you want your tiny human in the room with you and don’t want to take advantage of the attached room which is your personal tiny human nursery consisting of cot, baby bathing sink, and changing unit weighing scales, all medical equipment type stuff for newborns etc.

Bedding is changed daily, the rooms are cleaned daily, hairdryers, towels, nappies, underwear sanitary products, toiletries, vitamins, meals, tea, coffee, juice fruit etc is provided several times a day. DO NOT try and use your own products or help strip the bed or tidy up for them – you are there to rest and recover they are VERY strict on that.

You have a call button for your care and a telephone for babies care, they each use their own separate entrance doors to your room so you know whether to hand the tiny human over and breath a sigh of relief it’s not your turn or prepare to be prodded and poked temperature blood pressure and every other thing taken this happens several times a day and don’t for a second think hiding will make you safe. Even the food lady and cleaners are in on this prodding and poking torture treatment there’s something oddly disturbing having to share your toileting n personal hygiene habits with every single person that enters your room. They are VERY big on noting everything for baby and you but primarily if baby is gaining weight well they descend on you with a vengeance.

During your 4 day stay whether you are a first time mum or in my case on your 6th tiny human, you are shown how to do everything – change a nappy, give vitamins, clean eyes, nose, ears, cord, dress them, bath them, feed them. They make you watch them the first time round then they note if you can do it next time round. To be discharged you must complete the task to their standard – no skipping ahead and doing it yourself in day one thinking you get out quicker. You are banned from doing anything day one other than resting. Day two you get to do exciting stuff like watch them wash your baby, day three you get allowed to try stuff and baby gets their hearing test and by this 3rd day baby must be registered here for their birth certificate. On the 4th day bloods are done and they see if they will let you home.

You are given your health visitor appointment, introduced to them in the hospital before you can leave and you look back quite disappointed you’ll actually have to cease this being waited on hand and foot never did I think miss anti hospital here would want to stay longer ????

If they don’t think you’re managing you get referred to assistant social who will offer additional support. They also help with housing money childcare etc and visit you regardless before u leave to see if you want any help you are not punished for refusing this additional support and they leave with a smile and a card to show their door is always open.

What’s the attitude of the French local authorities? Back to basics social work

Which is really what you want to know what are the local authority is like here ….. Fantastic is the answer.

There’s a real air of get it right first time or fix it so it works here from the hospital birth onwards everything is geared towards making the family unit work which is the key difference “if it’s broke fix it don’t replace it” is a running theme from household items to their child protection system and it works.

Another key thing here is future emotional harm isn’t recognised your children only get taken if there has been actual harm such as sexual or physical. With neglect they tend to support rather than remove, such as help with housing food household items cleaners mother and baby units etc unless it’s alcohol or drugs in which case numerous drink and drug blood and urine tests are done to ensure your clean and capable but again rehabilitation is the aim all round here.

It’s primarily back to basics social work where social workers actually work with the community without fear of criticism or reprisal. None of the finger pointing and blame culture the uk now has against social workers who try to give families a chance resulting in social workers unwilling to take a risk and families not seeing the point in working with them as the decision is already made therefore the court system being fit to burst and the whole system being in tatters from start to finish.

Is the UK spending its money in the wrong places?

This isn’t a case of France having more funding and resources it’s more of money being well spent in the right places like their road tax only gets spent on repairing roads and ta Dar …. They’ve got the best roads I’ve ever seen !

Just think how much the UK spends on foster carers residential units, cp meetings, court costs contact workers, venue costs, shrink and psych assessments, therapy, counselling, parenting courses, mother and baby units etc etc for a single family …..

Then think of stopping all of that putting the money in a pot so that some of that money can go towards:

a basic child care course covering safe and practical care including bathing feeding dressing cleaning caring parenting playing and teaching a child that course could have maybe THIRTY parents on it in a big enough venue: Or
Cooking classes for another group of parents: Or
A playgroup day care day for a group of 30 kids so that their parents can have time to clean their house: Or
Cleaners for a parent that struggles to motivate to tidy: Or
To pay a wage to someone to ring the parents every morning to wake them up for school runs if they struggle with mornings or pop round and help them prepare the kids for school if they struggle managing them in a rush.

The possibilities are endless and after all that’s simply what some families need that bit of support, it clearly works because it’s worked and is still working here and used to work for the UK when it used to be like that there to. Every family that I am aware of that have fled have kept their kid yet in the UK they wouldn’t have that – to me speaks volumes

Yes it won’t work for every family but for the professionals here, think back how many cases you’ve thought if the family got this and that it could work but I darent mention that because if it goes wrong it’s on my head so didn’t dare say it. Or how many times you’ve seen the same families come through your door time and time again nothing changing because the support simply isn’t there to help them…

Where one might argue you are providing a better future for the child by removing are you really though – and what about the family as a whole, what about mums, dads, siblings, uncles cousins, aunts, grandparents etc. Having a kid removed rips the entire family apart there’s no heads nor tails about it it does. Then from that you lose the family bond and support network not to mention the mental scars and trauma left on all involved.

When surely if the current system clearly isn’t working admitted by all from top to bottom then it’s worth a try doing it the way that worked and is working ….. Surely ? ?

The woeful state of our debate Part IV – Cascading the judgment in Re N

This is a post by Sarah Phillimore

On November 2nd, ironically as I attended a workshop on cross-border child protection issues, I received an email with the judgment in the case of Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112. This was a judgment from a hearing heard at the end of March 2015 but only now did it ‘cascade’ throughout our legal ranks.

The judgment covers a wide range of already familiar territory on matters of jurisdiction in care proceedings involving children from other countries. When the case was emailed I wondered if it was merely coincidence that this wider ‘cascading’ occurred just before the European Parliament Petitions Committee were to conduct their ‘fact- finding’ mission in London:

The Committee on Petitions is organising a Fact-finding visit to London on 5 – 6 November 2015. The aim of the visit is to meet authorities, practitioners (lawyers, social workers) and other stakeholders to exchange views on the petitions related to interventions by the UK authorities on issues of parental responsibility and allegedly abusive decisions on adoption as well as the placing of children in foster care without the consent of biological parents.

When I read Re N I saw that it was unlikely to be coincidence; this judgment appears to be a deliberate attempt to explain the practices and procedures of our court and I assume was thus ‘cascaded’ at this time for the benefit of the Petitions Committee. As the President comments at paras 4 and 5 of his judgment:

During the hearing of these appeals, the issues have broadened, and we have necessarily had to consider a number of very basic but nonetheless fundamentally important issues to do with the application of our domestic adoption law in cases with a foreign element. This judgment is therefore both wide-ranging and in consequence lengthy, as has been its preparation. This has, most unfortunately, led to even more delays in a case that has already been unduly delayed. I am very sorry.

Since our judgments may be read by those not familiar with our domestic constitutional arrangements, I should explain at the outset that within the United Kingdom of Great Britain and Northern Ireland (what for ease of reference I shall call ‘the United Kingdom’) there are three quite separate legal jurisdictions: England and Wales (which for ease of reference I shall call ‘England’), Scotland and Northern Ireland. We are sitting as judges of the Court of Appeal in England, applying, in addition to the relevant international obligations of the United Kingdom, the domestic law of England.

I am a little taken aback that the parties in this case thus presumably had to wait 7 months for the judgment in this case so that it could also stand as an ‘Introduction to Care Proceedings’ for our European brethren.

I certainly don’t dispute the need for greater clarity about what we do in the family courts and why we do it but why should the vehicle for this educative mission be a judgment in a case involving children? Matters concerning children should be resolved with the least possible delay. If matters really need spelling out for the European Parliament, hasn’t that already been done in the report of Dr Fenton-Glynn?

My unease is compounded by what the President then goes on to say about section 20 accommodation from paragraph 157 onwards. in his eagerness to show that we are putting our house in order with regard to the abuse of this section we now appear to have lost a useful and pragmatic mechanism to take some of the heat out of care proceedings.

It was common practice, when a LA was worried about a child returning to live with parents but the parents would not or could not agree to an interim care order, that the parents would consent to section 20 accommodation but agree that they would not exercise their right to remove their child without giving a period of notice, for example 2 weeks. This was a workable compromise which kept the child safe without pushing the parties into an early adversarial battle about whether or not an ICO should be made.

The President says this at para 169:

This is related to the fourth problem, the seeming reluctance of local authorities to return the child to the parent(s) immediately upon a withdrawal of parental consent. It is important for local authorities to recognise that, as section 20(8) of the 1989 Act provides:

“Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.”

This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.

Because of this judgment, I have already had to have conversations at court about whether or not the LA needed to apply for an ICO given the doubt now cast on the legitimacy of allowing parents to agree to a ‘notice period’ before withdrawing their consent to section 20.

This is potentially a very unhappy position to be in. The President may well be right that the parent cannot lawfully contract out of a statutory provision BUT the signing of such an agreement must surely mitigate against any later accusations that the LA have committed a crime! If the parties to care proceedings are not encouraged to make these kind of sensible and pragmatic ‘holding’ arrangements then what we are inevitably looking at is more contests at an early stage, more pushing parties into adversarial positions, more ‘findings’ being made at shorter hearings. The impact on the court lists will be obvious and severe.

As I keep saying (because it seems very few are listening) we will not solve the problems in our current system by demonising local authorities and those who work there. Is it not possible to point out problems without creating more? Judgements from our courts should not be delayed by many months in order to play to an audience far wider than our own jurisdiction. We are surely entitled to a system that we do not have to keep continually defending.

LATER THIS EVENING EDIT

I understand better the President’s anxiety to make sure his views are heard, when I remind myself who is discussing these issues with the European Committee.

Discussions with the European Parliament Petitions Committee and @lucyallan about #forcedadoptions at the HoCommons pic.twitter.com/SQ4Y45oq1R

— John Hemming (@johnhemming4mp) November 6, 2015

FURTHER EDIT THIS MORNING

John Hemming confirms what he has been saying to the European Parliament. When a debate is predicated on the ‘immorality’ of a system, then hope of a constructive debate is seriously diminshed.

@SVPhillimore @lucyallan Having targets for family destruction cannot be seen as a bland nicety. It has to be seen as a major wrong.

— John Hemming (@johnhemming4mp) November 12, 2015

Recommendations to the institutions of the European Union

Set out below are the recommendations of Dr Claire Fenton-Glynn in her study submitted to the European Parliament in June 2015; ‘Adoption without consent’

The full study is an excellent and clear guide to existing law and practice.

Recommendations to the institutions of the European Union

Co-operation between member states in cross border cases

That a guide to good practice be drawn up by the European Union concerning cooperation between Member States under the “Brussels II a” Regulation, and in particular focusing on:
- Guidance for child protection services in dealing with cross-border cases;
- Providing information on the workings of child protection systems in different Member States;
- Setting out guidance as to the correct test for asking another state to assume jurisdiction under article 15.

That consideration be given to strengthening the provisions of the “Brussels II a” Regulation, including:
- Placing a duty to inform foreign authorities of child protection proceedings before the court be made mandatory, unless the safety or welfare of the child demands otherwise;
- Including a common, autonomous understanding of habitual residence, as defined by the Court of Justice of the European Union;
Strengthening cooperation in cases of placement of a child in another jurisdiction under article 56, including:
- Creating a specific mechanism for a request for transfer to be made under the Convention;
- Setting clear rules for when a transfer should take place, and what factors should be considered.

To encourage greater understanding between Member States

That a greater understanding is encouraged between Member States of the different approaches to child protection. In particular:
- That research be undertaken concerning different forms of public care be used in each jurisdiction, including both short-term and long-term care options;
- That statistics and information be compiled concerning the outcomes for children in different forms of public care in different jurisdictions;
- That statistics be compiled concerning the number of adoptions in each jurisdiction, disaggregated by age, gender, reasons for adoption, ethnic and religious minority status, immigration status and socio-economic background, and whether parental consent had been given;
- That statistics be compiled concerning successful reunifications of the child with their birth family, following a period in state care.

Recommendations to the UK Government

Proper allocation of resources, training and staffing

That adequate financial and human resources be allocated to local authorities to be able to fulfil their duties in relation to child protection, and that such services be protected in times of austerity.
The government must ensure that social services are adequately staffed with qualified personnel who are paid appropriately for their work. That families continue to be provided with assistance where they are experiencing difficulty, in order to prevent, where possible, children being taken into public care. In particular:
- Authorities should ensure that all families are able to practically access offered services, and that language is not a barrier in this respect.That the right of the child to communicate in their own language with their family be recognised, including: that children be permitted to communicate with their parents and family members in their native language; that adequate resources be allocated to ensure that appropriately qualified interpreters are available for the purposes of the social worker.

Improve the outcomes for children in care and promote open adoption

That greater emphasis be placed on improving the outcomes for children in public care, and developing alternatives to adoption for children who cannot return to their families.
Where adoption is necessary, emphasis should be placed on establishing open adoptions, and ensuring post-adoption contact between the child and his or her birth family, unless this is contrary to the child’s best interests.
The complete severance of all legal and social ties between a child and their birth family should only be considered in the most severe and exceptional circumstances, which are not necessarily present in all cases where a child cannot return to their birth family.
That despite the removal of the explicit requirement to consider the child’s cultural and linguistic origins, local authorities continue to give due consideration to the child’s needs and background, and place the child in a compatible placement wherever possible. This factor should be given particular importance where the child has a connection with another jurisdiction.
That disaggregated data be compiled concerning the frequency with which children from other EU member states are taken into public care, and the rate at which they are placed for adoption.

Development of good practice regarding co-operation with foreign authorities

That the good practice set out by the President of the Family Division in relation to cooperation with foreign authorities be included in Practice Directions for the court. In particular, the following should be emphasised:
- That there should be no obstacle imposed on free communication and access between a party who is a foreign national, and the authorities of the relevant foreign state;
- That permission be granted for accredited consular officials to be present at hearings as observers in a non-participatory capacity;
- That permission be granted for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.
- That social workers be given training on the appropriate steps to be taken when working on a case involving a child, parents, or potential carers in another jurisdiction. Such training should include knowledge of the relevant guidance set out by the Department of Education, and involve:
  - Ensuring that when carrying out an assessment of a child, where he or she has links to a foreign country, local authorities consider engaging with social work authorities in the other jurisdiction in order to understand the child’s case history and/or to help them to engage with the family;
  - When a child with links to a foreign country becomes the subject of a child protection plan, has required immediate protection, or is made subject to care proceedings, the social worker should consider informing the relevant foreign authority, unless doing so is likely to place the child or family in danger; and
  - Ensuring that potential carers and care in the foreign jurisdiction are adequately considered.
- That greater knowledge of the provisions of the “Brussels II a” Regulation be promoted amongst legal and child protection professionals, in particular concerning the division of responsibilities under that instrument, including:
  - That requests under the Regulation must be clearly focused on one or more of its provisions and must be distinguished from requests for evidence which must be made under the Evidence Regulation;
  - That the agency given primary responsibility for cooperation and communication under the Regulation is the Central Authority;
  - That Central Authorities, and other foreign State Agencies, are under no obligation, and cannot be placed under any obligation, to comment on or become engaged in proceedings in England;
  - That courts of other Member States are under no obligation to make a request under article 15, the obligation being on the courts of England and Wales;
  - That embassies and consular officials are given no role under this Regulation, and should not be used as proxies for Central Authorities.

Continuing recognition of the importance of transparency

That there continues to be recognition of the importance of transparency in the family justice system, including:
- Ensuring open and public debate in the media;
- Allowing parents to express their views publicly about their experiences, while recognising the need to protect the child’s best interests;
- Providing clear and easily accessible information to parents concerning their rights in this respect, while also highlighting the reasons why the child’s identity cannot, and should not, be revealed.

Care proceedings and children from other European Countries

What happens when a child has a particular connection with another European country but is in care proceedings in England?

Just as we must respect and trust the competence of other member states, so must they respect and trust ours.

EDIT May 2021 – the landscape of these cases will have shifted following Brexit. We need to see how law and policy respond to these changed circumstances and will update. In the interim, treat with caution any assertions about the applicability of European law as this post was mainly written pre Brexit.

Article 8.1 of Council Regulation (EC) No 2201/2003 known as ‘Brussels II revised regulation’ or ‘BIIR’ sets out the primary rule that a child’s case should be heard by a court in the country where that child is ‘habitually resident’ (i.e. the country where the child is integrated into social and family life). BUT under article 15 the courts of the country of habitual residence can transfer the case to another country IF that court would be ‘better placed’ to deal with it and such a transfer is in the best interests of the child.

This is an increasingly important issue for care proceedings in England as free movement of families within the European Union has led to many children living in countries which are not where their parents were born. Sometimes those children come to the attention of Children’s Services because there are concerns about how they are being parented.

BIIR is discussed in more detail below, along with the two important cases of Re E (A Child) [2014] EWHC 6 (Fam) and the Supreme Court decision in Re N [2016] which set out the principles an English court must use to determine if such a case should be heard in England or should rather be transferred to the European country from which the parents’ originate.

The Court of Appeal considered the issues in Re N in 2015. See further our post with regard to the timing and content of that judgment

Brussels II revised – what is this?

Brussels II Regulation (EC) No 2201/2003 is a European Union Regulation setting out what should happen when there is a ‘ conflict of law’ between member states in family law; in particular those issues relating to divorce, child custody and international child abduction. It replaces Convention Council Regulation (EC) No 1347/2000 of 29 May 2000. It is usually referred to by the shorthand ‘BIIR’.

BIIR will be important to consider when the court deals with care proceedings involving people from different European countries who may not wish to accept the jurisdiction of the court of England and Wales.

The court has confirmed that it does NOT apply to adoption or measures preparatory to adoption, see paragraphs 19-23 of the judgment in CB (A Child) [2015] EWCA Civ 888, a long running case involving direct intervention from the Latvian authorities as the LA had not informed them of the care proceedings in 2012, when they should have done.

The intent behind BIIR is that disputes about children should be dealt with in their country of habitual residence wherever possible. See Recital 12:

The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.

So when can the courts in England and Wales have jurisdiction?

The usual approach in the family courts used to be that if a child is habitually resident or even just physically present in England and Wales, the court had jurisdiction to deal with care proceedings about that child. (See Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711, Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham London Borough Council v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449).

However, that has changed fundamentally with the application of BIIR. The courts now hold that this applies even if the other country is NOT a member of the EU.

Article 8(1) of BIIR sets out that the jurisdiction will depend on habitual residence and this must be the starting point of any inquiry into jurisdiction. However, a court can make orders if the child is physically present but his habitual residence cannot be established – see Article 13(1).

Habitual residence – what does this mean?

This will be decided looking at the principles set out in the case of A v A and Another (Children: Habitual Residence) [2013] UKSC 60. See paragraph 54 of the judgment. See also the Supreme court decision in Re B (A Child) [2016] UKSC4.

To be ‘habitually resident’ in a country you will require some degree of integration in that country, such as going to school there. Whether or not a child is ‘habitually resident’ in a particular country is essentially a question of fact:

habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
The test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors.
The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
It is possible that a child may have no country of habitual residence at a particular point in time.

Urgent cases

This is dealt with by Article 20 of the Regulation, which allows a court “in an urgent case” to take “provisional, including protective, measures” until the courts of the Member State with jurisdiction has taken the measures it considers appropriate.

See further Re B (A Child) [2013] EWCA Civ 1434, where the mother’s appeal was allowed against a decision that a court had jurisdiction to make orders with regard to her child who was habitually resident in Sweden. Instead, the Court of Appeal made a declaration under Article 17 of BIIR that the court had no jurisdiction.

Article 15 transfer – Asking another country to get involved.

See paragraph 5 of the Supreme Court judgment in Re N. Even if the court does have jurisdiction under BIIR, article 15 allows it to request the court of another Member State to take over the case, via its Central Authority IF:

the child has a particular connection with that other State – for e.g. the child is a national of another country.
the other court would be better placed to hear the case, and
it is in the best interests of the child – this is the crucial issue which was subject of argument before the Supreme Court in re N and is discussed further below.

The Vienna Convention – what is it?

The Vienna Convention on Consular Relations of 1963 is an international agreement that sets out a framework for consular relations between independent countries. It is clear that prior to 2014, LAs and lawyers were not aware of their obligations under the Convention. Hopefully that situation is now remedied. In care proceedings no court should stand in the way of free communication and access between a party who is a foreign national and the relevant consular authorities of that foreign state. A consul normally operates out of an embassy in another country, and performs two functions:

protecting the interests of their citizens who are in the host country; and
promoting the commercial and economic relations between the two countries.

Article 36 of the Convention is headed “Communication and contact with nationals of the sending State.” It states that:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

Guidance relating to the Vienna Convention in care proceedings

In particular, no injunctive or other order should be made which might interfere with such communication and access, nor should section 12 of the Administration of Justice Act 1960 be permitted to have this effect.

Further, whenever the court is sitting in private it should normally allow any request from either the foreign national or from the relevant consular authorities for an accredited consular official to:

be present at the hearing as an observer in a non-participatory capacity; and/or
to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents.

Whenever a party, whether an adult or the child, who is a foreign national

is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or
is detained

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so without delay.

However the Vienna Convention does NOT impose a duty in all circumstances to inform the foreign state – see the case of Re O in 2021 for an example of a case where it would be directly contrary to the child’s welfare to give information about her to the DRC.

Re E 2014 – Slovakia

Re E involved a 12 year old boy of a Slovakian mother and a British father. E had lived in the UK all his life but had Slovakian citizenship. During the care proceedings, his mother went back to Slovakia.

The Slovakian Central Authority made a request to the English Central Authority seeking information pursuant to Article 55 of Brussels II Revised (BIIR). Article 55 provides that countries co-operate on matters relating to parental responsibility for children. The Central Authorities in Member States must collect and exchange information on the situation of the child, on any procedures under way, and on decisions taken concerning the child. Central Authorities must also help the courts in different countries communicate with one another.

The request referred to the fact that a media campaign had been started in Slovakia and that the case had become “extremely sensitive” and “a focus of attention”. It sought information about the outcome of a forthcoming court hearing.

The court ordered the LA to disclose information to the Slovakian Central Authority and the Head of the Consular Section of the Embassy of the Slovak Republic in London was allowed to be present in court as an observer.

The Central Authority in this case confirmed that it did accept the jurisdiction of the court. However, there have been other cases where the right of the English court to make orders regarding children from other European countries has provoked considerable controversy, particularly as a particular myth has grown up that only three countries in Europe permit ‘forced adoption, being the UK along with Croatia and Portugal. (This is untrue – every European country permits adoption without the parents consent. See further discussion in this post by the Transparency Project). Thus the President set out guidance with regard to the following issues:

Brussels II revised [BIIR]
Articles 36 & 37 of the Vienna Convention on Consular Relations of 24 April 1963.

The President stated at paras 13 and 14 of his judgment:

Leaving on one side altogether the circumstances of this particular case, there is a wider context that cannot be ignored. It is one of frequently voiced complaints that the courts of England and Wales are exorbitant in their exercise of the care jurisdiction over children from other European countries. There are specific complaints that the courts of England and Wales do not pay adequate heed to BIIR and that public authorities do not pay adequate heed to the Vienna Convention.

In the nature of things it is difficult to know to what extent such complaints are justified. What is clear, however, is that the number of care cases involving children from other European countries has risen sharply in recent years and that significant numbers of care cases now involve such children. It is timely therefore to draw the attention of practitioners, and indeed the courts, to certain steps which can, and I suggest from now on should, be taken with a view to ameliorating such concerns.

He made it clear that good practice will from now on require that in any care proceedings with a European dimension, the court must set out clearly in both its judgement and order:

the basis upon which it either accepts or rejects jurisdiction, in accordance with the relevant provisions of BIIR;
If the court decides to exercise or refuse to exercise its powers under Article 15, what are the reasons for this.

The lesson for UK family practitioners – the ‘sins of insularity’.

The President repeated what he had said in an address at the International Hague Network of Judges Conference at Windsor on 17 July 2013:

Over the last few decades interdisciplinarity has become embedded in our whole approach to family law and practice. And international co-operation at every level has become a vital component not merely in the day to day practice of family law but in our thinking about family law and where it should go …

For the jobbing advocate or judge the greatest changes down the years have been driven first by the Hague Convention (now the Hague Conventions) and more recently, in the European context, by the Regulation commonly known as Brussels IIR. They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.

It is so deeply engrained in us that the child’s welfare is paramount, and that we have a personal responsibility for the child, that we sometimes find it hard to accept that we must demit that responsibility to another judge, sitting perhaps in a far away country with a very different legal system. But we must, and we do. International comity, international judicial comity, is not some empty phrase; it is the daily reality of our courts. And be in no doubt: it is immensely to the benefit of children generally that it should be.

Re N [2016] – the real ‘best interests test’.

Interestingly, the Supreme Court took a rather more bullish approach to the issue of respect for other jurisdictions. As Lady Hale commented in para 4 of that judgment:

It goes without saying that the provisions of the Regulation are based upon mutual respect and trust between member states …. this principle goes both ways. Just as we must respect and trust the competence of other member states, so they must respect and trust ours.

The issue which was at the heart of the judgment was what exactly was meant by ‘best interests’ when looking to transfer a case to another country under article 15. The first judge to hear Re N decided that it should be transfered to Hungary as the country where the children’s parents came from. The local authority and the Guardian appealed as they thought it would be better for the children to be adopted by their current foster carers and they had lived in England all their lives. The Court of Appeal decided to uphold the first judge’s decision to order a transfer and thus a further appeal was made to the Supreme Court.

Lady Hale identified the key question at para 28 of her judgment:

What on the true construction of article 15 are the requirements before the English court can make a request to transfer a care case to another member state?

The court was critical of the development in the case law of the ‘attenuated welfare test’ which appeared to have arisen out of considering what ‘best interests’ meant in regard to a different article entirely (article 12.3). Lady Hale commented in para 44

The court is deciding whether to request a transfer of at the case. The question is whether the transfer is in the child’s best interests. This is a different question from what eventual outcome to the case will be in the child’s best interests. The focus of the inquiry is different but it is wrong to call it ‘attenuated’… there is no reason at all to exclude the impact upon the child’s welfare, in the short or longer term, of the transfer itself….

Therefore the Supreme Court were clear that the first Judge was wrong to accept that because he found the Hungarian court was better placed to hear the case, that it necessarily followed it would be in the best interests of the children to transfer it. He should have addressed the short and long term consequences of the transfer. The short term consequences of transfer were:

the children would be removed from where they had lived for most of their lives where they were happy and settled;
they would be transferred to a Hungarian foster placement about which the court knew nothing other than the carer spoke English;
The country, the language and the surroundings would be completely unfamiliar to them.

Also, when considering long term consequences, it was wrong to present the case as involving simply two options – foster care in Hungary or closed adoption in the UK. The Supreme Court noted that there were ‘several other options’ in between.

Will the CJEU (European Court of Justice) decide that article 15 apply to care proceedings where the care plan is for adoption?

This issue is yet to be determined by the CJEU who are currently considering a case referred by the Supreme Court of Ireland. But the Supreme Court took the view they would continue on the basis that article 15 does apply otherwise the considerable delay already incurred in these proceedings would continue. Watch this space.

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

Discussion

What power does the court have to make orders about children who come from another country?

Jurisdiction derives from habitual residence.

Habitual residence is a ‘matter of fact’.

Habitual residence requires physical presence.

Children only recently present or intermittently present in the jurisdiction

Date to determine habitual residence

Law regarding the habitual residence of a baby

Conclusions

They are all running abroad ????……. But WHY???

It’s not a resources and funding issue – its about a way of life

What support is offered to new mothers by the health system?

What’s the attitude of the French local authorities? Back to basics social work

Is the UK spending its money in the wrong places?

When surely if the current system clearly isn’t working admitted by all from top to bottom then it’s worth a try doing it the way that worked and is working ….. Surely ? ?

Recommendations to the institutions of the European Union

Co-operation between member states in cross border cases

To encourage greater understanding between Member States

Recommendations to the UK Government

Proper allocation of resources, training and staffing

Improve the outcomes for children in care and promote open adoption

Development of good practice regarding co-operation with foreign authorities

Continuing recognition of the importance of transparency

What happens when a child has a particular connection with another European country but is in care proceedings in England?

Just as we must respect and trust the competence of other member states, so must they respect and trust ours.

Brussels II revised – what is this?

So when can the courts in England and Wales have jurisdiction?

Habitual residence – what does this mean?

Urgent cases

Article 15 transfer – Asking another country to get involved.

The Vienna Convention – what is it?

Guidance relating to the Vienna Convention in care proceedings

Re E 2014 – Slovakia

The lesson for UK family practitioners – the ‘sins of insularity’.

Re N [2016] – the real ‘best interests test’.

What on the true construction of article 15 are the requirements before the English court can make a request to transfer a care case to another member state?

Will the CJEU (European Court of Justice) decide that article 15 apply to care proceedings where the care plan is for adoption?

Further Reading