Derbyshire County Council v Mother and Ors
[2022] EWHC 3405
This judgment, which was delivered by Mrs Justice Lieven in the course of care proceedings concerning two children, is a further instalment in what is developing into a controversy in relation to the proper interpretation and application of the jurisdictional scheme that applies under the 1996 Hague Convention. The particular issue which is addressed by Mrs Justice Lieven relates to the relevant date for the purposes of determining jurisdiction. By way of summary, the issue has developed as follows:
Under the Family Law Act 1986 (S3 read together with S7(c)), the common law in relation to jurisdiction in public law care proceedings (see the judgment of MacDonald J in London Borough of Hackney v P & Ors [2022] EWHC 1981 (Fam) at para. 59 and Council Regulation (EC) No. 2201/2003 (BIIa), any issue as to the jurisdiction of the court to make orders is determined by reference to the date when the court was seised of proceedings;
Both the FLA1986 and BIIa operate on the basis of a principle known as ‘perpetuatio fori’. In G v K [2021] EWHC 3240 (Fam), Mr Justice MacDonald described the operation of that principle as follows (at para 39): “BIIa operates the principle of perpetuatio fori and that, as such, the jurisdiction of the court continues during the currency of the lis notwithstanding a change of habitual residence.”
Article 5(2) of the 1996 Hague Convention suggests that a different approach applies under that instrument. Article 5(2) provides that: “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”
In Re NH (1996 Child Protection Convention: Habitual Residence) [2015] EWHC 2299 (Fam), in what were obiter comments, Mr Justice Cobb held as follows:
“Although like BIIa, the 1996 Child Protection Convention founds primary jurisdiction on the country of the child's habitual residence, unlike BIIa, the 1996 Child Protection Convention does not specify the time at which habitual residence is to be determined; in BIIa it is specifically said to be 'at the time the court is seised', words which are absent from the equivalent provision of the 1996 Convention. [Counsel for the local authority and for the child] presented their respective submissions as if the words 'at the time the court is seised' were imported into article 5. It is not on the facts material for a determination of the issues in this case for me to identify specifically the date at which habitual residence is to be assessed; whether the evidence were to be evaluated as at 12 May 2015 (the date on which the proceedings were issued) or 21 July 2015 (the date of the hearing), the test would be unlikely to produce a different result. But as the principle of perpetuatio fori does not apply under the 1996 Child Protection Convention as it does under BIIa (see in this context article 13 of the 1996 Child Protection Convention) it seems to me that the phrase should be applied as at the date of the hearing (see generally, paras 38–43 of the Explanatory Report of Paul Lagarde, 1997)”
In Warrington Borough Council v W (Care Proceedings: Jurisdiction) [2021] EWFC 68, and in reliance upon the decision of Cobb J in Re NH, MacDonald J held as follows:
“41. Whilst I am satisfied that the foregoing general legal principles will apply to the assessment of the question of habitual residence under the 1996 Hague Convention, the question of when the foregoing provisions fall to be applied for the purposes of the 1996 Convention requires some further illumination. Under Art 8 of Brussels IIa, the question of habitual residence fell to be decided at the point at which the court is seised. However, Art 5 of the 1996 Convention does not specify the point at which habitual residence falls to be determined for the purposes of establishing jurisdiction. In Re NH (1996 Child Protection Convention: Habitual Residence) [2016] 1 FCR 16 Cobb J at [24] expressed the obiter view that…
(quote from Cobb J removed as set out in full above)
42. As Mr Spencer further submits, the provisions regarding the effect on jurisdiction of a change of residence during the course of proceedings pursuant to Art 5(2) of the 1996 Convention, namely that the principle of perpetuatio fori does not form part of the Convention and thus a change of habitual residence during proceedings leads to a change of jurisdiction, tends also to support the proposition that the question of habitual residence falls to be determined at the point the Contracting State in question is tasked with answering that question. Within this context, I am inclined to share the obiter view expressed by Cobb J in Re NH (1996 Child Protection Convention: Habitual Residence) that the question of habitual residence for the purposes of Arts 5 and 6 of the 1996 Hague Convention falls to be decided as at the date on which that question comes before the court for determination, in this case at this hearing. The corollary of this conclusion is, of course, that it will be important that the question of habitual residence in cases engaging the 1996 Hague Convention is determined without delay, in order to avoid the question of habitual residence being determined simply by mere effluxion of time over the course of protracted proceedings.”
The most detailed consideration of the issue of what is the relevant date for determination of jurisdiction in a 1996 HC came in MacDonald J’s decision in London Borough of Hackney v P & Ors [2022] EWHC 1981 (Fam). Having set out: the terms of the Explanatory Report of Professor Lagarde at paragraphs 42 and 84; b) the decision of Cobb J in Re NH; and c) his own decision in Warrington BC v W, MacDonald J set out his conclusions on the relevant date at para 106 onwards:
“106. Finally, I turn to the question of the date on which habitual residence will fall to be assessed in respect of H under Art 5 of the 1996 Hague Convention. I am satisfied that that date is the date of the hearing. My reasons for so deciding are as follows.
107. Where a Convention is silent on a particular point, in this instance the date on which habitual residence falls to be determined for the purposes of Art 5 of the 1996 Convention, the Convention falls to be construed in accordance with the ordinary meaning to be given to its terms in context and having regard to the object and purpose of the Convention (see the Vienna Convention on the Law of Treaties 1936 Art 31). Within this context, two matters fall to be noted at the outset. First, the purpose of the connecting factor of habitual residence in Art 5 of the 1996 Hague Convention, which article determines which Contracting State has substantive jurisdiction to pursue the objects and purpose of the Convention, is to ensure that the jurisdiction with the closest factual connection to the child's family and social life, and the jurisdiction thereby best placed to take substantive decisions regarding the welfare of that child, is the jurisdiction that takes decisions concerning the child's welfare. Second, the Convention contains no principle of perpetuatio fori, by which a Contracting State seised of proceedings in respect of a child habitually resident in that Contracting State will retain jurisdiction for the duration of those proceedings, even if the child loses habitual residence there and becomes habitually resident in another Contracting State.
108. Within this context, the Explanatory Report makes clear that, in circumstances where the Convention forms a complete and closed system as between Contracting States when it has been determined that the child has his or her habitual residence on the territory of one of them, if habitual residence changes from one Contracting State to another Contracting State, the latter Contracting State will gain jurisdiction immediately on that event occurring for the purposes of Art 5(2) of the 1996 Convention. The consequence of this position is that a Contracting State cannot proceed on the basis that, once it is seised of proceedings on the date of issue (or such other relevant date), it will retain jurisdiction under Art 5(1) of the 1996 Convention until the conclusion of those proceedings. Further, and in these circumstances, in the absence of the principle of perpetuatio fori, it will be the factual situation during the course of proceedings, and whether that situation continues to amount to habitual residence as a matter of fact, that determines whether substantive jurisdiction subsists under Art 5(1). In the absence of the principle of perpetuatio fori, it is further axiomatic that habitual residence will fall to be assessed at the current hearing, and not by looking back to an earlier hearing in the proceedings. Indeed, the logical consequence of the foregoing position is that the question of habitual residence will fall to be confirmed at each hearing, albeit that that exercise is unlikely to be an onerous one in the vast majority of cases. Within this context, where the proceedings reach a final hearing the question of whether the court has substantive jurisdiction pursuant to Art 5(1) of the 1996 Convention will still be a potentially live one. This is a fundamental change from the position that pertained under Art 8 of Brussels IIa prior to the departure of the United Kingdom from the European Union.
109. Within this context, and whilst the 1996 Convention is silent on the point, I am satisfied that reading Art 5(1) in its proper context, which includes the absence of the principle of perpetuatio fori, and having regard to the objects and purpose of the Convention, which seeks to ensure that it is always the jurisdiction with the closest factual connection to the child's family and social life that takes decisions concerning the child's welfare, the relevant date on which H's habitual residence falls to be determined in these proceedings for the purposes of Art 5(1) of the 1996 Convention will be the date of the hearing and not the date the court was first seised of the proceedings on 18 August 2021.”
In H v R & Anor [2022] EWHC 1073 (Fam), Peel J considered a jurisdictional issue in relation to two children who had moved from England to Libya. The father said that was an agreed move, the mother said the father had removed the children to Libya without her knowledge or consent. The move happened in August 2020. Shortly thereafter, the mother reported the alleged abduction of the children to the police. On 2 June 2021, she applied in wardship for the return of the children to England. The father challenged the jurisdiction of the English court. One of the issues that was engaged was the relevant date, and particularly whether it was necessary to determine the habitual residence of the children: i) as of the date of commencement of proceedings in June 2021; or ii) as of the date of the hearing in April 2022 (see para. 34). In that regard, the Judge:
Observed that the 1996 HC was not in like terms to Brussels IIa, which undoubtedly required determination of jurisdiction as of the date on which the court was seised;
Noted that, on a plain reading of para 42 of the Explanatory Report, “…a change of habtiual residence during proceedings leads to a change of jurisdiction from the outgoing Contracting State to the receiving Contracting State. The principle of perpetuatio fori is excluded. On the face of it, therefore, the court looks at habitual residence as at the date of trial (in this case April 2022) for if, by then, habitual residence lies in the recipient Contracting State, jurisdiction will also have moved to the recipient Contracting State”
Expressed what he described as “misgivings abotu the state of the law if this is indeed the case” as it gave rise to “…the opportunity for unscrupulous abductors to take advantage of delay, or indeed to manufacture delay, so as to engineer a change of habitual residence” (at para. 38).
In the end, concerns such as those expressed at para. 38 were not relevant to the case before Peel J, which was resolved on the basis of national law as by the date of trial, the children had become habitually resident in Libya with the consequence that the 1996 HC no longer applied (see paras. 38 and 45 - 49).
Derbyshire CC v Mother - Background
The children concerned were aged 8 and 3 1/2 . On 9 July 2022, B (the youngest child) was taken to hospital by her parents having sustained a penetrating stab wound to her back caused by a kitchen knife. She underwent urgent surgery and was reported by Lieven J to have made a good recovery. The parents were arrested and interviewed. Neither was able to give a comprehensive account of B’s injury. They described it as an accident, but could not say how it had occurred. The children were placed in the care of their maternal grandparents.
In relation to the proceedings, on 22 September 2022 ICO’s were made in relation to both children. The parents challenged the jurisdiction of the court to make orders in relation to the children, asserting that they were habitually resident in Spain. That issue was listed before HHJ Williscroft on 18 October 2022. She determined that the children were habitually resident in Spain and made directions for a case summary to be transmitted to the Spanish Courts. The ICO’s were continued on the basis of Art 11 of the 1996 HC.
On 26 October 2022, HHJ Williscroft indicated that the issue of jurisdiction was to be further considered, because the parties had not drawn her attention to the decision of MacDonald J in LB Hackney v P. The Judge had determined habitual residence as of the date of commencement of the proceedings, rather than the date of the jurisdiction hearing. That hearing was listed before Lieven J.
Lieven J’s approach to the relevant date
At paras. 10, 11 and 13, the Judge describes the controversy and gives her determination as follows:
“10. The first issue is therefore under Article 5 and the question of where the children are habitually resident at the relevant date.
11. However, the date on which to determine habitual residence has become a matter of some legal controversy. In London Borough of Hackney v P [2022] EWHC 1981 (Fam), MacDonald J held at [106] that the relevant date on which habitual residence will fall to be assessed under Article 5 of the Hague Convention is the date of the hearing. In H v R [2022] EWHC 1981 Peel J had found that the relevant date was the date the court was seised, albeit that was in a case where the second country was a non-Hague signatory state (Libya). For the reasons that I set out below, I have reached the conclusion that the relevant date is the date the court is seised, even though Spain is a signatory to the Hague Convention. The issue turns on the interpretation of Article 5 of the Hague Convention.
12. …
13. The essential argument is that under Brussels IIa Article 8, express provision was made that the relevant date for determining jurisdiction was "at the time the court is seised". In contrast, Article 5(1) does not specify the date on which the question is to be determined. The issue is how that date is to be determined in the absence of express words in the Hague Convention. MacDonald J in reaching his conclusion places very great weight on the Explanatory Report to the Hague Convention, which I will refer to below.”
Having quoted the passages of the Explanatory Report that were relied upon by MacDonald J in Hackney and by Peel J in H v R, she deals with them as follows:
“16. With the greatest of respect, I find these passages rather opaque. What seems to be drawn from them is that the Commission did not agree that the principle of perpetuatio fori applies to this Convention. That was the view of Peel J in H v R at [37]. However, the Explanatory Report does not make clear how habitual residence in Article 5 is to be determined. Importantly in my view, the Report is not "an agreement" between the parties regarding the interpretation or application of the treaty within the terms of Article 31 of the Vienna Convention.”
At para. 18, Lieven J states that she (as MacDonald J states that he did) will approach the matter in accordance with Art 31(1) of the Vienna Convention, which provides “…that a treaty shall be interpreted in accordance with the ordinary meaning of the terms within it, and in the light of its object and purposes”. She goes on to hold that “The question of whether jurisdiction is determined at the outset of proceedings, or is a floating issue throughout the proceedings, is simply not dealt with” (para. 19). She considered that having to revisit jurisdiction at every hearing “…creates very significant practical difficulties and may be serious detrimental to the interests of the child”. Including because it “…creates a strong incentive in abduction cases, and potentially other cases, for one party to delay proceedings in order to move the child’s place of habitual residence, and therefore the jurisdiction of the Court, to the new country” (para 21). Further, she considered (at para 24) that “…delay is endemic in the system. An interpretation of the Hague Convention that leaves the Court's jurisdiction at the mercy of such delay, whether being deliberately encouraged by a party or not, is an interpretation which does not advance the protection of the child. The jurisdiction of the Court becomes inherently uncertain, and therefore the way the child's future is to be decided itself becomes potentially unclear. An example of this is a case that has proceeded on the basis of habitual residence being in the first country, but then when it comes to the final hearing a finding that habitual residence has shifted, meaning that welfare decisions are now to be made in the second country. It is also potentially wasteful of judicial and administrative resources because the procedures for transfer and liaison under the Hague Convention will be rendered pointless because by the final hearing the child has become habitually resident in England. Therefore, allowing habitual residence to shift in this way creates uncertainty with the process that cannot be beneficial to the welfare of the child.”
In relation to the Explanatory Report, Lieven J held that “…the Explanatory Report is not listed in Article 31(2) as part of the “context” of a Convention and is not itself an agreement or practice within Article 31(3)…”, as a consequence of which it was not relevant (certainly not binding) when considering the issue of the relevant date.
Analysis
As a consequence of Lieven J’s judgment, there is now a conflict of first instance authority on the issue of the relevant date for determination of jurisdiction pursuant to the 1996 HC. It will be necessary for this conflict to be resolved so as to remove any uncertainty in this regard. Perhaps the Local Authority in this particular case will appeal? The situation at the moment is unsatisfactory.
In relation to Lieven J’s analysis, it is right that the Explanatory Report is not a document (or type of document) that is specifically listed as being applicable when determining the meaning of a treaty under the Vienna Convention. It is, however, long established (particularly in relation to the 1980 Hague Convention, which has its own Explanatory Report prepared by Professor Perez-Vera) that what are described as the travaux preparatoires to an international Convention of this type can legitimately be used as an aid to its construction - see, by way of example, K (A child) (Northern Ireland) [2014] UKSC 29 at paras. 22, 37 etc., H.I v M.G (Child Abduction: Wrongful Removal [2000] 1 I.R 110, a decision of the Irish Supreme Court.
Further, it does not seem (at least within the judgment) that Lieven J has engaged with Art 5(2). It is convenient to recite it here, though it is already quoted above:
“Article 5
(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.”
Read together with the relevant paragraphs of the Explanatory Report, Art 5(2) may be said to provide strong support for MacDonald J’s conclusion, and to undermine Lieven J’s conclusion as to the relevant date for the purposes of determination of jurisdiction. At the least, it requires examination. Read together with Art 7, it removes or at the least considerably ameliorates concerns raised by both Lieven J and Peel J in relation to abduction, because if there has been an abduction jurisdiction will not be lost following a change of habitual residence, it will be retained in accordance with Art 7. If there has been an international move that was not an abduction, it is difficult to understand on what basis a loss of jurisdiction because of a change of habitual residence could possibly be objectionable.
In relation to delay - it is possible to argue that, because the 1996 HC is based upon a qualified or partial principle of mutual trust, there is nothing to fear in jurisdiction shifting as a consequence of a change of habitual residence during the course of proceedings. Where that happens, the proceedings that are in train can be transferred to the courts of the Contracting State that now has jurisdiction. The courts that acquire jurisdiction could transfer them back to the originating court pursuant to Art 8 1996 HC. The originating court may request that it be permitted to continue exercise jurisdiction in accordance with Art 9.
As said above, this is an issue requiring of a resolution. It is probably that only an appeal will provide that resolution. The approach that the Explanatory Report suggests the 1996 HC requires is, of course, very different to that which previously applied in England, and so it is understandable that a wholesale shift of this type may cause disquiet. That is no doubt why, as the Report explains, the English delegation proposed (alongside a number of other countries) that the 1996 HC should operate on the basis of perpetuatio fori. As we know, however, that proposal was rejected. Art 5(2) was included. It is no doubt possible to find interpretations of the Convention that allow a continuation of previous practice, but there is plainly some difficulty in reconciling any such approach with Art 5(2) when read together with the Explanatory Report. All that we have sought to do within this analysis is to highlight that the concerns that justify a different interpretation may not, in fact, be so serious when the terms of the Convention as a whole are taken into account.
