London Borough of Hackney v P - the appeal
In a previous post, I analysed the decision of Mr Justice MacDonald in this case (judgment here, our previous post here). The background to the proceedings is set out within that post. The key conclusion of the judgment related to the date upon which, for the purposes of the 1996 Hague Convention, the court was required to determine jurisdiction - whether it was the date of issue of the proceedings, the date of the relevant hearing, or some other time. At first instance, MacDonald J decided that the relevant date was the date of the hearing at which the issue of habitual residence was to be determined. If, on that date, the child was found to be habitually resident in England, there would be jurisdiction pursuant to Article 5 of the Convention. If the child was found to be habitually resident in another, non-Contracting State, the 1996 Hague Convention would not apply and the court could determine jurisdiction with reference to domestic law (whether that be statute or common law).
The paternal grandmother appealed to the Court of Appeal, and the appeal was heard on 25 May 2023. Judgment was then handed down on 19 October 2023. The judgment can be found here.
The grandmother’s grounds of appeal were as follows:
“(i) that the relevant date for determining habitual residence for the purposes of Article 5 is not "the date of the hearing", as determined by the judge, but the date on which the court is first seised or, alternatively, the date of the hearing when the issue of jurisdiction is listed for determination;
(ii) that the judge was wrong to decide that there is a residual domestic jurisdiction based on the presence of a child when he/she is habitually resident in another State which is not a party to the 1996 Convention.”
Lord Justice Moylan described issues engaged on the appeal as follows:
“1. The principal issue raised by this appeal is the date by reference to which the court determines whether it has jurisdiction based on a child's habitual residence, pursuant to the provisions of Article 5 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children ("the 1996 Convention"). Is it the date of the hearing or is it the date on which the proceedings were issued? This question has divided the judges of the Family Division, as outlined further below. A secondary issue is the extent of the court's jurisdiction to make orders under Part IV of the Children Act 1989 ("the CA 1989") if a child is present, but not habitually resident, in England and Wales nor any other Contracting State to the 1996 Convention.”
The parties’ positions
The parties’ submissions on the appeal are summarised within the judgment, beginning at para 24.
As we have previously summarised, in a case published as Derbyshire County Council v Mother and others [2023] Fam 183 (which we analysed here) Lieven J held that the relevant date for determination of jurisdiction was the date on which the court was seised. On the appeal in Hackney, the grandmother invited the court to approve that approach and to reject MacDonald J’s different analysis. It was submitted that proceedings (perhaps particularly though of course not exclusively public law proceedings) required a proper jurisdictional footing at their inception, and should not be issued on the speculative basis that substantive jurisdiction would be acquired during the currency of the proceedings. Particular reference was made to the need for certainty and predictability within litigation concerning children.
The other parties to the proceedings agreed with MacDonald J’s approach.
The IAFL intervened in the appeal. It’s case was that the court should seek to achieve the following:
(a) Clarity in the approach adopted so that lawyers, and no doubt others, can provide clear and consistent advice;
(b) The relationship between the 1996 Convention and national law should bolster, rather than undermine, the range of powers available to a court when seeking to protect a child; and
(c) Any issue as to the court's jurisdiction should be determined without delay.
It’s primary position was that jurisdiction should be determined as of the date when the application were issued. It was submitted there was a distinction between determining jurisdiction as of a particular date, and the consequences of a change of jurisdiction during the currency of proceedings, which is what Art 5(2) of the 1996 Hague Convention is intended to address.
In the alternative (though it is recorded in the judgment that this alternative proposition was advanced “with little enthusiasm” it was submitted that jurisdiction should be determined as of the date of the first hearing listed to decide that issue, and that any such hearing should be listed expeditiously.
Decision
The analysis of the legal framework begins at para. 39. It is interesting in its focus upon the role of the Explanatory Report and the Practical Handbook when interpreting the Convention (see, for example, paras. 49 - 51).
The decision on the appeal is delivered beginning at para 86, as follows:
The Court of Appeal accepted and endorsed the submissions that 1) the 1996 Hague Convention should be interpreted and applied purposively and in a manner which supports the protection of children and their welfare interests; and 2) that as a matter of principle, the issue of whether the court has and the scope of its jurisdiction should be capable of being determined with a sufficient degree of predictability.
The court must determine whether it has jurisdiction and the basis of its jurisdiction at the outset of proceedings. The court cannot simply postpone that decision until a significantly later hearing. If there is any substantive question as to the court’s jurisdiction, directions would need to be given for this to be determined at the earliest possible opportunity.
The court must determine its jurisdiction so that it knows the nature and extent of its powers.
Jurisdiction also needs to be determined expeditiously so as to prevent a party from seeking to delay proceedings or to take advantage of delay in order to procure jurisdictional advantage.
The 1996 Hague Convention applies to public law proceedings, and is the first port of call when considering and determining jurisdiction, including when the rival jurisdiction is not a Contracting State. There are, however, significant differences in the manner in which it applies depending on whether the rival jurisdiction is or is not a Contracting State, including in respect of the issue of jurisdiction.
The court must first decide where the child is habitually resident.
If the child is habitually resident in another Contracting State, that State has substantive jurisdiction under Article 5. In such circumstances, the English court could request the transfer of jurisdiction under Article 9.
If the child is habitually resident in England and Wales, the courts here have substantive jurisdiction. In such circumstances, the English court could make a request under Art 8 that another Contracting State assume jurisdiction.
If the child is present in England and Wales, but habitually resident in a non-Contracting State, Art 5 has no application. There, the English court may have jurisdiction under Art 11. Art 11 can also provide jurisdiction pending a decision about habitual residence.
Jurisdiction can also be established on the basis of presence under domestic rules. That is because:
There is nothing within the 1996 Hague Convention that excludes domestic rules as to jurisdiction. It is clear that domestic rules cannot be relied upon in a manner that would conflict with the provisions of the Convention, however.
There is nothing within the 1996 Hague Convention that restricts a court’s ability to use domestic rules as to jurisdiction when the child is not habitually resident in any Contracting State. Art 5 only applies if the child is habitually resident in a Contracting State.
Any contrary conclusion would be contrary to the aims and objectives of the 1996 Hague Convention, as it would limit or perhaps prevent the English court from making orders to protect children in certain specific circumstances.
This conclusion was also supported by the terms of the Explanatory Report, at para 39 thereof.
In relation to the relevant date for determination of jurisdiction:
Unlike was the case in BIIa, there is nothing within the 1996 Hague Convention that stipulates when a court will be vested with jurisdiction. Similarly, there is nothing within the Explanatory Report or the Practical Handbook which addresses the point.
The principle of perpetuatio fori does not apply, but that does not mean that the court’s jurisdiciton is not, at least initially, determined at the outset of the proceedings. It would be contrary to legal certainty and to the integrity of the proceedings if the question of what, if any, jurisdiction the court had was not determined at the outset of proceedings.
Jurisdiction should therefore initially be determined by reference to the date on which proceedings were commenced, that being the date upon which the court’s jurisdiction was invoked. If the court had no jurisdiction, the proceedings would be liable to be dismissed. Further, that provides a benchmark against which any future changes can be measured, in particular whether the child’s habitual residence has changed.
There should not be any significant delay in the determination of this issue.
It is clear that a State can lose jurisdiction under Art 5 during the course of proceedings if the child ceases to be habitually resident in that State. The court must retain jurisdiction at the date of the final substantive hearing. If, for example, the child ceases to be habitually resident in England and Wales and becomes habitually resident in another Contracting State, it is clear from the wording of Art 5(2), the Explanatory Report and the Practical Handbook that that other State acquires jurisdiction and England and Wales loses it.
There is, however, a clear difference between a move to a Contracting State and a move to a non-Contracting State. In the former case, the other State acquires Art 5 jurisdiction. In the latter case, the other State does not. The consequence is that in the former, the original State cannot retain jurisdiction by reference to domestic law, while in the latter case, it can.
Summarising his conclusions, Moylan LJ held as follows:
“In summary, my conclusions on the issue of jurisdiction are as follows:
(i) the 1996 Convention applies to proceedings for an order under Part IV of the CA 1989;
(ii) the court must determine the issue of jurisdiction at the outset of proceedings by reference to the date on which the proceedings were commenced;
(iii) jurisdiction under the 1996 Convention can be lost during the course of proceedings, if it was based on habitual residence and the child has ceased to be habitually resident in England and Wales. Accordingly, the court must be satisfied that it retains jurisdiction at the final hearing;
(iv) jurisdiction is acquired under Article 5 from the date on which a child becomes habitually resident in England and Wales; the effect of this on existing proceedings will depend on the circumstances of the case;
(v) the court in England and Wales will likely have jurisdiction to make interim orders under Part IV under Article 11 when the child is habitually resident in a Contracting State;
(vi) the court in England and Wales will likely have jurisdiction to make interim orders under Part IV under Article 11 and will also have substantive jurisdiction based on a child's presence here when the child is habitually resident in a non-Contracting State.”
Subsequent developments
Following the judgment of the Court of Appeal, the child’s father, who had not played any part in the proceedings prior thereto, sought to appeal the decision to the UK Supreme Court. The paternal grandmother joined in that application. The applications for permission to appeal were refused on 22 March 2024 by Lords Hodge and Stephens and Lady Rose, on the basis that the appeal did not “…raise an arguable point of law on either of the proposed issues”. Accordingly, following a number of years of controversy about the proper approach to determination of jurisdiction under the 1996 Hague Convention (which has particularly focused upon the issues of the relevant date for determination of jurisdiction and, as a linked issue, whether jurisdiction can be lost during the course of proceedings if habitual residence changes between their commencement and determination) this question has now been settled. A number of judgments delivered after hand down of the decision of the Court of Appeal have considered the approach outlined in Hackney, including:
J & H (Jurisdiction: 1996 Hague Convention : residual domestic jurisdiction: parental responsibility jurisdiction), Re [2024] EWHC 1395 (Fam) at paras 15 - 17 (identifying some issues which it is said the Court of Appeal did not consider, or did not fully consider, and so which might require further consideration in a later case);
B v N (No. 2) (Art 7 and Transfer of Jurisdiction) [2024] EWHC 17 (Fam) - with particular reference to the relevance, when interpreting the 1996 Hague Convention, of the Explanatory Report and the HCCH Practical Handbook (at para 41);
U v E [2024] EWFC 39 - a case which showed the practical realities of the approach taken in Hackney, as jurisdiction was lost during the course of proceedings as a result of a change of habitual residence. Judd J commented as follows at para. 41: “In a case such as this where both states are signatories to the 1996 Convention and where there is no order for the return of a child at the outset, habitual residence may change quite quickly, depending on the all the surrounding circumstances. This is something which the parties must now be alive to in order to try and plan for the future of the proceedings, here and/or elsewhere. Cases where a separate fact finding hearing is deemed to necessary can be lengthy, no matter how robustly they are case managed and it may be that by the time the case is ready for a substantive hearing jurisdiction will have moved. If such a scenario is not anticipated in advance it could lead to lengthy delays. There will continue to be challenges for the parties and the courts alike, albeit it is to be hoped that with greater experiences they will be easier to manage.”
A & Ors (Case Proceedings: 1996 Hague Convention: Habitual Residence) [2024] EWFC 110 - in which Knowles J offered a very helpful summary of the Hackney approach in a public law context (at paras 29 - 34).
