London Borough of Hackney v P & Ors
[2022] EWHC 1981 (Fam) - link to full judgment here
London Borough of Hackney v P involved a decision taken by Mr Justice MacDonald in the course of public law care proceedings that concerned H, a girl of nearly 13 years old. The respondents to the proceedings were P, H’s father, who was believed to be in France but could not b located, and N, her paternal grandmother who lives in Tunisia. H was represented by her Children’s Guardian.
The substantive proceedings involved two applications. The first was an application made by Hackney for a care order in relation to H. The second was an application made by N for H’s summary return to Tunisia. That application was made under the inherent jurisdiction of the High Court. The judgment was given following a hearing that had been listed for consideration of a number of jurisdictional issues that had arisen within the proceedings. Those issues were identified by MacDonald J at the outset of the judgment, as follows:
“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?”
Background
The background to the proceedings is set out at para. 5 of the judgment onwards. The particularly salient facts appear to be the following:
H was born in France. She appeared to be a dual French and Tunisian national. Her primary language was French. Until she was four years old, she had lived in France with both parents. Her father, P, was then imprisoned and H had reported being homeless with her mother for a long period, before spending some time in hospital. In July 2015, she had been found in the road suffering from hypothermia. Her mother was inebriated. H was then placed into the care of the French authorities, where she remained until January 2017 when the care order was discharged. She was returned to her mother’s care.
On 22 March 2017, H’s mother died suddenly. H was placed in foster care. Her paternal grandmother, N, travelled from Tunisia and sought to care for H. H remained in foster care whilst N was assessed.
Whilst the assessment of N was not available, there was evidence to suggest that the assessment concluded that N could offer a safe environment for H. On 23 August 2017, a court in France made an interim order granting visiting and accommodation rights to N until 31 August 2017. On 25 August 2017, H left for Tunisia with N. On 31 August of that year, the French court placed H in N’s care until 30 June 2018. P was granted supervised rights of access.
The French authorities continued to assess H whilst she was in N’s care. In May 2018, she was reported to have made positive progress. N was described as possessing good parenting skills.
H’s father, P, was released from prison and had by 2018 returned to Tunisia. He was reported to have a good relationship with H. The French proceedings were then discontinued on 12 June 2018 on the basis that H would continue living with N with the support of extended family and Tunisian Children’s Services.
On 19 June 2021, H travelled to England to stay with her paternal uncle. On 4 July 2021, her uncle contacted police stating that H had been sent to England to “ruin his life” as the result of a family dispute. H was spoken to and reported that she had been hit in the face by her uncle when he had become angry discussing a family land dispute in Tunisia. H was taken into police protection and then placed into foster care.
A S.47 investigation was then commenced. The paternal uncle made a number of serious allegations against N, including that she had physically abused H and allowed her to be sexually abused by others. H reported to her foster carers that she had good and bad times with N, and that N hit her and swore at her. The uncle also made allegations against P, including that he was involved in people trafficking in Tunisia. H had also told her foster carers that the family were threatened in Tunisia because of the father’s involvement in human trafficking, which included threats that the family would be killed.
H returned to the care of the paternal uncle on 7 July 2021. On 13 July 2021, the uncle took her to the French Embassy in London and reported that H “bullies” him. H was returned to foster care. On 3 August 2021 she was moved to alternative foster carers where she remained at the time of the hearing before MacDonald J.
The London Borough of Hackney commenced care proceedings on 18 August 2021. Within the application, the LA identified a potential issue as to jurisdiction. An interim care order was made on 7 September 2021. A hearing was listed on 20 December 2021 to consider whether “a declaration of habitual residence” should be made.
The judgment goes on to describe, at para 16, a number of delays that followed. N attended the hearing on 20 December, but was not represented and had not been served with translated copies of the papers. She was made a party but it appears that the LA did not contact solicitors on her behalf until 23 February 2022. Papers were then not provided until 3 March 2022, and even then they had not been translated for N’s benefit. A further hearing on 9 March was ineffective as N had not by then been granted public funding. It was not possible to obtain an alternative listing until 17 May 2022. A further directions hearing then took place before MacDonald J on 28 June 2022.
The parties positions
The competing arguments are summarised at paragraphs 18 - 20.
In summary, the LA argued that: i) the 1996 Hague Convention does not apply to care proceedings where the other country involved is not a Contracting State to that Convention; ii) the English court has jurisdiction on the basis of the presence of the subject child in England; iii) in those circumstances, it was unnecessary to determine where H was habitually resident on any particular date.
The paternal grandmother, N, contended that: i) The 1996 Hague Convention does apply to care proceedings; ii) it is necessary to determine the habitual residence of the child as at the commencement of the proceedings; iii) H was not habitually resident in England at that point in time, she was habitually resident in Tunisia and it was therefore the Tunisian courts that had primary jurisdiction to determine issues concerning her welfare; iv) alternatively, Tunisia was the more naturel and appropriate forum to undertake such a welfare enquiry; v) the presence of the subject child in England is insufficient to establish jurisdiction and to make a care order; vi) the court should make an order returning H to Tunisia.
The Guardian contended that the English court had jurisdiction under the 1996 Hague Convention, and that it should make a care order.
Determination
Mr Justice MacDonald held as follows:
Public law proceedings under Part IV Children Act 1989 fall outside of the scope of the Family Law Act 1986;
There is no statutory provision which provides for jurisdiction to make orders under Part IV Children Act 1989. There is, however, a long line of first instance authority, beginning with Re R (Care Proceedings: Jurisdiction) [1995] 1 FLR 711 and continuing in the cases cited at paragraphs 26 - 30, which has held that jurisdiction to make such orders exists where the subject child is habitually resident or, alternatively, present in England and Wales;
That approach has survived the more recent focus upon international instruments (beginning with BIIa and now the 1996 Hague Convention), notwithstanding that: a) it has been held in a number of cases that the jurisdictional scheme in BIIa applies to public law proceedings (Re N (Children)(Adoption: Jurisdiction) [2017] 1 All ER 527 at para. 1); and b) the ‘general rule’ in both instruments is that it is the courts or authorities of the country in which the child is habitually resident that have substantive jurisdiction;
The jurisdictional scheme of the 1996 Hague Convention applies notwithstanding that the other country concerned is not a Contracting State to the Convention, for the reasons that are given within paragraph 42 of the Explanatory Report of Paul Lagarde, and as further explained in Chapter 3 of the Practical Handbook on the Operation of the 1996 Hague Child Protection Convention (HCCH, 2014) at Chapter 3, paras 3.1 - 3.8 and Example 3(c);
The jurisdictional scheme of the 1996 Hague Convention applies to public law care proceedings under Part IV Children Act 1989;
The relevant date for determination of habitual residence for the purposes of Art 5 of the 1996 Hague Convention is the date of the hearing at which the issue of habitual residence is to be determined;
If, on that date, the subject child is found to be habitually resident in England, jurisdiction will exist pursuant to Art 5 of the Convention. If, however, the subject child is found to be habitually resident in another, non-Contracting State, the 1996 Hague Convention will no longer be engaged (as it applies only to children who are habitually resident on the territory of a Contracting State) and accordingly the court may determine jurisdiction on the basis of common law rules which, as aforementioned, include the presence of the child in England and Wales (see the analysis at paras 95 - 98 of the judgment, together with the reference to the Explanatory Report at para 84, which is quoted at para 97 of the judgment).
MacDonald J summarised his conclusions at para 112, as follows:
“In conclusion, I am satisfied that the 1996 Hague Convention is the scheme that governs the question of whether this court has jurisdiction to make orders under Part IV of the Children Act 1989 in respect of H, notwithstanding the involvement in this case of the Republic of Tunisia. Further, and within that context, I am satisfied that if H is not habitually resident in England and Wales for the purposes of Art 5, the common law jurisdictional basis of presence will subsist in respect of H. Finally, I am satisfied that the question of whether H is habitually resident in this jurisdiction for the purposes of Art 5(1) of the 1996 Hague Convention is the date of the hearing.”
The matter was then listed for determination of where H was habitually resident at the relevant time, and for consideration of any forum arguments as any party may wish to advance.
Analysis
This is a careful and comprehensive judgment, arrived at following what were plainly extensive and detailed submissions on the issues that were engaged at the hearing.
There appears to have been a certain amount of difficulty in accepting the approach taken to the passage of jurisdiction by the 1996 Hague Convention. Prior to it coming into force (and now, following Brexit, to prominence) English lawyers were used to a system whereby: a) jurisdiction is determined at the time the court is seised (S7(c) Family Law Act 1986, Arts 16 - 19 BIIa); and b) once jurisdiction has been established, the court retains power to determine the proceedings until a final order is made, or a decision is taken to transfer the proceedings, e.g. under Art 15 BIIa.
The principle explained at subparagraph b, above, is known as the principle of perpetuatio fori. The Explanatory Report to the 1996 Hague Convention explains the operation of that principle, and why it was not adopted within the 1996 Hague Convention, at para. 42,
"42 Where the change of habitual residence of the child from one State to another occurs at a time when the authorities of the first habitual residence are seised of a request for a measure of protection, the question arises as to whether these authorities retain their competence to take this measure (perpetuatio fori) or whether the change of habitual residence deprives them ipso facto of this jurisdiction and obliges them to decline its exercise. The Commission rejected by a strong majority a proposal by the Australian, Irish, British and United States delegations favourable to the perpetuatio fori. Certain delegations explained their negative vote by their hostility to the very principle of perpetuatio fori in this field and wanted jurisdiction to change automatically in case of a change of habitual residence, while other delegations thought that it would be more simple for the Convention not to say anything on this subject thereby abandoning to the procedural law the decision on perpetuatio fori. The first opinion appeared to be the more exact in the case of a change of habitual residence from one Contracting State to another Contracting State. Indeed it is not acceptable that in such a situation, which is located entirely within the interior of the scope of application of the Convention, the determination of jurisdiction be left to the law of each of the Contracting States. Moreover this solution is one which currently prevails for the interpretation of the Convention of 5 October 1961. On the other hand, in the case of a change of habitual residence from a Contracting State to a non-Contracting State, Article 5 ceases to be applicable from the time of the change of residence and nothing stands in the way of retention of jurisdiction, under the national law of procedure, by the authority of the Contracting State of the first habitual residence which has been seised of the matter, although the other Contracting States are not bound by the Convention to recognise the measures which may be taken by this authority." (emphasis added)
MacDonald J explains the significance of that change to the determination of jurisdiction in a case such as this at paras 108 and 109 of his judgment, as follows:
“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.”
With some justification, this change in approach has been suggested to give rise to an ‘abductor’s charter’. In H v R [2022] EWHC 1073 (Fam), Mr Justice Peel commented as at para 34 as follows:
“The first question for me to decide is the date at which habitual residence falls to be considered. Is it, as M submits, the date of her application (2 June 2021) or, as F submits, the date of hearing (April 2022)? If the latter, there is an obvious concern in cases like these that it is in the interests of an alleged abductor to prolong proceedings in order to establish a greater degree of settlement or integration of the children in the country to which they have been removed; in other words, to improve a habitual residence defence. It strikes me as unsatisfactory if that is indeed the case. However, I must consider the relevant jurisprudence, as the point has apparently not been completely decided.” (emphasis added)
MacDonald J did not examine this potential difficulty in detail, but did offer the following (at para 111):
“Finally, I am also conscious of the observations of Peel J in H v R regarding the potential for the relevant date for determining habitual residence under the 1996 Hague Convention to allow unscrupulous abductors to take advantage of delay, and his further observation that the fact that, as made clear in the Explanatory Report, national law takes over if a Contracting State loses jurisdiction under Art 5(1) may help to prevent that situation. However, in contradistinction to this case and the case of Warrington CC v T, in H v R the children had been taken from the jurisdiction of England and Wales to a non-Contracting State. This case, and the case of Warrington CC v T, concern the opposite situation to that which arose in H v R. In a case in which the subject child is already in England and Wales, the extent to which the fact that national law takes over following a loss by the Contracting State of jurisdiction under Art 5(1) may act to mitigate the risk of delay attendant on the relevant date under the 1996 Hague Convention, if at all, will depend on the facts of the case. In the circumstances, and where the point does not arise on the facts of this case, I propose to say nothing further in this regard.”
The main suggestion offered seems to be to proceed to determination of habitual residence at the earliest possible point (see para. 110 of the judgment). At present, however, there are considerable delays in the court system. It can and frequently does take many months to obtain a listing of more than one day, even in cases (e.g. 1980 Hague Convention applications) which are supposed to move to an expedited timetable. Entirely rightly, understanding of habitual residence has moved to the point where habitual residence can change without the consent of both parents, including in circumstances where there are pending court proceedings (see, by way of example, In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75).
