Re W-H (A Child) UPDATE. Judgment now handed down

The original of this note (which is retained below) included an analysis of the arguments that were advanced on the appeal hearing.

Judgment was handed down on 12 June 2023 - A (A Child) (Habitual Residence : 1996 Hague Child Protection Convention) (Rev1) [2023] EWCA Civ 659 (12 June 2023) - link here. No - I don’t understand why the hearing was listed as Re W-H and the judgment is published as Re A…

So - the analysis of the hearing and the arguments advanced is first, then there is an update which covers the judgment and the conclusion. Spoiler alert - as predicted within the analysis, the Court of Appeal declined to deal with the substantive arguments about the scope of the 1996 Hague Convention, preferring to put that off for consideration in what is described within the judgment as “…another appeal which has been heard”. I presume that is the appeal in London Borough of Hackney v P [2022] EWHC 1981 (Fam), which we have analysed here. That appeal was heard in May 2023, judgment is awaited.

Analysis of the appeal hearing

This note addresses an appeal that was heard by the Court of Appeal on 4 April 2023, which was lived streamed and is now available on the Court of Appeal YouTube channel at this link (which is the morning sitting) and also here (which is the afternoon).

When I first wrote this post, I said in the introduction that it was a ‘short note’… that has not turned out to be accurate and I was forced to edit that paragraph. “Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte”, or, alternatively, attributed to Mark Twain (though the origins of this appear at the least not to be clear - see here if its interesting to you): “I didn’t have time to write you a short letter, so I wrote you a long one.”

Unfortunately, the judgment given at first instance has not been published (or, if it has, I have not been able to find it on Bailii…). The description on YouTube records that the appeal was against “…the decision of Mrs Justice Arbuthnot, sitting in the High Court Family Division, dated 22 December 2022” and that “The applicant father appeals the order in relation to the decision that the court did not have jurisdiction and that the child was habitually resident in Zambia at the relevant date”.

The appeal appears to be significant because it engages two issues in relation to the operation and application of the 1996 Hague Convention that have caused some controversy. The three grounds that were advanced on behalf of the father appear to have engaged the following issues:

1) Does the 1996 Hague Convention apply only between Contracting States? Or does it apply in proceedings concerning a Contracting State and a non-Contracting State? In the course of argument it became apparent that this ground really only related to Article 7 of the 1996 Hague Convention (the terms of which are set out below) and whether, in circumstances where there had been a wrongful retention of a child in a non-Contracting State, Article 7 applied;

2) When is the relevant date for determination of a child’s habitual residence for the purposes of Article 5 of the 1996 Hague Convention (again as set out below)? Particularly, must the child be habitually resident in England on: a) the date of commencement of the proceedings; or b) the date of the determinative hearing?

3) Did the Judge err in her analysis of the child’s habitual residence, such that her analysis on either possible date should be overturned?

This note will focus on the first two arguments, as the final ground relates to the Judge’s analysis of the law and facts in relation to habitual residence, and so it rather more familiar ground in terms of the law, and entirely specific to the particular circumstances of this case insofar as it concerns the facts.

Background

The background is drawn from oral submissions made on behalf of the father when opening the appeal. As a consequence, this is only a summary but it seems to set out the essential facts.

The mother was Zambian, born there, but came to live in England in 2002. Thereafter she returned to Zambia each year. The child that was the subject of the appeal was born in London on 4 March 2021. In October 2021, the mother and child spent around 3 weeks in Zambia, returning to the family home in November 2021. The child was then christened in England, and Christmas was spent here, seemingly as a family. In December 2021 the mother had fallen ill and it was asserted that as a consequence of the mother’s illness, the father’s roll in the child’s life increased and that situation was said to have continued between December 2021 and March 2022.

The mother, father, child and maternal grandmother travelled to Zambia on or around 8 March 2022 to attend a memorial service for the maternal grandfather who had died five years previously. It was asserted that they travelled on return tickets, leaving behind all of the items that it would be expected would be left during a short term trip, including the mother’s pet dog, her motor car, her clothes and the child’s items, all of which were left in or at the jointly owned family home.

The father returned to England for work on 20 March 2022, leaving the mother and child in Zambia where they remained. The parties then exchanged messages as to their respective intentions which resulted in the father on 23 May messaging the mother indicating that he did not agree to the child being kept in Zambia. He then travelled to that country to see the child in June 2022, and stayed for around a week. F had taken efforts to resolve the issue in relation to the child consensually. It was submitted that the focus upon mediation / non-court based resolution of issues concerning children, including internationally, is inconsistent or in any event not supported by an approach whereby determination of habitual residence is made as of the date of trial, rather than as of the date of issue, as one parent is then inevitably

His application form to the High Court was dated 23 June 2022, and those proceedings were issued on 6 July 2022.

The application that the father had issued was in Form C66, an application for an order in the exercise of the inherent jurisdiction. By his application, the father sought an order that the child be returned to England from Zambia. The ‘narrative’ of the form specified that he sought an order for the child’s return to England following her wrongful retention in Zambia by the mother. The application was backed by a statement in support, within which the father asserted that his relationship with his daughter was being damaged by the separation, and stated that he considered it to be imperative that the child be returned so she could enjoy a relationship with both of her parents.

The first directions hearing, before Peel J, was heard on 13 July 2022. The order made on that date contained a recording which read:

“In the light of the delay caused by court availability for the final hearing, the parties record that they do not consider the passage of time between the filing of the application and the final determination of the issues a factor that should be allowed to influence the decision that the court is making”

It appears, however, that that recording was not honoured, because it was said that the delay which occurred between the issuing of the application and determination of it which permitted the Judge, on the basis of the law as she determined it to be, to decide that by late November the child was habitually resident in Zambia. That was not the entirety of her reasoning, as the Judge found that it was either November or June, but it was asserted that in making that finding, the Judge included matters which post dated June to support the conclusion that the child was habitually resident in Zambia on either date.

In September 2022 the father travelled to Zambia and spent time with the child on certain dates over the course of a week. Following that, the mother made an allegation that the child had suffered injury to her genitals. The child was examined and swabs were taken. The father was then charged (presumably in Zambia) with an offence of defilement of the child. The father then left Zambia. It was said that there was a dispute between the parties as to whether the criminal process following that allegation was ongoing or whether it had been withdrawn.

The mother then made an allegation in the Zambian court for an order prohibiting any contact between the child and the father, and an order was made on that application prohibiting the father from having any contact with the child. The father therefore last had video contact with the child on 9 December 2022, and last saw the child face to face in Zambia in September 2022.

The matter came before Arbuthnot J in October 2022. The order providing for contact between the father and child was suspended. The jurisdictional hearing then took place before Arbuthnot J at the end of November. A judgment in draft was circulated on 19 December and a final judgment was handed down on 23 December 2022.

The Judge held that the courts of England and Wales did not have jurisdiction in relation to the child, and so dismissed the father’s application.

Two ‘preliminary’ points

The nature of the application

As described above, the father’s application was for the child’s return to England. It was made in Form C66 as an application under the inherent jurisdiction of the High Court. That was said on behalf of the father to have the following consequence:

i) If the application made is for what was described as a ‘bare return order’, so an order in the exercise of the inherent jurisdiction seeking return and nothing more, then the basis for jurisdiction is and can only be the 1996 Hague Convention; however

ii) If an application is made for a bare return order, but is accompanied by an application for a ‘lives with’ order or a ‘spends time with’ order, then it allows that person not only to rely on the jurisdiction of the 1996 Hague Convention, but in the event that jurisdiction is not provided for by that Convention, to rely on the terms of the domestic law, which in this context means S2(1)(b), S2 and S3 Family Law Act 1986.

So it was asserted that a litigant is then penalized if, when applying for a return order, they do not accompany that application with one for a S8 order.

This was asserted to be important because the date of the assessment of habitual residence may be different. Under 1996 HC, it has been held that the date of assessment of habitual residence is the date of determination (this forms one of the grounds and is examined further below). However under the FLA 1986, the relevant date is the date of commencement of the proceedings. As such, it was said that someone that applies for an order that is covered under the jurisdictional scheme of the FLA 1986 gains a material advantage.

A number of points arise in relation to that issue, which it is only possible to summarise here.

One possible issue is whether the first assertion (number i, above) is correct. In A v A (Children) (Habitual Residence) [2013] UKSC 60, [2014] A.C. 1, the Supreme Court held that as an application for a ‘bare return order’ did not fall within the jurisdictional scheme that applies pursuant to the Family Law Act 1986, the common law rules as to the inherent jurisdiction of the High Court continue to apply (at para. 59). It was on that basis that the Supreme Court was able to hold that the parens patriae jurisdiction remained accessible. Of course, if the 1996 Hague Convention is engaged, then that is the applicable scheme. If it were found, because the child was habitually resident in England on the relevant date, that Article 5 of the Convention were satisfied, there would be jurisdiction to make the ‘bare return order’ and no issue would arise.

If, however, the 1996 Hague Convention did not apply (for example, because the relevant date was the date of trial, and by the date of trial the child had become habitually resident in a non-Contracting State - see the decision of Mr Justice Peel in H v R & Anor [2022] EWHC 1073 (Fam) at paras 45 - 49) then the question would arise as to whether, beyond or in addition to the parens patriae jurisdiction, the common law allowed for any other ground of jurisdiction such as habitual residence. That was not considered in this case or, as it happens, in H v R & Anor, which prompted Peel J to hold as follows at paras. 47 - 49:

“47. As Moylan LJ put it in Re M [2020] EWCA Civ 922 when considering exercise of the parens patriae jurisdiction):

"the scheme of the 1986 Act is to give jurisdiction to make one of the substantive orders listed in s.1 only when the child is either habitually resident or is present in England and Wales"

Absent the jurisdictional basis of habitual residence, the court may not make a s1(1)(d) order under the inherent jurisdiction. The alternative route of making an order under the parents patriae jurisdiction, which does not depend on habitual residence, is only available to British citizens which is not the case here.

48. I therefore take the view that the relevant date for habitual residence is the date of the application (2 June 2021) in accordance with the 1986 Act.

49. Had the application been for a s8 specific issue return order, beyond doubt the test would have been habitual residence at the date of the application, it being an application for a s1(1)(a) order. It is somewhat odd, to my mind, that a bare application for inward return under the inherent jurisdiction (with no element of care or contact sought) would lack jurisdiction under the 1986 Act even though the relief sought is identical; that, however, is the conclusion of Baroness Hale in A v A. The difficulty for applicants is that these problematic cases involving alleged wrongful abduction/retention overseas in a non 1980 Hague Convention country are brought via wardship so as to invoke the full powers of the High Court. If the application is to be made by s8 of the Children Act 1989 so as to ensure that the date of habitual residence is fixed at date of issue, rather than risk the date being fixed at date of trial, the ability to seek appropriate orders may be diminished. It may be that applications under the inherent jurisdiction should include relief by way of care and/or contact so as to come within s1(1)(d).”

In circumstances where “the common law is a living system of law, reacting to new events and new ideas, and so capable of providing the citizens of this country with a system of practical justice relevant to the times in which they live” (per Lord Goff of Chieveley in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 at 377) and where habitual residence is in almost all contexts the key factor when determining jurisdiction, it is my view (for whatever that might be worth) that a strong argument could be constructed in favour of the development of the common law to include habitual residence as a jurisdictional gateway to the making of such orders.

It may have been Peel J’s comments in para. 49 of his decision in H v R that led to the submission advanced on behalf of the father on this appeal which is summarised at ii., above. Until such time as some resolution is reached (and of course it may be that this appeal provides that resolution) it would be sensible for litigants to accompany an application under the inherent jurisdiction with an application for a S8 order. An alternative course (which was the course taken in In re J (A Child) [2005] UKHL 40 and which was envisaged by the Supreme Court in A v A) would be to apply for summary return as a Specific Issue Order under S8 Children Act 1989. There are possible procedural issues that arise if that course is taken in terms of the application having to be made to the Family Court and then allocated to an appropriate tier of the judiciary (a Judge of High Court level) but that does not mean that that course is impossible. Peel J’s approach may be preferable, as it allows instant access to the High Court.

The issue above gives rise to a further, sub-issue which was raised as a question within the appeal hearing and (it seems at least) dispatched relatively quickly - which is the question of when, for the purposes of the Family Law Act 1986 and generally, it can be taken that the 1996 Hague Convention does not apply. This question arises from the language of the 1986 Act at S2(1)(b) - which provides for alternative grounds of jurisdiction under the Act where “the Hague Convention does not apply…”. When this question was raised, Lord Justice Moylan advanced the proposition (which leading counsel for the father accepted) that it means that the 1996 Hague Convention does not apply in terms of establishing jurisdiction. In my view, that proposition (summarised here) makes sense in the context of the structure, aims and objectives of the Convention. The Convention is intended to allocate jurisdiction as between Contracting States. If, by way of example, the child is habitually resident in England then the courts of England and Wales have jurisdiction and, subject to Article 13, may proceed to exercise that jurisdiction to take measures of protection.

Article 13 requires a court that has jurisdiction to abstain from exercising that jurisdiction if corresponding measures have been requested from the authorities of another Contracting State that has jurisdiction under Articles 5 to 10, and those measures are still under consideration.

Articles 6 - 10 provide alternative grounds on which the courts of another Contracting State may have jurisdiction. If the grounds establishing jurisdiction under any of Articles 5 - 10 are established, the Convention is engaged. Articles 11 and 12 provide for alternative grounds of jurisdiction based on presence which are subject to the limitations set out in each Article.

If, however, upon application of Articles 5 - 10 no Contracting State has jurisdiction, and the child is not present on the territory of a Contracting State, the 1996 Hague Convention does not apply. In those circumstances, national law applies - see Peel J in H v R as quoted above.

Consensual resolution / mediation

A second preliminary issue which assumed some importance and was of obvious significance to the father’s case (and generally) related to his efforts to reach an accommodation with the mother following it becoming apparent that she intended to retain the child in Zambia either for longer than had been agreed or perhaps permanently. The chronology of that (such as it was apparent from the appeal hearing) is set out above. The consequence was said (with some force and good sense) to be that if, as a number of Judges have so far held, the relevant date for determination of a child’s habitual residence is the date of trial of that issue, any delay in commencing proceedings may be prejudicial to the interests of the applicant, and so there will be an inevitable and significant disincentive to taking steps prior to the commencement of proceedings to resolve any issues in relation to a child that has been retained abroad.

The same point arises in relation to attempts to reach a negotiated settlement in the run up to a final hearing. All practitioners will have experienced situations where a final hearing is adjourned to allow for further negotiation. Sometimes those negotiations can prove fruitful. As Judges often say, an agreed resolution is likely to be better for both parents, and certainly for the child, than a court imposed solution. If delay to the trial will have a material impact upon the outcome of a habitual residence enquiry, then it is extremely unlikely that any agreement to delay a final hearing will be reached, perhaps forcing parties to a trial that they could otherwise have avoided.

Arguments on the grounds of appeal - Ground 1

Article 7 of the 1996 Hague Convention provides as follows:

“Article 7

(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

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

a) 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
b) 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.”

Due to the use of the phrase, “until the child has acquired habitual residence in another State, and…” in the first part of Art 7(1), attempts have been made to argue that Art 7 applies regardless of whether the wrongful removal or retention was to or in the territory of a Contracting State or a non-Contracting State.

This follows a similar attempt to argue that the equivalent provision of Council Regulation (EC) No. 2201/2003 (“BIIa”) (Art 10) applied against the world, and not just between Member States. That argument found favour with the Court of Appeal in Re H (Abduction: Jurisdiction) [2014] EWCA Civ 1101, [2015] 1 FLR 1132, and that approach stood as the law in England and Wales for a number of years. In 2018, however, Advocate General Saugmandsgaard Øe delivered an opinion in preparation for the hearing in UD v XB (Case C-393/18 PPU) in which he said the following:

“"By contrast, certain provisions of the Brussels IIa Regulation dealing with jurisdiction refer specifically, as their wording indicates, to potential conflicts of jurisdiction between the courts of several Member States (see Articles 9, 10, 15, 19 and 20 of that regulation). Moreover, the provisions of the Brussels IIa Regulation on recognition and enforcement are applicable only to judgments delivered by the courts of the Member States (see the order of 12 May 2016, Sahyouni (C-281/15, EU:C:2016:343, paragraphs 19 to 22), and the judgment of 20 December 2017, Sahyouni (C-372/16, EU:C:2017:988, paragraph 27)). It is also common ground that the application of Article 11 of that regulation, dealing with the return of the child, assumes that the removal or retention of the child occurs from one Member State to another. In sum, it is germane to enquire, not about geographical scope of the Brussels IIa Regulation in its entirety, but about the applicability of each of its provisions."

His comments in that regard were reflected in the judgment of the Court at para. 33:

“"As the Advocate General observes in points 23 and 25 of his Opinion, it follows that, unlike certain provisions of Regulation No 2201/2003 concerning jurisdiction such as Articles 9, 10 and 15, the terms of which necessarily imply that their Application is dependent on a potential conflict of jurisdiction between courts in a number of Member States, it does not follow from the wording of Article 8(1) of that regulation that that provision is limited to disputes relating to such conflicts.""

This apparent conflict resulted in Mr Justice Mostyn making a referral to the CJEU in the following terms:

“"Does Article 10 of Brussels 2 retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?" - see his judgment in SS v MCP [2020] EWHC 2971 (Fam).

The CJEU held that Art 10 did not operate in that way (SS v MCP (Case C-603/20 PPU) [2021] 2 FLR 297). It expanded the scope of its judgment, however, to include the 1996 Hague Convention (at para. 62):

“"It follows from the foregoing that there is no justification for an interpretation of Article 10 of Regulation No 2201/2003 that would result in indefinite retention of jurisdiction in the Member State of origin in a case of child abduction to a third State, neither in the wording of that article, nor in its context, nor in the travaux préparatoires, nor in the objectives of that regulation. Such an interpretation would also deprive of effect the provisions of the 1996 Hague Convention in a case of child abduction to a third State which is a contracting party to that convention, and would be contrary to the logic of the 1980 Hague Convention." [emphasis added]

As a consequence, in his decision in H v R Mr Justice Peel held that Article 7 of the 1996 Hague Convention did not operate to retain jurisdiction in England and Wales in circumstances where there had been a wrongful removal to or retention in a non-Contracting State (see paras 57 and 58 of his judgment in that case).

On this appeal, it was argued that:

• The language of Article 7, and particularly its use of ‘State’ rather than ‘Contracting State’, suggests that Article 7 is not so confined;

• Other Articles in the Convention distinguish deliberately between Contracting States and ‘States’ in a way which supports the contention summarised above;

• Still other Articles specifically apply the Convention in situations involving non-Contracting States, and the language used in those supports the contention summarised above;

• The flow chart at p45, para. 4.24 of the Practical Handbook does not seem to limit its scope to abductions between Contracting States;

• The nature and purpose of the Convention, which includes seeking to prevent people obtaining jurisdictional advantage by taking wrongful, unilateral actions;

• Mr Justice Williams appears to have taken a similar view in his decision in FA v MA [2021] EWHC 3024 (Fam), at para. 28 of his judgment in that case;

• In London Borough of Hackney v P & Ors [2022] EWHC 1981 (Fam), in the context of examination of Art 5, MacDonald J concluded that the 1996 Hague Convention is the first port of call in relation to jurisdiction for cases concerning parental responsibility, in the same way that BIIa was prior to Brexit, and that is so notwithstanding that the child may be present in a non-Contracting State. As such, his analysis (albeit directed to Art 5) can be imported by analogy. It relates to the jurisdictional chapter of the 1996 Hague Convention in any event;

• In relation to the parallel to Article 10 of BIIa, and the conclusion of the CJEU in relation to that Article (which had been raised on behalf of the respondent as supporting the alternative interpretation), all of the factors referred to above suggest an alternative interpretation in the context of the 1996 Hague Convention;

• The consequence would be that following a wrongful removal or retention to or in a non-Contracting State, the Contracting State of origin would retain jurisdiction unless and until the child became habitually resident in another Contracting State and the other conditions within Article 7 were met. If the child became habitually resident in a non-Contracting State, that would not serve to bring jurisdiction to an end at any stage.

There are obvious good reasons to prevent people obtaining jurisdictional advantage through wrongful, unilateral acts. That is the entire basis of the 1980 Hague Convention and the return mechanism that it permits, and of Art 7 of the 1996 Hague Convention itself. The difficulty with applying Art 7 to situations where there has been a wrongful removal to or retention in a non-Contracting State is that in order to be effective, it really relies upon reciprocity of application between States. Art 7 has two main effects. Firstly, it retains jurisdiction with the Contracting State of habitual residence prior to the wrongful act, thus protecting the fidelity of any proceedings that are underway in that jurisdiction, or any proceedings that may subsequently be issued. Secondly, by Art 7(3) it prevents the courts of the country to which the child has been removed or in which they have been retained from exercising any jurisdiction that it might have, save for an urgent, presence based jurisdiction under Art 11, thus preventing the abducting parent from pursuing any proceedings. Any orders made by that court will then only be enforceable in a limited way, and on specific terms. Any orders made by the original court in the exercise of its Art 7 jurisdiction will be enforceable.

Without that reciprocity (as was accepted on behalf of the appellant), the effect of Art 7 is limited to a retention of jurisdiction. There is nothing to prevent the courts of the other state from exercising jurisdiction, and no obligation upon any such state to enforce any order that the original court makes in the exercise of its retained jurisdiction. Further, it then requires to be interpreted as retaining jurisdiction in perpetuity unless the child moves from the relevant non-Contracting State to another Contracting State and becomes habitually resident there and the other conditions within Art 7 are met. In some senses that seems like a somewhat torturous approach, which is required in order to apply Art 7 in such situations. It is certainly arguable that a simpler approach that is equally consistent with the aims and operation of the 1996 Hague Convention would be (as was held by the CJEU in relation to Art 10 of BIIa) to hold that Art 7 only applies as between two Contracting States.

That having been said - I wrote all of the above in relation to Art 10 of BIIa prior to the Court of Appeal hearing in Re H where Black LJ held that Art 10 did work in the way that it is now proposed Art 7 should… (International Issues in Family Law: The 1996 Hague Convention and Brussels II Revised Paperback – 25 Sept. 2015, Setright KC, Williams KC, Gration, Wright, Curry-Sumner - https://www.amazon.co.uk/International-Issues-Family-Law-Convention/dp/1784731528) and, at least insofar as the outcome in the Court of Appeal was concerned, was proved to be incorrect in the interpretation that I suggested, so it may of course be that the Court of Appeal determine that notwithstanding the issues raised above, Art 7 should be interpreted as applying between a Contracting State and a non-Contracting State. If that is the outcome, then in circumstances where that interpretation runs contrary to a judgment of the CJEU, a further appeal seems inevitable.

Ground 2

Article 5 of the 1996 Hague Convention provides as follows:

“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.”

Both the Explanatory Report and the Practical Handbook seem to support the proposition that, where there has been a change of habitual residence from one Contracting State to another Contracting State during the course of proceedings, then subject to the operation of Article 7, the courts of the first State lose jurisdiction to take measures of protection. It can reasonably be argued that if that approach is correct, it supports the contention that the relevant date for determination of habitual residence, and so jurisdiction, is the time of the hearing. Otherwise, this possibility would never arise. The courts of England (by way of convenient example) would either have jurisdiction at the time the court was seised, and keep it thereafter (the principle of perpetuatio fori) or they would not have jurisdiction and the courts of another Contracting State would.

At para 42, the Explanatory Report of Paul Lagarde (1997) records the following:

“Where the change of habitual residence of the child from one State to another occurs at a time when the authorities of the ?rst 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 27 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 ?eld 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 ?rst 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."

The Practical Handbook, at pp. 40 - 41, paras 4.8 - 4.11, provides as follows:

“(b) What happens when a child’s “habitual residence” changes?

4.8 Jurisdiction follows the habitual residence of the child so that when the child’s habitual residence changes to another Contracting State, the authorities of the State of the new habitual residence will have jurisdiction. FN119

4.9 Although the Convention does not provide for the concept of “continuing jurisdiction”, it should be remembered that a change of habitual residence of the child does not terminate any measures already taken. FN120 There measures remain in force until, if necessary, other appropriate measures are taken by the authorities of the Contracting State of the child’s new habitual residence.

4.10 Where the child’s habitual residence changes from one Contracting State to another at a time when the authorities of the first Contracting State are seised of a request for a measure of protection (i.e. during pending proceedings), the Explanatory Report suggests that the principle of perpetuatio fori does not apply and jurisdiction will therefore move to the authorities of the Contracting State of the child’s new habitual residence. FN121 Where it does occur, consideration might be given to use of the transfer of jurisdiction provisions (see Chapter 5, infra).

4.11 Where the child’s habitual residence changes from a Contracting State to a non-Contracting State during proceedings for a measure of protection, the principle of perpetuatio fori also does not apply. FN122 However, Article 5 of the Convention will cease to be applicable from the time of the change of the child’s habitual residence. Nothing therefore stands int he way of a retention of jurisdiction by the authorities of the Contracting State under their non-Convention rules (i.e. outside the scope of the Convention). FN123 However it is important to remember that in this scenario other Contracting States will not be bound by the Convention to recognise the measures which may be taken by this authority. FN124

119 - Art 5(2)

120 - Art 14. For further discussion on the continuation of measures, see, infra, Chapter 8

121 - Explanatory Report, at para. 42. Note that a different solution was reached under the Brussels II a Regulation, see Art. 8: “The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised” (emphasis added).

122 - See the Explanatory Report, at para. 42.

123 - Ibid. However, it should be noted that in such a case, the Contracting State of the child’s former habitual residence may still be able to take measures of protection in respect of the child under the Convention if, for example, Art. 11 or 12 of the Convention applies (see, infra, Chapters 6 and 7). See also, supra, para. 3.13.

124 - Explanatory Report, at para. 42. See also, supra, paras 3.11-3.13

There was some debate within the appeal hearing as to the use of the word “suggests” in para 4.10 of the Practical Handbook, and the subsequent mention within the Handbook of the use of the transfer of jurisdiction provisions. It was suggested, by Lord Justice Moylan, that the reference to the transfer provisions suggests an acceptance that jurisdiction is not automatically lost as a consequence of a change of habitual residence mid proceedings. For my own part, I am not sure if that analysis is correct. It is important to remember that Article 8 of the 1996 Hague Convention does not really refer to a transfer of jurisdiction, but to a request made by the courts of a Contracting State with jurisdiction under Articles 5 or 6 to those of another Contracting State that they “assume jurisdiction”. Alternatively, the courts of the first Contracting State can “suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State”.

When considering this issue, I am reminded of the approach taken to transfers under Art 15 of BIIa, which was to similar effect. In her judgment in N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112, Lady Justice Black (as she then was) described a transfer pursuant to Article 15 in the following way: “i) Article 15 is not a provision which facilitates the transfer of particular proceedings, as such, to another jurisdiction. It cannot be, because other jurisdictions do not share our child protection arrangements. What is transferred is, putting it bluntly, the problem, for which the other jurisdiction will, if the transfer is made, take responsibility, leaving our proceedings either stayed or discontinued.” That description found some favour with the Supreme Court also (see para 34 - In the matter of N (Children) [2016] UKSC 15).

As such, I am not sure that reference in the Practical Handbook to transfer in this context can bear the weight that Moylan LJ’s question seemed to suggest. It is arguably entirely consistent with the loss of jurisdiction that formal steps be taken to transfer ‘the problem’, either by inviting the courts of the other Contracting State to assume jurisdiction, or by staying the proceedings in England. This was, of course, merely a question raised in the course of argument which may or may not be of significance when the court comes to give its judgment.

In Re NH (1996 Child Protection Convention: Habitual Residence) [2016] 1 FCR 16, Cobb J expressed the obiter view that the relevant date for determination of jurisdiction for the purposes of Art 5 was the date of the hearing. In Warrington Borough Council v W (Care Proceedings: Jurisdiction) [2022] 2 WLR 299, MacDonald J reached the same conclusion.

In H v R, Peel J did not have to reach a conclusion on the proper approach as between two Contracting States. In relation to para 42 of the Explanatory Report (quoted above) he commented as follows at paras 37 - 38:

“37. A plain reading of this passage suggests that a change of habitual 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 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.

38. I confess to having some misgivings about the state of the law if this is indeed the case. I have already remarked upon the opportunity for unscrupulous abductors to take advantage of delay, or indeed to manufacture delay, so as to engineer a change of habitual residence. An innocent party may act promptly and properly, yet find themselves in a habitual residence race against time, powerless as the court proceedings take their course.”

The case before him, of course, involved England (a Contracting State) and Libya (a non-Contracting State). In those circumstances, he relied upon a further passage within the Explanatory Report which reads:

“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 ?rst 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."

Thus allowing him to hold that in the event that the child had by the date of trial become habitually resident in Libya, national law applied with the consequence that, for the purposes of the Family Law Act 1986, jurisdiction would be determined as of the date of commencement of the proceedings in accordance with the approach taken under the Family Law Act 1986. That approach is, of course, supported by the Practical Handbook at para 4.11, quoted above.

Mr Justice MacDonald again considered this issue in London Borough of Hackney v P & Ors [2022] EWHC 1981 (Fam). As I understand it, this case has been appealed and is due to be heard in May 2023. In relation to the relevant date for determination of the child’s habitual residence, he again held that it was the date of the hearing, relying upon paras 42 and 84 of the Explanatory Report.

In Derbyshire County Council v Mother & Ors [2022] EWHC 3405 (Fam), Mrs Justice Lieven offered an alternative analysis. She considered that the Explanatory Report is not “an agreement” between the parties regarding the interpretation or application of the treaty (para 16) and so did not seem to give much weight (or, indeed, any weight) to its commentary. She instead focused upon what she considered to be “the ordinary meaning of the terms within [the treaty], and in the light of its object and purposes” (para. 18). In that regard, she held that:

“21. If habitual residence and therefore jurisdiction has to be revisited at every hearing, then that creates very significant practical difficulties and may be seriously detrimental to the interests of the child. It creates a strong incentive in abduction cases, and potentially in 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.”

And further that:

“24. Further, 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.”

Before concluding that:

“26. In my view, the purpose of the Hague Convention is best met by habitual residence, and therefore jurisdiction, being determined when the Court is seised, for the reasons I have given. In the light of the fact that the Hague Convention is silent on the issue, it is open to the Court to adopt that approach.”

This is plainly a significant issue that is requiring of resolution. There may be a question as to whether it is requiring of resolution in this particular case… that is because it involves a Contracting State and a non-Contracting State, and as a consequence if it is right that the child was habitually resident in England in June (when proceedings were issued), but was not in November (when the trial of the jurisdictional issue was heard) then on Mr Justice Peel’s analysis (which is certainly supportable on the basis of the Explanatory Report and Practical Handbook), national law would apply and the relevant date would revert to the date of issue in any event. In the particular circumstances of this case, that would result in the focus shifting from the Judge’s analysis of the law to her determination in relation to habitual residence (she having found that the child was habitually resident in Zambia by June in any event), which was the appellant father’s third line of argument and is not analysed within this post. The Hackney case may also not be particularly apposite, because that case involved Tunisia, also not a Contracting State. I do not know whether it has been appealed, but the Derbyshire case may be the best vehicle for proper exploration of this issue, as in that case, which involves England and Spain - both Contracting States, it may be more directly material.

In this regard, it was argued on behalf of the appellant that:

• The key analysis against was probably that of MacDonald J in London Borough of Hackney v P

• Such cases as have been decided in other jurisdictions have reached the same conclusion as that reached by MacDonald J

• There have, however, been a limited number of cases with relatively limited argument

• The appellant’s argument is aligned with and relies upon the decision of Lieven J in the Derbyshire case, as analysed briefly above, which post dates MacDonald J’s judgment in the Hackney case

A number of the points that are taken against an absence of perpetuatio fori in 1996 Hague Convention cases have focused upon that approach giving rise to an ‘abductors charter’ - allowing someone that has abducted a child to gain advantage by delaying determination of habitual residence, on the basis that such a delay will make it more likely that it is found that habitual residence has changed, and so that jurisdiction has been lost. I wonder whether that is a concern that would actually arise, primarily because of course Art 7 exists precisely to avoid such a situation. In a case where, prior to commencement of proceedings, the child has been wrongfully removed to or retained in another Contracting State (or possibly even a non-Contracting State if the appellant in this case is successful on the first ground) then jurisdiction is fixed pursuant to Art 7 until such time as the child’s habitual residence has changed and one of a number of further conditions are established. If the abduction occurs following commencement of proceedings, then Art 7 is still relevant and achieves the same effect. As a consequence, the absence of perpetuatio fori does not give rise to an ‘abductors charter’, because the possibility of jurisdictional advantage being obtained due to unilateral action is already avoided.

In a case involving a Contracting State and a non-Contracting State, the same argument as set out above applies, but in a different way relying upon the analysis of Mr Justice Peel in H v R. In those circumstances, if the child is abducted during the course of proceedings and becomes habitually resident abroad, national law applies and the relevant date shifts to the date of commencement of proceedings. If, by then, the child has become habitually resident abroad then (unless some other connecting factor exists - such as a valid prorogation under the 1996 Hague Convention, or matrimonial jurisdiction due to their having been a divorce or dissolution of a civil partnership in the UK - as to which see T (Children) (Jurisdiction: Matrimonial Proceedings) [2023] EWCA Civ 285) the courts of England and Wales will not have jurisdiction and that will be that.

As recognised above, however, this is obviously a point of some importance. At the moment the unhappy position has arisen whereby there is conflicting first instance authority in relation to the relevant date for determination of habitual residence, and that conflict plainly needs to be resolved. There are some legitimate criticisms that can be raised in relation to Lieven J’s approach in Derbyshire, which I have written about before - here. That does not, however, water down the significance in some cases of this point. It may be the difference between a parent having access to an effective remedy or not.

There remains a question as to whether, because of the approach taken by Peel J (which as I’ve said above, seems to find support in the key documents of the Explanatory Report and the Practical Handbook), it becomes unnecessary to determine when the relevant date is for the purposes of this appeal - because if the child had by November 2022 become habitually resident in Zambia, national law applies and the focus shifts back to June, and the appellants challenge to Arbuthnot J’s factual determination as to habitual residence as of that date.

Conclusion

The question of the applicability of perpetuatio fori in proceedings under the 1996 Hague Convention has proven to be a vexed one. It was probably entirely predictable that this would be so - it runs contrary to the approach that was taken under the Family Law Act 1986, and also under BIIa, so the consequence is that for over 30 years proceedings concerning children have operated on the basis that once the court is seised of proceedings, jurisdiction is determined at the outset and once jurisdiction is established, it is retained until the proceedings are concluded in one way or another. There are, of course, a number of different ways in which such proceedings could be concluded, ranging from the making of a final, substantive order to making no order at all. Under both BIIa and the 1996 Hague Convention, those proceedings could be transferred to the courts of another State if the appropriate criteria were met. The proceedings could be stayed on a forum non conveniens basis. One way or another, though, the English court has been and would be in control of the outcome.

The approach taken within the 1996 Hague Convention is (depending on the resolution of the issue in relation to Article 5) perhaps very different, but perhaps (again, depending on resolution of these arguments) only if there has been a change of habitual residence to another Contracting State during the course of proceedings, and that change of habitual residence has not resulted from a wrongful removal or retention (as in that case Art 7 would apply). That principle is suggested on the basis of Peel J’s analysis that if habitual residence changes to a non-Contracting State, domestic law applies and our domestic law includes the principle of perpetuatio fori in any event.

I’ve put it in that way because, in my view, it is really the principle of perpetuatio fori (or lack thereof) that underpins the significance of the date on which habitual residence has to be determined. I say that because, if perpetuatio fori applied, then once jurisdiction was determined the court would be validly seised and there would be no question of having to look at that again. A subsequent change of habitual residence of the kind envisaged by Art 5(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.”) would be irrelevant. It is therefore only necessary for the court to consider the question of habitual residence as of the date of trial because there may, if the factual circumstances allow, have been a change between the date of issue of the proceedings and the date of determination, and because that change has significance from a jurisdictional perspective.

If the change of habitual residence (and so, if this is the consequence, loss of jurisdiction) arises as between two Contracting States, the necessary question is whether, bearing in mind the aims and objectives of the 1996 Hague Convention, that is actually a bad thing that we should be seeking to avoid?

The 1996 Hague Convention is, at the very least, based upon what has been described as “qualified” or “partial” mutual trust (this article examines a different topic - being anti-suit injunctions - and so a different Hague Convention, but see in this regard Mukarrum Ahmed & Paul Beaumont (2017) Exclusive choice of court agreements: some issues on the Hague Convention on choice of court agreements and its relationship with the Brussels I recast especially anti-suit injunctions, concurrent proceedings and the implications of BREXIT, Journal of Private International Law, 13:2, 386-410, DOI: 10.1080/17441048.2017.1348782 - at https://doi.org/10.1080/17441048.2017.1348782). It functions as it does because of the principles of reciprocity. Mutual trust in decision making, enforcement of final decisions, cooperation between courts and authorities etc.

Habitual residence as a concept is used to denote proximity. Preamble (12) to BIIa describes this as succinctly as is reasonably possible. It says this: “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.” As such, if a child ceases to become habitually resident in a Contracting State that is seised of proceedings, and becomes habitually resident in another Contracting State, it can be argued that a change of jurisdiction is warranted and in the best interests of the child, because the child has become ‘more proximate’ (if that is an appropriate way of describing it) to the other Contracting State, and it is therefore in the child’s best interests for the courts of that State to assume responsibility for making decisions in relation to them.

That does not automatically mean that the progress made in the first proceedings has been wasted or must be lost. As the Practical Handbook suggests, there can then be a transfer of the case to the courts of the Contracting State of the child’s new habitual residence where resolution of “the problem” (per Black LJ in Re N) can continue.

There are strong arguments in favour of the suggestion that the Convention is intended to operate in that way. The semantically and practically difficult propositions that have to be adopted and advanced in order to mount an argument that it is intended to operate differently perhaps support that contention.

Sometimes, a change in philosophy and approach is difficult to achieve.

None of that is intended to water down the strength of the arguments that flow the other way. As I hope I’ve recognised within this post, there are very good arguments that can be advanced as to why it should operate differently. The problem that those arguments will always face, however, is the wording of the Explanatory Report where it is explained that a proposal that would have built the principle of perpetuatio fori into the 1996 Hague Convention was expressly rejected (at para. 42 of the Explanatory Report, quoted above). It may be that the significance of that paragraph can be avoided. Mrs Justice Lieven suggested one approach. The Court of Appeal in this particular appeal may adopt that or take a different approach.

It may be that all of these issues are resolved in this appeal. If not, then there is the Hackney appeal coming up soon. If, after both of those have been heard, the issues that have been described above remain unresolved, it is certain that at some point a case will come where they are directly material and requiring of resolution.

I will try to update this post when judgment on this appeal is handed down.

The Judgment - (linked again here for convenience)

The judgment (written by Moylan LJ, with whom the other members of the court agreed) begins by reciting the Grounds of Appeal, as follows:

“3. There are three Grounds of Appeal.

(1) The judge was wrong when she decided that the relevant date to assess habitual residence, for the purposes of determining jurisdiction, was the date of the hearing and not the date of the application;

(2) The judge's decisions that A was habitually resident in Zambia at the date of the application and at the date of the hearing were both wrong;

(3) The Judge was wrong when she decided that article 7 of the 1996 Hague Child Protection Convention ("the 1996 Convention") did not apply in this case because A had been wrongfully retained in a non-Contracting State.”

The judgment continues then to describe the principled issues that may have arisen for determination in relation to the 1996 Hague Convention:

“4. When I gave permission to appeal, it appeared to me that the case raised broad issues as to the application of the Family Law Act 1986 ("the FLA 1986") and the 1996 Convention, in particular the date at which, for the purposes of determining jurisdiction under article 5 of the 1996 Convention, the court decides where the child the subject of proceedings is habitually resident. Whether it is the date of the application or the date of the hearing is an issue which has divided the judges of the Family Division. However, during the course of the hearing it became apparent that it was not necessary to deal either with the arguments as to the relevant date for the purposes of article 5 or the scope of article 7. This was because this appeal could be determined on a relatively narrow basis since, as explained below, it is clear that if A's habitual residence had changed from England and Wales to Zambia (a non-Contracting State to the 1996 Convention) during the course of the proceedings, the relevant date for the purposes of determining jurisdiction would be the date of the application. Further, if, on the other hand, A remained habitually resident in England at the date of the final hearing then, even on the mother's case, this court would have jurisdiction. Accordingly, the primary issue was whether the judge's decision as to A's habitual residence, in particular at the date of the application, was wrong.

5. That issue would not be determinative of the appeal because the mother raises an issue as to the nature of the order being sought by the father and whether it is within the scope of the FLA 1986 at all. The mother submits that the father was not seeking an order within the scope of that Act but was seeking an order solely under the court's inherent jurisdiction. On the mother's case, jurisdiction to make such an order depended on the application of the 1996 Convention.”

The background is briefly described at paras 8 - 17, and the procedural chronology of the proceedings follows at paras. 18 - 21. There is then a summary of the judgment, including the decisions taken by the judge at first instance and the basis upon which she took those decisions (paras 22 - 28).

Analysis of the 1996 Hague Convention

The judgment begins its analysis of the 1996 Hague Convention at para 49. This analysis is naturally somewhat reduced in its scope, as the court had at an early stage concluded that the only ‘live’ issues were: a) whether the judge was wrong in her determination of the child’s habitual residence; and b) whether the order that was sought was an order under the 1996 Hague Convention or not.

Accordingly - the only conclusion reached in relation to the 1996 Hague Convention (which is nonetheless important) was that “Article 5 [of the 1996HC] does not apply if a child is not habitually resident in any Contracting State at the relevant date. Conversely, if a child is habitually resident in a Contracting State at the relevant date, the 1996 Convention does apply. Further, as I also think is agreed, if the relevant date is the date of the final hearing, article 5 would not apply in this case if A ceased to be habitually resident in England and Wales between the date of the father’s application and the date of the final hearing” (para 49).

The judgment continues by holding:

“50. The fact that article 5 does not apply if a child is not habitually resident in a Contracting State can be seen, for example, from the Explanatory Report on the 1996 Convention by Professor Paul Lagarde. This addresses that issue, at [39], and also addresses, at [42], the effect of article 5 when a child’s habitual residence changes during the course of proceedings from a Contracting State to a non-Contracting State:

“[39] Article 5 is based on the supposition that the child has his or her habitual resident in a Contracting State. In the contrary case, Article 5 is not applicable and the authorities of the Contracting States have jurisdiction under the Convention only on the basis of provisions other than this one (Art. 11 and 12). But nothing prevents these authorities from finding themselves to have jurisdiction, outside of the Convention, on the basis of the rules of private international law of the State to which they belong”

and

“[42] … in the case of a change of habitual residence from a Contracting State to a non-Contracting State during proceedings for a measure of protection, the principle of perpetuatio fori also does not apply. However, Article 5 of the Convention will cease to be applicable from the time of the change of the child’s habitual residence. Nothing therefore stands in the way of a retention of jurisdiction by the authorities for the Contracting State under their non-Convention rules (i.e. outside the scope of the Convention).”

Analysis of the Family Law Act 1986

At para 52 onwards, the judgment looks at the FLA 1986. Having set out the relevant sections, the judgment cites A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1 at para 20, where it holds that the Regulation (referring to BIIA) was the “first port of call” when considering the jurisdiction of the court to make orders in relation to children. The Supreme Court then went on to hold that there was nothing within BIIa which had the effect of limiting its application to cases in which the rival jurisdiction is another Member State. Moylan LJ considered that those observations applied with equal force to the 1996 HC now that BIIa no longer applies.

The judgment then continues to consider whether the order sought was, in fact, an order that fell within the scope of the FLA 1986 and so, in appropriate cases, under the 1996 HC. The court held that “…in each case, it will be necessary for the court to decide on which side of the line the application and/or the orders made by the court fall. Are they within the scope of either sub-section 1(1)(a) or sub-section 1(1)(d) or not?” Moylan LJ suggested that “…this should be more a matter of substance than form and will include, as Peel J did in H v R, consideration of the applicant’s statement” (para 62).

Disposal

The court held that:

• It was not necessary to decide what the relevant date was for the purposes of Art 5 of the Convention. If the child was habitually resident in England as of the date of the final hearing, there would be jurisdiction under Art 5 of the Convention. If, conversely, the child had been habitually resident in England and Wales as of the date of commencement of the proceedings (the relevant date for the purposes of the FLA 1986) but their habitual residence had then changed to a non-Contracting State, national law would apply and the relevant date would be the date of issue - leaving the court with jurisdiction under the FLA 1986;

• The judge had approached the exercise of determining the child’s habitual residence incorrectly, in that her analysis of the facts relevant to her determination of that issue was insufficient. She had focused almost exclusively upon factors relating to the child’s integration in Zambia, and had not made reference to other relevant factors in relation to the child’s continuing connections with England. She did not “…carry out a sufficient comparative or balancing exercise of the factors connecting” A with Zambia and England” (quoting from Black LJ in In re J (Finland)).

• The question of the child’s habitual residence should therefore be remitted;

• The order sought by the father fell within the scope of the FLA 1986, as he was seeking more than just a return order - he was seeking orders relating to care and contact.

Conclusion

So - the issue of the relevant date for determination of a child’s habitual residence pursuant to Art 5 of the 1996 Hague Convention remains unresolved. So to does the question of whether Art 7 of the 1996 Hague Convention applies where there has been a removal to a non-Contracting State (though for all of the reasons set out in the analysis of the hearing, above, my own view is that that is an argument that is very unlikely to succeed). It is possible that the first question re: Art 5 will be resolved in the Hackney appeal - though having watched the appeal hearing, that case also has scope for the issue to be avoided (entirely appropriately) on the same basis that it was not determined in this case. We will have to wait and see.