London Borough of Hackney v P
| Jurisdiction | England & Wales |
| Judge | Mr Justice MacDonald |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 1981 (Fam) |
| Docket Number | Case No: ZC21C00407 |
| Court | Family Division |
and
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[2022] EWHC 1981 (Fam)
THE HONOURABLE Mr Justice MacDonald
Case No: ZC21C00407
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Mark Twomey QC and Mr Edward Lamb (instructed by London Borough of Hackney) for the Applicant
The Second Respondent did not appear and was not represented
Mr Henry Setright QC and Ms Anita Guha (instructed by Dawson Cornwell) for the Second Respondent
Ms Kate Hudson (instructed by Duncan Lewis) for the Third Respondent
Hearing date: 14 July 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
In this matter I am concerned with H, a girl born on 22 September 2009 so now aged 12 years 10 months. She is represented through her Children's Guardian by Ms Kate Hudson of counsel. H's mother, L is, sadly, deceased. Her father, P, is the first respondent to the proceedings. It is believed he is living in France but a report from the relevant French local authority reports that he cannot be found. He is not represented and does not appear before the court. H's paternal grandmother, N, is the second respondent to the proceedings and lives in Tunisia. She is represented by Mr Henry Setright of Queen's Counsel and Ms Anita Guha of counsel.
There are two applications before the court in respect of H. The first in time is an application for a care order under Part IV of the Children Act 1989, issued on 18 August 2021. That application is made by the London Borough of Hackney, represented by Mr Mark Twomey of Queen's Counsel and Mr Edward Lamb of counsel. The second application is an application for an order for summary return under the inherent jurisdiction of the High Court made by the paternal grandmother.
The positions of the parties with respect of the competing applications before the court in this case have given rise to the following preliminary issues as to jurisdiction and procedure which require determination by the court at this hearing. Those issues were set out in the case management order of this court dated 28 June 2022. During the course of argument, the preliminary issues to be determined by the court have further crystalised into the following questions:
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?
In addition to these preliminary issues and depending on the decision of the court in respect thereof, the court may also be required in due course to determine as a question of fact H's habitual residence and such arguments as may be raised concerning forum non conveniens.
BACKGROUND
H's background history falls to be collated from a variety of sources. Much of the information set out below comes from correspondence from the French Central Authority to the English Central Authority, rather than from original documentation obtained from France or from Tunisia.
H was born in France on 22 September 2009. At points in the papers, it is asserted that H has French citizenship. It is also said that she has Tunisian citizenship. Her primary language is French, although her English is rapidly improving. H reports having lived with both parents in France until she was four years old, when her father was sent to prison. Thereafter H reports a long period of being homeless with her mother, before being in hospital for some time for reasons she cannot remember. A report dated 31 May 2018 from French social services relates that on 3 July 2015 H was found in the road suffering from hypothermia in the company of her mother, who was inebriated. Following this incident, H was placed in a children's home on 7 July 2015 and on 20 July 2015 the French court made a care order in respect of H for a period of 6 months. That order was renewed on 28 January 2016 for a period of one year. The care order was discharged on 11 January 2017 and H was returned to the care of her mother.
Sadly, on 22 March 2017 H's mother died suddenly. H was placed in foster care as an emergency measure and in the absence of any other family in France being in a position to care for her, the father remaining in prison. Following the mother's death, the paternal grandmother travelled to France and requested the care of H. The French court confirmed H's placement in foster care by way of a care order dated 3 April 2017 pending assessment of the paternal grandmother in Tunisia (and of a paternal uncle in Switzerland).
The assessment in Tunisia directed by the French court is not before this court. However, correspondence between the local authority and the Tunisian Embassy relates that the Tunisian assessment undertaken at the direction of the French Court noted the impact on H of her father's unstable situation but concluded that the paternal grandmother could offer a safe environment for H and conditions for the continuation of her education. Within this context, on 23 August 2017 the Aix-En-Provence Court of Appeal Juvenile Court granted an interim order conferring visitation and accommodation rights on the paternal grandmother until 31 August 2017. H departed for Tunisia with the paternal grandmother on 25 August 2017. On 31 August, the French court made an order placing H in the care of the paternal grandmother in Tunisia until 30 June 2018, with ongoing support from French Children's Services. The order granted the father supervised rights of access.
H received psychological support once in Tunisia in collaboration with the Department of Childhood Protection and the Juvenile Court in Tunisia. A report from French social services dated 31 May 2018 relates that the psychologist visited H to undertake work with her and that H made positive progress. The paternal grandmother was described as possessing good parenting skills. The father was reported as having returned to Tunisia and as having a good relationship with H. Within this context, the French proceedings were discontinued on 12 June 2018 upon the French court being satisfied that H should continue to live with the paternal grandmother in the Republic of Tunisia with the support of the extended family and Tunisian Children's Services. In late 2021, the French court in Aix-En-Provence confirmed that there are no ongoing proceedings in France.
A little over three years after the conclusion of the French proceedings, H arrived in England on 19 June 2021 by way of a flight from Tunisia to London to stay with her paternal uncle. On 4 July 2021 H's paternal uncle contacted the police and informed them that H had been sent to England to “ruin his life” as the result of a family dispute. There were concerns that the paternal uncle was expressing paranoid thoughts and, when spoken to, H reported that she had been hit in the face by the paternal uncle when he had become angry discussing a family land dispute in Tunisia. The paternal uncle denied that allegation. As a result, H was taken into police protection on 4 July 2021 and placed in foster care.
Following H's removal, a single agency s.47 investigation was commenced during which the paternal uncle alleged that he had brought H to England because Tunisia was not safe for H and that the paternal grandmother was “sadistic”. In his statement to this court, the paternal uncle asserts that H's stay in England was in order to ensure H could get away from risky individuals in Tunisia and the abuse she was being subjected to in that jurisdiction at the hands of the paternal grandmother and others. In his statement, the paternal uncle alleges that the paternal grandmother physically abused H and permitted her to be sexually abused by others. During the s.47 investigation, the paternal uncle further alleged that the paternal grandmother did not care for H but simply used her European appearance to gain social status in Tunisia, placing H at risk in that jurisdiction by dressing her in what he considered to be immodest European clothing. The paternal grandmother has denied each of these allegations. H herself has latterly reported to her foster carers that there were good and bad times with her paternal grandmother and that her paternal grandmother hit her and swore at her (referring to her as the “daughter of a prostitute”). H has also alleged that the paternal grandmother was too elderly to wash her clothes and to shop.
The paternal uncle further alleged during the s.47 investigation that the father was involved in people trafficking in Tunisia and that the paternal uncle had had to pay protection money to criminals to safeguard H and the paternal grandmother from the consequences of the father's criminal activity. In his statement to the court, the paternal uncle alleges that the father traffics people by boat from Tunisia to Italy in return for considerable sums of money. Within this context, he alleges that...
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Re London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention)
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