Re London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Newey,Lady Justice King |
| Judgment Date | 19 October 2023 |
| Neutral Citation | [2023] EWCA Civ 1213 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000216 & CA-2023-000312 |
[2023] EWCA Civ 1213
Lady Justice King
Lord Justice Moylan
and
Lord Justice Newey
Case No: CA-2023-000216 & CA-2023-000312
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE MacDONALD
Royal Courts of Justice
Strand, London, WC2A 2LL
Henry Setright KC and Anita Guha (instructed by Dawson Cornwell LLP) for the Appellant
Mark Twomey KC and Edward Lamb (instructed by London Borough of Hackney Legal Services) for the First Respondent
The Second Respondent did not appear and was not represented
Kieran Pugh (instructed by Duncan Lewis Solicitors) for the Third Respondent
Jacqueline Renton, Charlotte Baker and Frankie Shama (instructed by Goodman Ray Solicitors) for the Intervener
Hearing date: 25 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 th October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The principal issue raised by this appeal is the date by reference to which the court determines whether it has jurisdiction based on a child's habitual residence, pursuant to the provisions of Article 5 of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”). Is it the date of the hearing or is it the date on which the proceedings were issued? This question has divided the judges of the Family Division, as outlined further below. A secondary issue is the extent of the court's jurisdiction to make orders under Part IV of the Children Act 1989 (“the CA 1989”) if a child is present, but not habitually resident, in England and Wales nor any other Contracting State to the 1996 Convention.
MacDonald J (“the judge”) decided in summary: (a) that the relevant date is “the date of the hearing”, namely in this case 7 November 2022; and (b) that, alternatively, the court would have substantive jurisdiction to make a Part IV order under domestic rules as to jurisdiction based on the child's presence in England and Wales. I appreciate that the expression, “the date of the hearing”, is itself open to interpretation but that is the expression used by the judge and I propose also to use it to describe the effect of his decision.
The Appellant, the paternal grandmother of the child who is the subject of the proceedings, appeals. There are two grounds of appeal:
(i) that the relevant date for determining habitual residence for the purposes of Article 5 is not “the date of the hearing”, as determined by the judge, but the date on which the court is first seised or, alternatively, the date of the hearing when the issue of jurisdiction is listed for determination;
(ii) that the judge was wrong to decide that there is a residual domestic jurisdiction based on the presence of a child when he/she is habitually resident in another State which is not a party to the 1996 Convention.
The child, H, was born in France in 2009. She lived there until 2017 when she moved to live with her paternal grandmother, N, in Tunisia, pursuant to an order of the French court. H's mother had died in early 2017. Her father is believed to be living in France but cannot be located and he has taken no part in these proceedings.
H remained living in Tunisia until she arrived in England on 19 June 2021 to stay with her paternal uncle. The circumstances which led to this are far from clear. H was initially taken into police protection and placed in foster care on 4 July 2021. She was returned to her paternal uncle on 7 July but, as explained in the judgment below, was again placed in foster care on 13 July 2021. The Local Authority commenced care proceedings on 18 August 2021. An interim care order was made on 7 September 2021. H has remained in foster care since then.
There were, regrettably, very substantial delays in the progress of the case including in respect of the issue of habitual residence although the question of jurisdiction had been identified as requiring determination when the proceedings began. There were also regrettably very significant delays in engaging with N. Ultimately, an application was issued by her for a summary return order but, because of the latter delays, this was not made until 27 June 2022.
The legal issues in respect of jurisdiction were not substantively addressed until July 2022. In his judgment, dated 29 July 2022, reported as London Borough of Hackney v P & Ors [2022] EWHC 1981 (Fam), [2023] 1 FLR 502, the judge decided, at [106], that the relevant date to determine habitual residence for the purposes of establishing the court's jurisdiction under Article 5 “is the date of the hearing” and that, as set out in his order:
“The Court determined that the 1996 Hague Convention governs the question of whether this court has jurisdiction to make orders under Part IV of the Children Act 1989 in respect of the child notwithstanding the involvement in this case of the Republic of Tunisia. Further, and within that context, that if the child 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 the child. Further that the question of whether the child is habitually resident in this jurisdiction for the purposes of Art 5(1) of the 1996 Hague Convention is the date of the hearing.”
A further hearing was then listed to determine the factual issue of habitual residence, with the time for appealing the July 2022 order being extended until after that issue had been determined.
H's habitual residence was determined by the judge's second judgment of 19 December 2022. He determined that H was habitually resident in England and Wales at the date of the hearing on 7 November 2022 and that, accordingly, the courts here had jurisdiction under the provisions of Article 5(1) of the 1996 Convention.
On this appeal, N is represented by Mr Setright KC and Ms Guha, who appeared below; H is represented through her guardian by Mr Pugh, who did not appear below; and the Local Authority is represented by Mr Twomey KC and Mr Lamb, who both appeared below. The International Academy of Family Lawyers (“IAFL”) was given permission to intervene by way of written submissions which were drafted by Ms Jacqueline Renton, Ms Charlotte Baker and Mr Frankie Shama. I am grateful to all counsel for their respective submissions.
I would add that other issues, in particular the applicability of the 1996 Convention if the other State involved in the case is not a party to it, as raised in the Respondent's Notice, have fallen away following this court's judgment in Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659, 12 June 2023 (“ Re A”). The judgment in Re A was handed down after the hearing in this appeal but, rather than repeat that judgment, I propose to treat the relevant paragraphs as incorporated into this judgment.
In Re A it was decided, at [49]–[51], that Article 5 of the 1996 Convention does not apply if a child is not habitually resident in any Contracting State at the relevant date and, at [57]–[59], that the 1996 Convention applies even if the rival jurisdiction is not a party to the 1996 Convention. The latter was based, by analogy, on what Lady Hale had said in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1 (“ A v A”), at [20], about BIIa ( Council Regulation (EC) No. 2201/2001) being the “first port of call” for the purposes of determining the court's jurisdiction and, at [30], that it applied even if the rival jurisdiction was not an EU Member State. This accords with the judge's conclusions which were also based in part on A v A.
Background
I do not propose to set out any details in respect of the factual background beyond those set out above.
Proceedings
In the application for a Part IV order, the Local Authority ticked the box indicating that this was a case with an international element and set out that there may be an issue as to jurisdiction. At the first hearing on 7 September 2021, the Local Authority submitted that the issue of jurisdiction should be determined as soon as possible. No doubt because of lack of availability, a hearing was fixed for 20 December 2021 to consider the issue of habitual residence. On 20 December, the case was adjourned to March 2022 because it was determined that substantial further evidence was required. I would also note that N had indicated that she wanted to attend the hearing in December, unrepresented, but had been unable to do so because the court had been “unable to dial her number as it is an international number”.
N was finally able to instruct solicitors in England in February 2022. As referred to above, by an application dated 27 June 2022, she sought an order under the inherent jurisdiction for the summary return of H to Tunisia.
The case was ultimately listed for a substantive hearing before the judge on 14 July 2022 leading to his judgment dated 29 July 2022. This was followed by the hearing on 7 November 2022 which led to the judgment dated 19 December 2022. The judge determined that H was habitually resident in England as at the date of that hearing. He dismissed N's application for a summary return order and decided that the court here was the most convenient forum to determine welfare issues, not Tunisia. Understandably, none of these latter decisions are appealed.
Judgments
In his first judgment, the judge dealt with three issues, at [3]:
“i) Does the jurisdictional scheme under Chapter II of the [1996...
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