Warrington Borough Council v T and Others
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWFC 68 |
| Court | Family Court |
2021 July 9; Aug 31
Children - Care proceedings - Jurisdiction - Local authority issuing care proceedings in respect of Gabonese child - Whether child habitually resident in England - Date at which habitual residence to be established - Whether English courts having jurisdiction -
In 2021 the local authority issued care proceedings pursuant to section 31 of the Children Act 1989 in respect of a Gabonese child who had lived for most of his life in Gabon until brought to England by his Gabonese mother. The local authority, supported by the mother and the children’s guardian, contended that the child was now habitually resident in England and Wales and that, therefore, the court had jurisdiction under 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 to make orders in respect of him under Part IV of the 1989 Act. The child’s Gabonese stepfather disputed jurisdiction, contending that the child remained habitually resident in Gabon.
On the question of jurisdiction—
Held, (1) that the jurisdictional framework for making private law orders under Part II of the Children Act 1989, provided for by section 2 of the Family Law Act 1986, was also applicable to the question of the court’s jurisdiction to make public law orders under Part IV of the 1989 Act; that, therefore, the jurisdictional bases for making public law orders under Part IV of the 1989 Act were (a), in cases commenced prior to the departure of the United Kingdom from the European Union at 11 p m on 31 December 2020, the relevant provisions of Council Regulation (EC) No 2201/2003, (b) the relevant provisions of the 1996 Hague Convention, or, where (a) or (b) did not apply, (c) the habitual residence of the child in England and Wales or (d) the presence of the child in England and Wales where that child was not habitually resident in any part of the United Kingdom; and that, in the present case, given that an English court was the court currently seised of the issue of jurisdiction, the question of whether that court had jurisdiction to make the orders sought fell to be determined by reference to articles 5 and 6 of the 1996 Hague Convention, notwithstanding that Gabon was not a contracting state to that Convention (post, paras 26, 29–34).
(2) That, for the purposes of article 5 of the 1996 Hague Convention, habitual residence fell to be established by reference to the extent to which a child was, as a matter of fact, sufficiently connected to the jurisdiction in question; that for a child to be habitually resident within the meaning of article 5 of the Convention the child’s residence had to reflect some degree of integration in a social and family environment, which was a question of fact to be determined by the national court, taking into account all the circumstances specific to the individual case; that, further, the question of habitual residence for the purposes of article 5 fell to be decided as at the date on which that question came before the court for determination, which in the present case was the date of the current hearing; that, on the facts of the present case, the court had jurisdiction to make substantive orders in respect of the child under Part IV of the 1989 Act since the degree to which he was integrated into a social and family environment in this jurisdiction was sufficient to establish habitual residence; that, moreover, England and Wales was the most appropriate forum for determining the substantive issues arising in respect of the child’s welfare since England was the place with which his case had the most real and substantial connection; and that, accordingly, the matter would proceed towards a final hearing of the factual and welfare issues that remained for determination (post, paras 35–38, 41–42, 48, 58–61, 63).
Guidance as to the principles to be applied when determining a question of habitual residence (post, para 39).
Per curiam. Articles 8 and 9 of the 1996 Hague Convention cannot be used to effect a transfer of jurisdiction as between a contracting state and a non-contracting state (post, para 43).
The following cases are referred to in the judgment:
A, Proceedings brought by
A v A (Children: Habitual Residence)
B (Minors) (Abduction) (No 1), In re [
B (A Child), In re
CL v AL
F (Habitual Residence: Peripatetic Existence), In re
H v H (Minors) (Forum Conveniens) (Nos 1 and 2) [
K (A Child) (International Child Abduction: Forum Conveniens), In re
L (A Child) (Custody: Habitual Residence), In re
LC (Children), In re
M (A Minor) (Care Order: Jurisdiction) [
M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention), In re
M (Jurisdiction: Forum Conveniens), In re [
Mercredi v Chaffe
NH (1996 Child Protection Convention: Habitual Residence), In re
R (Care Orders: Jurisdiction), In re [
R (Children), In re
S (Residence Order: Forum Conveniens), In re [
Spiliada Maritime Corpn v Cansulex Ltd [
V (Forum Conveniens), In re [
The following additional cases were either cited in argument or referred to in the skeleton arguments:
I-L (Children) (1996 Hague Child Protection Convention: Inherent Jurisdiction), In re
J (A Child), In re
M and T (Proposed Convention Adoption: Habitual Residence), In re
PRELIMINARY ISSUE
On 12 April 2021 the local authority, Warrington Borough Council, issued care proceedings pursuant to section 31 of the Children Act 1989 in respect of the child, K, who was taken into police protection following a referral by health care services on 31 March 2021 and placed with foster carers with the agreement of his mother, T, pursuant to section 20 of the 1989 Act given on 1 April 2021. On 16 April 2021 K was made the subject of an interim care order, the court exercising jurisdiction pursuant to article 11 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 local authority, supported by the mother and the children’s guardian, contended that the court had jurisdiction to make orders under Part IV of the 1989 Act based on the child’s habitual residence in the jurisdiction of England and Wales for the purposes of article 5 of the 1996 Hague Convention. Since the child’s stepfather, W, disputed jurisdiction contending that the child remained habitually resident in Gabon the matter was listed for determination on the issue of jurisdiction.
The matter was heard in private and the judgment is reported with permission of the judge on condition that the anonymity of the child and his family be strictly preserved.
The facts are stated in the judgment, post, paras 6–21.
Shaun Spencer (instructed by
Lisa Edmunds (instructed by
Simon Povoas (instructed by
Ann Beattie (instructed by
The father did not appear and was not represented.
The court took time for consideration.
31 August 2021. MacDONALD J handed down the following judgment.
Introduction1 I am concerned with the welfare of K. There is some uncertainty as to K’s date of birth. On his birth certificate, K’s date of birth is recorded as June 2014. On his passport, K’s date of birth is however recorded as April 2014. In any event, based on the available evidence, he is seven years old. K is a national of Gabon (officially, the Gabonese Republic). He speaks Gabonese French. Warrington Borough Council, represented by Mr Shaun Spencer of counsel, brings care proceedings in respect of K under Part IV of the Children Act 1989.
2 The first respondent to the application, T, is K’s mother (hereafter “the mother”). The mother is represented by Ms Lisa Edmunds of counsel. The mother is also a national of Gabon and speaks Gabonese French. K’s birth certificate names his father as R, whose...
To continue reading
Request your trial
-
Re London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention)
...under Art 11 of the 1996 Hague Convention. Within this context, as this court observed in [ Warrington Borough Council v T and others [2022] Fam 107] it is vital that the question of whether, and on what basis, the court has jurisdiction is determined at the outset of the proceedings and th......
-
AA v BB & Ors (rights of custody vested in court: welfare: forum)
...Hague Convention on Child Protection or the Family Law Act 1986 was that there was a difference in the case-law between Warrington BC v T[2021] EWFC 68 and NH (1996 Child Protection Convention Habitual Residence)[2015] EWHC 2299 (Fam), which both found that for the 1996 Convention habitual ......
-
Re B (Children: Care Proceedings: Jurisdiction: Transfer of Proceedings)
...that are initiated after 11 pm on 31 December 2020 are governed by the 1996 Convention (see Warrington Borough Council v T and Others [2021] EWFC 68, [2022] Fam 107). The exercise of jurisdiction by the courts of England and Wales in proceedings under Parts I and II of the Act are governed ......
-
A Health and Social Care Trust and A Mother and A Father and in the matter of LS (A male child aged 8 months)
...in HC1996, unlike BIIA, resulted in the date of the hearing as being the relevant date. [23] MacDonald J in Warrington BC v T, R, W and K [2021] EWFC 68 at [42] indicated that he shared Cobb J’s view concerning the relevant date being the date the question came before the court for hearing.......