Appeal judges rule on relevant date for determining whether court has jurisdiction based on habitual residence of child pursuant to Hague Convention

The Court of Appeal has ruled that a judge was wrong to decide that the relevant date for determining habitual residence for the purposes of Article 5 of the 1996 Hague Convention is "the date of the hearing", during proceedings involving a teenage girl who had been living in Tunisia until 2021.

However, Lord Justice Moylan also said that Mr Justice MacDonald had been right to decide that the courts have had “substantive jurisdiction from the outset of the proceedings under our domestic rules”.

The principal issue raised by the appeal in London Borough of Hackney v P & Ors (Re Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 was 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.

Outlining the background to the case, Lord Justice Moylan noted that 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.

H remained living in Tunisia until she arrived in England in June 2021 to stay with her paternal uncle. She was initially taken into police protection and placed in foster care on 4 July 2021. H was returned to her paternal uncle on 7 July but 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, following which H has remained in foster care.

After a number of “substantial delays”, an application was issued by H’s grandmother, N, for a summary return order in June 2022.

Lord Justice Moylan noted that the legal issues in respect of jurisdiction “were not substantively addressed” until July 2022.

In his judgment dated 29 July 2022, Mr Justice MacDonald (‘the judge’) decided 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".

H's habitual residence was determined by the judge's second judgment of 19 December 2022, after a hearing on 7 November 2022. He determined that H was habitually resident in England and Wales at the date of the hearing on 7 November and that, accordingly, the courts here had jurisdiction under the provisions of Article 5(1) of the 1996 Convention.

Further, 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.

N, the paternal grandmother of H who is the subject of the proceedings, appealed.

Lord Justice Moylan said there were 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.

In their written submissions, counsel for N invited the court to approve Lieven J's decision in Derbyshire County Council v Mother and others [2023] Fam 183, in which she disagreed with the judge's decision in the present case as to the relevant date. She determined that it is the date on which the court is seised.

Lord Justice Moylan said that counsel for N “acknowledged that the absence of the principle of perpetuatio fori in the scheme of the 1996 Convention suggested that the issue of habitual residence ‘must be kept under review’”.

However, he “submitted forcefully” that proceedings cannot be lawfully commenced without an appropriate jurisdictional foundation.

“This meant that the issue of jurisdiction must be determined at the first available opportunity, as required by the Family Procedure Rules 2010, preferably, he submitted, by reference to the date on which the court was seised.”

“This had the advantage of being a predictable and consistent fixed point rather than the arbitrary and unpredictable timing of when a hearing happened to take place”, said the Court of Appeal judge.

On the second ground of appeal, counsel for N questioned how any residual jurisdiction, of the type identified by Singer J in Re R, could have been preserved following the incorporation into domestic law of BIIa and the 1996 Convention.

Lord Justice Moylan noted that his submission, “at its highest”, was that either the court has jurisdiction under the provisions of the 1996 Convention or it does not have jurisdiction at all.

He added: “Alternatively he accepted, it appeared, that the 1996 Convention does not eliminate all existing domestic rules or dictate the content of domestic provisions but that, when the latter were inconsistent with the former, they "should give way". Accordingly, recourse to domestic jurisdiction provisions was "either wrong or bad practice".”

Prior to determining the appeal, Lord Justice Moylan warned that delay in decision making is “always contrary to the best interests of children” but, in this situation, “the longer the determination of any jurisdictional issue is delayed, the more established the child's situation becomes”.

He turned to the application of the 1996 Convention on the assumption that the child, the subject of proceedings for a Part IV order is, “at least, present in England and Wales”.

He added that the 1996 Convention “clearly applies” to public law children proceedings.

The Court of Appeal judge noted that the court should first decide where the child is ‘habitually resident’, adding that if the child is habitually resident in another Contracting State, that State has substantive jurisdiction under Article 5.

If the child is present in England and Wales but habitually resident in a non-Contracting State, Article 5 has no application, he said.

The Court of Appeal judge asked whether jurisdiction can also be established on the basis of presence under domestic rules. To this, he said: “In my view, in agreement with the judge and contrary to Mr Setright's [counsel for N’s] submissions, I consider that the answer is that it can.”

Outlining his reasoning, he said: “First, there is nothing in the 1996 Convention which expressly excludes domestic rules as to jurisdiction. It is clear, if not expressly at least by necessary implication, that domestic rules cannot be relied on in a manner that would conflict with the provisions of the 1996 Convention.

“Accordingly, the English court could not exercise substantive jurisdiction on the basis of presence if the child was habitually resident in another Contracting State.”

Looking at the present case, he said: “The court undoubtedly had jurisdiction to make an interim care order under Article 11. Equally, applying Re J, the court would have had jurisdiction to make a summary return order. The question is, having refused the latter, and assuming this order had been made before H became habitually resident in England and Wales, would the court then have had no jurisdiction to make any other order?

“This, with all due respect to Mr Setright, would not provide a coherent jurisdictional structure for the protection of a child or for welfare decisions. This includes because any order which might have been made in Tunisia would not be enforceable as of right in England and Wales. Absent there being jurisdiction based on presence, it seems to me that the court here would not even have jurisdiction to consider what further orders to make.”

He added: “That is why, as submitted by Mr Twomey and Mr Pugh, [on behalf of the first respondent and third respondent], I consider that any such conclusion would be contrary to the 1996 Convention's objectives especially because, as noted by the judge at [103], the effect of Mr Setright's case would be that "absent a residual jurisdiction based on presence, the court would be precluded from making any substantive orders in respect of her welfare".”

The Court of Appeal judge said that in his view, if the 1996 Convention does not provide substantive jurisdiction, the court can turn to domestic law as an alternative source of jurisdiction.

He summarised that if a child is present in England and Wales and habitually resident in a non-Contracting State (in this case, Tunisia) the courts here have jurisdiction to make a Part IV order “either under Article 11 or under our domestic law”.

Lord Justice Moylan then turned to the issue of the relevant date for the determination of habitual residence.

He said: “I agree with the submissions made in this appeal that the fact that the principle of perpetuatio fori does not apply, does not mean that the court's jurisdiction is not, at least initially, determined at the outset of the proceedings. Indeed, it would be contrary to legal certainty and, as Mr Setright submitted, the integrity of the proceedings, if the question of what, if any, jurisdiction the court had was not determined at the outset of proceedings.”

The Court of Appeal judge noted that in his view, this should initially be determined by reference to the date on which proceedings were commenced.

“This is the date on which the court's jurisdiction was invoked and it seems to me appropriate that this should be the date by reference to which the court should initially determine what, if any, jurisdiction it has. If it had no jurisdiction, the proceedings would be liable to be dismissed”, he said.

He then turned to the issue of the loss or acquisition of jurisdiction during the course of proceedings.

The Court of Appeal judge said: “It is clear that a state can lose jurisdiction under Article 5 during the course of proceedings if the child ceases to be habitually resident in that State. The court must retain jurisdiction at the date of the final substantive hearing.”

He added: “There is, however, a clear difference between a move to a Contracting State and a move to a non-Contracting State. In the former case, the other State acquires Article 5 jurisdiction. In the latter case, the other State does not. The consequence is that, in the former, the original State cannot retain jurisdiction by reference to domestic law, while in the latter case, it can.”

Having regard to the circumstances of the present case, Lord Justice Moylan considered what happens if a child becomes habitually resident in England and Wales during the course of proceedings.

He noted it is “clear” that, by the date of the hearing before the judge in November 2022, H had become habitually resident here.

He said: “In the present case, the transfer of jurisdiction provisions are not available. However, as referred to above, the English court has had substantive jurisdiction from the outset because of H's presence here. This is the consequence of Tunisia not being a party to the 1996 Convention.

“[…] There is, therefore, no need for new proceedings to be commenced. It also means that the court's decisions have, appropriately, been governed by H's welfare interests. Further, even if I was wrong about jurisdiction based on presence and the court only acquired substantive jurisdiction when H became habitually resident here, there would be no need to require new proceedings to be commenced as the court would have had jurisdiction to make the interim orders which it did, in particular the interim care order, under Article 11.”

However, he agreed with counsel for N that the question whether to make a summary return order should have been determined at a much earlier stage of the proceedings.

He added that this was caused by the failure properly to engage N in the proceedings and then by being distracted by issues as to jurisdiction.

Summarising his conclusions on the issue of jurisdiction he said:

(i) the 1996 Convention applies to proceedings for an order under Part IV of the CA 1989;

(ii) the court must determine the issue of jurisdiction at the outset of proceedings by reference to the date on which the proceedings were commenced;

(iii) jurisdiction under the 1996 Convention can be lost during the course of proceedings, if it was based on habitual residence and the child has ceased to be habitually resident in England and Wales. Accordingly, the court must be satisfied that it retains jurisdiction at the final hearing;

(iv) jurisdiction is acquired under Article 5 from the date on which a child becomes habitually resident in England and Wales; the effect of this on existing proceedings will depend on the circumstances of the case;

(v) the court in England and Wales will likely have jurisdiction to make interim orders under Part IV under Article 11 when the child is habitually resident in a Contracting State;

(vi) the court in England and Wales will likely have jurisdiction to make interim orders under Part IV under Article 11 and will also have substantive jurisdiction based on a child's presence here when the child is habitually resident in a non-Contracting State.

The appeal brought by N was allowed in respect of Ground 1 but dismissed in respect of Ground 2.

On ground one, Lord Justice Moylan concluded: “The judge was wrong to decide that the relevant date for determining habitual residence for the purposes of Article 5 is "the date of the hearing". However, this does not affect the judge's determination that the courts of England and Wales have substantive jurisdiction in respect of the proceedings brought by the local authority.”

He added: “This is because, contrary to the case advanced in respect of Ground 2, he was right to decide that the courts have had substantive jurisdiction from the outset of the proceedings under our domestic rules. This means that there is no question of fresh proceedings being required.

“I would also note that the judge was right to decide that the courts of England and Wales have substantive jurisdiction under Article 5 because H is habitually resident here.”

Finally, he agreed with Lieven J and the judge in that jurisdiction must first be determined at the date of the commencement of the proceedings but also must be present during the proceedings, “in particular because jurisdiction under Article 5 can be lost if a child ceases to be habitually resident in England and Wales”.

Lord Justice Newey and Lady Justice King agreed.

Lottie Winson