Jurisdictional Clarifications under the 1996 Hague Child Protection Convention: Hackney v P & Ors [2023] EWCA Civ 1213

Introduction

In the landmark case of London Borough of Hackney v P & Ors (Re Jurisdiction: 1996 Hague Child Protection Convention) ([2023] EWCA Civ 1213), the England and Wales Court of Appeal delivered pivotal clarifications regarding the determination of jurisdiction in international child protection proceedings. The central focus of the case was the appropriate date reference for establishing a child's habitual residence under Article 5 of the 1996 Hague Convention. This case involved a child, referred to as H, whose residence transitioned from France to Tunisia and subsequently to England, prompting complex jurisdictional questions.

The parties involved included the London Borough of Hackney representing the local authority, the paternal grandmother N, and interveners such as the International Academy of Family Lawyers (IAFL). The core issues revolved around whether the relevant date for habitual residence determination should be the date proceedings were initiated or the date of the hearing, and the extent of the court’s residual jurisdiction when the child is present but not habitually resident in England or any Contracting State to the Convention.

Summary of the Judgment

Lord Justice Moylan delivered the judgment, addressing two primary grounds of appeal raised by the appellant, the paternal grandmother N. The Court of Appeal agreed with Ground 1, which contested the judge’s determination of the relevant date, but dismissed Ground 2, which challenged the residual jurisdiction based on the child’s presence in England.

The court concluded that the relevant date for establishing habitual residence under Article 5 should be the date proceedings were commenced, not the date of the hearing. Additionally, it affirmed that the courts in England and Wales retain residual jurisdiction to make orders under Part IV of the Children Act 1989 based on the child's presence in England, even if habitual residence is not in a Convention Contracting State.

Analysis

Precedents Cited

The judgment extensively referenced pivotal cases and international instruments that shaped the court’s reasoning. Notably, Re A (A Child) [2023] EWCA Civ 659, A v A (Children: Habitual Residence) [2014] AC 1, and Re R (Care Proceedings: Jurisdiction) [1995] 1 FLR 711 were instrumental in delineating the boundaries of jurisdiction under the 1996 Hague Convention. The court contrasted these precedents with the implications of similar cases like Re J (A Child) [2023] EWCA Civ 897 and Derbyshire County Council v Mother and others [2023] Fam 183 to clarify jurisdictional authority when dealing with non-Contracting States.

Furthermore, the court scrutinized provisions from the Family Procedure Rules 2010 (FPR 2010) and the Children Act 1989 (CA 1989), integrating these with the Convention’s mandates to reinforce the legal framework governing child protection jurisdiction.

Legal Reasoning

Central to the court’s reasoning was the interpretation of Article 5 of the 1996 Hague Convention, particularly focusing on habitual residence as the primary criterion for jurisdiction. The court emphasized that habitual residence should be assessed based on the date proceedings commence, ensuring legal certainty and preventing manipulation through procedural delays.

The judgment underscored that, in the absence of habitual residence in a Contracting State, residual jurisdiction under domestic law remains a valid basis for court orders. This dual approach ensures that child welfare remains paramount, irrespective of international jurisdictional shifts. The court also addressed concerns regarding the potential for jurisdiction to shift unfavorably due to delays, reinforcing the necessity for prompt jurisdictional determinations in accordance with best practices outlined in preceding case law and procedural rules.

Impact

This judgment has significant implications for future international child protection cases. By establishing that the commencement date is pivotal for habitual residence determination, courts are now provided with a clear and predictable framework, reducing ambiguities that previously allowed for strategic delays. Additionally, affirming the residual jurisdiction based on presence ensures that child protection proceedings are not rendered powerless when habitual residence is contested or resides in non-Contracting States.

The decision harmonizes domestic law with international conventions, providing a robust mechanism to safeguard children's welfare in cross-border situations. It also sets a precedent for how similar cases should be approached, particularly concerning jurisdictional challenges involving non-Contracting States.

Complex Concepts Simplified

Habitual Residence: This is the place where a child has their center of interests and remains for a continuous period prior to the relevant date. It is the primary criterion under Article 5 for determining jurisdiction.

Article 5 of the 1996 Hague Convention: Establishes the primary grounds for jurisdiction based on a child's habitual residence. It dictates that the state where the child habitually resides has jurisdiction to take protective measures.

Residual Domestic Jurisdiction: Refers to the authority of domestic courts to make orders based on the presence of the child within their jurisdiction, even if the child is not habitually resident there.

Perpetuatio Fori: A legal principle where a court retains jurisdiction over a case even if the basis for its jurisdiction changes during proceedings. The 1996 Hague Convention does not uphold this principle, meaning jurisdiction can shift based on changes in habitual residence.

Conclusion

The Hackney v P & Ors judgment marks a definitive clarification in the realm of international child protection law. By establishing that the commencement date of proceedings is the critical reference point for determining habitual residence under Article 5 of the 1996 Hague Convention, the court has enhanced the predictability and integrity of jurisdictional determinations. Additionally, affirming the presence-based residual jurisdiction under domestic law ensures that children's welfare remains protected, even amidst complex international scenarios involving non-Contracting States.

These rulings not only guide future legal interpretations and applications but also reinforce the overarching objective of the 1996 Convention to prioritize and safeguard the best interests of children in international contexts. Legal practitioners, child welfare authorities, and international stakeholders must heed these clarified principles to navigate jurisdictional challenges effectively, ensuring that the protection mechanisms for children remain robust and unequivocal across borders.