London Borough of Hackney v P & Ors (Re Jurisdiction: 1996 Hague Child Protection Convention)

Factual and Procedural Background

The appeal concerns the jurisdictional basis for making orders under Part IV of the Children Act 1989 ("the CA 1989") in respect of a child ("the Child") involved in international proceedings. The central factual matrix is that the Child was born in France in 2009, lived there until 2017, then moved to Tunisia to live with the paternal grandmother ("the Appellant") pursuant to a French court order following the death of the Child’s mother. The Child arrived in England in June 2021 to stay with a paternal uncle and was placed in foster care following police protection measures. The Local Authority commenced care proceedings in August 2021, and an interim care order was made in September 2021. There were significant delays in the case, including in resolving the issue of jurisdiction and habitual residence.

The main procedural issue was the determination of the Child's habitual residence for the purposes 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"). The Family Division judge ("the Judge") decided that the relevant date for determining jurisdiction was the date of the hearing (7 November 2022), and alternatively, that jurisdiction could be based on the Child's presence in England and Wales under domestic law. The Appellant appealed on two grounds: (i) that the relevant date should be the date the court was first seised or the date jurisdiction was first listed for determination, not the date of the hearing; and (ii) that the court lacked residual domestic jurisdiction based on presence when the Child was habitually resident in a non-Contracting State to the 1996 Convention.

The Child's habitual residence was ultimately determined to be England and Wales as at the date of the hearing on 7 November 2022, and the courts here were held to have jurisdiction under Article 5(1) of the 1996 Convention. The Appellant’s application for summary return was dismissed, and no appeal was made against these determinations.

Legal Issues Presented

1. What is the relevant date for determining habitual residence for the purposes of Article 5 of the 1996 Hague Convention: the date of the hearing or the date on which the proceedings were issued?
2. Does the court have residual domestic jurisdiction to make orders under Part IV of the Children Act 1989 based on the presence of the child in England and Wales when the child is habitually resident in a non-Contracting State to the 1996 Convention?

Arguments of the Parties

Appellant's Arguments

• The relevant date for habitual residence should be the date the court is first seised or the date jurisdiction is first listed, not the date of the hearing.
• It would be undesirable and legally uncertain for proceedings to be sustained without a legitimate jurisdictional basis at inception and then retrospectively validated by a change in habitual residence.
• The principle of comity would be violated if the court asserted jurisdiction absent a valid basis at the start of proceedings and then legitimised orders after the fact.
• The court does not have residual jurisdiction based on presence once the 1996 Convention applies; jurisdiction is either under the Convention or does not exist.
• Reliance on domestic jurisdiction provisions in such circumstances is either wrong or bad practice.

Respondent's Arguments (Local Authority and Child's Guardian)

• The Judge's decision that the relevant date is the date of the hearing should be upheld, supported by the Explanatory Report and Practical Handbook on the 1996 Convention.
• The absence of the principle of perpetuatio fori means habitual residence and jurisdiction can change during proceedings, and jurisdiction should be assessed at the hearing date.
• Robust case management is necessary to avoid jurisdiction being determined by delay or procedural default.
• There is a well-established residual domestic jurisdiction based on a child's presence in England and Wales where the child is habitually resident in a non-Contracting State, consistent with the objectives of the 1996 Convention.
• It would be inconsistent with the Convention's purpose to limit the court's jurisdiction to protect children present in England and Wales by excluding domestic jurisdiction.
• The court’s jurisdiction under domestic law does not conflict with the 1996 Convention in cases involving non-Contracting States.

Intervener (International Academy of Family Lawyers - IAFL)

• Jurisdictional clarity and certainty are paramount to provide consistent legal advice and protect children's welfare.
• The 1996 Convention should bolster, not undermine, the court’s powers to protect children, including through domestic jurisdiction where appropriate.
• The relevant date for determining habitual residence should be the date the application is issued to provide clarity and avoid manipulation.
• Alternatively, the date of the first hearing listed for jurisdiction should be used.
• The 1996 Convention does not exclude alternative grounds of jurisdiction provided under national law when jurisdiction under the Convention is not established.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the applicability of the 1996 Convention to public law proceedings under Part IV of the CA 1989. It emphasized that the court must determine its jurisdiction at the outset of proceedings, consistent with procedural rules and established case law, to ensure legal certainty and protect the child's welfare.

Regarding the primary issue, the court held that the relevant date for initially determining habitual residence under Article 5 of the 1996 Convention is the date on which the proceedings are commenced (the date the court is seised). This approach provides clarity, predictability, and procedural integrity, avoiding retrospective validation of jurisdiction based on subsequent changes in habitual residence. The court acknowledged that habitual residence and thus jurisdiction can change during proceedings due to the absence of the principle of perpetuatio fori, but the initial jurisdictional foundation must be fixed at commencement.

The court recognized the risk of jurisdictional shifts resulting from delays or manipulation but highlighted available mechanisms such as transfer of jurisdiction provisions and summary return orders to mitigate such risks.

On the secondary issue, the court determined that where a child is habitually resident in a non-Contracting State, Article 5 does not apply, but the court retains jurisdiction under domestic law based on the child's presence in England and Wales. Articles 11 and 12 of the 1996 Convention provide limited, provisional jurisdiction in such cases, but domestic law can confer substantive jurisdiction. The court found no express or implied prohibition in the 1996 Convention against exercising domestic jurisdiction in these circumstances, and it would be contrary to the Convention's protective objectives to construe it otherwise.

The court rejected the Appellant's argument that domestic jurisdiction should yield entirely to the Convention, noting that the Convention's jurisdictional scheme applies only between Contracting States. The absence of reciprocal arrangements with a non-Contracting State means that domestic jurisdiction is necessary to protect the child effectively. The court also acknowledged that the presence-based jurisdiction under domestic law is consistent with the Convention's objectives and does not conflict with its provisions.

In conclusion, the court allowed the appeal on the first ground, correcting the relevant date for determining habitual residence to the date of commencement of proceedings, but dismissed the appeal on the second ground, affirming the existence of residual domestic jurisdiction based on presence when the child is habitually resident in a non-Contracting State.

Holding and Implications

The appeal is ALLOWED in respect of the first ground and DISMISSED in respect of the second ground.

The court held that the relevant date for determining a child's habitual residence under Article 5 of the 1996 Convention is the date on which the proceedings are commenced, not the date of the hearing. This provides legal certainty and procedural integrity at the outset of proceedings. However, the court also recognized that habitual residence and jurisdiction can change during the course of proceedings due to the absence of the perpetuatio fori principle.

Furthermore, the court confirmed that where the child is habitually resident in a non-Contracting State, the court retains substantive jurisdiction under domestic law based on the child's presence in England and Wales. This residual jurisdiction is consistent with the objectives of the 1996 Convention to protect children and ensures that the court can make welfare decisions even when the Convention does not confer jurisdiction.

The decision clarifies the interaction between the 1996 Convention and domestic jurisdictional rules, particularly in cases involving non-Contracting States, and underscores the importance of determining jurisdiction promptly at the commencement of proceedings. No new precedent beyond the decision's direct effect on the parties is established.