IAFL Permission to Intervene in case concerning jurisdiction and the 1996 Child Protection Convention
Posted: 01 Feb 2024
The IAFL were pleased to be given permission to intervene in the case LB of Hackney v P & Otrs (Jurisdiction: 1996 Hague Child Protection Convention)  EWCA Civ 1213 which was before the Court of Appeal in England and Wales on 25 May 2023, with judgment handed down on 19 October 2023. Leave to appeal to the UK Supreme Court has been sought by one of the parties and a decision is awaited.
The IAFL’s written submissions were prepared by counsel Jacqueline Renton, Charlotte Baker and Frankie Shama, all of 4PB. They were instructed by Jemma Dally of Goodman Ray. The legal team were supported by members of the IAFL Amicus Committee, chaired by Edwin Freedman.
In this case, the Court of Appeal considered important issues relating to the application and scope of the 1996 Hague Convention in respect of a public law children case. It followed a number of conflicting decisions in the High Court of England & Wales as regards the relevant date for the purposes of assessing habitual residence under Article 5 of the 1996 Hague Convention, which had caused a degree of uncertainty when advising clients involved in complex international children law litigation.
As the court noted in the judgment:
35. The IAFL made three overarching submissions as to the objectives which, they submitted, the court should seek to achieve:
(a) Clarity in the approach adopted so that lawyers, and no doubt others, can provide clear and consistent advice;
(b) The relationship between the 1996 Convention and national law should bolster, rather than undermine, the range of powers available to a court when seeking to protect a child; and
(c) Any issue as to the court's jurisdiction should be determined without delay.
In the case, the Court of Appeal was asked to consider:
- Whether the relevant date for determining habitual residence under Article 5 of the 1996 Hague Convention was the date of the hearing, or the date on which the proceedings were issued. This was an issue that has divided Judges sitting in the High Court of England & Wales so far.
- The extent of the court’s jurisdiction to make public law protective orders (i.e. those sought by the state, rather than by a parent or carer) where a child is present but not habitually resident in England & Wales or any other 1996 Hague Convention Contracting State.
Drawing on assistance from its Fellows around the world, the IAFL provided detailed written submissions to the Court of Appeal. The IAFL invited the Court of Appeal to fix the relevant date for the purposes of establishing habitual residence as the date of the application, and to avoid any interpretation of the 1996 Hague Convention which sought to exclude alternative grounds of jurisdiction under national law. The Court of Appeal broadly agreed with those submissions, and determined as follows:
- The 1996 Hague Convention applies to proceedings for an order under Part IV of the Children Act 1989 (i.e. an application for a public law order brought by the state);
- The court must determine the issue of jurisdiction at the outset of proceedings by reference to the date on which the proceedings were commenced;
- Jurisdiction under the 1996 Hague 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;
- Jurisdiction is acquired under Article 5 of the 1996 Hague Convention 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;
- The court in England and Wales is likely to have jurisdiction to make interim public law orders under Article 11 of the 1996 Hague Convention when the child is habitually resident in a Contracting State;
- The court in England and Wales is likely to have jurisdiction to make interim public law orders under Article 11 of the 1996 Hague Convention 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 court stressed the importance of matters being dealt with expeditiously and made particular reference to the submissions made on behalf of IAFL:
89. There is a further reason why the issue of jurisdiction needs to be determined expeditiously. As referred to by the judge, Lieven J and Peel J, a party might seek to delay proceedings or seek to take advantage of delay to procure a jurisdictional advantage. As submitted by the IAFL, delay might encourage parties to seek to take steps to "bolster their case on habitual residence" which might be contrary to a child's welfare. Also, as was submitted in this case, it would be wrong for proceedings to be issued by a party on a speculative basis or in the hope that, by the time the issue was determined, the court had acquired jurisdiction.
90. 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. It would be wrong for this delay to be the cause of the jurisdictional picture changing or, even, becoming determinative of that issue.
IAFL are very grateful to everybody on the team responsible for the Intervention in this case, and, in particular, barristers Jacqueline Renton, Charlotte Baker and Frankie Shama, all of 4PB and solicitor, Jemma Dally of Goodman Ray.