C (Hague Convention Application: Interim Powers), Re

Section 5 of the Child Abduction and Custody Act 1985 confers a broad, self-contained interim power in Hague Convention proceedings. The court may make directions securing the child’s welfare or preventing changes relevant to the application, including temporary arrangements for accommodation or care through a local authority.

Such involvement is exceptional. The court should consider other protective arrangements first, retain control of the provisional measures, and provide liberty to apply. A section 5 direction does not create a care, interim care, residence or other status or order under the Children Act 1989. Electronic tagging may be directed in a very small number of cases where it is necessary to secure the child’s welfare or preserve the circumstances relevant to the application.

The judgment arose during Hague Convention proceedings concerning a child who had allegedly been wrongfully retained and later removed to England. The child was found after several years and had initially been placed in foster care under police protection.

The substantive return application was adjourned. The court instead determined whether section 5 of the Child Abduction and Custody Act 1985 enabled interim directions requiring a local authority to arrange temporary care or accommodation, notwithstanding the statutory scheme of the Children Act 1989. The court also considered whether electronic tagging could form part of the protective arrangements.

1. Power under section 5. Section 5 of the Child Abduction and Custody Act 1985 establishes a broad interim jurisdiction. The court may give any directions fit for securing the child’s welfare or preventing changes in circumstances relevant to determining the Hague application. The provision reflects Articles 1, 2 and 7(b) of the Hague Convention and operates as a self-contained code for these applications.
2. Temporary local-authority arrangements. The power may extend to directing a local authority to make arrangements for the child to be placed with an appropriate person, institution or other body. This should occur only after alternative arrangements have been considered and found inadequate. The court remains responsible for shaping and controlling the provisional measures, and the order should provide liberty to apply for the local authority and other affected persons.
3. Relationship with the Children Act. A section 5 direction is not a care or interim care order and does not confer parental responsibility or create a status of being in local-authority care or accommodation under the Children Act 1989. Sections 9 and 100 of the 1989 Act do not remove the distinct statutory power conferred by section 5. The power is directed to immediate welfare and preservation of the child within the jurisdiction, not to deciding the merits of custody rights.
4. Electronic monitoring. In an exceptional case, electronic tagging may be directed under section 5 where necessary to secure the child’s welfare or prevent a change in circumstances relevant to the application. It would ordinarily require the individual’s consent, or operate as a condition whose breach could trigger alternative safeguards. Such arrangements are unlikely to be appropriate except in very few cases.

First-instance determination of the interim jurisdictional issue in Hague Convention proceedings. The substantive application was adjourned.