London Borough of Sutton v MH (No 1)

Where a child has no habitual residence, the Family Division may have jurisdiction based on necessity. That conclusion should be revisited only where later evidence or legal developments materially undermine the earlier factual and legal assessment. A final care hearing should be adjourned where a child appears to have lost litigation capacity, the Official Solicitor must be involved, and the child’s wishes and feelings are central to the care plan but cannot fairly be clarified. Access to confidential documents may be regulated, rather than refused, where restrictions are necessary and proportionate to protect another party’s privacy while preserving equality of arms.

The London Borough of Sutton sought a care order under Part IV of the Children Act 1989 concerning NH, a 16-year-old with Canadian and Zimbabwean citizenship. Cobb J had previously held that NH was not habitually resident in any jurisdiction and that the court therefore had jurisdiction based on necessity: Re NH (1996 Child Protection Convention Habitual Residence) [2015] EWHC 229 (Fam).

At this review hearing, the mother sought reconsideration of jurisdiction, discharge of the interim care order, various ancillary orders, and unrestricted access to documents. During the hearing NH apparently lost capacity to conduct proceedings, and the reliability of his expressed wishes concerning his proposed return to Canada became unclear. The central issues were whether jurisdiction should be revisited, whether the final hearing should proceed, and whether document access should remain regulated.

1. Jurisdiction. The later evidence did not justify revisiting Cobb J’s conclusion that NH had no habitual residence. The evidence, taken at its highest, did not undermine the earlier factual findings. NH had not become integrated into a social and family environment in England, and his own state of mind remained material to the assessment. The exceptional character of a child having no habitual residence was consistent with Re B (A Child) [2016] UKSC 4. The court applied the modern child-focused approach to habitual residence described in A v A (Children: Habitual Residence) [2013] UKSC 60.
2. Adjournment and capacity. The final hearing could not fairly proceed. NH’s wishes and feelings formed the foundation of the local authority’s care plan, but it was unclear whether his latest statement represented a genuine change of mind or coercion. His apparent loss of litigation capacity required the involvement of the Official Solicitor, and it was inappropriate to press him for clarification while his mental health was fragile. The final hearing was adjourned, with the mother’s corresponding application granted by default. The threshold issue was also adjourned.
3. Document access. Equality of arms required a reasonable opportunity to inspect relevant evidence, but disclosure was not absolute. The court applied the principles discussed in Buchberger v Austria (2003) 37 EHRR 356 and McMichael v United Kingdom (1995) 20 EHRR 205, and the caution concerning refusal of disclosure in A (A Child) [2012] UKSC 60. The mother could view and read specified confidential documents but could not retain or copy them. The restriction was proportionate and protected NH’s privacy under Art 8 while preserving the mother’s Art 6 rights.
4. The interim care-order application was adjourned. The remaining ancillary applications were dismissed. The Official Solicitor was to act as NH’s litigation friend, subject to funding confirmation. Permission to appeal the earlier orders was refused.