Birmingham Children's Trust v Z & Ors

For care proceedings with an international dimension, jurisdiction depends on the child’s habitual residence rather than mere physical presence, subject to the court’s power to make urgent protective orders where the child is present and in need of protection. The habitual-residence inquiry must focus keenly on the child’s situation at the relevant date. Parental intentions and connections may be relevant, but they do not displace the child-focused assessment. The court should consider the child’s integration and connections in each state, while avoiding unnecessary distraction from the child’s circumstances. A short stay in one country, without meaningful engagement with social, health or family networks, may be outweighed by stronger connections formed after moving to another country.

Birmingham Children’s Trust applied for care orders concerning an unregistered child whose parents had lived in Ireland before returning to England. The child was born, or probably born, in Ireland in late November 2020 and was taken into police protection in Birmingham on 1 February 2021. An interim care order was made on 4 February 2021.

The father contested the jurisdiction of the English court, arguing that the parents and child were habitually resident in Ireland at the relevant time. The court had to determine both its urgent protective jurisdiction and whether it had jurisdiction to make longer-term orders under the Children Act 1989.

1. Urgent jurisdiction. Under section 31(8)(b) of the Children Act 1989, the court had power to make urgent orders because the child was physically present in England and Wales and required urgent protection.
2. Applicable jurisdictional test. Following the United Kingdom’s departure from the European Union, the jurisdictional question was governed by the Hague Convention on the Protection of Children 1996, including Articles 5, 8 and 11. The parties agreed that habitual residence was the applicable test. The court referred to Re F (Care Proceedings: Habitual Residence) [2014] EWFC 26, Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 and Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105.
3. Child-focused assessment. Re M provided a useful checklist, but required a keen focus on the child’s situation at the relevant date. The court treated that child-focused approach as more important than an excessive inquiry into parental intentions or the degree of connection with the state previously occupied.
4. Application. The parents’ integration in Ireland was limited. They rented accommodation but had little evidence of employment, social integration or engagement with Irish health and social-care services. The child spent approximately two weeks in Ireland and six weeks in England before the relevant date. In England she lived within a wider family network and had stronger connections with the United Kingdom. Her short and fleeting connection with Ireland was insufficient to establish continuing habitual residence there.
5. Conclusion. The child was habitually resident in England and Wales by 1 or 4 February 2021. The court therefore had jurisdiction to determine the care proceedings under the Children Act 1989.

First-instance determination of jurisdiction in care proceedings. No appellate history was stated in the judgment.