Re B (Children: Care Proceedings: Jurisdiction: Transfer of Proceedings)

Under the 1996 Convention, habitual residence ordinarily determines primary jurisdiction in child-protection proceedings. The court must conduct a child-focused factual assessment of integration in the social and family environment, considering stability, connections, parental intention and the child’s circumstances at the relevant date.

Where wrongful removal or retention is alleged, habitual residence must be assessed when the wrongful act occurred, so that the jurisdictional protection in Article 7 remains effective. Article 8 requires separate consideration of whether another state is better placed and whether transfer would be in the child’s best interests. The latter question concerns the impact of transfer itself, rather than the eventual welfare outcome.

Two connected care proceedings concerned LB, a Romanian national aged sixteen, and her six-month-old child, S. Both children had been made subject to interim care orders after concerns including trafficking, forced marriage, neglect and possible abduction.

LB left her foster placement and was believed to be in Romania or Spain. She challenged the English court’s jurisdiction and sought transfer of both proceedings to Romania under Article 8 of the 1996 Convention. The local authority opposed transfer, sought wardship in respect of LB and alleged that she had been wrongfully removed or retained abroad. S’s father sought progression from remote to face-to-face contact.

The issues were habitual residence, the effect of alleged wrongful retention, transfer of each set of proceedings, wardship and contact.

1. Jurisdiction and habitual residence. The court held that LB was habitually resident in England by November 2021. Habitual residence is a factual, child-focused inquiry directed to the degree of integration in the child’s social and family environment. LB’s prolonged residence, significant family relationship, pregnancy and birth of S, increasing integration in England, and the delegation of her care to relatives supported that conclusion. The absence of registration with health and education authorities did not prevent integration.
2. Wrongful retention. Although habitual residence may change during proceedings under the 1996 Convention, where wrongful removal or retention is alleged the relevant assessment is the child’s habitual residence at the time of the alleged wrongful act. The court found sufficient evidence that LB had been wrongfully retained outside England. She had been away for less than one year, and there had been no acquiescence by the local authority. Article 7 therefore preserved English jurisdiction.
3. Transfer under Article 8. The court treated the “better placed” and “best interests” questions as separate but related. The English court was better placed because the principal witnesses, AB and the alleged offending conduct were in England, and the serious allegations required adjudication here. Transfer was also not in LB’s best interests, having regard to her vulnerability, the risks identified and the impact of transfer. The applications to transfer LB’s and S’s proceedings to Romania were dismissed.
4. Wardship. The High Court’s inherent jurisdiction remained available to protect LB. The court made her a ward of court and continued orders requiring her return to England. It gave no direction as to where or with whom she should live.
5. Contact. S’s welfare was paramount under section 1(3) of the Children Act 1989. The evidence did not yet establish that AB could maintain a consistent and safe pattern of contact. The court declined to make a contact order under section 34, while offering a further opportunity for him to engage with virtual contact and supportive work before face-to-face contact could begin.

First-instance decision. The judgment records no prior appellate decision in the same proceedings.