London Borough of Hackney v P & Ors

The jurisdictional scheme in Chapter II of the 1996 Hague Convention governs care proceedings under Part IV of the Children Act 1989 where the child is in England and Wales, even if the competing foreign jurisdiction is a non-Contracting State. The Convention’s jurisdictional provisions concern jurisdiction in the Contracting State and are distinct from its recognition and enforcement provisions.

If Article 5 jurisdiction is absent because the child is not habitually resident in England and Wales, the domestic common-law jurisdiction based on the child’s presence remains available. Under Article 5(1), habitual residence is assessed at the date of the relevant hearing, not when proceedings were first issued. The court stressed the need for prompt jurisdictional determination and robust case management.

The local authority issued care proceedings under Part IV of the Children Act 1989 concerning a child who had arrived in England from Tunisia. The child’s paternal grandmother sought summary return to Tunisia under the inherent jurisdiction.

The court was required to determine three preliminary questions: whether Chapter II of the 1996 Hague Convention governed the care proceedings; whether it applied despite Tunisia being a non-Contracting State; whether presence remained a residual domestic basis of jurisdiction if Article 5 did not apply; and the date at which habitual residence fell to be assessed.

1. Convention jurisdiction. Chapter II of the 1996 Hague Convention was the first port of call for determining jurisdiction in care proceedings under Part IV of the Children Act 1989. A care order concerned the attribution, exercise and restriction of parental responsibility and could concern foster placement, so it fell within Article 3.
2. The Chapter II jurisdictional scheme applied even though Tunisia was a non-Contracting State. The Convention distinguished jurisdiction in a Contracting State from applicable-law, recognition and enforcement provisions operating between Contracting States. Article 5(1) contained no express or implied requirement that the rival State also be a Contracting State.
3. If England and Wales lacked substantive jurisdiction under Article 5 because the child was not habitually resident here, the domestic common-law jurisdiction based on the child’s presence remained available. The Convention did not exclude broader national bases of jurisdiction in such circumstances. Any decision to exercise that jurisdiction remained a separate question.
4. Habitual residence under Article 5(1) fell to be assessed at the date of the hearing. The Convention contained no principle of perpetuatio fori. Jurisdiction could therefore change during proceedings when habitual residence changed. The factual position at the current hearing, rather than at issue, determined whether substantive jurisdiction subsisted.
5. The court recognised the risk that delay could determine jurisdiction by the passage of time. It directed that jurisdiction should be addressed at the outset and that robust case management was required. The substantive jurisdiction and any forum non conveniens question were left for determination in accordance with these conclusions.