Derbyshire County Council v Mother & Ors

Under Article 5 of the 1996 Hague Convention on the Protection of Children, habitual residence and jurisdiction are determined when the court is seised, rather than being revisited at every later hearing. The Convention is silent on the relevant date, and the Explanatory Report does not determine the interpretation under Article 31 of the Vienna Convention.

Habitual residence remains a child-focused factual question, assessing integration in the child’s social and family environment. An Article 9 request requires separate consideration of whether another court is better placed and whether transfer is in the child’s best interests. Interim contact restrictions must address the specific risk identified and remain proportionate to the parents’ and children’s Article 8 rights.

These were care proceedings under section 31 of the Children Act 1989 concerning two children. The parents disputed the English court’s jurisdiction, asserting that the children were habitually resident in Spain.

An earlier judge found that the children were habitually resident in Spain, but the issue was reconsidered after attention was drawn to London Borough of Hackney v P, which treated the date of the hearing as the relevant date. The court also considered whether an Article 9 request should be made to enable the English court to exercise jurisdiction, and whether professionally supervised parental contact remained necessary.

1. Jurisdiction under Article 5. The court held that habitual residence must be determined when the court is seised. Article 5 contains no express temporal rule. Applying Article 31 of the Vienna Convention, the court considered the ordinary meaning, context and protective purposes of the Convention. Requiring habitual residence to be reconsidered at every hearing would create uncertainty, encourage delay, risk jurisdiction changing through procedural passage of time, and undermine child protection.
2. The Explanatory Report did not alter that conclusion. It was not an agreement between the parties within Article 31 and did not clearly establish their intention on the relevant date. The children were habitually resident in Spain when the proceedings commenced. Their move, schooling, visas, community integration and the parents’ long-term intentions established the requisite degree of integration.
3. Article 11 and Article 9. The English court had power to make interim care orders under Article 11 because the circumstances were urgent and the children required protection. The English court was better placed to assess the facts surrounding B’s injury because the incident and witnesses were in England. A request under Article 9 was therefore appropriate. The questions whether another court is better placed and whether transfer is in the child’s best interests are separate evaluations.
4. Interim contact. Under section 34(2) of the Children Act 1989, professional supervision was disproportionate except once each week. The court had to identify the specific risk being guarded against and assess proportionality under Article 8 of the European Convention. There were no other identified incidents or red flags, and the uncle and grandparents had been positively assessed. The family members could therefore supervise the remaining contact.

The judgment records that HHJ Williscroft had initially found the children habitually resident in Spain and continued interim care orders under Article 11. Permission to appeal was refused by HHJ Williscroft and subsequently by Moylan LJ on 11 November 2022. The present court reconsidered habitual residence afresh, directed that an Article 9 request be made, and varied the arrangements for interim contact.