A Local Authority v DZ & Ors

The 1996 Hague Convention may provide jurisdiction for public law and inherent-jurisdiction protective measures even where the child is habitually resident in a non-contracting state. Article 11 supplies a secondary, urgent jurisdiction in the state where the child is present. It is available where protective measures cannot safely await action by the state of habitual residence, but should not be used for matters properly belonging to that state.

Habitual residence is a factual and comparative assessment of the child’s integration in a social and family environment. For an adolescent, the child’s state of mind may be relevant, but objective markers such as family, language, culture, friends and settled living arrangements remain important. An urgent return and protective orders may be made where they best promote the child’s welfare.

The local authority sought public law and inherent-jurisdiction orders concerning a 14-year-old Chinese national who had come to England for boarding school, was expelled shortly after arrival and subsequently required increasingly restrictive placements because of dysregulated and dangerous behaviour.

By the hearing, all parties agreed that he should return to China. The remaining issues concerned the jurisdictional route and the practical implementation of return. The parents argued that, because China was not a contracting state to the 1996 Hague Convention, jurisdiction arose instead under the Family Law Act 1986. The local authority and guardian relied principally on Article 11 of the Convention.

1. Jurisdiction. The court held that the 1996 Hague Convention applied to public law proceedings because it had the force of law in the United Kingdom through section 3C of the Civil Jurisdiction and Judgments Act 1982. Its subject matter covered the protective and care measures sought. The Convention also supplied the relevant route for inherent-jurisdiction orders through section 2(3)(a) of the Family Law Act 1986.
2. Habitual residence. Habitual residence was assessed by reference to the child’s degree of integration in a social and family environment. The inquiry was factual, individual and comparative. Although the child’s wishes and state of mind were relevant for an adolescent, the objective evidence showed deep and continuing integration in China and only tentative, unstable roots in England. He was therefore not habitually resident in England and Wales.
3. Article 11. Article 11 provided jurisdiction in cases of urgency where the child was present in the United Kingdom and protective measures were necessary. The jurisdiction was not confined to abduction cases. The child’s serious behavioural difficulties made the case urgent, and Article 11 supplied jurisdiction for both public law and inherent-jurisdiction measures.
4. Orders. The court found reasonable grounds for believing that the threshold in section 31 of the Children Act 1989 was met. The interim care order and deprivation of liberty order remained necessary and proportionate pending return. Applying the child’s paramount welfare, the court ordered his return to China. The parents were directed to cancel his education visa and, with Home Office assistance, arrange the least restrictive practical return route. A defined order for unsupervised indirect contact was refused because the situation remained insufficiently stable.