London Borough of Hackney v P & Ors

For Part IV proceedings, the 1996 Hague Child Protection Convention is the first port of call. Jurisdiction based on habitual residence must initially be determined when proceedings are commenced, rather than by reference to a later hearing. A court must nevertheless retain Article 5 jurisdiction at the final substantive hearing, because jurisdiction moves if habitual residence changes to another Contracting State.

Where a child is present in England and Wales but habitually resident in a non-Contracting State, Article 5 does not apply. Article 11 will commonly permit urgent interim protection, and domestic jurisdiction based on presence remains available for substantive Part IV orders. Habitual residence need not be reconsidered at every hearing without substantial grounds.

H had lived in Tunisia with her paternal grandmother before travelling to England in 2021. The local authority commenced care proceedings under Part IV of the Children Act 1989. H was placed in foster care and remained in England.

MacDonald J held that habitual residence for Article 5 of the 1996 Hague Child Protection Convention was to be assessed at the hearing, and that domestic jurisdiction based on H's presence would in any event support substantive care proceedings. His decisions are reported at [2022] EWHC 1981 (Fam) and [2023] 1 FLR 502.

The paternal grandmother appealed. The common issues were the initial date for determining Article 5 jurisdiction and whether domestic jurisdiction based on presence survives where a child is habitually resident in a non-Contracting State.

1. Appeal allowed in part. Moylan LJ, with whom Newey and King LJJ agreed, held that the judge was wrong to treat the hearing date as the initial date for determining Article 5 jurisdiction. The court must determine its jurisdiction at the outset, by reference to the date when proceedings commenced. This provides the necessary certainty and prevents proceedings from being commenced speculatively in the hope that jurisdiction will later arise.
2. The absence of perpetuatio fori under the 1996 Hague Child Protection Convention does not alter that initial rule. It means that Article 5 jurisdiction can be lost or acquired during proceedings. If a child becomes habitually resident in another Contracting State, jurisdiction moves to that State. The English court must therefore be satisfied that it retains jurisdiction at the final substantive hearing. It need not reopen habitual residence at every hearing unless substantial grounds justify doing so.
3. The Convention applies to Part IV proceedings and is the first port of call even where the competing State is not a Contracting State. If the child is habitually resident in another Contracting State, English domestic jurisdiction based on presence cannot be used inconsistently with Article 5. Conversely, if the child is present in England and Wales but habitually resident in a non-Contracting State, Article 5 does not apply and the Convention does not exclude domestic jurisdiction.
4. In that latter situation, Article 11 will ordinarily permit necessary urgent measures, commonly including interim care or supervision orders. Domestic law also permits substantive Part IV orders on the basis of the child’s presence. That construction accords with the Convention’s protective purpose and avoids a gap in the court’s ability to safeguard a child present here.
5. Ground 1 was allowed, but Ground 2 was dismissed. The lower court’s conclusion that England and Wales had substantive jurisdiction from the outset remained correct, so no fresh proceedings were required. H’s later habitual residence in England and Wales also supplied an alternative Article 5 basis.

• Court of Appeal (Civil Division): Allowed the appeal on the initial relevant date for Article 5 jurisdiction, but dismissed the challenge to residual domestic jurisdiction based on presence.
• High Court, Family Division: MacDonald J held that habitual residence was to be assessed at the hearing and that domestic jurisdiction based on presence remained available: [2022] EWHC 1981 (Fam).