Y & Anor (1996 Hague Convention: Article 11), Re

Where children are habitually resident in one Contracting State but present in another, the habitual-residence State retains primary jurisdiction for child-protection measures. The court of presence may act under Articles 11 and 12 of the 1996 Hague Convention, but those exceptional powers are confined to interim or provisional protection and do not extend to final welfare orders unless jurisdiction is transferred under Article 9.

An unresolved Article 9 process should not be treated as permitting a binary choice between continuing urgent measures and ending proceedings. Risk cannot properly be assessed where critical facts about a life-threatening injury remain unexplained. Very recent therapeutic engagement, and the harms of separation, do not justify discharge where the information gap leaves the nature and triggers of future danger unknown.

A local authority appealed against HH Judge Williscroft’s order in care proceedings concerning two children who had been living in Spain but were injured in England during a holiday. The children were found to be habitually resident in Spain. One child suffered a serious knife injury during a heated argument between the parents. The parents accepted negligent parenting but could not explain how the injury occurred.

The judge discharged the interim care orders and concluded the proceedings, relying on the assessed low risk of recurrence, family support, emerging therapeutic work and the harm caused by separation. The local authority challenged the risk assessment. The children’s guardian challenged the failure to progress the Article 9 jurisdiction process and to consider Article 12 provisional measures. The central issues were whether the English court could end the proceedings while jurisdiction remained unresolved and whether discharge was justified.

Appeal allowed. Baker LJ gave the reasons for judgment. Newey LJ and Peter Jackson LJ agreed.

1. As the children were habitually resident in Spain, the Spanish authorities had primary jurisdiction under Article 5 of the 1996 Hague Convention. The English court’s powers remained confined to the urgent and provisional jurisdictions under Articles 11 and 12 because the planned Article 9 request had never been made.
2. Article 11 is an exceptional jurisdiction and must be construed strictly. Article 12 is likewise limited to the temporary and territorial protective measures for which it was intended. In child-protection cases, the powers under Articles 11 and 12 permit interim orders under section 38 of the Children Act 1989, as modified by regulation 5 of the Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Northern Ireland) Regulations 2010. They do not extend to final orders under section 31 without a successful Article 9 process.
3. Re S (Care: Jurisdiction) [2008] EWHC 3013 (Fam) provided an analogous warning that measures under Article 20 of Brussels IIA are interim, fact-sensitive and informed by cooperation and liaison. It will generally be unusual for an English court to conduct a fact-finding hearing under Article 11 without awareness of the foreign authority’s actual or likely response. The point was provisional and was not necessary to dispose of the appeal.
4. The parents’ concessions did not provide a sufficiently clear factual basis for assessing future risk. The court needed to explore the circumstances of the argument, the handling of the knife, the mechanism of the injury, the additional damage to clothing and furniture, and the parents’ inability or unwillingness to recall events. The possibility of deliberate withholding could not be ignored. Allegations concerning the mother’s older daughter also required full disclosure and expert consideration.
5. Even on the narrow case presented below, the judge was wrong to discharge the interim care orders. The information gap increased rather than reduced the uncertainty about risk. The parents had only just begun therapy, and the pending criminal decision created an additional pressure point. The court had to weigh the harm of separation, but that factor did not justify ending protection where the nature and triggers of possible future danger remained unknown.
6. The judge had been led into error by the binary presentation of either continuing urgent measures or ending the proceedings. She should have considered the continuing Spanish jurisdiction, the progress of the Article 9 request, and the possible use of Article 12. The Article 11 or Article 12 classification issue was left open for consideration on remittal. The discharge order was set aside, the interim care order was restored, and the proceedings remained stayed and were remitted for urgent case management.

• Court of Appeal (Civil Division). On 12 July 2023, the appeal was allowed. The orders discharging the interim care orders and concluding the proceedings were set aside. The interim care order was restored, the proceedings remained stayed, and the matter was remitted for urgent case management.
• Family Court at Derby. HH Judge Williscroft had continued interim care orders under Article 11 after the children were found habitually resident in Spain. On 24 May 2023, the judge discharged the orders and concluded the proceedings.
• Earlier jurisdiction decisions. The Family Court had contemplated an Article 9 request to Spain, and Lieven J endorsed that course on 19 December 2022. No request was made.