J & H (Jurisdiction: 1996 Hague Convention : residual domestic jurisdiction: parental responsibility jurisdiction), Re

The 1996 Hague Child Protection Convention is the first port of call for determining jurisdiction, but it does not necessarily extinguish residual domestic jurisdiction. Where a child was habitually resident in England and Wales when proceedings were issued, the Family Law Act 1986 may confer continuing jurisdiction if the Convention framework later ceases to apply, including following a move to a non-Contracting State. The court may also retain domestic jurisdiction to make a parental responsibility order under section 4 of the Children Act 1989, subject to welfare considerations and any appropriate stay. A child’s habitual residence is determined factually by the degree of integration in a social and family environment. The parens patriae jurisdiction is exceptional but involves a unified assessment of all the circumstances, rather than a rigid two-stage test.

The father, a British citizen, sought parental responsibility orders for two children and a return order for the elder child, Nora. The mother, a Thai citizen, opposed the applications principally on jurisdictional grounds. Nora had lived in England with her father for several years before travelling to Thailand, while her younger sister, Felicity, had remained in Thailand.

The court conducted a fact-finding hearing concerning domestic abuse, the circumstances of the children’s movements, habitual residence and the father’s immigration arrangements for the mother. The principal issues were whether the court had jurisdiction under the 1996 Hague Child Protection Convention, whether residual domestic jurisdiction applied, and whether the court could exercise parental patriae jurisdiction in relation to Felicity.

1. Jurisdiction concerning Nora. The court held that Nora was habitually resident in England and Wales when the wardship proceedings were issued. Her integration into English family, social and educational life outweighed her comparatively recent and unsettled integration in Thailand. The court therefore had jurisdiction under Article 5 of the 1996 Hague Child Protection Convention.
2. The court applied the approach in LB Hackney -v-P and Others. Jurisdiction is assessed at the commencement of proceedings. Even if Nora had subsequently acquired habitual residence in Thailand, a non-Contracting State, the court’s jurisdiction would continue under the residual provisions of the Family Law Act 1986, by reference to her habitual residence at the relevant date. The question of her current habitual residence was therefore not necessary to determine jurisdiction.
3. The court did not need to decide whether Article 7 applied where the other State was non-Contracting. The issue was described as unresolved and potentially affected by the different wording of Article 7 and Article 10 of BIIA. It was in any event of little practical effect because domestic jurisdiction was available.
4. Habitual residence. The court applied the integration-based test: habitual residence is the place reflecting some degree of integration in a social and family environment. The inquiry is factual, individual and comparative. Parental intentions are relevant but cannot override the child’s objective circumstances. A child will ordinarily retain or acquire a habitual residence rather than fall into jurisdictional limbo.
5. Parental responsibility. Following In Re S. (A Minor), the court held that a section 4 parental responsibility order is not a Part I order governed by the jurisdictional restrictions in the Family Law Act 1986. Where the Convention does not provide jurisdiction, domestic jurisdiction remains available, subject to welfare considerations and any forum conveniens stay. The court had jurisdiction to determine the father’s application for Nora, with the jurisdictional date brought forward by section 7 of the Act.
6. Felicity and parens patriae. The court held that its only possible jurisdiction concerning Felicity in relation to return was the residual parens patriae jurisdiction. Its exercise requires sufficiently compelling circumstances, but the assessment is unified and depends on all the circumstances and the nature of the order sought. Further welfare evidence was required before deciding whether that jurisdiction should be exercised. The children were joined as parties and further directions were ordered.

First-instance judgment. No appellate history was stated in the judgment.