London Borough of Barking and Dagenham v Mother & Ors

In public law care proceedings and related inherent jurisdiction proceedings concerning serious medical treatment, jurisdiction is governed by the 1996 Hague Convention. Where a child’s habitual residence cannot be established, Article 6(2) confers the jurisdiction available under Article 5(1), rather than the attenuated jurisdiction under Article 11. Habitual residence requires sufficient integration in a social and family environment. Where the evidence is too limited to identify such integration, or to undertake a meaningful comparison between possible countries of residence, habitual residence cannot be established. A child’s views may be relevant to that assessment, particularly where the child is an adolescent.

The local authority brought care proceedings concerning three children and inherent jurisdiction proceedings concerning serious medical treatment for one child. The children had lived in several countries and the available evidence did not establish their integration in any particular state. One child was outside England and Wales; the other two were present in England.

The court determined whether it had jurisdiction under the 1996 Hague Convention, including whether the children were habitually resident in England, whether Article 6(2) applied because habitual residence could not be established, and whether the proceedings concerning the child outside the jurisdiction could continue.

1. Applicable jurisdictional framework. The approach to jurisdiction in Part IV proceedings under the Children Act 1989 was confirmed in Hackney London Borough Council v P [2024] 2 WLR 1163. The Family Law Act 1986 did not govern the public law care proceedings or the inherent jurisdiction proceedings concerning serious medical treatment. The 1996 Hague Convention applied.
2. Habitual residence. Habitual residence required an assessment of whether the child had become sufficiently integrated in a social and family environment. On the evidence, the court could not identify sufficient integration in Uganda, Tanzania, Kenya, the Netherlands or England. The evidence was too limited to permit a meaningful comparative evaluation of competing habitual residences or to determine whether earlier roots had been superseded.
3. Effect of Article 6(2). In respect of C and M, habitual residence could not be established. They therefore fell within Article 6(2), which gave the court the same jurisdiction as it would have under Article 5(1), namely a habitual residence jurisdiction. The jurisdiction was complete rather than the attenuated jurisdiction under Article 11. The care and inherent jurisdiction proceedings could proceed to the welfare stage.
4. Child’s views and future change. C’s wishes were relevant to the assessment, having regard to the Supreme Court dicta in Re LC. Future integration in England might result in habitual residence arising later and could be relevant to welfare decisions, although the transition between jurisdictional bases was likely to have limited practical importance unless an alternative habitual residence jurisdiction emerged.
5. E. The court had no jurisdiction over E, who was no longer present, habitually resident or a UK national. The local authority was permitted to withdraw the application concerning him.