Public Law Proceedings and the 1996 Hague Convention

Henry Setright QC and Chris Barnes consider a recent decision of the High Court examining the use of the 1996 Hague Convention in the context of public law proceedings.

The case of Re D (Care Proceedings: 1996 Hague Convention: Article 9 Request) [2021] EWHC 1970 (Fam) (Knowles J) concerned a child, D, aged 2 years and 6 months, who had been accommodated in a foster home in Switzerland.

D’s older sibling, referred to in the judgment as F, had been subject to public law proceedings, brought by a previous local authority, in which serious findings had been made against the mother and F had subsequently been adopted.

D had come to the attention of the Swiss authorities as a result of the execution of a European Arrest Warrant in respect of the mother which ultimately led to the mother’s arrest, imprisonment, and – ultimately – extradition from Switzerland, where she and D had been living without any legal status, to face potential criminal charges in the UK.

The Swiss authorities had initiated liaison, via the English Central Authority, ICACU, and under the 1996 Hague Child Protection Convention, to seek further information about the proceedings concerning F and the criminal proceedings against the mother. The Swiss authorities had initially “indicated that the considered it would be in D’s interests to be transferred, physically, to [England and Wales]”.

The applicant English local authority had responded to the referral via ICACU and “sought to provide assistance to the Swiss authorities and ICACU in fulfilment of the positive obligation of cooperation under the 1996 Convention”. The local authority had commenced care proceedings and also made an application under Article 9 of the Convention to initiate a request to the Swiss authorities to transfer jurisdiction over D.

By the time of the final hearing the local authority, like the Swiss authorities, considered it was in D’s interests to remain in Switzerland. Indeed, a final determination of D’s case had by then been made in Switzerland. As a consequence, the local authority sought permission from the High Court to withdraw both the care proceedings and the application under Article 9.

However, D’s guardian invited the Court not to grant permission, but to pursue a request for transfer of jurisdiction to the Swiss authorities focusing on the significance of D’s potential relationship with his biological sibling F (the Court analysed carefully the impact of F’s adoption on the ECHR analysis concerning D’s private and family life [see §§49 – 54, and 76 – 77]). In the course of the final hearing the terms of the proposed request narrowed to encompass issues relating to sibling DNA testing, and the potential for sibling contact, alone.

The Court ultimately declined to make a request under Article 9. The Court’s determination focused on the practical difficulties which might arise from a transfer of jurisdiction (even of the more limited kind ultimately sought by the guardian), but also upon the sufficiency of the Swiss legal framework and the competence of the Swiss authorities to explore and/or establish contact between D and F.

Comment

The Judge noted that the case was one of the first occasions on which the provisions of Articles 8 and 9 of the 1996 Convention (as distinct from those of the more familiar Article 15 of BIIa) had been considered in the context of public law proceedings. The importance to local authorities of understanding and applying the 1996 Hague Convention has grown considerably as it now provides the residual framework, after the exhaustion of post-Brexit transitional cases, for the consideration of jurisdiction, cross-jurisdictional liaison and placement with the remaining 27 EU Member States as well as the other non-EU States who have ratified the Convention, including Switzerland.

The judgment provides a helpful summary of the framework of the Convention, and the domestic procedural provisions which apply, as well as a detailed consideration of the principles to be applied. For local authorities managing proceedings – or prospective proceedings – to which the Convention applies a number of important considerations are highlighted:

1. The need to consider the positive obligations of cooperation arising under the 1996 Hague Convention, including the importance of the timely sharing of information. Whilst the Convention remains relatively novel in the context of public law proceedings, and where such proceedings can be complex, there is a need for early identification of issues and, where required, advice should be obtained.
2. Whilst liaison between Central Authorities should ordinarily be a first port of call when seeking clarity as to the applicable law and procedure in another Convention jurisdiction there remain occasions – as in the case of Re D – when there will be a need for expert evidence to be obtained.
3. There is a need to continue to review the course proposed in light of developments in the other jurisdiction which might affect, or alter, the welfare analysis and, where appropriate, there may be a need to apply for the withdrawal of an application. The judgment confirms that the withdrawal of any application under the Convention – as with other applications falling within the scope of FPR rule 29.4 (see Ciccone v Ritchie (No 2) [2016] EWHC 616 (Fam)) – can only occur with the permission of the court.
4. The fact that England and Wales (as transitional-era cases are exhausted) no longer applies BIIa is not likely to dilute the applicability of the ordinary principle of comity which is to be applied in respect of EU Member States.
5. There is a need to be astute to differences in the Convention framework in comparison to BIIa but the existing BIIa jurisprudence is likely to serve as a sensible starting point.

Henry Setright QC and Chris Barnes are barristers at 4PB and acted for the applicant local authority in Re D.