GLD Vacancies

Ashford Vacancy

GLD Qualified Lawyers Recruitment

The Hague Convention and care proceedings

Richard Little analyses a recent case raised that complex and novel points concerning the operation of the 1996 Hague Convention in care proceedings.

In London Borough of Haringey v T (1996 Hague Convention Art 7) [2024] EWFC 151 the court (Mr Justice MacDonald) was tasked with determining the question of whether it retained, or should retain, jurisdiction in existing care proceedings concerning T, a 2 year old boy.

During the proceedings before the family court and unbeknownst to the other parties, T was removed by his mother to Poland (the mother’s country of birth). They were later joined in Poland by T’s grandmother to help look after him.

The local authority held an interim supervision order in respect of T. It did not share parental responsibility with the parents and therefore did not hold rights of custody to enable it to seek T’s return under the 1980 Hague Convention.

The father did have rights of custody but chose not to pursue T’s return to England and Wales. Instead, the father acquiesced to T’s removal to Poland.

Meanwhile, a welfare visit to T by the Polish authorities raised no issues of concern. The mother continued to stay in touch with the local authority’s social workers regarding T’s welfare but ultimately declined to return to England and Wales with T.

The father was having daily video contact with T and he was considering the possibility of travelling to Poland to see his son in the future.

The mother applied to the family court for permission to transfer the proceedings to Poland and the matter was listed before Mr Justice MacDonald. 

The mother, father and local authority all contended that T was now habitually resident in Poland.

The local authority and the father contended that the court retained jurisdiction in respect of T by operation of Art 7(1) of the 1996 Hague Convention and the court should declare that it acquiesced to the wrongful removal of T, which would have the effect of divesting the court of jurisdiction and, in circumstances where Ts’ habitual residence had changed, conferred jurisdiction on Poland.

The children’s guardian argued that the court had not acquiesced to the removal of T for the purposes of Art 7(1)(a) and in circumstances where the court had jurisdiction for the purposes of Art 5 of the 1996 Hague Convention at the date of removal, the court must retain that jurisdiction. It was also argued by the guardian that it was unnecessary in a case of alleged abduction to revisit the question of habitual residence as the basis for the court’s jurisdiction. In the alternative it was argued that T remained habitually resident in England and Wales. The guardian sought an interim care order to be granted to the local authority and for an order that the mother return with T to the jurisdiction of England and Wales.

The court found:

  1. T was, at the time of the hearing, habitually resident in Poland;
  2. by virtue of the proceedings before it, the court itself was vested with rights of custody for T and those rights had been breached by the mother’s actions;
  3. although the father had acquiesced to T’s removal, the court had not so acquiesced for the purpose of Art 7(1)(a) of the 1996 Hague Convention and therefore the court retained jurisdiction (Art 5 of the same Convention);
  4. The question then was, what should the court do with the jurisdiction it held in respect of T. The court declined to acquiesce to the removal. It ruled that Art 7 did not provide a test or procedural framework for a court holding rights of custody to determine whether it should acquiesce. Further, the transfer of jurisdiction to Poland by this means would take place without formal consideration and co-operation between the two jurisdictions. The court decided that the correct procedure to effect the transfer was via Art 8 of the 1996 Hague Convention. The court agreed with the mother, father and local authority that if this was the correct procedure to use that the test for making the transfer under Art 8 was satisfied. It was found that the jurisdiction of Poland was now best placed to assess the interests of T (who at the time of the hearing had been living in Poland for several months). The court went on to grant the application to transfer the proceedings to Poland. 

Richard Little is a barrister at 42BR. Together with Damian Woodward-Carlton KC, he represented the father.
42BR Midpage CP