The inherent jurisdiction and return to Austria

Vistra Greenaway-Harvey reports on a High Court judge’s decision that the welfare interests of four children were best met by a return to Austria.

Mrs Justice Knowles handed down the decision in A & Ors (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria) [2024] EWFC 178 on 18 July 2024. 

It follows the decision in A & Ors (Care Proceedings: 1996 Hague Convention: Habitual Residence) [2024] EWFC 110. Therein, Knowles J ruled the children were habitually resident in this jurisdiction and highlighted the inadequacies of Rule 12 of the Family Procedure Rules 2010 in international public law disputes. A case summary setting out the facts of that case is accessible here. 

This note will not repeat the factual background, save to say that the case concerns four children who were brought into the UK, from Austria, illegally by their father and then placed into care shortly after. The father was in prison. Their mother and paternal grandmother reside in Austria. The family were Syrian refugees and obtained that status in Austria. The father had applied for asylum in this jurisdiction, but that application was yet to be determined. 

In this hearing, the court had to decide whether the children should be returned to Austria. Regrettably, the children’s situation had deteriorated significantly since the last hearing.

The children’s circumstances

The children made allegations against their foster carer and were removed into separate emergency placements. B and C were also excluded from school. 

The father was released from prison and spent time with the children. All four children wished to live with their father, but their views differed as to where they wished to live. The children did not want to live with their mother. There was a positive viability assessment of the paternal aunt. 

Vienna Children’s Services informed the court that the children would be placed in a group residential placement called a ‘crisis centre’. There was no guarantee the children could be placed together. The children would have contact with their mother and grandmother but contact with the father required further exploration. If the mother and grandmother did not consent to this placement the Austrian court would have to determine where the children should be placed. The family would be assessed, and the children would receive psychological counselling. 

The Secretary of State confirmed that the children had asylum status in Austria would be readmitted to that jurisdiction if a return order was made. The father would also be readmitted to Austria unless he was forcibly returned there. 

The position of the parties

Local authority

The local authority sought the children’s immediate return to Austria. They considered the father’s actions in abducting the children, and the manner he entered the country, to be harmful. The LA submitted that the Austrian authorities were best placed to assess the children and sought a return order under the inherent jurisdiction of the court. On return, the Austrian courts would have jurisdiction under Art 11 of the 1996 Hague Convention and, in time, Art 5 of the 1996 Hague Convention. 

Mother

The mother supported the children’s return to Austria. It was submitted that the father encouraged the children to make false allegations, and this could include the allegations made about the foster carers. Overall, the father was deemed to unsettle the children and compromise their relationship with their mother. The mother supported the making of an inherent jurisdiction return order along with a request for the courts in Austria to assume jurisdiction of the children under Art 8 of the 1996 Hague Convention. She noted that the Art 8 request was not strictly necessary given the court’s ability to make orders under Arts 11 and 12 once the children were in Austria. 

Father

The father strongly opposed the children’s return to Austria and argued that their welfare interests were best served by the English court’s retaining jurisdiction. On the father’s behalf, Ms. Weston KC submitted that a return would re-traumatise the children and it was uncertain that the Austrian authorities would assess him. He argued that the children’s wishes and feelings were not being heard. The father submitted the Home Secretary would await the family court's decision and consider it when determining the asylum application. The father would return to Austria if the children were ordered to return there. 

Paternal grandmother

The paternal grandmother wanted the children to remain in this jurisdiction and opposed the children being placed in a crisis centre. She considered that the English court was best placed to make welfare decisions for the children. Further, it was submitted that the LA could not satisfy the significant harm test under s100(4)(b) of CA 1989. Alternatively, the court should undertake a composite best interest assessment and consider the factors in Art 8 of the 1996 Hague Convention. It was submitted that the paternal grandmother’s participation in Austrian proceedings would be hampered by language barriers and access to representation. On a practical basis, it was argued that a return would be difficult due to the children’s strong opposition. The grandmother put herself forward to care for all four children.

The Children’s Guardian

Ms. Farrington KC submitted that the children should be returned to Austria and adopted the legal route map of the LA. Rejecting suggestions that the s100(4)(b) gateway was not met by the current circumstances, Ms. Farrington KC submitted that the children’s wishes and feelings were not decisive. She considered that the Austrian authorities were best placed to make decisions about the children’s welfare given their extensive involvement over the years. 

The Home Secretary

The Home Secretary was a party to this hearing. His position statement agreed Knowles J’s decision in Re A [2024] EWFC 110 that immigration and asylum law did not prevent the court from returning the children to Austria prior to the determination of their asylum application. If a return order was made, the Home Secretary would consider the asylum application to be explicitly withdrawn upon confirmation or implicitly withdrawn once the children left the UK as an asylum application can only be made within the UK. 

The decision of the court

Knowles J ordered that the children should be returned to Austria for the following reasons:

1. The children’s circumstances are strikingly precarious and unstable;
2. This court has no jurisdiction to place the children abroad or to identify a placement in Austria, including in a crisis centre. Given the grandmother’s opposition to a placement centre the matter would have to go before the Viennese Family Court;
3. A transfer of jurisdiction will inevitably lead to delay. The Austrian Court could decline jurisdiction over the children under Art 8(4) 1996 Hague. It is not a swift or certain route for resolution of the children;
4. The inherent jurisdiction is the most suitable legal mechanism to make a return order if that is in the children’s best interests and S100(4) CA 1989 was satisfied. No parties challenged the first limb of the test. Given the deterioration in the children’s circumstances, the father and grandmother’s challenge to the second limb was not made out;
5. Considering the procedural safeguards, Knowles J was able to make findings justifying a return order;
6. The children’s wishes and feelings demonstrate an attachment to and desire to be with their father. But the professional concerns about the father left the court with reservations about whether the children’s views were authentic;
7. The children’s complex needs included their emotional difficulties and the separation from their mother and grandmother;
8. The Viennese welfare authorities have had extensive involvement with, and intend to support, the children. An assessment here would start from a less well-informed knowledge base and will be marked by delay;
9. The change would be very destabilising for the children but lessened by the father’s decision to return. The children’s German fluency was likely to recover quickly once in Vienna;
10. Along with the age and sex, the children’s asylum status in Austria was considered. The court was satisfied that the children have suffered emotional harm and were likely to suffer physical harm for which the father is responsible. The harm was multifaceted and included their placement in foster care;
11. The Austrian authorities were better placed to assess the proposed family carers, including the mother and grandmother;
12. Noting the father is liable for deportation and has no resources in this jurisdiction, there was little doubt that any final decision on asylum was a considerable distance away. 

Knowles J made a declaration under the inherent jurisdiction that the children’s welfare required a return to Austria. 

The return order was not accompanied by an article 8 request; Knowles J deemed this to be unnecessary as the Austrian authorities had been consulted and informed throughout the proceedings. However, she noted that the test for doing so was amply satisfied. Knowles J was confident that the Austrian judicial authorities would assume jurisdiction for the children. 

Similarly, the court found it unnecessary to declare that the LA could have used its powers under s. 33 CA 1989 to withdraw the children’s claims for asylum if the court ordered their return. 

No further view was expressed on the matters raised by the Home Secretary relating to children’s asylum claims. 

Vistra Greenaway-Harvey is a pupil barrister at 42BR.

Gemma Farrington KC and Vanessa Wells of 42BR acted for the Children’s Guardian in the case.