Re T (Children) (Jurisdiction: Matrimonial Proceedings)
[2023] EWCA Civ 285
London Borough of Hackney v P & Ors
19 October 2023
[2023] EWCA Civ 1213
Court of Appeal
A grandmother appealed a court decision about who gets to decide where a child lives (the UK or Tunisia). The court said the decision should be based on where the child lived when the case started, not when the hearing was. They also said the UK court could still make decisions if the child was in the UK even if their real home was in another country, to keep the child safe.
Key Facts
- •Appeal concerning jurisdiction in children's care proceedings under the 1996 Hague Convention and the Children Act 1989.
- •Child, H, born in France, lived in Tunisia before arriving in England.
- •Local Authority commenced care proceedings in England.
- •Paternal grandmother (Appellant) appealed the court's jurisdiction.
- •Disagreement among Family Division judges on the relevant date for determining habitual residence (Article 5 of the 1996 Convention).
Legal Principles
Habitual residence is the primary jurisdictional basis under Article 5 of the 1996 Hague Convention.
1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Perpetuatio fori does not apply under the 1996 Convention; jurisdiction is determined by the child's habitual residence at the relevant time.
1996 Hague Convention; Explanatory Report
The 1996 Convention applies even if the other state involved is not a party to it; domestic jurisdictional rules apply in the absence of Convention jurisdiction.
Re A (A Child) [2023] EWCA Civ 659; Explanatory Report
Jurisdiction based on a child's presence is allowed under domestic law if habitual residence isn't established in any contracting state.
Children Act 1989, Family Law Act 1986, Common Law
The issue of jurisdiction must be addressed at the outset of proceedings.
Family Procedure Rules 2010; Re F [2014] EWCA Civ 789
Outcomes
Appeal allowed in respect of Ground 1 (relevant date for habitual residence).
The relevant date for determining habitual residence for Article 5 jurisdiction is the date proceedings commence, not the date of the hearing. This ensures clarity and prevents manipulation.
Appeal dismissed in respect of Ground 2 (residual domestic jurisdiction).
The court retains substantive jurisdiction based on the child's presence in England and Wales when habitual residence is not in a contracting state. This aligns with the Convention's purpose to protect children.