London Borough of Hackney v P & Ors
[2023] EWCA Civ 1213
Re T (Children) (Jurisdiction: Matrimonial Proceedings)
17 March 2023
[2023] EWCA Civ 285
Court of Appeal
A mom wanted to get court orders for her kids who were taken to another country by their dad. The judge said the wrong country's courts should handle it. But the mom appealed, arguing that her husband's divorce case in England should give the English courts the power to handle this. The higher court agreed with the mom: the English court should make decisions about the kids.
Key Facts
- •Mother appeals orders dismissing her application for welfare orders regarding her three children taken to Albania by the father.
- •Judge initially ruled Scottish courts had jurisdiction due to children's habitual residence in Scotland.
- •Father's subsequent divorce proceedings in England were discovered.
- •Mother argued English court had jurisdiction under section 2(1)(b)(i) of the Family Law Act 1986 (FLA 1986).
- •Judge maintained lack of English jurisdiction, citing the 1996 Hague Child Protection Convention and lack of connection between the application and divorce proceedings.
- •Children returned to England after the orders.
- •Appeal deemed not academic due to ongoing adverse consequences for the mother.
Legal Principles
The 1996 Hague Child Protection Convention does not determine intra-UK jurisdiction.
Re W-B (Family Proceedings: Appropriate Jurisdiction Within the UK) [2013] 1 FLR 394, Re PC, YC and KM (Brussels IIR: Jurisdiction Within United Kingdom) [2014] 1 FLR 605
Jurisdiction under FLA 1986 section 2(1)(b)(i) requires the question of making a section 1(1)(a) order to arise in or in connection with matrimonial proceedings.
Family Law Act 1986, sections 2(1)(b)(i), 2A, 42(2)
Habitual residence is a question of fact, considering all relevant factors.
Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] 1 FLR 561, A v A and another (Children: Habitual Residence) [2014] AC 1
Outcomes
Appeal allowed.
FLA 1986, not the 1996 Convention, governs intra-UK jurisdiction. The English court has jurisdiction under section 2(1)(b)(i) due to the ongoing divorce proceedings. The children's habitual residence was in England.