A & Ors (Case Proceedings: 1996 Hague Convention: Habitual Residence), Re
[2024] EWFC 110
A & Ors (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria), Re
18 July 2024
[2024] EWFC 178
Family Court
Four children were living in the UK, but things were very unstable for them (lots of foster home changes, school problems). The court decided it was best for them to go back to Austria, where their family and social services could help them, even though the children wanted to stay with their father in the UK. The court had the power to make this decision even though their asylum application was still being processed.
Key Facts
- •Four boys (A, B, C, D), aged 13, 11, 9, and 7 respectively, were habitually resident in the UK but previously lived in Austria.
- •The local authority sought a return order to Austria.
- •The children's situation deteriorated significantly after allegations against their foster carer, leading to multiple placement moves and school exclusions.
- •The father, released from immigration detention, had made promises to the children that unsettled them.
- •The children's relationship with their mother and paternal grandmother was severely compromised.
- •The father's asylum claim, and that of the children, was pending in the UK.
- •The Austrian authorities confirmed the children's asylum status and willingness to readmit them.
Legal Principles
A local authority may only arrange for a child in their care to live outside England and Wales with court approval (Schedule 2, paragraph 19 of the Children Act 1989).
Children Act 1989
The inherent jurisdiction can be used where the welfare of children within the jurisdiction requires it, particularly when other orders are insufficient to prevent significant harm.
Re T (A Child) [2021] UKSC 35
Leave is required for a local authority to apply for the exercise of the court's inherent jurisdiction (s.100(3) Children Act 1989). The court must be satisfied that the desired result cannot be achieved through other orders and there's reasonable cause to believe the child will suffer significant harm without inherent jurisdiction.
Children Act 1989, s.100(3)-(5)
Inherent jurisdiction cases are governed by a child's best interests, considering factors similar to the welfare checklist in s.1(3) of the 1989 Act (Re NY [2019] UKSC 49).
Re NY [2019] UKSC 49
Article 8 of the 1996 Hague Convention allows transfer of jurisdiction to another Contracting State if that state is better placed to assess the child's best interests.
1996 Hague Convention, Article 8
Article 11 of the 1996 Hague Convention allows authorities in the child's location to take protective measures in urgent cases.
1996 Hague Convention, Article 11
Article 33 of the 1996 Hague Convention requires consultation with the Central Authority of another Contracting State before placing a child in foster care or institutional care there.
1996 Hague Convention, Article 33
Outcomes
The court granted the local authority's application to invoke its inherent jurisdiction and ordered the children's return to Austria.
The children's welfare required their immediate return due to the instability of their situation in the UK, the Austrian authorities' capacity to assess and care for them, and the lack of a suitable alternative plan within the UK.
Similar Cases
Y and K (Children: Summary Return Application: Asylum), Re
[2024] EWHC 555 (Fam)
E, Z, D, V (Inherent Jurisdiction: Refusal of Return Order), Re
[2024] EWHC 988 (Fam)
A v B (Abduction: Article 13(b) and Child Objections)
[2023] EWHC 699 (Fam)
A and B (Children: Return order: Article 13(a) defence: 1980 Hague Convention), Re
[2024] EWHC 2473 (Fam)