A & Ors (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria), Re
[2024] EWFC 178
A & Ors (Case Proceedings: 1996 Hague Convention: Habitual Residence), Re
23 May 2024
[2024] EWFC 110
Family Court
Four brothers were brought to the UK illegally from Austria. A UK court decided where they legally 'belong' – their habitual residence – to decide their future care. Even though they've had a hard life and their father asked for asylum in the UK, the court thinks they're now settled enough in the UK to be considered UK residents. The court also indicated that this doesn't necessarily stop them from returning to Austria if it's in their best interests.
Key Facts
- •Care proceedings concerning four boys (A, B, C, D) from Syria, who were granted asylum in Austria.
- •Children were brought to the UK by their father without the consent of their mother or grandmother.
- •Father was imprisoned in the UK for facilitating the illegal entry of the children.
- •Children have been in UK foster care since June 2023.
- •Father made an asylum claim in the UK for himself and the children.
- •Mother has obtained custody orders in Austria but they are unenforceable due to the father's absence.
- •The case involved determining jurisdiction (habitual residence), interim care orders, and potential return to Austria.
- •The children had a history of involvement with Austrian child welfare services due to concerns about abuse and neglect.
Legal Principles
Habitual residence is determined by the place which reflects some degree of integration in a social and family environment.
A v A (Children: Habitual Residence) [2013] UKSC 60; Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75; Re LC (Abduction: Habitual Residence: State of Mind) [2014] UKSC 1; Re R (Children) [2015] UKSC 35; Re B (A Child) [2016] UKSC 4
The 1996 Hague Convention determines jurisdiction based on the child's habitual residence.
1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
In asylum cases, a return order cannot be implemented until the asylum application is determined to prevent refoulement.
G v G [2022] AC 544; R (AAA (Syria)) v Home Secretary (SC(E)) [2023] UKSC 42; In the matter of AB (A Minor) [2023] NICA 37
Outcomes
The children are habitually resident in the UK.
Despite their troubled history and ongoing challenges, the children's current situation in the UK foster home demonstrates sufficient integration into a social and family environment.
The court's ability to implement a welfare decision (e.g., return to Austria) is not automatically prevented by the pending asylum claim.
The case is distinguishable from G v G because Austria is a safe country for the children. Post-G v G legal developments regarding asylum law were considered.