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Public children law after Brexit

This guidance is relevant to public family law proceedings relating to children with an inter-EU element after the end of the Brexit transition period.

It sets out how jurisdiction and forum are applied to proceedings instigated after 31 December 2020, and impacts on recognition and enforcement of orders.

For cases instituted on or before 31 December 2020, the framework of EU legislation continues to apply, even where orders relating to those proceedings are made into 2021 and beyond. 

This guidance will be updated should the UK accede to the Lugano Convention 2007.

Introduction

Care proceedings that have an inter-EU element are brought by local authorities under section 31 of the Children Act 1989.

As with all care cases, those with an international dimension can only be brought in instances where there is a very high degree of professional concern regarding a child’s welfare. 

A court can only make a care order, interim care order or supervision order if a local authority can show and the court agrees that the relevant child is suffering, or is likely to suffer, significant harm attributable to parental care.

“Harm” includes physical and emotional harm, as well as sexual abuse and neglect.

A court cannot make an order conferring parental responsibility upon a local authority unless these threshold criteria are met. 

Since 1 January 2021, local authorities must apply for and obtain consent for extra-jurisdiction placement in the EU under the 1996 Hague Convention.

The 1996 Hague Convention follows the Brussels IIa Regulation in many ways, which include:

  • article 5 – gives jurisdiction to the judicial or administrative authorities of the contracting state within which the child is habitually resident. This reflects article 8 of Brussels IIa
  • article 7 – deals with jurisdiction in instances of wrongful removal or retention of the child. This reflects article 10 of Brussels IIa
  • article 8 – allows for the transfer of jurisdiction to another contracting state where a court with jurisdiction considers a court in another contracting state is better placed to hear the case. Article 15 of Brussels IIa allows for the same
  • article 11 – gives jurisdiction to contracting states in urgent cases. This reflects article 20 of Brussels IIa
  • article 23 – provides for recognition of protection measures between contracting states and the grounds for non-recognition. This is similar to articles 21 and 23 of Brussels IIa

The main differences between the 1996 Hague Convention and Brussels IIa are:

  • the six-week timeline that applies to the resolution of child abduction cases, set out in Brussels IIa, is not in the 1996 Hague Convention. Given the seriousness of child abduction cases, courts and the relevant authorities should, in spite of this absence in the post-transition period legislation, deal with these cases as expeditiously as possible
  • habitual residence under the 1996 Hague Convention applies to a child once they have legally moved to the relevant contracting state, whereas habitual residence can only be established under Brussels IIa where a child has been in the relevant state for three months
  • the 1996 Hague Convention does not allow an applicant to apply to the courts for return proceedings a second time, once child abduction proceedings have concluded. Brussel IIa allows for this under Article 11(6) to (8)
  • although the 1996 Hague Convention does provide for automatic recognition in other contracting states of orders relating to parental responsibility, additional steps are required to secure enforceability, with other parties able to challenge recognition. Brussels IIa provides for automatic recognition of such orders, albeit while providing grounds for non-recognition of an order

All EU and EEA member states have ratified the convention.

The 1996 Hague Convention aims to facilitate cooperation between signatory countries so that children can effectively be provided with protective measures and with minimal procedural delays in cases with an international element.

As part of this, the main responsibility is placed on the central authorities within the country in which the child has habitual residence.

Jurisdiction

For cases instituted after 1 January 2021, decisions as to jurisdiction will be governed by articles 5 to 14 of the 1996 Hague Convention.

The most relevant provisions are:

  • article 5 – allows for the habitual residence of a child in the relevant state to begin as soon as the child is legally moved there. This differs from article 9 of Brussels II, which states that they must be in the relevant country for three months before they are considered to be habitually resident
  • article 6 – allows for jurisdiction to be established in a country on the basis of the child’s presence if that child has no habitual residence, or the child is “internationally displaced” or a refugee
  • article 11 – provides for, in urgent cases, measures to be taken to protect a child even if the child is usually resident in another contracting state. Once steps have been taken to protect the child, the local authority should contact the relevant authority in the child’s home country to inform them of the action taken, ask for information about the child’s circumstances and agree upon any further action required. In such instances, the most expeditious approach would be to contact the International Child Abduction and Contact Unit (ICACU) in the first instance

Habitual residence is not defined in the 1996 Hague Convention.

Contracting states are therefore required to make decisions as to jurisdiction as per their own laws, but the overriding objective of the 1996 Hague Convention must be applied.

Under UK law, habitual residence is a question of fact (Re R [2016] AC 76) and requires “not the child's full integration in the environment of the new state but only a degree of it” (Re B (A Child) [2016]).

A range of factors may be considered, such as where the child is attending school; parental intention may be considered but may not be determinative (AB v CD [2018] EWHC 1021 (Fam)).

There have been developments in the law, following the High Court decision in Marinos v Marinos 2007 EWHC 2047, so that it’s only necessary to be habitually resident on the day the proceedings were issued, provided there was ordinary residence for the prior six or 12 months, as applicable.

Transfer and forum

For cases instituted after 1 January 2021, decisions as to transfer and forum will be governed by articles 8 and 9 of the 1996 Hague Convention.

The most relevant provisions are:

  • articles 8(1) and (9) require a sole test to be considered in relation to forum: is a court in another jurisdiction better placed to assess the child’s best interests?
  • in relation to a transfer of a case, article 8 applies to transfers to another contracting state and article 9 applies to transfers from another contracting state
  • article 9(3) sets out that a requesting state may exercise jurisdiction in place of the authority of the contracting state of the habitual residence of the child only if the latter authority has accepted the request. The process for transfers under either the 1996 Hague Convention or Brussels IIa Regulation is detailed in rules 12.61 to 12.67 of the Family Procedure Rules 2010

Many cases have been decided in both the UK Supreme Court and the European Court of Justice on article 15 of Brussels IIa Regulation, but the decisions from these cases cannot simply be applied to instances where the 1996 Hague Convention is the relevant instrument.

There is currently no case law on transfer and forum through the 1996 Hague Convention.

Cooperation

For cases instituted after 1 January 2021, the mechanisms for inter-country cooperation will be governed by articles 29 to 32 of the 1996 Hague Convention.

This includes:

  • the explicit requirement for central authorities to cooperate with each other and promote cooperation between each other (article 30)
  • the requirement for central authorities to take appropriate steps in facilitating communication regarding transfer and forum, to help agree solutions for the protection of the relevant child and to assist in discovering the whereabouts of a child if it appears they may be present in the one contracting state and where a central authority in another contracting state considers the child is in need of protective measures (article 31)
  • for the central authority of the contracting state with which the child has a substantial connection to provide information on the situation of a child, when reasonably requested by another contracting state in which the child in present or habitually resident (article 32)

Under article 33, any contracting state can be asked by a central authority of another contracting state to put together a report on any information they have on the child, about whom another contracting state has safeguarding concerns. This report should be used to inform decisions on whether child protection measures should be applied.

Under article 35, a contracting state can also request assistance from another contracting state to implement measures to facilitate rights of access and regular direct contact.

Placement

For cases instituted after 1 January 2021, the mechanisms for inter-country placement will be governed by article 33 of the 1996 Hague Convention.

Article 33 contains the procedures for the placement of children. It requires consultation between central authorities in the requesting and requested states.

As part of this, a report must be sent to the requested state, setting out the reasons for the proposed placement or provision of care.

The contracting state into which the child may be placed will need to consent to the placement, taking into account the child’s best interests.

There are no set formats for any such report; for example, a report from a child protection conference would suffice.

Article 33 may apply if:

  • a local authority considers it most appropriate that a child be placed with family members resident in another country
  • a child’s foster carer wishes to move abroad but a local authority considers it to be in the best interests of that child to remain with that carer, or
  • a child needs to be placed in a specialist residential unit abroad owing to their disabilities or special needs

Recognition and enforcement

For cases instituted after 1 January 2021, enforcement of orders made in the UK courts will be governed by articles 24 and 28 of the 1996 Hague Convention.

Article 24 allows for any “interested party” to request a decision of a contracting party as to recognition or non-recognition of an order made in another contracting state. See Practice Direction 31 and 31A of the Family Procedure Rules 2010.

Article 28 requires that measures taken in one contracting state and declared enforceable, or registered for the purpose of enforcement, in another contracting state will be enforced in the relevant state.

Enforcement is determined by the national law of the corresponding country. Article 28 also provides for a ‘best interests’ consideration by the state in which enforcement is sought.

Advice for practitioners

Familiarise yourself with the similarities and differences between the relevant articles of Brussels II and the 1996 Hague Convention.

Training within local authorities will be needed, for both lawyers and social workers.

Contact the International Child Abduction and Contact Unit (ICACU), if needed, in cases with an international element to ensure you’re aware of any updated policies or processes in light of the changes, but be aware that ICACU may have a surge in cases.

Where a child may be placed abroad, local authority lawyers should consider, at the earliest stage, whether local legal specialist advice is required from the country in which the child is to be placed. Where it’s sought, it may be useful to bring all lawyers acting in the proceedings into those discussions to ensure all have access to that advice.

Family members abroad, with whom the child may be placed, should be advised to receive legal advice in their country.

You may need to consider whether the local authority is able to assist with this process in conjunction with the family, and the question of costs will need to be considered.

Appendix A

Brussels II article Rules relating to After transition – cases instigated after 31 December 2020
Article 8(1) Jurisdiction Articles 5 to 14, 1996 Hague Convention. See paragraph 1.2. Habitual residence not defined by 1996 Hague Convention so domestic law will apply, although decisions must be made in line with the overriding objective of the Convention
Article 13 Where jurisdiction cannot be established Article 6, 1996 Hague Convention: allows for jurisdiction to be established in a country on the basis of the child’s presence if that child has no habitual residence, or the child is ‘internationally displaced’ or a refugee
Article 15 Transfer and forum Articles 8 to 9, 1996 Hague Convention
Article 55 Cooperation Articles 29 to 32 and article 34, 1996 Hague Convention
Article 56(1) Placement Articles 33 to 34, 1996 Hague Convention
Article 28(1) Recognition and enforcement Articles 24 and 28, 1996 Hague Convention

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