Re London Borough of Hackney & Ors v P & Ors (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 concerned the relevant date by which to determine whether the court has jurisdiction based on a child’s habitual residence. Is it the date of the hearing or the date on which the proceedings were issued? The court also considered the extent of its jurisdiction to make Children Act 1989 orders is a child is present but not habitually resident in England and Wales nor in any other contracting state.
The child moved to Tunisia from France to live with her grandmother after her mother died, then moved to England to stay with her uncle in June 2021 but was shortly after taken into police protection and placed in foster care. Lord Justice Moylan, giving the lead judgment, noted ‘very substantial delays in the progress of the case including in respect of the issue of habitual residence’.
Moylan LJ found the date the proceedings commenced was the relevant date. However, the court must not only assess habitual residence at the outset of the case but also make sure it still has jurisdiction at the final hearing, since a child may change their habitual residence during the course of the case.
Moylan LJ confirmed the court is likely to have jurisdiction to make public law orders regarding the child if the child is present in England and Wales even if they are habitually resident in a non-contracting state such as Tunisia.
He said: ‘While the court clearly needs to be satisfied that it retains jurisdiction at the date of the final hearing, I do not consider that this issue needs to be reviewed at every hearing.’
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