Practice and procedure in public law cases which originate in international movement of children “not adequately addressed” in guidance, says judge

A High Court judge has highlighted the need for a more detailed exposition of good practice in public law cases which originate in the international movement of children, within the context of the 1996 Hague Convention.

In A & Ors (Case Proceedings: 1996 Hague Convention: Habitual Residence) [2024] EWFC 110, Mrs Justice Gwynneth Knowles said: “In my view, practice and procedure in such cases is not adequately addressed either in rule 12 of the Family Procedure Rules 2010 or in practice direction 12A which relates to public law proceedings, or, indeed, in practice direction 12F which relates to international child abduction.

“Cases such as this one are increasingly common and often much delayed before reaching a judge of the Division because the complexities posed by such cases have been insufficiently appreciated by all involved, including the Family Court. It seems to me that there is scope for a more detailed exposition of good practice in such public law cases within the context of the 1996 Convention.”

The case concerned care proceedings issued in October 2023 with respect to four boys: A, B, C, and D.

Outlining the background to the case, the judge noted that the children’s mother and father were born in Syria. In 2014, the father travelled to Austria and the mother joined him there with A, B and C in April 2015. At some point, the date of which was unclear, the entire family were granted asylum in Austria.

The children’s mother remains in Vienna, Austria. The father is presently in immigration detention in this jurisdiction, following his release from prison in March 2024.

The father served a custodial sentence for facilitating the illegal entry of the children to this country, having been sentenced in early October 2023 for a period of eighteen months.

The judge noted that the family had been known to the child welfare authorities in Austria since 2016 because of concerns about the physical abuse and neglect of the children.

In April 2023, the children’s mother separated from the father and moved into a women's shelter.

In May 2023, the Austrian authorities suggested that the father had removed all of the children from that jurisdiction. The mother made a complaint about their abduction to the police in Vienna later that month. The Austrian authorities recorded that the father took the children abroad without the consent of the mother and the grandmother, the judge noted.

In June 2023, the children arrived in this jurisdiction with their father, having travelled in a "dinghy" across the channel with 61 other people.

The children were interviewed with the assistance of an interpreter and made allegations of physical abuse whilst in the care of their parents.

All four children have since been accommodated in foster care pursuant to section 20 of the Children Act 1989.

In July 2023, the mother obtained court orders in relation to A and B, withdrawing custody from the father and assigning it to her.

The hearing before the judge was listed to determine (a) jurisdiction; (b) the local authority's application for an interim care order; and (c) whether the children should be returned to Austria.

Counsel for the local authority submitted that the children remained habitually resident in Austria. The judge said: “[counsel] drew attention to their deep roots in Vienna since 2015 and the absence of consent from the mother and grandmother to their move here.”

On behalf of the mother, counsel submitted that the children were habitually resident in this jurisdiction.

He submitted the children were placed together in a foster home with carers who could speak Arabic and who shared their Muslim faith. The children were receiving health treatment and were registered with a GP. All the children attended schools and, though they all had problems in that setting, they were making some progress.

Though their circumstances here had a certain temporary quality because of the local authority's plan that they should be returned to Austria, this would not have prevented the children acquiring habitual residence here, counsel submitted.

Analysing the issue of habitual residence, the judge said: “The essential question for the court is whether the children - at the date of this hearing - had achieved a sufficient degree of integration into a social and family environment in England such that their residence here was habitual. The court's focus must necessarily be on present circumstances but an understanding of the children's past experiences feeds into a holistic analysis of their current situation.”

She continued: “The children lived their entire lives in Vienna from April 2015 to about 21 May 2023 when their father is said to have taken them from Austria. They all spoke German and attended schools and medical appointments in Vienna. […] However, the children's lives in Vienna were also affected by suspected physical abuse and neglect at the hands of their parents which necessitated the involvement of child welfare services.”

The judge noted that in June 2021, the children were removed from the care of their parents for several weeks and thereafter they never lived together again as a sibling group in Austria. The two older boys lived with their parents whilst C and D lived with the paternal grandmother. However, in this jurisdiction, the children have been living together as a sibling group.

The judge said: “Not only are the children living together and benefitting from good quality emotional and physical care but they have all learned to speak English fluently according to the children's guardian.”

Concluding on the issue of habitual residence, the judge said: “Though their status in this jurisdiction is uncertain, this factor does not of itself operate to prevent the children becoming habitually resident according to the authorities to which I have paid careful attention. Thus, standing back and looking at the children's present situation, it demonstrates the necessary degree of stability and sufficient integration into a social and family environment to be described as habitual.”

The judge noted that avoiding delay in decision-making is “crucial” for children in the care of the state who may have been separated from their family of origin for some considerable time and for whom there is uncertainty about any welfare determination.

She said: “Thus, I am provisionally of the view that the operation of immigration and asylum law does not prevent this court from implementing a welfare decision which might result in the return of these children to Austria before their application for asylum in this jurisdiction has been determined. Whether such a decision should be made or implemented will be a matter for wide-ranging argument in due course which will need, for example, to address the court's duty to have proper respect for the Article 8 rights of the children, their father, their mother, and their grandmother.”

Mrs Justice Gywnneth Knowles decided that she was unable to determine whether a return to Austria - contended for by the local authority and the children's guardian - was in the best interests of the children. 

Following oral submissions, she made interim care orders with respect to the children and gave her reasons for doing so in an ex tempore ruling, separate from the matters with which this judgment was concerned.

Concluding the case, Mrs Justice Gwynneth Knowles finally highlighted the need for a more detailed exposition of good practice in public law cases, which originate in the international movement of children.

She said: “I have resisted the temptation to give guidance on public law cases which originate in the international movement of children, whether or not these are associated with a claim for asylum. In my view, practice and procedure in such cases is not adequately addressed either in rule 12 of the Family Procedure Rules 2010 or in practice direction 12A which relates to public law proceedings, or, indeed, in practice direction 12F which relates to international child abduction.

“Cases such as this one are increasingly common and often much delayed before reaching a judge of the Division because the complexities posed by such cases have been insufficiently appreciated by all involved, including the Family Court. It seems to me that there is scope for a more detailed exposition of good practice in such public law cases within the context of the 1996 Convention. Whether the place for this is within the Family Procedure Rules 2010 or in guidance from the President of the Family Division is a matter for others to decide.”

She added: “I propose to draw the attention of Lord Justice Moylan, the Head of International Family Justice, and Mr Justice MacDonald, his deputy, to the issues in this case by sending them a copy of this judgment.”

The matter was listed for further directions and for a welfare hearing in mid-June 2024.

Lottie Winson