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