Mark Twomey KC was leading counsel for the local authority and Kieran Pugh, counsel for the Guardian in the matter of Hackney v P & Ors (Re Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 (19 October 2023).
In a seminal judgment handed down today, the Court of Appeal has provided authoritative guidance as to the date by reference to which the court determines whether it has jurisdiction based on a child’s habitual residence, pursuant to the provisions of Article 5 of the 1996 Hague Convention and the extent of the court’s jurisdiction to make orders under Part IV of the Children Act 1989, if a child is present, but not habitually resident, in England and Wales nor any other Contracting State to the 1996 Convention.
The court accepted the submissions of both that the judge at first instance, MacDonald J, had been right to decide (a) that the court had substantive jurisdiction from the outset of the proceedings under our domestic rules, namely based on the child’s presence in this jurisdiction and (b) that the court additionally secured substantive jurisdiction under Article 5 once the child had become habitually resident here. The court agreed that this latter jurisdiction provided an alternative basis of jurisdiction which would be relevant if it became necessary to consider questions of enforcement and recognition in another Contracting State.
