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Re D (Care Proceedings:1996 Hague Convention: Article 9 Request) [2021] EWHC 1970 ( Fam)

The Local Authority had issued care proceedings in November 2020 in relation to a boy (D) who was a British National (on the assumption that he was the mother’s natural child) and who lived with foster-carers in Switzerland following a welfare decision made by the Swiss authorities.

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The background

 The background is complex but for the purpose of this summary can be distilled to the following key events. In April 2017, care and placement orders had been made by Recorder Samuels QC in relation to F (the mother's older child who was understood to have been conceived by the mother following IVF treatment in Denmark). D was born in Barbados in 2018. In November 2019 the mother, who by now was living with D in Switzerland, was arrested and remanded in custody pursuant to a European Arrest Warrant in connection with proceedings arising out of the care given to F, and D was placed in foster-care. Neither she nor D had any permit or legal permission to live permanently in Switzerland and no pre-existing connection there. The mother was extradited to the UK in June 2020 (the CPS decided in April 2021 that the proceedings against her should be discontinued and a not guilty verdict was entered in respect of each count of the indictment). In November 2020 the Local Authority issued care proceedings in respect of D and the matter was transferred to the High Court. The purpose of the application was to provide a framework in which any necessary decision could be made for D within this jurisdiction. The Local Authority then applied to transfer the matters relating to D to this jurisdiction pursuant to Article 9 of the 1996 Hague Convention, hoping to explore the possibility that D could be adopted in this jurisdiction or even placed alongside F. In February 2021 the Local Authority had a change of heart,  taking the view that this process would be outside D's timescale and would risk damaging the attachment he had with his foster-carers with whom he was a well-settled, French-speaking child.  The Local Authority therefore applied to withdraw both the Article 9 transfer request together with the public law proceedings, accepting that Swiss law provided a framework for the consideration of DNA testing, adoption and inter-country adoption and that there was no justification for the ongoing role of this court in those matters. In March 2021 the Swiss authorities made final orders in relation to D, confirming his placement with his foster family, and suspending the mother's contact. At the final hearing in the High Court the Local Authority's applications were supported by the mother, although the Guardian advanced an Article 9 transfer request limited to the issue of contact between D and F rather than a request aimed at wider welfare considerations.

The court accepted that by the time the care proceedings were issued D was habitually resident in Switzerland and that under Article 5 of the Convention the judicial or administrative authorities in Switzerland had jurisdiction. Although D was neither habitually resident nor present in England and Wales at that time, Knowles J was nonetheless satisfied that it was entirely appropriate for care proceedings to have been issued: it was likely that D was a British national at birth and jurisdiction could therefore have been exercised in relation to him under the parens patrie jurisidiction of the High Court.

Article 9 request by the Guardian

In Child and Family Agency v D (R intervening) [2017] 2 WLR 949, the Court of Justice of the European Union held that, with respect to applications for transfer pursuant to Brussels IIR, the court with jurisdiction must determine whether the transfer to the other court will provide genuine and specific added value. Applying the same test to applications under the 1996 Convention by analogy, Knowles J concluded that the court should not make an Article 9 request to the Swiss authorities. She referred first to the principle of comity which requires the court to apply the principle of mutual trust and involves the assumption that the authorities of the other Contracting State are, in principle, competent to deal with all aspects of a case. She then found that it was clear from the expert legal evidence (a jointly instructed Swiss lawyer) that there was a legal framework in place in Switzerland which was capable of resolving any of the issues which might arise in considering contact between D and F, and that an assessment of the frequency and nature of contact between D and F was better undertaken by the Swiss authorities in whose area D lived. There was no genuine and specific added value to a transfer of jurisdiction in so far as contact issues were concerned. Moreover, if jurisdiction with respect to contact were to be transferred to the High Court, it was unclear what the appropriate vehicle for those issues would be now that the Swiss authorities had already assumed parental rights with respect to D (para. 74). Significant practical and legal difficulties would arise from the fact that the Swiss authorities would be a principal respondent in, for example, an application by F or his adopters for a child arrangements order.

Sibling relationships and Article 8 issues

The court emphasised the enduring importance of the sibling relationship (para. 77) and the importance to D and F of having a relationship if that could be properly established: 'the existence of a sibling relationship is crucial for healthy emotional and identity development though it can be attenuated by time, distance, conflict and legal separation.' Knowles J also noted its particular potential benefit to D and F in mitigating the harms they had each experienced separately in their mother's care. D's Article 8 right to private life in exploring the potential for contact between him and F did not require the proceedings to be transferred to the High Court since a clear legal framework already existed in Switzerland for the exploration of and establishment of contact between D and F. In any event, even though the final determination made by the Swiss authorities in relation to D had not mentioned the possibility of future contact between the siblings, there was no danger that this issue would be overlooked by the Swiss authorities in future decision-making concerning D:  the principle of comity extended to disclosing the judgment to the Swiss authorities and requiring them to treat the contents of this High Court judgment with the utmost respect.

Withdrawal of care proceedings and the Local Authority's Article 9 request

This was the first reported decision concerning the withdrawal of an application for transfer under the 1996 Convention. The Judge considered that such an application fell within the scope of FPR 2010 r.29(4) and that the permission of the court was required to withdraw it. By analogy with applications for permission to withdraw an application under the 1980 Hague Convention on the Civil Aspects of Child Abduction, the test for permission centred on those matters set out in the overriding objective at FPR 2010 r 1(2) and welfare issues were unlikely to feature at all. The Judge permitted the local authority to withdraw its application for an Article 9 transfer and its application for a care order on the basis that the two sets of proceedings no longer served any forensic utility.

The judgment concludes by making a number of recommendations of (a) practical steps that could be taken by the Local Authority to assist the Swiss authorities, and (b) areas that the Swiss authorities may wish to consider in future decision-making concerning D.

Case summary by Abigail Bond, Barrister, St John's Chambers

For full case, please see BAILII