High Court of Justice (England and Wales), Family Division

High Court of Justice (England and Wales), Family Division

United Kingdom - England and Wales

29 February 2024

Re J & H (Jurisdiction: 1996 Hague Convention: Residual Domestic Jurisdiction: Parental Responsibility Jurisdiction)

[2024] EWHC 1395 (Fam)

First instance

• Article 5(1)
• Article 7

• Article 8
• Article 8
• Article 11
• Article 13

The Family Law Act 1986, Children Act 1989, Civil Jurisdiction and Judgements Act 1982, Private International Law (Implementation of Agreements) Act 2020

Not provided

The proceedings concerned two children of a British father and Thai mother following the children's residence in England and subsequent retention in Thailand. The principal issue was whether the English court retained jurisdiction after the child may have acquired habitual residence in Thailand, which is not a Contracting State to the 1996 Hague Convention. Williams J reviewed the relationship between Articles 5 and 7 of the Convention, the residual jurisdiction preserved by the Family Law Act 1986, and the inherent jurisdiction of the High Court. The court held that even if Convention jurisdiction under Article 5 ceased following a move to a non-Contracting State, the English court retained jurisdiction under the Family Law Act 1986 based on the child's habitual residence when proceedings were issued. The judgment also discusses, without deciding, whether Article 7 applies where the child acquires habitual residence in a non-Contracting State, identifying the issue as unresolved in English law.

The High Court held that it possessed jurisdiction to determine the father's applications notwithstanding the possibility that the child had subsequently become habitually resident in Thailand, a non-Contracting State. The court concluded that, where the 1996 Hague Convention no longer provides jurisdiction because of a move to a non-Contracting State, the court may rely on the residual domestic jurisdiction under sections 2 and 3 of the Family Law Act 1986, determined by the child's habitual residence at the date proceedings were commenced. The court also confirmed that it retained jurisdiction to determine the father's application for parental responsibility and considered the continuing availability of the inherent parens patriae jurisdiction.