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

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

United Kingdom - England and Wales

15 July 2021

Re D (Care Proceedings: 1996 Hague Convention: Article 9 Request)

[2021] EWHC 1970 (Fam)

First instance

• Article 9
• Article 8

• Article 1
• Article 2
• Article 3
• Article 4
• Article 5

Children Act 1989, Family Procedure Rules 2010, British Nationality Act 1981

Not provided

The proceedings concerned a two-year-old child habitually resident in Switzerland who had been placed in long-term foster care after his mother's arrest. The local authority initially sought a transfer of jurisdiction under Article 9 of the 1996 Hague Child Protection Convention but later applied to withdraw that request. The Children's Guardian instead invited the High Court to request a transfer limited to issues concerning contact between the child and his adopted sibling living in England. Mrs Justice Knowles undertook a detailed analysis of Articles 8 and 9 of the Convention, the jurisdictional framework, the relationship with Article 8 ECHR, and the principles of mutual trust and international judicial cooperation. Although the court accepted that England and Wales had a substantial connection with the child and that the proposed request fell within the Convention, it concluded that the Swiss authorities possessed an adequate legal framework to determine issues relating to DNA testing, sibling contact and the child's welfare. Since a transfer would provide no genuine or specific added value and would create practical and procedural difficulties, the court declined to make an Article 9 request and allowed the proceedings to be withdrawn.

The High Court refused to make a request under Article 9 of the 1996 Hague Child Protection Convention inviting the Swiss authorities to transfer jurisdiction concerning issues of contact between the child and his sibling. Although England and Wales had a sufficient connection with the child and the proposed request did not fall outside the scope of the Convention, the court held that the Swiss authorities, as the authorities of the child's habitual residence, remained better placed to determine those issues. The court therefore declined to request a transfer of jurisdiction and granted the local authority permission to withdraw the care proceedings and its Article 9 application.