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

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

United Kingdom - England and Wales

19 December 2022

Derbyshire County Council v Mother & Ors

[2022] EWHC 3405 (Fam)

First instance

• Article 5(1)
• Article 9
• Article 11

• Article 1
• Article 8

Children Act 1989

Not provided

The proceedings concerned two children who had moved with their family from England to Spain approximately one year before one child sustained a serious stab injury while the family was visiting England. The local authority commenced care proceedings, and the parents challenged the jurisdiction of the English courts on the basis that the children were habitually resident in Spain. The principal issue was whether habitual residence under Article 5 of the 1996 Hague Convention should be determined at the date the court was seised or at the date of the hearing. Lieven J disagreed with MacDonald J's earlier decision in London Borough of Hackney v P, holding that jurisdiction should be determined when proceedings are commenced. On that basis, the children remained habitually resident in Spain and the English court's jurisdiction was limited to urgent protective measures under Article 11. However, because the alleged injury occurred in England and all relevant witnesses and evidence were located there, the court concluded that England was better placed to determine the factual issues and directed that a request be made under Article 9 inviting the Spanish authorities to authorise the English courts to exercise jurisdiction.

The High Court held that the children were habitually resident in Spain when the English court was first seised of the care proceedings and therefore England and Wales did not have substantive jurisdiction under Article 5 of the 1996 Hague Convention. The court nevertheless confirmed that it could exercise urgent protective jurisdiction under Article 11 by maintaining Interim Care Orders. Having concluded that England was better placed to determine the factual issues arising from the serious injury sustained by one of the children, the court decided that a request should be made to the Spanish authorities under Article 9 seeking authorisation for the English courts to exercise jurisdiction in relation to the proceedings.