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

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

United Kingdom - England and Wales

19 October 2023

B v C (No 2) (1996 Hague Convention Art 22)

[2023] EWHC 2524 (Fam)

First instance

• Article 16(3)
• Article 22

• Article 1
• Article 3
• Article 4
• Article 5(1)
• Article 15
• Article 18

Children Act 1989, Family Law Act 1986, Family Procedure Rules 2010

Not provided

Proceedings concerning a child born in Spain whose birth had been registered using a stolen passport and a false identity. As a result of that registration, D, a person with no biological relationship to the child, acquired parental responsibility by operation of Spanish law. The child's biological father, C, had used D's stolen identity while evading law enforcement and was later convicted in England of serious sexual offences against children. The child subsequently became habitually resident in England and Wales. The court considered the effect of Article 16(3) of the 1996 Hague Convention, under which parental responsibility existing under the law of the child's former habitual residence ordinarily subsists following a change of habitual residence. MacDonald J held that, absent Article 22, D's Spanish parental responsibility would continue to subsist in England and Wales. However, applying Spanish law in the particular circumstances would be manifestly contrary to public policy, taking into account the child's best interests. The court therefore applied Article 22 to refuse the law designated by Article 16(3), with the result that D did not hold parental responsibility for A in England and Wales. The court consequently found it unnecessary to determine the mother's alternative arguments under the Children Act 1989, the inherent jurisdiction or the Human Rights Act 1998.

The court held that, although D had acquired parental responsibility for A by operation of Spanish law and that responsibility would ordinarily subsist in England and Wales following A's change of habitual residence pursuant to Article 16(3) of the 1996 Hague Convention, application of Spanish law in the exceptional circumstances of the case would be manifestly contrary to public policy, taking into account A's best interests. Article 22 was therefore applied to refuse the law designated by Article 16(3), with the consequence that D did not have parental responsibility for A in England and Wales. It was accordingly unnecessary to determine whether s 4(2A) Children Act 1989 should be read down, supplemented by the inherent jurisdiction or declared incompatible with the ECHR.