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

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

United Kingdom - England and Wales

16 January 2024

B v N (No 2) (Art 7 and Transfer of Jurisdiction)

[2024] EWHC 17 (Fam)

First instance

• Article 5(1)
• Article 7
• Article 8

• Article 6
• Article 11
• Article 12
• Article 13

Children Act 1989

B v N [2022] EWHC 1260 (Fam) (earlier first-instance decision in the same proceedings) X (Child Abduction: Habitual Residence) [2022] EWCA Civ 1423: Court of Appeal decision in the same proceedings, allowing the mother's appeal and remitting the matter to the Family Division.

Proceedings concerning a child who had been wrongfully removed by his father from England and Wales to Germany during ongoing litigation. The English court retained jurisdiction pursuant to Article 7 of the 1996 Hague Convention. The principal issue was whether jurisdiction retained following wrongful removal could nevertheless be transferred to Germany under Article 8. MacDonald J held that it could. Article 7 does not create a freestanding basis of jurisdiction; rather, it preserves the jurisdiction based on habitual residence under Article 5 until the conditions in Article 7(1) are satisfied. Accordingly, the State retaining jurisdiction remains a State having jurisdiction under Article 5 for the purposes of Article 8. The judge declined to follow the contrary interpretation adopted in A (A Child) (Abduction: Jurisdiction: 1996 Hague Convention) [2021] EWHC 581 (Fam). It further emphasised that the deterrence of child abduction, although relevant, does not create an absolute bar to transfer: the decisive Article 8 questions remain whether the other State is better placed to assess the child’s best interests and whether transfer is in the child’s best interests. On the facts, Germany was better placed to assess the child’s best interests: the child had lived there for approximately fifteen months, had strong connections with Germany, his current schooling, health care and social environment were there, and he had strongly expressed a wish to remain. The court therefore requested Germany to assume jurisdiction under Article 8.

The English court retained jurisdiction in respect of the child following his wrongful removal to Germany by operation of Article 7 of the 1996 Hague Convention. The court held that Article 8 remained available notwithstanding that jurisdiction was retained under Article 7, because Article 7 does not constitute an independent basis of jurisdiction but preserves the jurisdiction founded on habitual residence under Article 5. Germany was better placed to assess the child’s best interests and transfer was in the child’s best interests. The court therefore requested the German court to assume jurisdiction under Article 8, stayed the English proceedings pending the German court’s decision, and directed that they be dismissed if Germany accepted jurisdiction.