If a local authority has sufficient concerns that they want to apply to court for a care or supervision order for a child, the court has to be sure that it has jurisdiction. For a child from abroad the court may not have jurisdiction.
There is provision for the court to make orders in emergency situations but medium to longer term where there is an international element to a case the court needs to look carefully at whether it should have jurisdiction to make orders.
Habitual residence
It needs to be determined where a child is habitually resident. For a child who may be in this country for a short visit when the local authority become involved, it may be clear that the child is not habitually resident. The general principles for determining habitual residence include factors such as; consideration of the child’s level of integration into this country, their practical connection with this country and the other country, the stability of their arrangements. Parental intention may be relevant too.
When looking at those factors the court needs to determine its jurisdiction.
Jurisdiction of the court
The principles were established some time ago. In the case of Re M (Jurisdiction-Forum Conveniens) [1995] to FLR 224, Waite LJ said: “there is no limit, in theory, to the legal jurisdiction of the court in England to act in the interests of any child who happens to be within the jurisdiction for whatever purpose and for however short a time. In practice, however, if the child is not habitually resident in the country and there are legal procedures in the country of habitual residence available to achieve a fair hearing of competing parental claims regarding the child’s upbringing, the English court will decline jurisdiction, except for the purpose of making whatever orders are necessary to ensure a speedy and peaceful return of the child to the country of habitual residence. The practice thus is to follow the spirit of the convention [Hague Convention], even though its formal terms are inapplicable”.
Where a child is known to be from/have links with another country it is going to be important to be aware of this so that focus can be applied on the question of the jurisdiction.
Please contact our Children team if you require assistance.