Gemma Farrington KC & Kate Kochnari act in A & Ors (Care Proceedings: 1996 Hague Convention: Habitual Residence) [2024] EWFC 110

Gemma Farrington KC and Kate Kochnari acted for the Children’s Guardian in the case of A & Ors (Care Proceedings: 1996 Hague Convention: Habitual Residence) [2024] EWFC 110. Mrs Justice Knowles handed down the decision on 23 May 2024. This case considered the habitual residence of four children, that were brought to the UK illegally. Whilst Knowles J declined to give guidance on public law cases which originate in the international movement of children, she highlighted that neither Rule 12 of the Family Procedure Rules 2010, PD12A and PD12J adequately addresses the practice and procedure in these increasingly common cases. The learned Judge posited that there is scope for more detailed exposition of good practice in such cases, either within the Family Procedure Rules or in guidance from the President of the Family Division.

Brief background

The case concerned care proceedings issued in October 2023 with respect to four children; A aged 12; B aged 10; C aged 9 and D aged 7 (“the children”). The eldest three children were born in Syria. The family later travelled to Austria and were granted asylum. The family were known to the Austrian child welfare authorities due to concerns of physical abuse and neglect and the father had an extensive criminal history. In around June 2023 the children arrived in this jurisdiction with their father via a small boat. The father sought asylum. During that process the children were interviewed and made allegations of abuse against their parents. Accordingly, the children were moved into an emergency placement, and thereafter to foster care under a s20 arrangement. The mother remained in Austria and made applications to assign the children’s custody to her within that jurisdiction.

In October 2023 the father was given a custodial sentence for facilitating the children’s illegal entry into England. The local authority issued its application for care orders in respect of the children.

Previous hearings:

The matter was allocated to the High Court and representatives from the Austrian authorities were invited to attend. The paternal grandmother was joined as a party to proceedings. A recital to the order dated 5 March 2024 set out that the asylum claims related to a fear of persecution in Syria, therefore the principles in G v G [2022] AC 544 were unlikely to be engaged in respect of any return to Austria. Further, the court had jurisdiction to make an interim care order (“ICO”) based on the children’s presence in this jurisdiction.

Issues before the court:

Whether the children were habitually resident in England and Wales;
What steps can the court take to determine and/or implement welfare decisions when all the children remain the subject of an undetermined asylum application.

The parties:

The children’s mother, father, paternal grandmother were parties to the proceedings. The children were represented through their Guardian. In addition, the court was assisted by experts, one in Austrian family court orders and another in immigration matters.

Habitual residence:

Looking holistically at the children’s situation individually, and as a sibling group, Knowles J determined that the children are habitually resident in England.

The essential question for the court was whether the children had achieved a sufficient degree of integration into a social and family environment in England at the date of the hearing.
The children’s history was relevant to their current circumstances. A, B and C had experienced trauma from the Syrian Civil War until their move to Austria in 2015. They spoke German and attended schools and medical appointments in Vienna prior to their removal to the UK. The Austrian authorities became involved with the family in 2021 which led to the sibling group being split. All four children had emotional, behavioural and cognitive difficulties as a result of their parenting before their removal. The result of their unlawful migration was that the children were separated from their mother and grandmother with minimal contact.
The children had been living as a sibling group in foster care since June 2023. The foster carers were Muslim. Over time there was a significant improvement in the children’s self-care and behaviour. Knowles J considered that the children were living together and benefitting from “good quality emotional and physical care” [§45]. The carers required regular respite care because of the challenges in meeting the children’s emotional needs.
The children had learned to speak English fluently and could not recall German. They continued to speak Arabic with each other and with one of their foster carers.
All four children attended school, which accounted for a large part of their lives. They faced difficulties in school. The local authority and Children’s Guardian submitted that, though the children attended school and appeared to have settled in their foster home, the evidence of stability was insufficient for them to have acquired habitual residence. After careful consideration, Knowles J rejected those submissions.
Following a holistic evaluation of the circumstances, Knowles J held that the children were habitually resident in this jurisdiction. She considered that the constellation of difficulties they faced were also present in Austria where they were undoubtedly habitually resident.
Further, she held that it was not necessary for a child to demonstrate full integration into a social and family life, nor do they have to show progress to acquire habitual residence. Despite the challenges the placement was stable.
The children had a family life with their carers and they were integrated into an educational environment.
An uncertain status does not itself operate to prevent the children from becoming habitually resident.
It might be theoretically possible to reach different conclusions about the habitual residence of each child. In this case, these children shared more than anything that might separate them to determine habitual residence.

Determination and Implementation of Future Welfare Decisions:

The court formed a provisional view that the operation of immigration and asylum law does not prevent the court from implementing a welfare decision which might result in the children’s return to Austria before their asylum application has been determined. The implementation of the decision depends upon wide-ranging argument which will need to address the court’s duty to have proper respect for the article 8 rights of the children, their parents and their grandmother. Knowles J reached that decision for the reasons set out below:

Following G v G [2020] UKSC 9, an applicant for asylum has protection from refoulment pending the determination of that application. Applied to the 1996 Hague Convention, these principles would appear to prevent the movement of the children out of England and Wales until their asylum application had been determined.
The Local Authority submitted, and the other parties agreed that there was no guidance relating to public law proceedings which engaged the 1996 convention unlike proceedings pursuant to the 1980 Hague Convention. The parties invited the court to give such guidance.
G v G heavily relied upon the Qualification Directive and the Procedures Directive being effective as a matter of retained EU law as conceded by the SSHD. §129-134 of G v G were set out in full.
A recent Supreme Court decision, R (AAA (Syria)) v Home Secretary (SC(E)) [2023] UKSC 42 noted that G v G proceeded on the basis that the Procedures Directive and Qualifications Directive were directly effective and remained EU law. R(AAA) acknowledged that the Supreme court heard no argument on that point in G v G and no reference had been made to the Immigration Social Security Coordination (EU Withdrawal) Act 2020 (“the Withdrawal Act 2020”). This omission occurred because the 2020 Act came into force between the Court of Appeal’s decision and the Supreme Court hearing. Having heard full argument on the point in R(AAA) the Supreme Court concluded that Articles 25 and 27 of the Procedures Directive was not retained EU law and accepted the SSHD’s submission that the 2020 act was designed to repeal EU immigration law. Knowles J considered that R (AAA) undermined the basis upon which G v G decided that a dependent child could not be subject to refoulment until an asylum claim had been determined, as this stemmed from Art 7 of the Procedures Directive.
The Court of Appeal in Northern Ireland considered the effect of an undetermined asylum claim on the court’s powers to take a decision under the 1980 Hague Convention in In the Matter of AB (A Minor) [2023] NICA 37. There, Keegan LCJ noted that there was a presumption of expeditious return to the country of habitual residence. That aim was frustrated by a small number of asylum applications as by the time the asylum application had been determined the child’s relationship with the left behind parent could be irreparably damaged. Setting out the reasoning in G v G, Keegan LCJ distinguished the facts of AB as a third country that was involved that afforded safety from the persecution upon which the asylum claim was based. Keegan LCJ held (a) the immigration rules did not preclude a return under the Hague Convention as per Re S (Children) (Child Abduction: Asylum Appeal) [2002] EWCA Civ 843 and (b) the Procedures Directive was no longer retained EU law. Noting that the SSHD no longer maintained his concession that the Procedures Directive was part of retained EU law, as per R (AAA) s1 schedule 1 of the Withdrawal Act 2020 applied. Further, s77 of the Nationality and Immigration and Asylum Act 2002 applied at the time, and for claims after 28 June 2022, refugees may be removed to a safe third country pending the determination of asylum claims. Amendments to §329 of the Immigration Rules since G v G meant the rule was in similar terms to s77 of the 2002 Act. Thus, the safeguards within the immigration process did not extend beyond that process or fetter a judge considering an application under the Hague Convention.
Considering the case law above, Knowles J recognised that she heard no submissions from the SSHD in the circumstances of this case and was therefore wary of coming to a firm view. The case was not yet at the welfare stage, nor was it beyond the bounds of possibility that the asylum application was expedited and determined by the time a welfare decision is made or implemented. A determination would not preclude a challenge to the SSHD’s decision by the father.
The reality was once a request to assume jurisdiction had been made further to Articles 8 and 9 of the 1996 Convention there was ‘no turning back’ to accommodate an undetermined asylum application or a decision which was challenged.
In line with the recital to the order, G v G was unlikely to be engaged because Austria affords safety for persecution and would not breach the principle of non-refoulement. Especially as the children had full asylum status in Austria and expert evidence is that that status has been retained. If necessary, the Austrian authorities could confirm the children’s status prior to any welfare determination.
Knowles J was drawn to the analysis in AB which recognises a different reality from G v G. Although the High Court was not bound to the decision in AB it was considered to be “highly persuasive” as it emanated from the Lady Chief Justice of Northern Ireland and its analysis of immigration law was likely to be on all fours with that in England and Wales. AB was authority for the preposition that the Procedures Directive is no longer retained EU law, and reliance on it may no longer be sustainable as a matter of statute. The amendments to s77 of the 2002 Act and §329 of the Immigration Rules operate together to rescind the positive obligations flowing from Art 7 of the Procedures Directive. The interlocking effect of these developments confine safeguards in the immigration process to that process alone so that as in Re S, they do not fetter a judge considering an application under the Hague Convention. The dicta from Re S was given new life by developments since G v G was decided.
Though the instant case was concerned with the 1996 and not the 1980 Hague Convention, although the court did not hear argument on that point, nothing in the jurisprudence suggests that the need to determine applications without delay does not apply equally to the 1996 Convention. This is particularly important in care proceedings where the circumstances of taking children from one jurisdiction to another give rise to a significant risk of harm. Avoiding delay in decision making was crucial as the children may have been separated from their family for considerable time and there is uncertainty about a welfare determination.