Y & Anor (1996 Hague Convention: Article 11), Re

On 21 June 2023, we heard an appeal by a local authority against an order discharging an interim care order in respect of two children, a boy, hereafter called Y, aged 8, and his sister, E, aged 4. At the conclusion of the hearing, we informed the parties that the appeal would be allowed, and we made orders summarised below. This judgment explains my reasons for agreeing with that decision.

The appeal involves the application of provisions relating to jurisdiction in Chapter II of the 1996 Hague Convention on the jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children (“the Convention”). Since the departure of the UK from the European Union, the determination of jurisdiction in children’s proceedings as between States is governed by the Convention rather than the EU Brussels IIA regulation. The two countries involved in this case, the UK and Spain, are both signatories to the Convention. The Convention is incorporated into our domestic law by s.1 of the Private International Law (Implementation of Agreements) Act 2020, which amended the Civil Jurisdiction and Judges Act 1982 so that s.3C(1) of the latter act provides simply that “The 1996 Hague Convention shall have the force of law in the United Kingdom.”

Article 5(1) of the Convention lays down the basic rule:

Article 6, concerning refugee children, and Article 7, relating to abducted children, are not relevant to this appeal. Articles 8 and 9 concern requests for the transfer of jurisdiction to a State better placed to assess the child’s best interests. They read as follows:

Article 10 concerns children whose parents are in divorce or separation proceedings and is also not relevant here. Article 11 concerns urgent cases. It provides:

Article 12 makes provision for “measures of a provisional character”. It provides:

The mechanism in this jurisdiction by which a local authority may take “necessary measures of protection” in an urgent case under Article 11 or “measures of a provisional character” under Article 12 is provided under regulation 5 of the Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Northern Ireland) Regulations 2010, SI 2010/1898 (“the 2010 Regulations”). Under regulation 5(1):

When engaged by regulation 5(1), the effect of regulation 5(2) of the 2010 Regulations is that s.38 of the Children Act 1989, headed “Interim orders” has effect as if it read as follows:

S.31(2) of the Children Act 1989 (referred to in s.38(2)), provides:

Thus the scheme of the Convention, as implemented by the 2010 Regulations, is that, in respect of a child present in this country but habitually resident in another country that is a signatory to the Convention,

The mother and the father are British citizens, who met in 2009, were married in 2014 and have two children together: Y, born in 2014, and E, born in 2019. The mother has an older daughter, A, who is now 18 years old and lives in Spain where the mother’s family had owned a home for many years.

The mother, father and their two children lived in this country, but during the COVID-19 pandemic decided to move to Spain. The mother and the children moved there in August 2021. The father remained in England for work reasons but visited Spain frequently to see the family. The mother and the children have been given five-year Spanish visas as a preliminary stage before applying for permanent residence. The children completed a year of school and nursery in Spain respectively.

In the summer of 2022, the mother and children came back to England for a short holiday. They were in the process of selling the family home here, but had not yet done so and therefore stayed at the property during the visit.

On 9 July 2022, E, then aged 3 years 3 months, was taken to the local hospital in England by the parents. She had sustained a deep penetrating stab wound to her back caused by a kitchen knife. E needed urgent surgery, without which the injury may have been fatal. Fortunately, she has made a good recovery. In conversation with the doctor, E said that her "father had done it".

The parents were interviewed by the police. We have not been provided with transcripts of their interviews. It is agreed, however, that neither parent gave a comprehensive account of how the injury had occurred. Both accepted that they had been in the kitchen when E was stabbed. Neither could explain what had happened. Both described it as an “accident”. Both stated that they had been in the middle of a domestic argument at the time. They agreed that a row had started when the father brought Y home after playing football and the mother was angry about the boy being sunburnt.

Following this incident, Y and, when she was released from hospital, E were placed in the care of other members of the family, initially their maternal grandparents and subsequently their maternal uncle.

On 22 September 2022, the local authority started care proceedings under s.31 of the Children Act 1989 and the children were made subject to interim care orders under s.38. The parents, however, disputed that the English court had jurisdiction on the basis that the children were habitually resident in Spain. At a case management hearing on 18 October, HHJ Williscroft concluded that the children were habitually resident in Spain but that the court should “liaise with the Spanish court to decide if the case should be transferred to the English courts under article 9 of the Hague Convention 1996”. In the interim, she continued the interim care orders under Article 11, directed the parties to “provide an agreed draft summary to the court for use in the exchange of views under Article 9”, listed a review hearing in December and ordered that the “matter is stayed pending an exchange of views with the Spanish authorities.”

A week later, however, the judge informed the parties that she wished the issue of habitual residence to be reconsidered at a further hearing because her attention had not been drawn to the decision of MacDonald J in London Borough of Hackney v P [2022] EWHC 1981 (Fam). MacDonald J had found that the relevant date for determining habitual residence was the date of the hearing, whereas HHJ Williscroft had proceeded on the basis that the relevant date for determining habitual residence was the date the Court was seised of the matter. The issue of jurisdiction was then re-listed before Lieven J on 18 November. At the conclusion of the hearing, she reserved judgment but made an order which included a recital that

Meanwhile, the mother had filed a notice of appeal against the making of the interim care orders. On 11 November, Moylan LJ refused permission to appeal.

On 19 December, Lieven J gave judgment, concluding that the relevant date was the date the court was seised of the matter and that the judge had correctly decided that the children’s habitual residence was Spain. She also endorsed the decision to submit a request under Article 9, saying (at paragraph 35 of her judgment):

Meanwhile, the police had instructed a forensic scientist, Mr Nicholas Smith, to carry out an examination of clothing and other items in the room when the incident on 9 July had occurred. In December, he produced a report. His examination of a dress that E had been wearing disclosed five cuts, all in close proximity to each other but not all at the same angle of orientation. There was one larger cut measuring 2.5 cm in length orientated diagonally across the fabric with four further areas of damage at a different angle measuring 0.5 to 1 cm in length. Mr Smith commented:

On 11 January 2023, a medical report was filed from Dr Haines. He reported that the knife had entered E’s abdominal cavity from the back just below the left kidney, passed through the back and front walls of the large intestine, and in addition caused two small cuts to the small intestine. The cutting of the colon allowed the passage of faeces into the abdominal cavity. Dr Haines reported that if either the left kidney or the local large blood vessels had been cut, severe bleeding could have followed and caused rapid death.

On 2 February 2023, the parents were arrested on suspicion of attempted murder and interviewed again.

We were told that the summary that the court had directed the parties to file was sent to the court in October 2022. However, despite Judge Williscroft’s clear direction, endorsed by Lieven J, it seems that no request was ever made by the court to the Spanish court under Article 9 that the English court be authorised to exercise jurisdiction.

The fact-finding hearing was listed for 30 and 31 March 2023. On the first day, Dr Haines and Mr Smith were due to give evidence by video link. Following negotiations on the first morning, the parents made the following concessions, which were accepted by the local authority and the children’s guardian:

Following those concessions, the fact-finding hearing did not go ahead. A case management order made on 31 March recorded the concessions, and that they had been approved by the court. The judge decided that a risk assessment should be carried out, made directions for it to be conducted by an independent social worker, Ms Jane Andrews, and listed the matter for a further hearing after her report was filed. Meanwhile, the interim care orders continued. The parties agreed that the parents’ contact with the children should be up to fourteen hours a day supervised by the children’s uncle.

On 2 May, Ms Andrews completed a risk assessment which she supplemented on 13 May with answers to questions posed by the local authority. On the basis of her interviews with the parents and her observation of a contact session, she concluded that the mother was the dominant parent and that this was likely to undermine the father. She advised that restorative work was needed “to help the couple better understand their relationship and how they interact”. Although the couple had engaged with Relate, Ms Andrews suggested an investigation into more direct therapy. She advised that the mother’s wish to return to Spain during the summer was “too soon and not realistic”, in part because it would limit “some of the safeguards the family need, as extended family will not be as available to monitor or step in to help if issues arise”.

With regard to the incident on 9 July, Ms Andrews made these observations:

Ms Andrews made these final observations as to the risk of future harm (at paragraphs 6.2 – 6.3):

It was Ms Andrews’ conclusion, however, that there should be a “fairly swift” reunification of the family. In her answers to questions from the local authority, Ms Andrews confirmed that it was her view that the risks she had identified were not sufficient to prevent the reunification of the children with their parents. She described the risk of a similar event occurring as “extremely low”.

After a case management hearing on 15 May 2023, recitals to a case management order made by the judge recorded the following:

The day before the hearing, the parents had an introductory meeting with a therapist. A further session was fixed for 5 June.

At the hearing on 24 May, the local authority invited the court to continue the proceedings and the interim care orders, on the basis that they were not satisfied that it was safe for the children to be returned to the parents immediately. The parents asked for the order to be discharged and the proceedings brought to an end so that the children could return to their care as soon as possible. That could not happen immediately because of continuing bail conditions. But the parents indicated that they intended to apply for those conditions to be lifted as soon as possible. At that stage, the guardian supported a speedy transition, on the basis that therapy was now in place.

In the course of the hearing, the local authority referred to information from Spain about proceedings that had taken place in which the mother’s eldest child, A, had alleged that she had been physically abused by the mother. The proceedings had apparently been dismissed by the Spanish court in the summer of 2022 but the local authority argued that the allegations were relevant to the evaluation of the risk to the younger children and had not been considered by Ms Andrews. It seems that the local authority had known about this information for several months and it is unclear why it was not identified as an issue to be considered by Ms Andrews when she was first instructed.

In her judgment, the judge at paragraph 3 summarised what had happened at the fact-finding hearing in these terms:

She made a number of observations about Ms Andrews’ assessment, including the following:

The judge then expressed her conclusion in these terms:

At the conclusion of the hearing, the judge approved an order which included, under paragraph 1, an order that the interim care order made on 22 September 2022 in respect of both children be discharged and, under paragraph 8 that “the proceedings are hereby concluded with the discharge of the interim care order made pursuant to Article 11 Hague Convention.”

On 26 May, the local authority filed a notice of appeal against the discharge of the interim care orders. On 1 June, I granted permission to appeal and made an order staying paragraphs 1 and 8 of the order. As a result, the children remain living with their uncle.

Meanwhile the parents had applied to the magistrates to vary the bail conditions. I directed that a copy of the order made granting permission to appeal be disclosed to the magistrates considering this application. On 2 June, the bail conditions were varied to enable the parents to have contact with the children either with the consent of the local authority or by order of the family court.

As noted above, at the hearing before the judge, the guardian had supported the discharge of the orders and termination of the proceedings. On 14 June, however, a skeleton argument was filed by leading and junior counsel on his behalf supporting the appeal “on two broad bases”. On 19 June, a respondent’s notice was filed on his behalf seeking permission to appeal against the order on two different grounds to those advanced by the local authority. A direction was given that we would consider that application at the appeal hearing.

The local authority put forward three grounds of appeal, contending that the judge

On behalf of the local authority, Mr Nuvoloni KC and Ms Edwards relied on the fact that neither parent has been able to provide a cogent explanation as to how the injury was inflicted. The parents’ evidence demonstrated that they can become so engrossed in a domestic argument or, to adopt a phrase they had used, ‘in the moment’ that the risks to the children elevated to a point at which neither parent had been able to protect E from near fatal injuries. As such, the risks to the children became heightened around the parents’ ability to manage conflict, their relationship with one another, stresses and trigger points. It was submitted that, although the judge had identified the risks, she failed to analyse them properly, in particular the risk of unintentional harm. Mr Nuvoloni cited the observations of Baroness Hale of Richmond JSC in Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, [2010] 1 FLR 1161 (citing Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 2 WLR 8, [1996] 1 FLR 80 that:

The local authority invited this Court to allow the appeal, restore the interim care orders, and remit the case to the judge for further directions to consider how the progress of therapeutic intervention can be assessed and how risk can be managed in the light of that progress.

On behalf of the guardian, the two grounds advanced in the respondent’s notice for which permission to appeal was sought were as follows.

The “two broad bases” on which the guardian supported the appeal in the skeleton argument filed by Mr Bagchi KC and Ms Williams were as follows.

First, they informed the Court that, on further reflection since the hearing on 24 May 2023, the guardian had changed his opinion on the balance of risk, the merits of the early cessation of the proceedings, and the timing of the rehabilitation of the children to their parents. It was submitted that the decision of the learned judge to conclude the proceedings was premature and wrong. Mr Bagchi and Ms Williams adopted the submissions made on behalf of the local authority, adding that, against the background of the concerns and anomalies in the parents’ accounts of the incident on 9 July and the limited nature of the concessions accepted by the court, the risks to the children were augmented by the lack of information as to how E’s injuries were sustained.

Secondly, it was argued that the court fell or was led into error in the decisions taken on 24 May 2023 by the polarising nature of the binary procedural options presented to her: either to conclude the proceedings or to make further ‘urgent’ protective measures in the form of interim care orders. The essential difficulty with this was that, as distinct from conventional domestic care proceedings and the way in which the Convention is designed to operate, there was no opportunity for the court to make enduring welfare orders or to return the case to Spain for the authorities there to make their own long-term protective measures. The judge ought to have been presented with the further options of either (a) exercising her powers ultimately to make final welfare orders under the Children Act 1989 following an Article 9 process enabling the same or (b) being presented with the realistic possibility that the Spanish authorities would take like measures as envisaged by the temporary protective regimes contained in Article 11 and/or Article 12 of the Convention (or in the case of Article 12 a “decision” on the measures). Had the full range of options contemplated by the Convention been presented to her, the judge would have been likely to direct the proceedings to either a final hearing or a transfer back to Spain and not simply ended them at that point.

Mr Bagchi and Ms Williams submitted that the clear intention behind Articles 5, 8 and 9 of the Convention is that, following liaison between the relevant authorities, a decision is taken either for jurisdiction to remain with the state of habitual residence or by agreement to be assumed by the state where the child is present but not habitually resident. The scheme of the Convention is for this issue to be addressed and resolved one way or the other within a sensible timeframe. This is fortified by consideration of the ‘interim’ protective measures provided by Articles 11 and 12 which limit the operation of either ‘urgent’ or ‘provisional’ measures so that “they shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation” or, in the case of Article 12, “have taken a decision in respect of the measures of protection which may be required by the situation”. Here that did not happen because in the absence of an Article 9 request the Spanish authorities have apparently remained in ignorance of these proceedings. A proper engagement with the provisions of Article 9 would have resulted either in the English court being able to assume full jurisdiction with the agreement of the Spanish authorities or a decision that the Spanish authorities would exercise their own protective jurisdiction. Therefore, the English court exercising its emergency or provisional powers under the Convention would have been in a position either to make long term welfare orders under section 31 of the Children Act 1989 or to hand the case back to Spain with a view to that state taking its own protective measures. Mr Bagchi and Ms Williams submitted that, had the court been clothed with the powers to make enduring orders, it would readily have accepted that the conclusion of the proceedings on 24 May was premature and would have had little difficulty in extending the proceedings at least to a stage beyond the point at which the children would have been returned to their parents and been assessed as being settled in their care. Ultimately, it would have seriously considered the possibility of the making of a supervision order for 12 months to enable the local authority to have formal oversight of the children's care for that period.

Developing his proposed second ground of appeal, Mr Bagchi submitted that, by this point in the proceedings, the court should have been considering the request for interim care orders less as ‘urgent’ and ‘necessary’ measures as framed under Article 11 and more as ‘provisional’ measures as contemplated by Article 12. If the judge had considered the proposed continuation of the proceedings to permit the court to control the process of rehabilitation under interim care orders as being ‘provisional’ measures rather than ones demanded by the ‘urgency’ of the children’s situation, some months following the commencement of the proceedings, the question she asked herself would have been a different one, the need for such measures not having to satisfy the requirement of being urgent but merely whether they were designed for the protection of the children. The inaptness of the Article 11 measures sought made it much more likely that the court would favour the option of ending the proceedings - the only other option - whereas the choice between an Article 12 provisional measure and ending the proceedings was much more nuanced.

On behalf of the mother, Ms Hannah Markham KC told this Court that her client had not pressed for the proceedings to come to an end. Her concern had been that her children should come home as soon as possible. Ms Markham submitted that it could not be said that the judge’s decision was so beyond the range of her reasonable discretion as to be considered wrong. Ms Andrews had been instructed on the basis of the agreed concessions, accepted by the local authority and endorsed by the court. Ms Andrews acknowledged that there is always a risk of any number of things occurring and that, if the parents do not engage in work and are not able to recognise issues again the future, then a similar incident “might” recur. Overall, however, it was Ms Andrews’ opinion that the risk of a similar incident reoccurring was “extremely low”. The court was entitled to look holistically at the question of risk alongside that of necessity and balance of harm to the children. It was acknowledged that this is not a case where there is no risk but, within the context of what is known about good care of the children, it was proportionate to order that the children should return home.

Ms Markham submitted that the evidence about the ongoing therapy was one factor amongst a myriad of others which were rightly weighed up in reaching the decision. The judge also recognised that the criminal investigation would be a source of ongoing stress for the parents, and thus placed sufficient weight on the support system / quality of care provided by the parents in order to meet this potential “pressure point” as described by Ms Andrews. Ms Markham’s submissions were adopted by Mr Patrick Bowe on behalf of the father. In short, it was the parents’ case that, whilst the local authority clearly disagrees with the welfare analysis conducted by the judge, it was properly and proportionately conducted and the mitigating factors for identified risks were taken into account. She had a great deal of evidence on which she concluded that it was neither necessary nor proportionate for the interim care orders to continue and this Court should not interfere with her decision which was based on her evaluation of the totality of the evidence.

As my Lord Peter Jackson LJ observed during the hearing, there has been a series of missteps in this case. I would identify five in particular: (1) the failure of the court to submit a request to the Spanish authorities under Article 9; (2) the holding of a fact-finding hearing when the Article 9 process remained unresolved; (3) the compromise of the fact-finding hearing on the basis of the concessions offered by the parents; (4) the discharge of the interim care orders; and (5) the termination of the proceedings.

As Lieven J has found that the children are habitually resident in Spain, jurisdiction in respect of child protection matters lies with the courts of that country under Article 5 and the powers of the English court to make orders are confined to those provided by Articles 11 and 12. The plan devised and agreed by Judge Williscroft on 18 October 2022, and subsequently endorsed by Lieven J, was to submit a request to the Spanish authorities under Article 9 to authorise the English court to exercise jurisdiction. That plan has never been implemented. We did not conduct any detailed inquiry into how and why this omission occurred. Ms Markham told us that all parties were responsible. For whatever reason, no request has so far been made.

The consequence is that the powers of the English court remain limited to those available under Articles 11 and 12. The limits of those powers are underlined in the Explanatory Report on the Convention by Paul Lagarde (at paragraphs 68-9):

At paragraph 74 of the Report, Lagarde makes the following observations about Article 12:

These passages demonstrate that the exercise of these powers must be confined to the circumstances for which they are intended and not expanded to take wider measures, the jurisdiction for which lies properly with the State of the child’s habitual residence. In the context of cases of child protection, this means that the powers under Articles 11 and 12 are confined to making interim orders under s.38 of the Children Act as amended by regulation 5 of the 2010 Regulations and do not extend to making final orders under s.31 of that Act.

So far as I am aware, this point has not arisen for consideration under Article 11. But it has arisen in an analogous context. As alluded to above, prior to the departure of the UK from the European Union, the principal instrument determining jurisdiction in matters relating to children was Council Regulation (EC) 2201/2003, commonly referred to as Brussels IIA. The scheme of the regulation was similar to that under the Convention. The basic jurisdictional rule (under Article 8 of the regulation) was that jurisdiction rested with the Member State in which the child was habitually resident at the time the court was seised. The power for other member States to take urgent and provisional measures was provided by Article 20.

Prior to the implementation of the European Union (Withdrawal Agreement) Act 2020, regulation 5(1)(b) of the 2010 Regulations included Article 20 of Brussels IIA in addition to Articles 11 and 12 of the Convention and the amendment of s.38(1) of the 1989 Act effected by regulation 5(2)(a) also extended to Article 20. In Re S (Care: Jurisdiction) [2008] EWHC 3013 (Fam) [2009] 2 FLR 550 at paragraph 89, Charles J observed that

We did not hear submissions on this issue, and it is unnecessary to come to a definitive view for the purposes of disposing of this appeal. It is my provisional view, however, that it will be equally unusual for an English court to embark on a fact-finding hearing under Article 11 of the Convention.

It was therefore wrong of the family court in this case to conduct a fact-finding hearing without some awareness of the actual or likely response of the Spanish authorities to the Article 9 request. I understand the concern about delay and therefore do not criticise the case management directions which listed the fact-finding hearing. But they were made in the expectation that the request under Article 9 would be accepted by the Spanish authorities when in fact it was never made.

The next misstep was the compromise of the fact-finding hearing on the basis of the concessions offered by the parents which did not address the gravamen of the case. I share the concerns expressed in paragraph 5.11-12 of Ms Andrews’ report. I have not of course heard the parents give evidence, but like her I am troubled by the absence of any useful detail whatever in their accounts.

There are a number of troubling questions which in my view plainly required exploration before any firm view could be reached as to the risk of future harm.

In my view these questions needed to be addressed. The concessions offered by the parents did not form a sufficiently clear factual basis on which the court could properly assess risk. The judge observed that, like others, she found it hard to accept neither parent had a physical memory of the incident, but she was “clear the court process was unlikely to provide more clarity.” It seems, however, that the judge did not take into account the possibility that a continuation of the court process could lead to a finding that one or both of the parents were deliberately withholding information about the incident and that such a finding would be relevant to the assessment of risk. Furthermore, the judge stated in her judgment that “a clear narrative about what took place and whose responsibility it was has to be shared with the children and the whole family – an agreed narrative.” Yet with the ending of the care proceedings without any court order, the responsibility for creating the “clear narrative about what took place” rested with the parents alone. In the light of the parents’ failure so far to provide any satisfactory explanation for what took place, there was no basis on which the court could have confidence that they would discharge that responsibility.

The fact that there had been allegations that the mother had abused her elder daughter in Spain was also potentially relevant to the issue of future risk. It is true that the local authority had known about the allegations from an early stage in the proceedings but failed to mention them in the instruction to the expert. We were also told that that the allegations had been rejected by a court in Spain. Nevertheless, it was an error of the court to proceed on the basis that it was “unfair to bring in this information after the agreed expert instruction was sent and received and to try to rely on it to suggest greater risk”. In the highly unusual circumstances of this case, when so little was known about how E had sustained her injuries, it was obviously necessary for there to be full disclosure of the Spanish proceedings and for Ms Andrews to be informed about the allegations, so that she could consider what further steps, if any, should be taken about them to inform the risk assessment.

All these points considered so far do not address the specific issues arising on this appeal. But they do provide the context in which the judge came to take the final missteps – to discharge the interim care orders and bring the proceedings to an end.

In my judgment, even on the narrow basis on which the parties presented the case at the hearing on 24 May, the judge was wrong to discharge the interim care orders, having regard in particular to the risks identified by the independent social worker Ms Andrews and emphasised by the local authority which were extended by the troubling absence of information about how E’s injuries were caused. Far from reducing the level of risk, the information vacuum increased it, as it was not possible for the court to form a view of where the danger lay and what might lead it to recur. In those circumstances, the fact that the parents had only just embarked upon therapy was an additional reason for not discharging the orders. Given that the extent of the risks was unknown for the reasons set out above, the parents’ progress in therapy was of particular importance in the management of those risks. At the date of the hearing, the parents had not engaged with therapy to any material degree. The fact that the police have yet to reach a charging decision, and the uncertainties about the reaction of the parents to that decision when it comes, are an additional factor, although for my part I would not consider this factor by itself to justify interfering with the judge’s decision. I accept that this Court must tread carefully before interfering in an evaluation conducted by the judge on the totality of the evidence. I recognise that she was presented with strong evidence that the children were suffering as a result of their continued separation from their parents. But for the reasons stated, I reached the conclusion that the judge’s decision to discharge the interim care orders was wrong, even on the narrow basis on which the case was argued before her.

I have sympathy with the judge. Presented with the arguments put before her it was not altogether surprising that she reached the view that the course proposed by the parents should prevail, particularly as it was at that stage strongly supported by the guardian. The real fault here was that she was not presented with the options as she should have been.

I accept Mr Bagchi’s submission that the judge was led into error by the way the case was presented on the basis of the binary options of concluding the proceedings or extending the “urgent” interim care orders. She ought to have been reminded of the scheme of the Convention and that, beyond the limited powers available to her under Article 11 (or Article 12), jurisdiction to make welfare decisions about these children remained with the Spanish authorities unless a request under Article 9 was granted. Had she been reminded of the scheme of the Convention, the limits of her powers, and that primary jurisdiction remained with Spain, it is likely that she would have taken a different course. In particular, she would have made inquiries to establish what had happened to the Article 9 request. In those circumstances, she would in all probability not have discharged the interim orders and in my view certainly not have brought the proceedings to an end.

It is an interesting question whether, when primary jurisdiction remains with the Spanish courts, interim care orders made by the English court at this stage should be classified as “provisional” under Article 12 rather than “urgent” under Article 11. That is something which can be considered, if necessary, when the matter is remitted. It does not, however, give rise to a ground of appeal against the judge’s decision to discharge the interim care orders. She took that course because she decided that the children’s welfare no longer required that they be separated from their parents. She would have reached the same decision if the orders had been made under Article 12. Thus, I concluded that the guardian should be given permission to appeal on ground one set out in the respondent’s notice but not on ground two.

For the reasons set out above, I reached the conclusion that the appeal should be allowed on grounds one and two advanced by the local authority and on ground one advanced by the guardian. Paragraphs 1 and 8 of the order of 24 May 2023 were set aside with the result that the interim care order under Article 11 was restored and the care proceedings brought under s.31 of the Children Act 1989 remain stayed pursuant to the order of 18 October 2022.

We gave the following additional directions. First the case was remitted to Lieven J, as Family Division Liaison Judge for the Midlands Circuit, for an urgent case management hearing, and the parties were directed to apply immediately for a two-hour hearing before her on the first open date after 17 July 2023. Secondly, we recorded that that hearing should be an occasion for the court to give case management directions or (if it considers it appropriate) to make substantive orders in relation to these issues:

As stated at the end of the hearing when our decision was announced, and for the reasons spelt out above, I entertain considerable doubts about the compromise reached in March, but it will be a matter for the parties and the court, acting on proper principles, as to whether that decision can and should be revisited.  

Those are my reasons for joining my Lords in allowing the appeal.

I agree.

I also agree.