I am concerned with care proceedings issued in October 2023 with respect to four boys: A, aged 12; B, aged 10; C, aged 9; and D, aged 7. All four children have been accommodated in foster care pursuant to section 20 of the Children Act 1989 since 14 June 2023. The hearing before me was listed to determine (a) jurisdiction; (b) the local authority’s application for an interim care order; and (c) whether the children should be returned to Austria. For reasons which will become clear in this judgment, I was unable to determine whether a return to Austria – contended for by the local authority and the children’s guardian - was in the best interests of the children. Following oral submissions, I made interim care orders with respect to the children and gave my reasons for doing so in an ex tempore ruling, separate from the matters with which this judgment is concerned.

This judgment is in two parts: the first part concerns itself with the relevant background and my determination as to whether the children are habitually resident in this jurisdiction; and the second part addresses what steps this court can take either to determine and/or to implement welfare decisions when all four children remain the subject of an as yet undetermined application for asylum in this jurisdiction.

The parties to the proceedings are the children’s mother (“the mother”); the children’s father (“the father”); and the paternal grandmother (“the grandmother”). The mother is of Syrian origin and lives in Vienna, Austria. The father was born in Syria and is presently in immigration detention in this jurisdiction, following his release from prison in March 2024. The father served a custodial sentence for facilitating the illegal entry of the children to this country, having been sentenced in early October 2023 for a period of eighteen months. On 21 November 2023, the father was notified of his liability for deportation. The grandmother lives in Vienna with her husband. None of the adult parties to the proceedings speaks English. The children are parties to the proceedings through their children’s guardian.

In coming to my decision, I have read the material in the court bundle as well as some additional documents produced by the local authority at the start of the hearing. I heard briefly the oral evidence of the Austrian immigration law expert Mag. Clemens Ladner. I also had the benefit of detailed written and oral submissions from counsel. I have been greatly assisted by the advocates in a case not without some complexity.

What follows is a summary of the factual background pertinent to the issues in this case.

The mother and father were born in Syria and married in 2010, divorcing in November 2023. In 2014, the father travelled to Austria and the mother joined him there with A, B and C in April 2015. At some point, the date of which is unclear, the entire family were granted asylum in Austria.

The family have been known to the child welfare authorities in Austria since 2016 because of concerns about the physical abuse and neglect of the children. Following concerns raised by B’s kindergarten about possible physical abuse, A and B were examined at hospital and, thereafter, social workers visited the family for about 6 months. According to the mother, the involvement of child welfare services ceased because there were no concerns about the parenting received by the children.

In June 2021, child welfare services once more became involved following two accidents involving C and D in which both sustained injuries. The children were assessed in hospital and, according to the mother, were found to be suffering from vitamin D deficiency. They were removed from the parents’ care and placed in foster care for about three weeks. A statement from the social worker in Vienna, Ms Z, provided in support of a subsequent application made by the grandmother for custody of C and D, stated that there was “suspicion of repeated violence against the children and gross neglect had to be assumed”. Those concerns led to the children’s removal and placement in “crisis centres”. Ms Z’s statement explained that, during the course of the crisis centre placements, “numerous strains on the children were identified (war trauma, integration problems, injuries with suspected violence in the past, medical deficiencies (iron and vitamin D), developmental problems in the children, noticeable unfocused and aggressive behaviour in the children, problems in their cognitive ability, various physical impairments)”. Despite these professional observations, A and B returned to live with their mother and father whilst C and D went to live with the paternal grandparents. The entire family was provided with extensive child welfare support. On 22 August 2022, a grant of custody in respect of C and D was made by a family court in favour of the grandmother.

It is noteworthy that the father has an extensive criminal past with a number of convictions in Austria for forgery (2018); smuggling of migrants (2018 and 2021); and money laundering (2021). He appears to have served a prison sentence from late 2021 and was released on probation in March 2023. Following his release, the child welfare authorities reported that A and B’s situation had deteriorated and, once more, those children were placed in a crisis centre in April 2023. However, A and B went missing on a number of occasions but they were eventually returned to their father’s care. At this time, the father asserted to child welfare services that he had separated from the mother because she was violent and negligent towards the children. Finally, the mother herself separated from the father and moved into a women’s shelter on 29 April 2023.

On or about 21 May 2023, the Austrian authorities suggested that the father had removed all of the children from that jurisdiction. This was the day that the mother last saw all the children and she made a complaint about their abduction to the police in Vienna on 23 May 2023. The Austrian authorities recorded that the father took the children abroad without the consent of the mother and the grandmother. The mother said that she did not consent to the children’s removal from Austria though the father asserted that she did and that she supported his plan to move the children to England. In her statement, the mother said that the father telephoned her on 26 May 2023, telling her that he was in France with the children and was hoping to try and settle in England because life and education for the children were better there. He was prepared to settle in France if this was not possible. The father told the mother that he had told the children to refuse contact with her and say bad things about her. He did not want the children to be in Austria because he did not want them to be removed by the child welfare authorities. He told the mother that he was going to destroy his telephone SIM card so that, if the mother went to the police and children’s services, they would be unable to find him. The mother informed the police and children’s services about this call. The grandmother also asserted that C and D had left Austria without her consent. C and D’s passports remained in her possession.

On or around 14 June 2023, the children arrived in this jurisdiction with their father, having travelled in a “dinghy” across the channel with 61 other people. C later said that he had sustained “some burn injury” during this journey. According to the asylum application made by the father at that time, the crossing had been facilitated by a people smuggler. On 15 June 2023, the children were interviewed with the assistance of an interpreter and made allegations of physical abuse whilst in the care of their parents. The children spent two nights in an emergency placement and moved to their current foster home on 16 June 2023.

The father made a claim for asylum on or about 14 June 2023. In his claim, he stated that the mother suffered from a number of mental health issues and had abandoned all of the children, asserting that she was no longer willing or capable of taking care for them. He also maintained that the mother had left Austria and gone to Dubai where she intended to live permanently. The father said that he had decided to travel to the UK where he had extended family so that they could help him look after the children and find work. He failed to mention any criminal convictions in his asylum claim. The claim for asylum was made by the father on his own account and on behalf of all four children.

On 4 July 2023, the mother obtained court orders in relation to A and B, withdrawing custody from the father and assigning it to her. The Austrian court was aware of the children’s presence in this jurisdiction when those orders in the mother’s favour were made. The Federal Ministry of Justice for Austria has confirmed that the order dated 4 July 2023:

In early October 2023, the father was sentenced to a term of imprisonment for 5 offences, all of which related to the manner in which the children were brought to this jurisdiction. At the same time as the father was sentenced, the local authority completed an assessment of the paternal uncle which concluded that placement of the children with him was not a viable option.

The local authority issued its application for care orders with respect to all four children on 23 October 2023. On 24 November 2023, the court allocated these proceedings to the High Court and listed the matter for a further hearing, having invited representatives from the Austrian Embassy, the Austrian Central Authority, Austrian children’s services and the paternal grandmother to attend. Eventually, these proceedings were allocated to me and, at a hearing on 6 February 2024, the grandmother was joined as a party and directions were made with the aim of obtaining further information about the father’s asylum claim, his criminal record and the involvement of the Austrian child welfare services with the family. Expert evidence was permitted to provide opinion as to the effect of Austrian family and immigration law on the children’s situation.

This matter returned before the court on 5 March 2024. The recital to the order made on that occasion recorded that the parties agreed and the court had determined that:

The Secretary of State for the Home Department (“SSHD”) has provided information to the court, confirming the existence of an as yet undetermined application for asylum made by the father on his behalf and that of all four children. Immigration detention has been authorised for the father pending the identification of a suitable address but, once such an address had been identified, a release referral would be completed in respect of the father.

An expert report dated 21 February 2024 was prepared by Dr Marco Nademleinsky which considered the impact of Austrian family court orders on the mother’s, the father’s, and the grandmother’s rights relating to the children. Its principal conclusions were as follows:

With respect to immigration matters, Mag. Clemens Ladner provided a report dated 7 April 2024 together with a follow-up email. The principal conclusions of that report and email were as follows:

Mag. Ladner gave brief oral evidence to me. He did not depart in any significant respect from the conclusions reached in his report. He confirmed that the grant of asylum status to the children in the UK would be rendered academic if the children returned to Austria, if it was affirmed that the centre of their lives was in that latter jurisdiction. Clearly, if the children remained lawfully in the UK, the BFA could initiate proceedings to revoke their status in Austria but Mag. Ladner thought this was very unlikely at the present time given the uncertainty about the children’s status in this jurisdiction.

What follows summarises the parties’ positions on the issue of habitual residence. No party disputed that the court had jurisdiction to make interim orders based on the children’s presence in this jurisdiction as recorded in the recital to the order made on 5 March 2024.

On behalf of the local authority, Mr Devereux KC submitted that the children remained habitually resident in Austria. He drew attention to their deep roots in Vienna since 2015 and the absence of consent from the mother and grandmother to their move here. Not only did the children have strong roots in Vienna but their life in this jurisdiction lacked the requisite elements of stability necessary for the children to acquire habitual residence here. By reference to the children’s personal education plans, child in care reviews and their initial health assessment conducted in early July 2023, Mr Devereux KC emphasised that, though the children attended school and appeared to have settled in their foster home, the signs of their integration here were superficial at best. Their relationship with their primary carers – the mother and the grandmother – had been severed and they had barely had any contact with their father because of his imprisonment. Their behaviour in placement was consistent with children who had experienced trauma and abandonment. In school, all the children – with the exception of D – experienced significant problems forming friendships and had behavioural or other challenges which interfered with their learning and required a significant degree of educational and social support. Put bluntly, the evidence of stability was insufficient for the children to have acquired habitual residence in this jurisdiction.

On behalf of the mother, Mr Gration KC submitted that the children were habitually resident in this jurisdiction. The children were placed together in a foster home with carers who could speak Arabic and who shared their Muslim faith. The children were receiving health treatment and were registered with a GP. All the children attended schools and, though they all had problems in that setting, they were making some progress. Though their circumstances here had a certain temporary quality because of the local authority’s plan that they should be returned to Austria, this would not have prevented the children acquiring habitual residence here. Their lives in Austria had also been unstable, characterised by changes of placement and difficulties within their family.

On behalf of the father, Mr Twomey KC also contended that the children were habitually resident in this jurisdiction. He drew attention to the 2021 judgment of the child welfare authorities in Austria that the children had integration problems. This was consistent with the evidence from that jurisdiction of changes in their care and education occasioned by parental problems. Their current situation – over a ten month period – showed children living together and benefitting from mutual support as a sibling group.

On behalf of the grandmother, Mr Hames KC echoed the submissions made by Mr Gration KC and Mr Twomey KC. He contended that, since mid-June 2023, the children had clearly achieved some degree of integration into their social and family environment, sufficient for them to have become habitually resident at the date of this hearing.

Finally, on behalf of the children’s guardian, Miss Harrington KC adopted the submissions made by the local authority, submitting that the children’s residence here had an impermanent quality in contrast to their lives in Austria.

As Mr Devereux KC noted in the local authority’s skeleton argument, the legal position was not altogether uncomplicated. What follows represents my assessment of the jurisdictional and legal framework relevant to the issue of habitual residence in this particular case.

The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, and Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Convention”) is incorporated into domestic law by the Private International Law (Implementation of Agreements) Act 2020 which amended the Civil Jurisdiction and Judgments Act 1982. Section 3(1) of the Civil Jurisdiction and Judgments Act 1982 provides that the 1996 Convention shall have the force of law in the UK.

One of the principal objects of the 1996 Convention, as set out in Article 1, is “(a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child”. The measures included within the scope of the 1996 Convention are broadly defined by Article 3 and include the placement of a child in a foster family or an institutional care or the provision of care by kafala or an analogous institution. In London Borough of Hackney v P and Others (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213, the Court of Appeal affirmed that the 1996 Convention applied to public law proceedings under Part IV of the Children Act 1989 (“CA 1989”) (see paragraphs 41-42).

The primary article under the 1996 Convention concerning jurisdiction is Article 5 which provides as follows:

The relevant date for the purposes of Article 5 was considered by the Court of Appeal in London Borough of Hackney v P (see above). In paragraph 125, Lord Justice Moylan summarised his conclusions as follows:

In London Borough of Hackney v P, Lord Justice Moylan deprecated delay in decision-making in international cases which engaged the 1996 Convention since this was always contrary to the best interests of children. In paragraph 90, he stated:

Thus, if a child is habitually resident in another Contracting State, that State has substantive jurisdiction under Article 5. It would be open to the English court to request the transfer of jurisdiction under Article 9. Conversely, if the child was habitually resident in England and Wales, the courts have substantive jurisdiction under Article 5. It would be open to the English court to make a request under Article 8 that another Contracting State assume jurisdiction (see paragraph 95 of London Borough of Hackney v P).

It follows that a child’s habitual residence may change during the course of proceedings, often because there has been a delay in determining where a child is habitually resident. In London Borough of Hackney v P, Lord Justice Moylan acknowledged that, whatever the reason for the delay, where a child has become habitually resident in this jurisdiction during the course of proceedings, it was clear that the English court will have acquired substantive jurisdiction under Article 5 (see paragraph 119).

The meaning of “habitual residence” in relation to children matters has been considered by the Supreme Court in five decisions:

Overall, the approach to an assessment of habitual residence is plain and can be seen most clearly from two statements in the leading judgement of Lady Hale in A v A (paragraph 54):

However, as Lord Justice Moylan recently emphasised at paragraph 42 of Re A (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659, care needs to be taken with any “shorthand summary” because “… ‘some degree of integration’ is not itself determinative of the question of habitual residence. Habitual residence is an issue of fact which requires consideration of all relevant factors. There is an open ended, not a closed, list of potentially relevant factors”. In Re A, Lord Justice Moylan preferred the formulation set out by Lady Hale in Re LC at paragraphs 59-60 where she respectively used the phrases “the necessary degree of stability” and “a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed ‘habitual’” (see paragraph 44). In paragraph 46 of Re A, Lord Justice Moylan noted that, “self-evidently, a test of whether a child had ‘some degree of integration’ in any one country cannot be sufficient when a child might be said to have some degree of integration in more than once State”. Referring to his judgment in Re G-E (Hague Convention 1980: Repudiatory Retention and Habitual Residence) [2019] EWCA Civ 283, Lord Justice Moylan emphasised in paragraph 46 of Re A that “the comparative nature of the exercise” required the court:

A useful summary of factors relevant to the determination of habitual residence was set out by Mr Justice Hayden at paragraph 17 of Re B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam). I have reproduced those factors below, omitting subparagraph (viii) in accordance with paragraph 63 of Re M (Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105 where Lord Justice Moylan stated that this subparagraph ought to be omitted so that the court was not diverted from applying a keen focus to the child’s situation at the relevant date. Accordingly and as amended, the list of factors identified by Mr Justice Hayden reads as follows:

The essential question for the court is whether the children – at the date of this hearing – had achieved a sufficient degree of integration into a social and family environment in England such that their residence here was habitual. The court’s focus must necessarily be on present circumstances but an understanding of the children’s past experiences feeds into a holistic analysis of their current situation.

The older children – A, B and C – have experienced trauma arising from their experiences of the Syrian civil war and are refugees from the country of their birth, moving to Austria in 2015 with their mother. The health assessment of B conducted in July 2023 noted that he had marks on his shoulder caused by a “past bomb explosion”. The Austrian child welfare authorities identified in 2021 that the children had experienced war trauma and it is reasonable to infer that this has affected the older children emotionally and behaviourally.

The children lived their entire lives in Vienna from April 2015 to about 21 May 2023 when their father is said to have taken them from Austria. They all spoke German and attended schools and medical appointments in Vienna. Their mother and paternal grandmother did not have advance knowledge about the father’s plan to take the children to the UK and were absolutely clear that they had not consented to the same. I have placed little reliance on the father’s account of how the children came here because there are inconsistencies in what he has told this court and what he told those who interviewed him in connection with his asylum claim. Further, the children’s personal effects were left in Austria and it seems as if there was little, if any, pre-planning prior to their removal. They had no opportunity to say goodbye either to those who cared for them or to their friends, let alone accommodate themselves to an uncertain future as unlawful migrants in a country which they had never visited before. Their mother and paternal grandmother remain in Austria but the children have had almost no contact with them since May 2023.

However, the children’s lives in Vienna were also affected by suspected physical abuse and neglect at the hands of their parents which necessitated the involvement of child welfare services. In June 2021, the children were removed from the care of their parents for several weeks and thereafter they never lived together again as a sibling group in Austria. The two older boys lived with their parents whilst C and D lived with the paternal grandmother. A and B also experienced a lengthy period of time from November 2021 until March 2023 when their father was in prison and their mother cared for them alone. In April 2023, family care for A and B fell apart when they were once more placed away from their parents following the intervention of the child welfare authorities. That placement was not successful as both A and B went missing on several occasions. Additionally, their mother separated from the father and moved into a women’s shelter on 29 April 2023, alleging a long history of domestic abuse from the father. A and B returned to their father’s care and he alleged that they had suffered physical abuse and neglect from the mother. Thus, the lives of all the children were impacted by allegedly neglectful and abusive care which caused their separation as a sibling group. Parental criminality and unstable care arrangements immediately prior to A and B’s removal from Austria are likely to have compounded their behavioural and emotional difficulties which were obvious to child welfare services. In fact, all four children were described as having “unfocussed” and aggressive behaviour together with cognitive and developmental problems (June 2021). The children’s guardian’s analysis noted the children’s reported fear of their mother hitting and beating them and domestic abuse being a longstanding feature of their lives.

As described above, the children’s history is relevant to an assessment of their current circumstances. I have already referred to the children being unlawful migrants since their application for asylum has not yet been determined. This factor imports an over-arching uncertainty as to their status and residence here. Within that context, they have had almost no contact with their mother and grandmother. The social work assessment in January 2024 was that the children were struggling with feelings of rejection and abandonment from their mother and could not speak positively about their memories of her or of having contact with her. Because of his incarceration, the children have had little contact with their father though all four want to see him and to live with him. His own position here is precarious as he is liable for deportation and is presently in immigration detention. Even if released on immigration bail, the father appears to have no accommodation available to him other than an overcrowded property in which his brother lives.

However, the children have been living together as a sibling group since 16 June 2023. Their foster carers practise the Muslim faith and one speaks Arabic, both of which factors have undoubtedly helped the children to settle. I note that the foster carers receive regular respite care because of the challenges of managing the children’s behavioural and emotional needs. When initially placed in foster care, the children fought each other and had no routine or ability to complete basic self-care tasks such as washing or brushing their teeth. By August 2023, according to the social worker, there had been a significant improvement in their self-care and the children had adjusted well to routine and consistent boundaries. All were calmer and more manageable. Though they still fought each other, the children were described as being a great support and comfort to each other. According to the recent analysis of the children’s guardian, A is settled in the foster home; B continues to soil and wet himself but he engages with the foster carers in activities; C likes his foster home and is markedly clingy with his foster carers, indicating an insecure attachment; and D is settled with his carers. In the local authority documentation, the female foster carer reported that D had told B that his foster carers were his parents and that he wanted to stay with his carers forever. Finally, all the children are registered with a GP and receiving medical treatment when this is required.

Not only are the children living together and benefitting from good quality emotional and physical care but they have all learned to speak English fluently according to the children’s guardian. She noted in her analysis that they “do not recall German”. All four continue to speak Arabic together and with one of their foster carers. Whilst A’s and D’s command of the English language was said to cause some problems with their understanding of school lessons, I note from their Personal Education Plans that this was not so poor for them to require language tuition in English.

A large part of the children’s lives is spent in school. All four attend regularly but all four struggle with learning and/or relationships in school. Those difficulties are, in my view, understandable given the children’s past experiences which include the dislocation caused by being abducted to the UK in the way I have earlier described. All the children were described as having a degree of developmental and cognitive delay. In their current school, A’s behaviour is poor though I note his March 2024 Personal Education Plan showed him to have more positive behaviour points (71) than negative behaviour points (64). It was recommended that A spend time at a specialist provision for children with social, education and mental health needs. However, A spoke about enjoying sports with his friends in school and his Personal Education Plan did not mention difficulties forming friendships with others in his year. B had made little progress in school but is responding well to specialist education therapy. He struggled to interact appropriately with other pupils in a classroom setting, needing significant adult support. C also struggled to learn without the support of an adult and had not been able to make friends because of his behaviour. He was thought to have undiagnosed autistic spectrum disorder. D, however, was said to be managing well in school but his English was not so good. He had friendships and was described as happy and excited about school. He was making progress and his level of engagement in school had improved greatly.

Both the local authority and the 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 in this jurisdiction. I have thought very carefully about this submission made by those currently most directly involved with the children. Nevertheless, I reject it and, on the basis of my holistic appraisal of the children’s present situation, I have concluded that the children have now acquired habitual residence in this jurisdiction. Whilst I acknowledge that these children have, together and individually, a constellation of behavioural and emotional problems which impinge on their daily lives, I observe the majority of those problems were evident during their time in Austria where they were undoubtedly habitually resident. It is not necessary for a child to demonstrate full integration into a social and family environment and the children do not all have to show they are making progress to become habitually resident. Despite the children’s problems, their foster home is stable notwithstanding the undoubted strains the foster carers experience in caring for them. Crucially, all four children are together under one roof and are negotiating their relationship as siblings once more in terms about which their foster carers are, on the whole, positive. They have a family life together and with their carers even though they presently have very little contact with their parents and grandmother. Outside the foster home, the children have learned to communicate in another language so as to participate in school and form friendships/relationships with other children and with those educating them (to a greater or lesser degree). All attend school and have been integrated into an educational environment which is responding to their individual needs with varying degrees of support and therapy. Though their status in this jurisdiction is uncertain, this factor does not of itself operate to prevent the children becoming habitually resident according to the authorities to which I have paid careful attention. Thus, standing back and looking at the children’s present situation, it demonstrates the necessary degree of stability and sufficient integration into a social and family environment to be described as habitual.

In coming to this conclusion, I have considered the children’s situation by looking at their individual circumstances as well as their experiences as a sibling group. No party invited me to distinguish between the individual children and to come to potentially different conclusions about the habitual residence of each child. Though I recognise it might be theoretically possible to reach different conclusions about the habitual residence of each child, these children share more together than anything which might separate them for this purpose.