A & Ors (Care Proceedings: Inherent Jurisdiction: Order for Return to Austria), Re

Applying a welfare test, the courts in England and Wales have assessed foreign placement options for many years alongside the comparative mechanisms for securing the return of children to another jurisdiction. What follows is not an exhaustive guide to the options available where children are in the care of a local authority. It is, however, a framework pertinent to the circumstances of these children who, this court has found, are habitually resident in this jurisdiction. This court has substantive jurisdiction in relation to the children pursuant to Article 5 of the 1996 Hague Convention.

Paragraph 19 to Schedule 2 of the 1989 Act provides that “a local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court” (para. 19(1)). A local authority may, with the approval of every person who has parental responsibility for the child arrange for, or assist in arranging for, any other child looked after by them to live outside England and Wales (para. 19(2)). By paragraph 19(3), the court may not give its approval under subparagraph (1) unless it is satisfied that:

In Re C (A Child) (Schedule 2, Paragraph 19 of the Children Act 1989) [2019] EWCA Civ 1714, Moylan LJ held that the phrase “other suitable person” could not include ‘persons corporate’ or ‘unincorporate’, meaning that:

Thus, the statutory mechanism contained within the 1989 Act is not available in the circumstances of this case because there is no immediate plan for the children to return to live with a family member. The plan is for a return to a crisis centre - clearly, a form of residential care - in Vienna. In these circumstances, the local authority must rely on the inherent jurisdiction, this being the historic safety net which can be used where the welfare of British children or those within the jurisdiction of England and Wales so requires. Paragraphs 65-79 of Re T (A Child) [2021] UKSC 35 provide an authoritative analysis of the ambit of the inherent jurisdiction following the passage of the 1989 Act. When considering the interaction between the powers of the local authority to provide care to children and the powers available to the court pursuant to the inherent jurisdiction, the Supreme Court stated that (para. 119):

Thus, a local authority may have recourse to the inherent jurisdiction in limited circumstances and only where prior leave is obtained for any such application. S.100(3) provides that “no application for any exercise of the court’s inherent jurisdiction with respect to children may be made by local authority unless the local authority have obtained the leave of the court”. The court may only grant leave if it is satisfied that (s.100(4)):

If leave is granted to the local authority to make an application for the return of the children to Austria, the High Court’s power to do so is well accepted and uncontroversial (see In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40). The exercise of that power is governed by an analysis of the children’s best interests as set out in Re NY [2019] UKSC 49. In paragraph 49 of Re NY, Lord Wilson stated that:

In paragraphs 56-63 of Re NY, Lord Wilson set out a number of questions which should have been considered by the Court of Appeal on the facts of that case:

Article 8 of the 1996 Hague Convention on the Protection of Children permits a country with substantive jurisdiction to transfer it to another Contracting State. It provides as follows:

Thus, an Article 8 transfer is by way of exception to the general rule that the state in which the children are habitually resident is better placed to assess fully their situation and welfare needs when reaching decisions about the children’s best interests. The court having jurisdiction should ask itself whether the transfer of the case to a court in another jurisdiction is such as to provide genuine and specific added value with respect to the decision to be taken in relation to the child (see paragraph 27 of AM & Anor v KL & Anor). In deciding whether to transfer jurisdiction, domestic case law and European case law makes clear that it is not appropriate to engage in comparison between the respective laws and legal systems of the two jurisdictions in question (see paragraph 28 of AM & Anor v KL & Anor).

In circumstances where no Article 8 request is made or where one has been made but not yet accepted, and the children return to Austria, the courts in Austria will have immediate jurisdiction in relation to urgent matters on the basis of the children’s physical presence in Austria pursuant to Article 11 of the 1996 Convention. Article 11(1) provides that “in all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection”. Once the children become habitually resident in Austria, the authorities of that state will exercise substantive jurisdiction pursuant to Article 5.

A potential obstacle to the children’s return to Austria is Article 33 of the 1996 Convention. This reads as follows:

The Practical Handbook on the operation of the 1996 Hague Child Protection Convention notes the “strict rules” which must be complied with before a placement of a child in institutional care within another Contracting State can be put into effect. If these rules are not respected, the placement may not be recognised abroad under the Convention (paragraph 13.33). If the procedure set out in Article 33 has not been followed, this means that the placement of the child in institutional care abroad may be refused recognition under the Convention (paragraph 13.35). The Convention does not give precise details as to how the procedure under Article 33 is to operate in practice and the Handbook suggests in paragraph 13.39 that it is for the Contracting States themselves to establish a procedure to implement the Article 33 procedure.

In my earlier judgment, I indicated a provisional view that the operation of immigration and asylum law did not prevent this court from implementing a welfare decision which might result in the return of these children to Austria before their application for asylum in this jurisdiction had been determined. In that context, the Secretary of State agreed with my reasoning on the following basis.

Since G v G [2021] UKSC 9, the legislative landscape had changed, not only due to the effect of the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 on the relevant provisions of the Procedures Directive which can be treated as having been repealed, but also in relation to section 77 of the Nationality, Immigration and Asylum Act 2002. Section 77 has since been amended by the Nationality and Borders Act 2022, in relation to claims made after 28 June 2022, to the effect that removal to a safe third country can occur, pending the determination of an individual’s asylum claim. Arguably, Austria fell within the definition set out at s.77(2B). That section reads as follows:

The Secretary of State drew attention to the potential inadmissibility of the asylum claims made by the father on behalf of the children. Under sections 80B and 80C of the Nationality, Immigration and Asylum Act 2002, the Secretary of State may declare the asylum claim of a person who has a connection to a safe third state inadmissible and the claim would not need to be substantively considered. If this criterion were met, this would be likely to enable a removal of the children from the UK to Austria. The published inadmissibility policy states that unaccompanied asylum seeking children are not suitable for the inadmissibility process. In that regard, paragraph 352ZD of the Immigration Rules sets out a three-part test as follows:

Anyone contemplating the circumstances in which the children presently find themselves would be struck by how precarious and unstable their present care arrangements are in comparison to those in place at the beginning of April 2024. Since 29 May 2024, the children have experienced four placement moves and there is now a realistic prospect that some or all the children will need to move placement yet again. Further, there is considerable uncertainty as to whether B and C can continue to attend their present school. Their behaviour appears to have deteriorated such that the school can no longer manage their disruptive behaviour. These circumstances highlight the need for this court to determine the local authority’s application without delay and to identify a legal mechanism whereby its decision can be speedily implemented. These children cannot be left in prolonged uncertainty about whether they will remain in this jurisdiction or return to Austria.

As indicated earlier in this judgment, I am satisfied that I have no jurisdiction to place these children abroad pursuant to paragraph 19 of Schedule II of the 1989 Act. I am also in no position lawfully to identify a particular placement in Austria in which these children can be accommodated or make an order placing these children in institutional care in that jurisdiction. The information provided by the Viennese Children’s Services indicated that placement in institutional care - a crisis centre - was the option which best met the children’s needs, including the need for careful assessment of their circumstances. However, I do not know which crisis centre would be available or whether the children would be placed together. I note that the grandmother has indicated her opposition to the children’s placement in a crisis centre and, were such opposition to be maintained if the children returned to Austria, Children’s Services would be required to make an application to the Viennese Family Court in order to maintain any immediate crisis centre placement. In those circumstances, this court is neither seeking to identify a particular placement nor to order the children’s placement abroad in institutional care, such that an order to that effect is capable of being recognised pursuant to Article 33 of the 1996 Convention. No party suggested otherwise or submitted that Article 33 applied to the children’s situation.

As a preliminary observation, a transfer of jurisdiction pursuant to Article 8 of the 1996 Convention is freighted with delay. Either the authorities of both Contracting States “may proceed to an exchange of views” or this court may suspend consideration of the case and invite the parties to introduce an article 8 transfer request before an Austrian family court with the relevant jurisdiction to determine such a request. Both routes inevitably mean further delay for the children. Further and notwithstanding the willingness of Viennese Children’s Services to receive and accommodate the children on their return to Austria, this court cannot assume that, following an Article 8 transfer request, the Austrian family court will accept jurisdiction. Article 8(4) leaves open the possibility that the Austrian family court may decline jurisdiction if it does not consider that this is in the children’s best interests. Thus, an Article 8 transfer alone does not provide an obviously swift or certain route for resolution of the children’s situation. I will consider Article 8 later this judgement.

In those circumstances, the local authority’s application for permission to invoke the inherent jurisdiction and then to invite this court to make a return order if this is in the children’s best interests appears to be the legal mechanism best suited to the children’s urgent and deteriorating circumstances. At one point in her submissions, Miss Weston KC suggested that there was some doubt that Re T (A Child) (see above) was authority for the proposition that the inherent jurisdiction was available in the circumstances of this case because Re T (A Child) concerned the interaction between the inherent jurisdiction and s.25 of the 1989 Act relating to secure accommodation and the ability of a local authority to place a young person deprived of their liberty otherwise than in an registered children’s home or accommodation approved for use as secure accommodation. In my view, that narrow interpretation of Re T (A Child) ignores the authoritative analysis contained therein which is plainly articulated in paragraph 119 (cited above).

However, the inherent jurisdiction is not available to the court if the hurdle set out in s.100(4) is not crossed. Both limbs must be satisfied. With respect to s.100(4)(a), no party sought to persuade me that the result which the local authority wished to achieve - namely an order for the children’s swift return to Austria - could be achieved through the making of such an order (a) otherwise than in the exercise of the court’s inherent jurisdiction or (b) for which the local authority was entitled to apply. However, the grandmother and the father sought to persuade me that the significant harm test contained in s.100(4)(b) was not made out on the basis that it could not be said that being in the interim care of the local authority was causing the children such significant harm that they had to be returned to Austria. That submission struck me as misconceived, for example because the children’s situation had deteriorated from the relatively settled position seen in early April 2024. I have already outlined the precariousness of the children’s placement and of the educational provision for B and C but, additionally, the children’s relationship with both the mother and their grandmother had been severely compromised and their contact with the father appeared to unsettle them. All these factors in combination amounted to a reasonable cause to believe that, if the court’s inherent jurisdiction were not exercised, the children were likely to suffer significant emotional harm. Further, the hurdle in s.100(4)(b) does not require the attribution of the likely significant harm to an individual such as a parent or to an institution such as a local authority. To suggest that, in these circumstances, a child’s situation in the interim care of a local authority were incapable of amounting to likely significant harm within the meaning of s.100(4)(b) was inconsistent with the Supreme Court’s decision in Re T (A Child). In that case, the Supreme Court had no difficulty in authorising recourse to the inherent jurisdiction where a young person was already in the care of a local authority but where the child was likely to come to significant harm if the court did not act. Thus, I am satisfied that the local authority has crossed the hurdle in s.100(4) of the 1989 Act.

Before analysing the children’s best interests in the manner mandated by Re NY, I have considered the procedural safeguards identified by Lord Wilson in paragraphs 56-63 of that decision (see above). Thus, the evidence before the court is sufficiently up-to-date and I am in a position to make findings capable of justifying an order for the children’s summary return to Austria. Practice Direction 12J is not applicable and no party sought to persuade me that oral evidence was necessary. I also had the benefit of a recent analysis of the children’s circumstances from a Cafcass children’s guardian. Additionally, the local authority provided information from the Viennese Children’s Services about the arrangements for the children’s reception were I to order their return. Finally, there was evidence allowing me to conduct a meaningful enquiry into the first six aspects of the children’s welfare specified in s.1(3) of the 1989 Act.

My analysis of the best interests of the children is shaped by careful attention to what their welfare requires rather than what is merely desirable. That approach incorporates consideration not only of the Re NY test but also whether, in an Article 8 context, there will be a genuine and added advantage to the children of a return to Austria. Mr Hames KC suggested that I undertake a composite best interests assessment within an Article 8 context. That struck me as a helpful submission in the particular circumstances of this case and my approach is consistent with what he suggested.

With respect to the children’s wishes and feelings, it is undoubtedly correct that they wish to be with their father. A is perhaps the child who would prefer to stay in this jurisdiction whether or not his father remained here but the other children want to be with their father whether he remains in this jurisdiction or returns to Austria. I have taken into account the ages of the older children and note that, in the assessment of the children’s guardian and her instructing solicitor, neither A nor B had the capacity to instruct their own legal representatives. The children’s wishes and feelings cannot be decisive and require to be balanced against the other relevant welfare factors. I reject the submission made by Miss Weston KC that the court has not had an opportunity to hear the children’s voices and that they fear a return to Austria. The analysis provided by the children’s guardian set out over nearly five pages her interviews with each of the children. What shines through is their attachment to their father and desire to be with him. If the children expressed what could be described as fear, this was related to the prospect of living with either their mother or their grandmother. In that context, I note that C told the children’s guardian that his father had told him that if he spoke to his mother or grandmother, he would be sent back to Austria. Given the professional concerns expressed about the father’s behaviour in contact and what is reported of his behaviour and attitude towards the mother at the time he abducted the children, I have some reservations whether the children’s views about their mother or grandmother are authentically their own.

The children’s physical, educational and emotional needs are complex. In the recent past, they have experienced numerous changes of carer and they have been separated from each other, both here and in Austria. It is also apparent that, with the exception of D, their engagement with education has been compromised by their emotional difficulties and changes in their care arrangements. Their emotional needs have also been compromised by separation from their father whilst he was in prison both here and in Austria. Likewise, their relationship with their mother has been impacted by prolonged separation and distance from her and by what they may have been told about her by their father. The grandmother is also a significant figure for C and D and, as with the mother, those children’s relationships with her have been attenuated by separation, distance and, likely, the views of others.

It is obvious that the welfare authorities in Vienna have had extensive involvement with the family since the children were small. Their knowledge of the family’s strengths and weaknesses is significant and they are ready to provide support and assistance for the children as well as to assess their family. Assessment will be grounded in the family’s previous lengthy involvement with welfare services and thus will not start from scratch. Indeed previous assessments recognised the effect on the children of a wide range of factors including war trauma, previous physical injuries, problems with integration, developmental problems and problems with cognition. Finally and obviously, the children’s needs have also been shaped by their traumatic experiences in Syria, a factor well-known to and understood by the welfare authorities in Vienna. Those authorities have already factored into their reception plan the provision of psychological counselling for the children. It seems to me that any forthcoming assessment of the children’s needs will be both thorough and alive to the multi-factorial nature of these children’s difficulties. Whilst I have no doubt that an assessment of a similar sort could be constructed in this jurisdiction, it will start from a less well-informed knowledge base and will be inevitably marked by significant delay whilst the authorities here come to grips with years’ worth of records from Austria, all of which will require translation and time to assemble. Though I have no evidence about this, those assumptions about the delay in getting an assessment of the children’s circumstances off the ground here appear to be entirely realistic.

The likely effect of any change in the children’s circumstances will be very destabilising. The children will be upset by a return to Austria but their father has indicated he will return to that jurisdiction if they do. The maintenance of contact with him – even if subject to supervision and assessment by the Austrian welfare authorities – will likely assist the children in adjusting to their return. A return will mean yet another placement move but further interim moves are certain if the children were to remain here. With respect to the children’s ability to adapt to any change, the children were fluent German speakers before their father removed them from Austria. The evidence is a little unclear about the extent to which the children retain their ability to speak German as this has not been properly assessed in circumstances where they might be reluctant to admit to capability in that language. I have taken into account the children’s guardian’s comment that the children did not recall their German but also noted that, despite any cognitive difficulties, the children quickly developed the capacity to make themselves understood in English here, a factor which bodes well for any return to Austria. However, whatever the state of their present capability, my assessment is that, after a little over 12 months’ absence, the children are likely to recover their fluency in German fairly quickly once placed in a German-speaking environment. Further, I note that Viennese Children’s Services intend to provide psychological support to the children which should assist in managing any transition.

The children’s age, sex and background have already been mentioned in this analysis. An aspect of their background which has not yet been mentioned is that there are orders made by the Austrian courts which have removed parental responsibility for all four children from their father. The mother has parental responsibility for A and B and the grandmother for C and D. In fact, the legal proceedings concerning A and B remain pending before the Austrian Family Court and will revive on the return of those children to Austria. Finally and importantly, I take into account that all the children have asylum status in Austria and will be readmitted by the Austrian authorities if this court orders their return. If the father returns voluntarily, he too will be readmitted to Austria and enjoy the benefit of asylum status in that jurisdiction.

Turning to the question of harm, I am satisfied that all four children have suffered significant emotional harm and were likely to suffer significant physical harm for which their father is responsible. The father’s abduction of the children from Austria was flagrant and deliberate. These were vulnerable children as any perusal of their background in Austria demonstrates yet the father behaved as if they were pieces on a chessboard to be picked up and set down wherever suited his purposes. I am satisfied that the children were likely traumatised by (a) their peremptory removal from Austria; (b) the mode of travel to this jurisdiction involving the known life-threatening dangers of a small boat Channel crossing; (c) the father’s arrest and imprisonment in this jurisdiction; (d) the children’s separation from the mother and the grandmother; and (d) their placement in foster care. The father’s disregard for the children’s needs appears to have included instructing the children to refuse contact with their mother and to say bad things about her. I note that it is only in his most recent statement that, almost as an afterthought, he acknowledges any role for the mother in the children’s lives. Though I take into account that the father challenges the local authority’s account of his recent behaviour in contact, the criticisms made by the local authority have some echoes in the father’s behaviour in spring 2023 when he was released from prison in Austria. Until that point, the older children were relatively settled but records from Viennese Children’s Services indicated that the father appears to have undermined the educational and psychological support the children received, for example by telling B that he did not need to be in a remedial class and should go to a “normal” school (resulting in B rejecting his school entirely). Coincidentally with the father’s release in 2023, A’s behaviour in school also deteriorated and he hardly attended a therapy group for traumatised children. Now, against the advice of the local authority, the father’s promises to the children during contact that they will return to his care in the near future appear, at the very least, to have gravely unsettled them.

Turning to the capabilities of the parents and the grandmother, the Austrian authorities are better placed to assess the mother and the grandmother by reason of location, language and previous involvement. Indeed, they undertook assessments following the father’s imprisonment which resulted in C and D moving to live with their mother. Other than to acknowledge the concerns about the mother’s vulnerability expressed in the documents received from the Austrian authorities, I am in no position to come to any concluded view about her capabilities and those of the grandmother.

With respect to the father, I have already touched on the harm he caused to these children by abducting them from Austria. His reasons for doing so – as expressed to the Secretary of State both in June 2023 and when he was in prison – amounted to no more than a belief that his children would be better educated in this jurisdiction than in Austria. No other complaint in support of a claim for asylum was made at either time. The father has, moreover, been untruthful in his application for asylum, for example by stating that the mother knew about and supported the plan to move the children and claiming that she had abandoned the children to go and live permanently in Dubai. He also lied in his asylum application about whether he had ever been convicted of any criminal offences. In these circumstances, I have approached the father’s statement recently filed in these proceedings with considerable caution. He now seeks to persuade me that he removed the children because of his and their experiences of racism and discrimination in Austria and challenges his conviction for people trafficking in that jurisdiction. Those allegations of racism and discrimination were broadly outlined and I saw no details describing that the father and the children had directly experienced discrimination on the part of the authorities by reason of their status as Syrian asylum seekers. In this regard, I have adopted the approach used in 1980 Hague Convention cases where allegations are made about the behaviour of another parent or about circumstances in the country to which return is proposed, namely by taking such allegations at their highest and then coming to an overall decision on the merits of any return.

The father’s status in this jurisdiction is uncertain and he is liable for deportation. He has no financial or housing resources in the short and medium term which would allow him to care for the children. Though I take into account what Miss Weston KC said in her position statement about the decision making process of the Secretary of State, there is little doubt that any final decision about the children’s status and that of their father in this jurisdiction is some considerable distance away given the pressures on the asylum system outlined in the Secretary of State’s position statement. The father has confirmed through his counsel that he will return with the children to Austria and thus will be available for interview and assessment by the Austrian authorities.

I have also had regard to the positive viability assessment of the paternal aunt. She is one member of the father’s numerous extended family, some of whom live in this jurisdiction and some of whom live in Austria. It is but the first stage in what – given the complexities in this case – is likely to be an extended process of assessment. The children have no memory of her. Her circumstances and suitability to care for these needy children are better capable of being assessed by Viennese Children’s Services for the reasons outlined elsewhere in my analysis. I observe that the paternal aunt is potentially not the only family candidate who may be able to provide the children with a home.

The proposals made by Viennese Children’s Services are sufficiently detailed given the extensive knowledge about the children’s and the family’s circumstances held by those authorities. Proper arrangements can be made for an exchange of information between the local authority and Children’s Services. It was suggested by the father that he would not be properly assessed by Children’s Services but I reject that submission. The circumspection expressed by Children’s Services about contact with the father is, given his abduction of the children, prudent and I do not interpret it as a blanket refusal to assess what he has to offer the children. Such a stance would be inconsistent with the wide-ranging assessment of the children’s needs which is planned were they to return to Austria. In any event, Children’s Services have made explicit the need to take into account the children’s wishes and feelings as part of any decision making process.

Standing back and with the above analysis firmly in mind and balancing all the relevant factors, I have decided that the welfare interests of these children are best met by a return to Austria. This decision also affirms that, having regard to Article 8 of the 1996 Convention, the Austrian authorities are better placed to assess the best interests of the children because they can provide genuine and specific added value to the important decisions which need to be taken about these children’s future.

Having taken at their highest the father’s allegations about circumstances in Austria, those allegations of racism and discrimination do not, in my view, constitute a barrier to the children’s return. First, challenge by the father to any criminal conviction ought be pursued in Austria as this is the country under whose laws he was convicted. Second, the unspecific allegations of institutional racism and discrimination were, for practical purposes, diminished by the careful proposals for the children’s reception and care by Viennese Children’s Services and by the confirmation that the father’s asylum status in Austria remained intact if he returned voluntarily. The safe status of the children in Austria has also been confirmed. Moreover, the father has access to the family court in Austria with respect to matters concerning the children and there is no reason to believe either he or indeed his mother would be disadvantaged in advocating for what they thought best for the children. Indeed, the grandmother has already been involved in legal proceedings concerning the children and was awarded the custody of C and D. Finally, the father’s complaints of racism and discrimination on the part of individuals would be matters for the authorities in Austrian to address.

I make a declaration pursuant to the inherent jurisdiction that the children’s welfare requires their return to Austria. My declaration requires the making of an inherent jurisdiction return order which should be implemented without delay so that the children can move and settle before the start of the autumn term in Vienna.

My decision to return the children is not accompanied by an Article 8 request. I make it clear that, had I thought it necessary, I would have made an Article 8 request on the basis that the test for so doing was amply satisfied. In circumstances where there is no legal obstacle to the children’s return and where it has been confirmed that the children will be permitted entry to Austria, it seems to me that an Article 8 transfer request made at the same time as an inherent jurisdiction return order may confuse in circumstances where the children are likely to have returned some time before the outcome of any such request would be known. Practically speaking, the Austrian authorities know about these proceedings having been consulted and informed throughout so the absence of any Article 8 request is not disrespectful given the children’s deteriorating circumstances. Further, the Austrian authorities will be able to exercise jurisdiction in respect of matters of urgency, for example, to regulate the children’s placement, from the minute they return. Thus, the Austrian social welfare authorities have indicated their consent to the children’s return; the Austrian migration authorities have done likewise; and, in circumstances where the Austrian family court will revive the legal proceedings relating to A and B on their return, I am confident that the judicial authorities will also assume jurisdiction for all four children.

Finally, during the course of submissions on 17 June 2024, the Secretary of State suggested that I may wish to consider making a declaration that the local authority was permitted, by the use of the powers invested in it pursuant to S.33 of the 1989 Act, to withdraw the children’s claims for asylum if I ordered their return to Austria. During submissions, no party invited me to consider doing so or contended that the asylum claims amounted to a barrier to the implementation of any return order. Given my previous decision that the existence of asylum claims on behalf of these children was no barrier either to the making of or to the implementation of a return order, I saw no need to take that additional step where the Secretary of State had confirmed his agreement with the analysis set out in my earlier judgment.

The Secretary of State drew my attention to a number of other matters relating to the children’s claims. I express no view on these matters for to do so would trespass on the Secretary of State’s decision-making powers in relation to matters of immigration.

That is my decision.