London Borough of Redbridge v L (Failure to Determine Jurisdiction)

In every case that comes before the court, the first question is whether the court has the authority to grant the orders that the applicant seeks. In short, does the court have jurisdiction? In this case, regrettably, it is only now that this question is being definitively addressed, some thirty-six weeks into proceedings under Part IV of the Children Act 1989 (hereafter “the 1989 Act”) that have a statutory time limit of twenty-six weeks. As the Court of Appeal held in London Borough of Hackney v P and Ors (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213, [2024] 2 WLR 1163 at [87] on appeal from this court:

“It is clear, as noted by the judge, that the court must determine whether it has jurisdiction and the basis of its jurisdiction at the outset of proceedings. That this is required is clear, for example, from what Sir James Munby P said in Re F when he used the word "imperative". It is also required by the provisions of the Public Law Outline, as referred to above. The court cannot simply postpone that decision until a significantly later hearing.”

The proceedings concern LL, born in June 2024 and now aged 1 year and 4 months old. LL is a French national. She is represented at this hearing through her Children’s Guardian by Ms Susan George of counsel, who has not been instructed previously. LL’s mother is JL, represented by Ms Rebekah Wilson of counsel, who was first instructed for the hearing on 9 May 2025. LL’s father is ML, represented by Mr Tim Potter of counsel, who was instructed from the hearing on 18 December 2024, for which the father was not produced. The local authority that brings these proceedings is the London Borough of Redbridge, represented at this hearing by Mr Giles Bain of counsel, who was first instructed for the hearing on 9 May 2025.

This matter having been re-allocated to me on 13 June 2025, the proceedings now come before the court to determine the question of whether the court has substantive jurisdiction in respect of LL. The local authority submits that the court has jurisdiction in respect of LL by reason of her having been habitually resident in the jurisdiction of England and Wales at the date proceedings were issued. The mother, the father and the Children’s Guardian contend that the court does not have jurisdiction in circumstances where LL remained habitually resident in the jurisdiction of France on the date proceedings commenced.

At the conclusion of the hearing I announced my decision that as at the date proceedings were issued LL was habitually resident in France and, in consequence, that the English court does not have substantive welfare jurisdiction in respect of LL. I now set out my reasons for reaching that conclusion. (Footnote: ¹) In light of the unacceptable delay in determining the question of jurisdiction in this case, I am satisfied that it is also appropriate in this judgment to examine how that situation arose and to reiterate the proper approach to determining the question of jurisdiction.

The mother was born on La Réunion, an overseas French Department in the Pacific Ocean, in July 1999. She is a French national. She speaks only French. The mother had employment on La Réunion prior to her pregnancy with LL. The mother has a large extended family on La Réunion, including her parents, five siblings. The mother, father and LL live in close proximity to extended maternal family.

LL was born on La Réunion and is likewise a French national. As I will come to, and notwithstanding the absence of jurisdiction, prior to the matter being reallocated to me directions were given for a range of welfare assessments. In his viability assessment, the maternal Uncle described seeing LL every day when she was on La Réunion and the maternal grandparents describe the many family relationships and support that LL has access to on La Réunion. The final parenting assessment of the mother concludes as follows:

“[The mother] has strong family connections with her mum, dad and five siblings. [The mother] communicated that the family are close knit and that her relationship with her parents is especially close. It is reported by [the mother] that her own family home is only a short distance from her parents’ home and that visits are frequent between both homes through the week.”

The father was born on La Réunion and moved to the United Kingdom when he was 16 years old with his family. His mother, father and siblings live in this jurisdiction. The father has settled status in the United Kingdom under the EU Settlement Scheme. The father applied for and was granted Settled Status as a French national in 2023. His EU settled status in the United Kingdom is without limit of time.

On 6 August 2024, the mother and father flew with LL to the jurisdiction of England and Wales. The mother, father and LL travelled on French passports. They arrived with a limited amount of luggage. The mother has lived all her life on La Réunion and had not been to this jurisdiction before. The purpose of the trip to the United Kingdom was, on the mother and father’s account, to visit the paternal family. LL had not, prior to her visit, met the paternal grandfather and had met the paternal grandmother only once. As she later relayed to the social worker, the mother has no family of her own, or friends, in the United Kingdom. The mother, the father and LL travelled on a return ticket, with their return flight to La Réunion booked for 28 October 2024.

The mother concedes in her statement that “we were going to consider living in the UK if we liked it here” but that she and the father had concluded in short order that the climate and lifestyle was not suited to the family. The father corroborates this account in his statement. The mother asserts that, in any event and as evidenced by the return tickets, the family always intended to return to La Réunion following the visit to the paternal family, having spent some 12 weeks in this jurisdiction. There is no evidence that the mother and father brought with them possessions or property (including LL’s toys) indicative of an intention to permanently relocate to the United Kingdom. There is likewise no evidence that the mother or the father investigated or secured a place to live beyond staying with the father’s relatives. The mother did not look for a job and remains entirely reliant on the state for meeting all of her financial needs in this jurisdiction. The parties retained their rented accommodation in La Réunion during their visit to this jurisdiction, as demonstrated by the production of recent bills for that property in their name and the tenancy agreement. The parents continued to be in receipt of benefits on La Réunion which funded their rent and bills. LL received her medical care on La Réunion and was being monitored by a paediatrician on the island.

LL was registered with a GP in this jurisdiction on arrival. Both parents assert that this was a precaution taken in respect of a very young infant in the event that she needed access to medical care whilst abroad. Following the family’s arrival in this jurisdiction, the father made an EU Settlement Scheme application on behalf of the mother on 7 October 2024. That application, which gives the impression of having been advanced only half-heartedly, was rejected by the Home Office on the grounds of missing information. Neither the mother nor the father sought to pursue the application further following its rejection. The application was definitively refused by the Home Office on 1 November 2024. Following the refusal of the application, the mother has no immigration clearance to remain in the United Kingdom. Notwithstanding these proceedings were issued some seven months ago, there has to date been no clarification sought from the Secretary of State for the Home Department regarding LL’s immigration status in this jurisdiction independent of her parents.

The family came to the attention of social services as a result of LL being taken to the Royal London Hospital on 8 October 2024 with a presentation that was considered by the examining Consultant Orthopaedic Surgeon and Consultant Paediatrician to be consistent with a non-accidental mechanism. Namely:

The father was arrested and charged with inflicting grievous bodily harm on LL. He was remanded in custody. The mother was arrested on 27 October 2024 on suspicion of having inflicted grievous bodily harm on LL. She was thereafter released under investigation. The criminal proceedings against the father and the investigation of the mother were later discontinued.

It is clear from the local authority evidence that the mother emphasised to the hospital, and to the social worker subsequently, her settled intention to return to La Réunion on 28 October 2024, providing to the social worker the details of the return flights and producing screen shots of her tickets. In her statement dated 10 October 2024, the social worker records that the mother told her she had no friends or family in this jurisdiction. She expressed to the social worker a wish to return to “her home country”. When the police spoke to the parents on 8 October 2024, they recorded as follows:

“Subject and family are visiting from REUNION ISLAND and staying with family in ILFORD whilst they are in the UK. They have been here for about two months and plan to stay for one more month before returning home at the end of October. Therefore, they do not have a GP or health visitor in the UK.”

Proceedings were issued on 28 October 2024. Notwithstanding the history I have recounted above, the section of the Form C110A by which the applicant local authority can indicate to the court the nature and extent of any international element in the case was left blank, including the section entitled “Issues with jurisdiction”.

The matter came before District Judge Coupland on 28 October 2024, who made an interim care order in respect of LL. The court almost certainly had jurisdiction as at 28 October 2024 to take urgent measures of protection in respect of a child who is present in this jurisdiction pursuant to Art 11 of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereafter “the 1996 Hague Convention”), on the basis of an urgent need to take protective measures in light of the injuries sustained by LL. However, the order of 28 October 2024 records that the jurisdictional basis for the court making an interim care order under s.38 of the 1989 Act was habitual residence. In this context, the court made a declaration that LL was habitually resident in the jurisdiction of England and Wales, notwithstanding that the order also recorded that the mother disputed habitual residence. District Judge Coupland made provision for Skeleton Arguments on the question of jurisdiction and directed that the matter be considered as a preliminary issue at the next hearing. The judge further directed that the local authority inform the French Embassy of the proceedings. This was done.

The matter came before the court again on 1 November 2024 before HHJ Suh. In its Skeleton Argument for the hearing on 1 November 2024 the local authority indicated that the mother “disputes habitual residence in this jurisdiction”. In the context of the background outlined above, the Skeleton Argument of the local authority submitted that the English court had jurisdiction in relation to LL on the basis that she was habitually resident in this jurisdiction. That submission was based on the contention of the local authority that (i) LL had been living in London with her parents for a period of 11 weeks, amounting to one third of her life, (ii) LL’s father had been settled in England for 15 years (although the evidence suggested that more recently he had been residing in La Réunion with the mother and LL), (iii) the mother’s application for a visa suggested “a clear intention to remain here” and (iv) LL had been registered with a GP.

The Skeleton Argument filed on behalf of the mother likewise indicated clearly that the mother “disputes LL is habitually resident in England and Wales”. In support of that position the mother relied on the fact that (i) LL had been in the jurisdiction only since 8 August 2024, (ii) both the mother and LL were French nationals holding French passports, (iii) the mother and LL had lived their entire life on La Réunion and the mother’s home, family and entire support network is on La Réunion, (iv) the mother and LL had travelled to England on holiday to visit the paternal family, (v) whilst conceding that the mother and father wanted to explore whether England may be a country they would one day wish to move to, there was never an intention to remain in England permanently on this trip, (vi) the mother and LL had return flights to La Réunion booked for 28 October 2025, which were a requirement for entering the United Kingdom, (vii) as a child aged but a few months old, LL’s habitual residence followed that of her mother as her primary carer and (viii) LL was not integrated into a social and family environment in England and Wales.

Although counsel had set out clearly the parties competing positions as to habitual residence and the substantially undisputed facts relied on in support of those competing positions, on 1 November 2024 the court dealt only with the question of whether it had jurisdiction to “make urgent decisions” in respect of LL and did not determine the question of substantive jurisdiction. As a result, the court made the following declaration:

“[1] The court in England and Wales has jurisdiction to make interim orders in relation to the child on the basis that that child is present in England and it is necessary to take urgent protective measures to safeguard the child’s welfare. Should the parents seek to challenge jurisdiction further, they are to serve evidence in accordance with the directions below.”

In the foregoing context, and again notwithstanding the court had not yet determined whether it had substantive welfare jurisdiction with respect to LL, the court made the following directions:

“[10] The time the mother and father to file at court and serve on the parties a narrative statement is extended to 12noon on 18 November 2024 (it being noted that the father’s solicitors shall use best endeavours to comply with this direction). The statement shall set out:

a.

The details of any alternative carers they put forward to be assessed in parallel during the proceedings to care for the child. The contact details for proposed alternative carers must be provided to the local authority by the same date;

b.

The parent’s response to Interim Threshold on an item by item basis, stating “accepted” or “denied” and if “denied” setting out their account of that event and their evidence in relation to how the child came to be injured in particular, who was present and when medical attention was sought;

c.

The parent’s response to the evidence thus far (where it is not dealt with above); and

d.

Should either parent seek to dispute jurisdiction, they shall inform the court in writing and include in this statement the basis upon which they challenge jurisdiction.

[11] If the mother (and the father without good reason) fails to comply with paragraph 10 of this order, the court may be asked to find threshold allegations made by the local authority are made out on the basis of the evidence before the court and will be taken as to not be putting forward any alternative carers unless this paragraph is varied upon application.”

The difficulty with the foregoing recitals and orders is that they suggest that the determination of the question of jurisdiction is a choice for the parties, rather than a question that must be answered by the court. However, as noted at the outset of this judgment, jurisdiction is alwaysthe first question to be asked and answered in every case and is a question to be asked and answered, having heard argument if necessary, by the court. In addition, without having determined the question of whether it had substantive welfare jurisdiction, the court was not in a position, in default of compliance with its directions, to “find threshold allegations made by the local authority are made out” or to take the parents as “to not be putting forward any alternative carers”.

In the foregoing circumstances, when the matter returned to court before HHJ Bugg on 21 November 2024 for a third hearing, the question of whether the court had substantive welfare jurisdiction in respect of LL remained outstanding. At that hearing, in addition to the Skeleton Arguments with respect to jurisdiction prepared for the hearing on 1 November 2024 dealing in detail with the competing arguments and evidence in respect of that issue, the court had the benefit of a statement from the mother dated 19 November 2024 setting out in detail the evidence she relied on relevant to the question of jurisdiction. Again, however, the court did not determine the question of jurisdiction.

On the question of jurisdiction, the order of 21 November 2024 contained the following declarations and directions. With respect to the declarations, the order stated:

“1.

The court in England and Wales has jurisdiction to make interim orders in relation to the child on the basis that that child is present in England and it is necessary to take urgent protective measures to safeguard the child’s welfare.

2.

The Court notes that the issue of jurisdiction remains a live issue and will be considered further at the earliest possible opportunity, when the Court has sufficient information to determine this issue.

In this context, the court made the following case management directions in relation to a further case management hearing it listed on 18 December 2024, having recorded that one of the issues for that hearing would be “The Court’s jurisdiction if still opposed and sufficient information is available to do so”:

“13.

The time for the father to file at court and serve on the parties a narrative statement is extended to 4pm on 13 December 2024. The statement shall set out:

a.

The details of any alternative carers he puts forward to be assessed in parallel during the proceedings to care for the child. The contact details for proposed alternative carers must be provided to the local authority by the same date;

b.

The parent’s response to Interim Threshold on an item by item basis, stating “accepted” or “denied” and if “denied” setting out their account of that event and their evidence in relation to how the child came to be injured in particular, who was present and when medical attention was sought, such account shall include full details of who else cared for the child during the 8th October 2024 and the preceding 14 days;

c.

The parent’s response to the evidence thus far (where it is not dealt with above); and

d.

Should the father seek to dispute jurisdiction, he shall inform the court in writing and include in this statement the basis upon which he challenges jurisdiction.”

.../

15.

If the mother and the father without good reason fails to comply with paragraphs 13 and 14 of this order, the court may be asked to find threshold allegations made by the local authority are made out on the basis of the evidence before the court and will be taken as to not be putting forward any alternative carers unless this paragraph is varied upon application.”

Whilst this court again has the benefit of hindsight, there are again difficulties with the foregoing recitals and directions dealing with jurisdiction. Notwithstanding that the question of whether the court had substantive jurisdiction in respect of LL remained outstanding at the third hearing of the matter, and that the Skeleton Arguments for the hearing on 1 November 2024 had set out in comprehensive terms the competing positions as to habitual residence and the evidential matters relied on in support of those competing positions, as did the mother’s statement dated 19 November 2024, the court evinced no intention to deal with the issue of jurisdiction beyond it being “considered further at the earliest possible opportunity” and stating that it had made directions for “the purposes of determining jurisdiction.” As with the order of 1 November 2024, the court’s direction concerning jurisdiction suggested the court viewed the question of jurisdiction as a choice for the parties rather than a question to be answered by the court. Again, without having determined the question of whether it had substantive welfare jurisdiction, the court was not in a position, in default of compliance with its directions, to “find threshold allegations made by the local authority are made out” or to take the parents as “to not be putting forward any alternative carers”.

Part of the answer to the question of why the court again deferred the issue of jurisdiction on 21 November 2024 becomes clear from recitals concerning transfer of jurisdiction contained in the order. In this regard, the order of 21 November contained the following recitals (emphasis added):

“The Local Authority must make urgent contact with ICACU. There is a very real possibility that the proceedings may transfer to Reunion Island but only if the Court is satisfied that they are willing to address the issues that have arisen within these proceedings.

The Court notes that no applications in respect of the transfer of Jurisdiction have been made and such applications will need to be made by any party seeking the transfer of Jurisdiction in the future, when sufficient information in order for such application to be made has been provided.”

Read with the recitals concerning jurisdiction, the recitals concerning the possibility of transfer of jurisdiction create a strong impression that the court approached this case on 21 November 2024 on the basis that it was not willing to determine the question of substantive welfare jurisdiction until it could be certain that the French authorities in La Réunion would take the same view of the case as the English court. As can be seen, the order of 21 November 2024 recited that transfer of the proceedings would only take place if the English court could be satisfied that the court or authorities in La Réunion were “willing to address the issues that have arisen within these proceedings”. As I will come to, the impression given by the order of 21 November 2024 that the court’s approach in this case was to defer determination the question of jurisdiction until it could be certain that the authorities in La Réunion would take the same view of the case came to be stated in terms in a subsequent order made on 18 December 2024.

In addition to these difficulties, the test for whether jurisdiction should be transferred under the 1996 Hague Convention Arts 8 or 9 is whether the authority of another Contracting State would be better placed in the particular case to assess the best interests of the child. To adopt the approach set out in the recitals to the order of 21 November 2024 would have led to the wrong test being applied to the question of transfer. Further, it would have put the domestic court in a position of having to decide whether a foreign jurisdiction was as willing and able as the English court to protect the subject child. Such an enquiry would not accord with the principle of comity, particularly in a case where the states involved are both Contracting States to the 1996 Hague Convention.

Notwithstanding that the order of 21 November 2024 did not determine whether the court had substantive welfare jurisdiction, the court went on to make a number of case management directions towards determining the question of LL’s welfare. Those directions included the following:

The rationale for making case management orders directed at determining the welfare issues in the case before the court had determined whether it had substantive welfare jurisdiction in respect of LL, was articulated as follows in the recitals to the order of 21 November 2024:

“3.

In light of jurisdiction remaining a live issue, the Court has at this time limited itself to directions required for the purposes of those necessary to safeguard the child’s immediate welfare and for the purposes of determining the issue of jurisdiction.

4.

The Court has made some directions in relation to the progression of assessments today so as to avoid future delay only.”

The recitals, accordingly, were to the effect that the court both “limited itself to directions required for the purposes of those necessary to safeguard the child’s immediate welfare” and “made some directions in relation to the progression of assessments”. These steps were, however, mutually exclusive until the question of jurisdiction had been determined. The need to avoid delay is not a justification for making orders directed at determining the substantive welfare issues beforethe court has determined whether it has jurisdiction to make those orders. Delay is avoided by the question of jurisdiction being dealt with at the outset of proceedings.

The matter came before HHJ Bugg for a further case management hearing on 18 December 2024. This was the fourth hearing and took place nearly two months after the issue of proceedings. Notwithstanding that the issue of substantive jurisdiction remained undecided, the question of jurisdiction was again deferred. Instead, jurisdiction was listed as an issue for determination at the IRH “if still opposed and sufficient information is available to do so”, leaving open the possibility that the question of whether the court had substantive welfare jurisdiction in respect of LL would remain unresolved until the final hearing. Case management directions were made towards the IRH and final hearing.

As I have noted above, the order of 18 December 2024 indicated in terms that the court was delaying the determination of the question of whether it had substantive welfare jurisdiction until it had confirmation of whether an application to transfer jurisdiction would be made and whether the authorities in La Réunion would take the same view of the case as the English court. Further, the order makes clear that the court had decided that delay in receiving such confirmation justified it proceeding in any event towards determining the substantive welfare issues in the case notwithstanding that the court had not yet decided whether it had jurisdiction to do so:

“1.

The court in England and Wales has jurisdiction to make interim orders in relation to the child on the basis that that child is present in England and it is necessary to take urgent protective measures to safeguard the child’s welfare.

2.

The Court notes that the issue of jurisdiction remains a live issue and will be considered further at the earliest possible opportunity, when the Court has sufficient information to determine this issue.

3.

The Court and the parties are acutely aware that Jurisdiction should be resolved at the first opportunity, however practical issues are impeding that decision being made as a result of delays with ICACU and no informative response from the French Embassy. The Court does not want to deal with the issue of Jurisdiction until it knows whether there is an application to transfer proceedings and has more information from ICACU as well as the authorities in France & Reunion island and in the meantime, time marches on for LL and the court has therefore decided it is necessary to proceed with progressing the case so as to avoid delay for the child.”

There are again manifest difficulties with the approach articulated in the foregoing recitals. The question of substantive jurisdiction under Art 5 of the 1996 Hague Convention and the question of transfer under Art 8 or 9 of the 1996 Hague Convention are, necessarily, separate and sequential. As a matter of logic, it was not open to an agency, whether ICACU, the French Embassy or the French authorities in La Réunion, to indicate whether an application for transfer would be made until the English court had decided whether it had any jurisdiction to transfer. This difficulty was exacerbated by the opaque nature of some of the questions that were being posed to the various agencies regarding the possibility of transfer, the following question contained in the order of 21 November 2024 being a particular example:

“[22] The Reunion Island to address the following: ... 3. Obtaining details from Reunion Island as to whether they would seek the transfer of these proceedings to them at this stage of the proceedings or later, whether they would be willing to accept the transfer of proceedings if this Court determined that such a transfer should take place at this stage of the proceedings or later, their position on LL being rehabilitated to Reunion Island during the course of such proceedings and whether there would be a foster placement/other alternative placement for LL pending final welfare decisions being made.”

In postponing the determination of the question of jurisdiction until it could be certain that the authorities in La Réunion would take the same view of the case as the English court, the court was waiting for information the request for which risked controverting the principle of comity between two Contracting States to the 1996 Hague Convention. More importantly, the court was awaiting information that was irrelevant to the question of habitual residence. In the circumstances, whilst the order indicated that the court was waiting on 18 December 2024 for “more information from ICACU as well as the authorities in France & Reunion island” as to the position with respect to potential transfer, I again recall that the court had the information and argument that it needed to determine the question of jurisdiction by 1 November 2024, only 3 days after proceedings were issued, and in any event by the time of the mother’s statement dated 19 November 2024.

As I have noted, during the course of proceedings the mother and LL were, pursuant to the interim care order granted on 28 October 2025, placed by the local authority in a residential unit and a parenting assessment of the mother was undertaken. That assessment recommended that the mother and LL should return to La Réunion, the assessment concluding as follows:

“JL and LL can return to Reunion Island where the Families support network is established to avoid any further trauma or possible mental health issues that may arise because of stress due to the prolonged separation between [the mother] and her immediate family members.”

On 8 May 2025, the mother issued an application to discharge the interim care order and “transfer the proceedings to the Reunion Island”. At a hearing on 9 May 2025, HHJ Bugg re-allocated the proceedings to me. The case first came before me for directions on 13 June 2025, at which hearing I made clear this court’s concern that the issue of jurisdiction remained undetermined nearly 7 months after proceedings had commenced. I listed the matter on 28 July 2025 for the purpose of determining that still disputed question.

At the conclusion of that hearing on 28 July 2025, I announced my decision that, at the date the proceedings were issued, LL was habitually resident in the jurisdiction of France and that, in consequence, the English court did not have welfare jurisdiction in respect of LL. Immediately following my decision, the local authority indicated that it would fund flights for the family to La Réunion. The parents and LL flew to La Réunion on the following day, 29 July 2025. Pursuant to a safety plan directed by this court, prior to departure the local authority liaised with French social services to arrange for a receiving officer to meet the family on arrival and conduct a welfare check. The mother agreed that LL would not be left unsupervised with the father and the parents readily submitted to a direction that the relevant papers in these proceedings be disclosed by the local authority to French social services on La Réunion, including details of the injuries sustained by LL, the extent of the father’s admission of responsibility and a written summary accompanied by the assessments undertaken during proceedings.

Both the United Kingdom and the French Republic are contracting states to the 1996 Hague Convention. In cases where the 1996 Hague Convention applies, the Convention provides a complete framework for determination of the question of jurisdiction (see Re J (1996 Hague Convention)(Morocco) [2015] EWCA Civ 326, [2015] 2 FLR 513).

Art 11 of the 1996 Hague Convention provides as follows with respect to jurisdiction to take urgent measures of protection in respect of a child who is present in a Contracting State:

“Article 11

(1)

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.

(2)

The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.

(3)

The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.”

What comprise “any necessary measures of protection” for the purposes of Art 11 is not defined by the 1996 Hague Convention. The Explanatory Report to the 1996 Hague Convention makes clear, at paragraph 68, that the purpose of the jurisdiction in case of urgency is to avoid delays which would be caused by the obligation to bring a request before the authorities of the State of the child’s habitual residence might compromise the protection or the interests of the child. As further made clear, in paragraph 70 the Explanatory Report, the drafters of the Convention deliberately abstained from setting out what measures might be taken on the basis of urgency in application of Art 11 and that “urgency” is a functional concept, the urgency dictating in each situation the necessary measures of protection. Within this context, paragraph 6.2 of the Practical Handbook on the 1996 Hague Convention provides that it is a matter for the judicial or administrative authorities in the Contracting State in question to determine whether a particular situation is “urgent” and what measures are “necessary” in consequence of that urgency. The Practical Handbook states as follows regarding the metric against which the situation in question might be measured in order to determine urgency:

“A useful approach for authorities may therefore be to consider whether the child is likely to suffer irreparable harm or to have his / her protection or interests compromised if a measure is not taken to protect the child in the period that is likely to elapse before the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection.”

The foregoing passage from the Handbook emphasises the fact that Art 11 is designed to apply until “the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection.” The Explanatory Report states that the concept of urgency in Art 11 should be interpreted “rather strictly” in circumstances where urgency is the justification for derogating from the general rule of jurisdiction under Arts 5 to 10 of the 1996 Hague Convention. These matters further emphasise why it is important that the question of substantive jurisdiction is dealt with at the outset of proceedings, in order to avoid matters that do not meet the criteria of urgency inappropriately being dealt with by a court that does not have substantive welfare jurisdiction by reference to the general rules of jurisdiction in Arts 5 to 10.

With respect to the question of whether the court has substantive welfare jurisdiction in respect of the subject child, Art 5 of the 1996 Hague Convention provides as follows with respect to the question of jurisdiction:

“Article 5

(1)

The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.

(2)

Subject to Article 7, in case of a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction.”

Within the context of Art 5 of the 1996 Hague Convention, the Court of Appeal in London Borough of Hackney v P and Ors (Jurisdiction: 1996 Hague Child Protection Convention) set out the following principles applicable to deciding whether the English court has jurisdiction in proceedings under Part IV of the Children Act 1989 where, as in this case, the competing foreign jurisdiction is also a Contracting State to the 1996 Hague Convention:

With respect to the principles applicable to determining the question of habitual residence, I summarised them in J v E (Habitual Residence) [2024] EWHC 196 (Fam) at [87] and [88] and, for the sake of brevity, I repeat that summary here:

“[87] Where then does this plethora of authority on the concept of habitual residence leave the busy judge who is required to determine the preliminary issue of jurisdiction, without that determination "becoming an unworkable obstacle course, through which the judge must pick his or her way by a prescribed route or risk being said to have made an unsustainable finding?" Reading the foregoing authorities together, it is tolerably clear that the task of determining habitual residence falls to be discharged by the court asking itself whether, having regard to all the relevant circumstances and as a matter of fact, the subject child has achieved a degree of integration in a social and family environment in the country in question sufficient for the child to be habitually resident there. That is the test I have adopted in this case.

[88] The authorities further make clear that in deciding in a given case whether the degree of integration is sufficient to establish habitual residence, i.e. whether the "some" is enough, certain matters may inform the court's global analysis of the child's situation in, and connections with, the state in which he or she is said to be habitually resident for the purpose of determining whether a sufficient degree of integration exists. These non-exhaustive considerations, to paraphrase Lord Wilson in Re B (A Child) (Reunite International Child Abduction Centre Intervening), may include the following:

i)

The factual inquiry is centred throughout on the circumstances of the child's life that are most likely to illuminate his or her habitual residence. It is the child's habitual residence which is in question and the child's integration which is under consideration.

ii)

The meaning of habitual residence is shaped in the light of the best interests of the child, in particular on the criterion of proximity. Proximity in this context means the practical connection between the child and the country concerned.

iii)

It is not necessary for a child to be fully integrated in a social and family environment before becoming habitually resident.

iv)

The requisite degree of integration can, in certain circumstances, develop quite quickly. It is possible to acquire a new habitual residence in a single day. There is no requirement that the child should have been resident in the country in question for a particular period of time.

v)

It is the stability of a child's residence as opposed to its permanence which is relevant. This is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.

vi)

Relevant matters can include the duration, regularity and conditions for the stay in the country in question; the reasons for the parents move to and the stay in the jurisdiction in question; the child's nationality; the place and conditions of attendance at school; the child's linguistic knowledge; the family and social relationships the child has; whether possessions were brought; whether there is a right of abode; and whether there are durable ties with the country of residence or intended residence.

vii)

Where there are competing jurisdictions advanced as the child's habitual residence, the comparative nature of the exercise requires the court to consider the factors which connect the child to each State where they are alleged to be habitually resident.

viii)

Where there are competing jurisdictions advanced as the child's habitual residence, the circumstances of the child's life in the country he or she has left as well as the circumstances of his or her life in the new country will be relevant. What is important is that the court demonstrates sufficiently that it has in mind the factors in the old and new lives of the child, and the family, which might have a bearing on the subject child's habitual residence.

ix)

The deeper the child's integration in the old state, probably the less fast his or her achievement of the requisite degree of integration in the new state. Likewise, the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his or her achievement of that requisite degree.

x)

In circumstances where all of the central members of the child's life in the old state to have moved with him or her, probably the faster his or her achievement of habitual residence. Conversely, where any of the central family members have remained behind and thus represent for the child a continuing link with the old state, probably the less fast his or her achievement of habitual residence.

xi)

In circumstances where the social and family environment of an infant or young child is shared with those on whom he or she is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned. In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parents who effected the move.

xii)

A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for her. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused.

xiii)

Parental intention is relevant to the assessment, but not determinative. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. Parental intent is only one factor, along with all other relevant factors, that must be taken into account when determining the issue of habitual residence. It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent.”

I am satisfied that as at the date proceedings were issued on 28 October 2024, LL remained habitually resident in the jurisdiction of France and, hence, this court does not have substantive welfare jurisdiction in respect of her. There is no other conclusion open to the court on the evidence available to it (nor would there have been had the question of jurisdiction been considered and determined on the sufficient evidence available when proceedings commenced on 28 October 2024). My reasons for so deciding are as follows.

The factual inquiry that this court must undertake when addressing the question of jurisdiction is centred throughout on the circumstances of LL’s life that are most likely to illuminate her habitual residence. It is LL's habitual residence which is in question for this court and LL's integration which is under consideration. At the time proceedings were issued, LL was aged 4 months old. Accordingly, in circumstances where the social and family environment of an infant or young child is shared with those on whom he or she is dependent and a child will usually (although not necessarily) have the same habitual residence as the parents who care for her, it is necessary in this case also to assess the integration of the mother and the father in the social and family environment of England. LL’s age at the date proceedings were issued will also make the geographic and family origins of the mother and father relevant when determining habitual residence. Finally, whilst not determinative, in this case the intention of the parents is also relevant to the determination of the question of habitual residence.

Within the foregoing context, as at the date proceedings were commenced the parents contend, and the local authority concedes, that the following undisputed facts relevant to the determination of habitual residence were clear on the evidence before the court:

The matters summarised in the previous paragraph plainly tend to connect LL to the jurisdiction of France and point to that practical connection having subsisted as at the date proceedings were issued in this jurisdiction. There are also some limited matters which might tend to connect LL to the jurisdiction of England and Wales. The comparative nature of the exercise requires that the court consider the factors which connect LL to each State in which it is asserted she is habitually resident.

As set out above, the mother concedes in her statement that “we were going to consider living in the UK if we liked it here.” However, there is uncontroverted evidence from both the mother and the father that they had concluded in relatively short order that the climate and lifestyle was not suited to the family. Further, there is uncontroverted evidence that in any event the family always intended to return to La Réunion following this visit to the paternal family, having spent some 12 weeks in this jurisdiction. That fact is further corroborated by the return tickets, absence of long term planning, the absence of belongings brought to the United Kingdom and the mother’s statement to medical staff, to the police and thereafter to the social worker, her settled intention to return to La Réunion on 28 October 2024, providing to the social worker the details of the return flights. I am satisfied that as at the date proceedings were issued, the parents did not have an intention to remain in this jurisdiction but rather intended, and had always intended, to return to La Réunion on 28 October 2024 using the return tickets purchased for that purpose.

It is the case that LL was registered with a GP upon her arrival in this jurisdiction. However, there is no evidence to gainsay the parents’ assertion that this was done as a precaution taken in respect of a very young child in the event that she needed access to medical care whilst abroad. Further, that explanation is entirely consistent with the wider evidence set out above tending to suggest that the parents did not intend to remain in this jurisdiction beyond their visit to the paternal family. I do not consider the fact that LL was registered with a GP on arrival in this jurisdiction to significantly undermine the myriad factors connecting LL to the jurisdiction of France.

Finally, I acknowledge that the father had and has a strong connection with this jurisdiction, having moved here when he was 15 years old, having permanent leave to remain within the context of settled status under the EU Settlement Scheme. A further relevant matter is that following the family’s arrival in this jurisdiction, the father made an EU Settlement Scheme application on behalf of the mother on 7 October 2024. However, that application was rejected. More significantly, following that rejection, neither the mother nor the father sought to pursue the application further by seeking to remedy the omissions by reason of which the application was refused. Within the context of that refusal, neither the mother nor, it would appear, LL have immigration clearance to remain in the United Kingdom. Again, in these circumstances, I do not consider these matters significantly undermine the multiple factors connecting LL to the jurisdiction of France.

It is not necessary for LL to be fully integrated in a social and family environment before becoming habitually resident in this jurisdiction. However, on the evidence before the court I am satisfied that it is clear beyond peradventure that, at the date proceedings were issued in this jurisdiction, LL had not achieved a degree of integration in a social and family environment in England and Wales sufficient for her to be habitually resident here. I am satisfied that LL remained habitually resident in the jurisdiction of France. There has been no application pursuant to Art 9 of the 1996 Hague Convention for a request that France cede jurisdiction to England and Wales.

For the reasons set out above, I am accordingly satisfied that the court does not have substantive jurisdiction in respect of LL, LL having been habitually resident in France at the time these proceedings were commenced.

It is all too easy for a court dealing with the matter outside the confines of a busy case management list, and with the benefit of hindsight, to criticise after the fact the approach taken in this case. However, in the circumstances set out above, it is extremely unfortunate that these proceedings were allowed to continue for 36 weeks without there being a determination of the question of whether the English court had substantive welfare jurisdiction in respect of LL.

If jurisdiction had been determined on or shortly after 28 October 2024, timely arrangements could have been made for the provision of relevant documentation to the competent authorities of LL’s habitual residence. Those French authorities could have taken such safeguarding and welfare decisions as they saw fit based on the information provided by the English authorities following the return of the family to La Réunion. Instead, following the police indicating no further action would be taken, the family was effectively stranded in this jurisdiction as a result of the failure to determine jurisdiction (a position the parents describe as a “nightmare”). A large sum of public money was expended, and wasted, as a result of directions the court did not have jurisdiction to make (including the cost of expert reports, court hearings, lawyers’ fees, and the cost of the residential mother and baby placement in which LL and her mother were accommodated). There remains no decision regarding the import of the injuries sustained by LL nor regarding her future welfare. In so far as the French authorities will now seek to act on the information that I have directed be provided to them to take those decisions, they will of necessity be doing so nine months after the event.

As I have set out, the explanation for this regrettable state of affairs centred on the court waiting for information it believed to be relevant to determining jurisdiction, including confirmation that the authorities in La Réunion would take the same approach to the case as the English court. Information that was not consistent with the principle of comity and, more importantly, that was in fact irrelevant to the question of habitual residence and not required to enable the court to determine jurisdiction. The extensive delay consequent upon this misplaced approach led in turn to the court using that delay to justify taking case management decisions towards a determination of LL’s welfare. Case management decisions that, in my judgment, the court had no jurisdiction to make under Art 11 of the 1996 Hague Convention in circumstances where it could not be said that LL was likely to suffer irreparable harm, or to have her protection or interests compromised, if such directions were not made prior to the question of substantive jurisdiction being determined.

To be clear, it is not permissible for the court to seek to ride two horses by repeatedly adjourning the question of jurisdiction whilst at the same time seeking to progress the case as if it does have jurisdiction. Whilst in this case that course appears to have been adopted in an effort to avoid delay, the result ultimately achieved was preciselythe opposite. In the same way that the ‘best interests’ principle under s.1(1) of the 1989 Act is not a universal solvent for every legal or procedural issue that arises in a given case, nor is the ‘delay’ principle under s.1(2) of the 1989 Act 1989. Neither principle amounts to a valid reason for putting off the determination of jurisdiction or for making substantive welfare decisions before the question of substantive jurisdiction has been determined. The court must not allow the “protection imperative” (see Oldham MBC v GW and PW [2007] EWHC136 (Fam), [2007] 2 FLR 597) to subvert the early determination of jurisdiction by reference to the established legal principles.