The 1996 Hague Convention will enter into force for Norway on 1 July 2016.

Norway deposited its instrument of ratification with the Hague Bureau.

The habitual residence see-saw

Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4

The Supreme Court allowed the appeal of a parent against the Court of Appeal’s decision to uphold the High Court’s finding that the English court had no jurisdiction to determine her application for a shared residence or a contact order in respect of her child, B, because B had ceased to be habitually resident in England immediately she was removed to Pakistan by her other parent. The Supreme Court ruled that a child’s loss of its habitual residence was no longer to be determined on the basis of parental intention, as held in Re J (a minor) (abduction: custody rights), Re [1990] 2 All ER 961, but occurred when the child had disengaged sufficiently from the environment of that residence. Usually a child would not become sufficiently disengaged until they had integrated elsewhere and thus habitual residence would usually be lost at the same time another was gained. That had not occurred in the instant case by the time the parent in England had made her applications. The Supreme Court also confirmed that in cases where the court considered exercising the parens patriae jurisdiction on the basis of British nationality that the reasons why extreme circumspection was to be used was not because exceptionally serious welfare concerns had to be demonstrated but because in such cases there was a risk of a clash of jurisdiction and risks that any order made could not be enforced.

 

 

Radicalisation Cases in Wardship: Guidance from Munby P

On 8 October the President issued Guidance on dealing with radicalisation cases:  http://flba.co.uk/blog/2015/10/08/presidents-guidance-radicalisation-cases/
 

Contempt: A reminder from the Court of Appeal

In the matter of L and Gous Oddin [2016] EWCA Civ 173

78. Before any court embarks on hearing a committal application, whether for a contempt in the face of the court or for breach of an order, it should ensure that the following matters are at the forefront of its mind:

(1) There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.
(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.
(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.
(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.
(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.
(6) Whether the person accused of contempt has been advised of the right to remain silent.
(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.
(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.
(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court's decision regarding any committal order.

RE C (INTERNAL RELOCATION) [2015 EWCA Civ 1305

the proper approach to the whole issue of relocation may be stated in summary as follows:


a) There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.
b) The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child
c) In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.

New Guidance on role of ICACU in cross border placement cases

Care cases with an international element: New ICACU form for requests for cooperation

under Brussels IIa and the 1996 Hague Child Protection Convention and

guidance notes

The International Child Abduction and Contact Unit (‘ICACU’) discharges the day to day

duties of the central authority in England and Wales for Council Regulation (EC) No

2201/2003 (‘'Brussels IIa’) and in England for the 1996 Hague Child Protection

Convention. It acts as a contact point for requests for co-operation into and out of this

jurisdiction made under either Brussels IIa or under the 1996 Hague Convention.

A request for co-operation can be made where the issues are covered by Brussels IIa or the

1996 Hague Convention and the other country is a Member State of the European Union

and/or the 1996 Hague Convention is in force between the other country and the UK

including, for example, if:

• a local authority needs information to assist it in developing a care plan for a child either

because the child or their family are originally from the other country or because they

have family in the other country who may be able to care for the child; or

• because the local authority needs to share information about a child with the authorities

in the other country.

The ICACU has published a form and guidance notes

https://www.gov.uk/government/publications/international-child-abduction-unit-request-forco-

operation-form

for local authorities to use in child protection cases to make a request for co-operation to

another country. The form is intended to help local authorities check their request is covered

by the Regulation or Convention and to ensure that they include enough information to enable

the ICACU to process their request. The form can be completed by a local authority lawyer

or social worker.

The aim of the form is to:

• to reduce delay and improve care planning for the child where the case has an

international element and

• to help local authorities make better formulated requests for information or assistance

to the other country and

• to improve communication when sharing information about the child with the other

country.

The form should be read in conjunction with:

1. the guidance published by the President of the Family Division about the ICACU’s

role in these cases:

http://www.judiciary.gov.uk/publications/presidents-guidance-on-the-internationalchild-

abduction-and-contact-unit-icacu-and-its-role/

2. Departmental advice published by the Department for Education for local authorities

where a case has a cross border element:

2

a. October 2012: Cross-border child protection cases: the 1996 Hague

Convention:

https://www.gov.uk/government/publications/cross-border-child-protectioncases-

the-1996-hague-convention;

b. January 2013: Advice on Placement of Looked After Children across Member

States of the European Union:

https://www.gov.uk/government/publications/placement-of-looked-afterchildren-

in-eu-member-states

c. July 2014: Working with foreign authorities: child protection cases and care

orders: Departmental advice for local authorities, social workers, service

managers and children’s services lawyers.

https://www.gov.uk/government/publications/child-protection-working-withforeign-

authorities

Costs of returning abducted children

B-v-B [2015] EWCA Civ 1166

Richards LJ, Sale LJ, Bodey J

A court can order payment of travel costs and costs of returning the child in Hague Convention proceedings but Art 26 1980 Hague Convention does not extend to domestic proceedings seeking a return.

Article 26 in its relevant parts reads: "Upon ordering the return of a child …. the judicial ….. authorities may ….. direct the person who removed or retained the child …. to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant and those of returning the child."