CA-2025-002052 - [2025] EWCA Civ 1309

The Family Law Act 1986

I start this review of the relevant law by considering the jurisdictional rules in the Family Law Act 1986 (“the FLA 1986”). I do so because, hitherto, these provisions have featured prominently in submissions to the judge and to this Court. In fact, for reasons explained below, they are of limited relevance to the present case.

Part I of the FLA 1986 contains provisions as to the jurisdiction to make certain orders relating to children. These provisions have been amended on (by my calculation) over a dozen times in the past thirty-nine years, including changes to accommodate the incorporation into domestic law of regulations under the law of the European Union, in particular Council Regulation (EC) No 2201/2003, known as “Brussels IIA”, (now repealed following the UK’s withdrawal from the Union) and the provisions of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (“the 1996 Hague Convention”) which was first incorporated into domestic law on 1 November 2012 and, more recently, by the Private International Law (Implementation of Agreements) Act 2020. The provisions of the FLA 1986 have been described in unflattering terms in a number of judgments and academic commentaries – see for example Re G (Adoption: Ordinary Residence) [2003] 2 FLR 944 (Wall J) at 951 (a "complex, much amended and thoroughly unsatisfactory statute"). In his recent book “Wards of Court and the Inherent Jurisdiction” (Hart Publishing, 2024), Professor Rob George observed that “it is difficult to see how the FLA 1986’s jurisdictional framework could have been drafted in a less clear or straightforward manner”. Unsurprisingly, courts at all levels (including this Court) have struggled at times to interpret its provisions.

Part I of the FLA 1986 applies only to “Part I” orders as defined in s.1. So far as relevant to the arguments raised on this appeal, Part I orders include, under s.1(1):

“(a)

a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order;

. . .

(d)

an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children –

(i)

so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but

(ii)

excluding an order varying or revoking such an order ….”

The provisions governing the jurisdiction of courts in England and Wales to make Part I orders are set out in sections 2 to 7, of which the following are relevant to the arguments raised on this appeal:

“2.

Jurisdiction: general

(1)

A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless –

(a)

it has jurisdiction under the Hague Convention, or

(b)

the Hague Convention does not apply but ... (ii) the condition in section 3 of this Act is satisfied.

…

(2)

A court in England and Wales shall not make a section 1(1)(d) order unless

(a)

it has jurisdiction under the Hague Convention, or

(b)

the Hague Convention does not apply, but

(i)

the condition in section 3 of this Act is satisfied, or

(ii)

the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.”

3.

Habitual residence or presence of child

(1)

The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned – (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom . . . .”

These provisions, however, do not apply to all proceedings relating to children. They are confined to so-called private law orders. As MacDonald J observed in London Borough of Hackney v P and others [2022] EWHC 1981 (Fam) at para 25,

“it is … well established that the scope of the Family Law Act 1986 excludes jurisdiction to make public law orders under Part IV of the Children Act 1989.”

This was first recognised in the early days after the implementation of the Children Act 1989 (hereafter “the 1989 Act”) by Singer J in Re R (Care Proceedings: Jurisdiction) [1995] 1 FLR 711 and confirmed by Hale J in Re M (A Minor) (Care Order: Jurisdiction) [1997] Fam 67. In the latter case, Hale J stated at p.70 that “the exclusion of public law proceedings was clearly intended”, citing in support the Law Commission report on which the FLA 1986 was based. Prior to the implementation of the international instruments considered below, the position was as described by Sir James Munby P in In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] 1 WLR 2670 ("Re E"), at paragraph 23:

“It is a curious fact that the jurisdictional reach of the courts of England and Wales in relation to public law (care) proceedings brought under Part IV of the Children Act 1989 is not spelt out in any statutory provision (as it is in relation to private law proceedings brought under Part II of the Children Act 1989 by sections 2 and 3 of the Family Law Act 1986).”

In the absence of any statutory provision, judges in the Family Division held that the jurisdiction to make Part IV orders should mirror that set out in respect of private law orders in the FLA 1986: see Re R (Care Proceedings: Jurisdiction) [1995] 1 FLR 711 (Singer J) at page 714, Re M (A Minor)(Care Order: Jurisdiction) [1997] Fam 67 (Hale J) at page 71 and Lewisham LBC v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449 (Bodey J) at paragraph 22.

It follows therefore that what has been called the “statutory scheme” of the FLA 1986 does not include public law orders at all. When considering the “statutory scheme” relevant to the jurisdiction of the court to make orders on the application of a local authority pursuant to its statutory duties relating to child protection, it is necessary to consider, first, the provisions of the 1996 Hague Convention, and, secondly, the wider provisions of the Children Act 1989 which, whilst silent as to jurisdiction, contains important provisions which assist in determining when and how the jurisdiction should be exercised.

The provisions governing jurisdiction in the 1996 Hague Convention were extensively analysed and explained by MacDonald J in London Borough of Hackney v P & Ors [2022] EWHC 981 (Fam) and on appeal in that case in the judgment of Moylan LJ (with whom the other members of the Court agreed), reported as London Borough of Hackney v P (Jurisdiction: 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213 (“the Hackney case”). Save on one issue, MacDonald J’s judgment was upheld. In conducting their analysis, the judges drew on passages in the Explanatory Report on the 1996 Convention by Professor Paul Lagarde and in the Practical Handbook on the Operation of the 1996 Hague Child Protection Convention, published in 2014 by the Hague Conference on Private International Law.

The salient points in those judgments relevant to the present appeal can be summarised as follows.

The scope of the Convention as defined in Article 3 includes

“(e)

the placement of the child in a foster family or in institutional care ….

(f)

the supervision by a public authority of the care of a child by any person having charge of the child ….”

The Explanatory Report on the 1996 Convention by Professor Paul Lagarde characterised the placements described in Article 3(e) as “somewhat the prototypes of measures of protection”. It is therefore clear, as Moylan LJ held at paragraph 42 of his judgment in the Hackney case, that the 1996 Convention applies to public law proceedings under Part IV of the Children Act.

The provisions as to jurisdiction are set out in Chapter II of the Convention (Articles 5 to 14). Article 5 defines when a Contracting State will have jurisdiction by reference to a child's habitual residence:

“(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.

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.”

In the Hackney case at paragraph 43, Moylan LJ described this as “the primary ground of jurisdiction with the other grounds being subordinate to or exceptions from this general rule.”

Articles 6 and 7 provide jurisdictional rules for, respectively, refugee children and abducted children. Articles 8 and 9 make provision for the transfer of jurisdiction from the Contracting State having jurisdiction under Article 5 or 6 to another Contracting State which “would be better placed in the particular case to assess the best interests of the child”. The categories of State to which jurisdiction may be transferred under these Articles include “a State of which the child is a national” and “a State with which the child has a substantial connection” (Article 8(2)(a) and (d)). Articles 11 and 12 establish jurisdictional rules for urgent and provisional measures based on the presence of the child in a Contracting State in which he or she is not habitually resident.

In the Hackney case, this Court held (overruling the interpretation at first instance) that the relevant date for determining jurisdiction is the date on which the proceedings were commenced, although jurisdiction under the 1996 Convention can be lost during the course of proceedings, if it was based on habitual residence and the child has ceased to be habitually resident in England and Wales: see paragraphs 111 to 125 of Moylan LJ’s judgment.

Of particular relevance to this appeal are observations in the Explanatory Report (cited and relied on in the Hackney case). At paragraph 39, Prof Lagarde observed:

“Article 5 is based on the supposition that the child has his or her habitual residence in a Contracting State. In the contrary case, Article 5 is not applicable and the authorities of the Contracting States have jurisdiction under the Convention only on the basis of provisions other than this one (Art. 11 and 12). But nothing prevents these authorities from finding themselves to have jurisdiction, outside of the Convention, on the basis of the rules of private international law of the State to which they belong.”

At paragraph 84, the Explanatory Report added this:

“The rules of jurisdiction contained in Chapter II … form a complete and closed system which applies as an integral whole in Contracting States when the child has his or her habitual residence on the territory of one of them. In particular, a Contracting State is not authorised to exercise jurisdiction over one of these children if such jurisdiction is not provided for in the Convention. The same solution prevails in the situations described in Article 6, where the child has his or her residence in a Contracting State. In the other situations the mere presence of the child gives rise to the application of Articles 11 and 12, but these articles do not exclude the broader bases for jurisdiction that the Contracting States might attribute to their authorities in application of their national law; only, in this case, the other Contracting States are not at all bound to recognise these broadened bases for jurisdiction which fall outside of the scope of the Convention. The same thing is true, for even stronger reasons, for the children who do not have their habitual residence in a Contracting State, and who are not even present in one.”

The references to the “the rules of private international law of the State” in paragraph 39 and to “national law” in paragraph 84 plainly include the rules governing the inherent jurisdiction of the High Court considered below.

Although the 1989 Act does not expressly define the jurisdiction to make a care or supervision order, it includes several provisions relevant to the issues in this appeal.

Part III of the 1989 Act (containing sections 16B to 30) is headed “Support for Children and Families provided by Local Authorities in England”. It imposes on local authorities a series of general and specific obligations to children, young people and their families. S.17 is headed “Provision of services for children in need, their families and others”. S.17(1) provides:

“It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a)

to safeguard and promote the welfare of children within their area who are in need; and

(b)

so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.”

Part IV of the 1989 Act (comprising sections 31 to 42) contains provisions for the family court to make orders placing a child in the care of, or under the supervision of, a local authority. Subsection 31(1) and (2) provide:

“(1)

On the application of any local authority or authorised person, the court may make any an order

(a)

placing the child with respect to whom the application is made in the care of a designated local authority; or

(b)

putting him under the supervision of a designated local authority.

(2)

A court may only make a care order or supervision order if it is satisfied—

(a)

that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)

that the harm, or likelihood of harm, is attributable to—

(i)

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)

the child’s being beyond parental control.”

S.31(8) provides:

“The local authority designated in a care order must be

(a)

within whose area the child is ordinarily resident; or

(b)

where the child does not reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.”

Of relevance to this appeal, it should be noted that, although a care order can only be made in favour of a local authority that falls within the definition of a “designated” authority, an application for a care order may be made by any local authority. In practice, of course, it is difficult to envisage circumstances in which a local authority would apply for a care order unless either the child was ordinarily resident in the local authority’s area or the circumstances leading to the application being made took place within its area. In the present case, the respondent local authority plainly falls within the latter category.

Of particular relevance to this appeal, however, is section 100 of the 1989 Act, headed “Restrictions on use of wardship jurisdiction”:

“(1)

Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2)

No court shall exercise the High Court’s inherent jurisdiction with respect to children:

(a)

so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b)

so as to require a child to be accommodated by or on behalf of a local authority;

(c)

so as to make a child who is the subject of a care order a ward of court; or

(d)

for the purposes of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.

(3)

No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.

(4)

The court may only grant leave if it is satisfied that

(a)

the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)

there is a reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

(5)

This subsection applies to any order

(a)

made otherwise than in the exercise of the court’s inherent jurisdiction, and

(b)

which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).”

It follows, therefore that the relevant “statutory scheme” in these circumstances is as follows: