FD25P00187 - [2025] EWHC 2629 (Fam)

This situation in turn raises the question of what jurisdiction this court has to make orders in the interim designed to ensure that the children’s welfare is safeguarded and promoted pending the determination of the asylum appeals and, if a return order is made, the implementation of that order. During the course of submissions, s.5 of the 1985 Act and 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”) were canvassed in this context.

Section 5 of the 1985 Act provides as follows with respect to the jurisdiction of the court to make interim directions in proceedings under the 1980 Hague Convention:

“5 Interim powers.

Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.”

The phrase “determination of the application” is not defined in the 1985 Act. However, giving the word “determination” its natural meaning in the current context suggests that the phrase refers to the judicial decision that decides the application under the 1980 Hague Convention. This would be consistent with the position that pertains once the court has made a return order in Convention proceedings, after which it will be for the court of the child’s habitual residence to take the decisions necessary to secure the welfare of the child, or not made a return order, after which the domestic court would exercise its substantive welfare jurisdiction. In these circumstances, whilst I did not hear detailed submissions on the point, I am doubtful that s.5 of the 1985 Act provides the court with jurisdiction to make orders “for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application” after the court has determined to make (or not to make) a return order.

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 and which 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 observed 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.

I am mindful that Brazil is not a signatory to the 1996 Hague Convention. However, in Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention) [2023] EWCA Civ 659, [2024] 4 WLR 49, the Court of Appeal confirmed at [57] to [59], that the 1996 Hague Convention applies in this jurisdiction even if the other jurisdiction involved is not a party to the 1996 Hague Convention.

For the reasons set out in detail below, I am satisfied that this court can exercise its jurisdiction under Art 11 of the 1996 Hague Convention in the period between the making of, and the implementation of, a return order in order to take any necessary measures of protection in the interim with respect to each of the children.