Blog by Laura Williams of the Garden Court Family Law Team.
In January 2024, the President of the Family Division issued guidance on public law children cases with an international element.[1] This refreshes and replaces the 2014 President’s guidance on the same topic.[2]
The guidance explains how to go about obtaining information (or other requests for co-operation) from other jurisdictions. The International Child Abduction and Contact Unit (ICACU) is the conduit for such requests where the request arises out of proceedings brought by an English local authority and the other country is a party to the 1996 Hague Convention.[3]
Possible placement of a child abroad (Article 33)
The guidance includes a helpful reminder of the importance of consulting and obtaining consent from the other contracting State to the possible placement of a child abroad under Article 33 of the 1996 Hague Convention.
The writer recently represented a parent in a case in which the local authority’s final care plan was to place the children in the Republic of Ireland with their aunt, under a special guardianship order. The care proceedings, which were already in week 47 by the date of the final hearing, had to be adjourned for a further six weeks because the local authority had not obtained consent from the competent authority in Ireland to the proposed placement.
As well as a cause of avoidable delay, practitioners should be aware that the failure to comply with the requirements of Article 33 is one of the grounds on which the receiving State (where the child is placed) may refuse to recognise the placement. That non-recognition could have significant and far-reaching consequences for the child and their carer in terms of, for example, access to support and services in the receiving State, and in the event of any challenge to the care arrangements by a non-resident parent or other holder of parental responsibility.
What is required under Article 33?
Article 33 requires the authority which is contemplating the placement of a child in a foster family or institutional care, or the provision of care by kafala or an analogous institution, in another contracting state to first consult with the Central Authority or other competent authority of the latter state. A report on the child must be provided, together with the reasons for the proposed placement or provision of care.
The consultation process required under Article 33 gives the receiving State a power to review the decision of the requesting State and to ensure that matters such as immigration issues or access to public services have been considered and resolved in advance of the child’s move. Further, without this consultation, the relevant public authorities in the receiving State may remain unaware of important matters such as the background of the child (e.g., any child protection concerns which led to the alternative care) and the nature of the placement – matters which may necessitate the ongoing monitoring of the child’s situation.[4]
A Special Commission on the operation of the 1996 Hague Convention noted that the two States involved in the placement (i.e., the requesting State (State of origin) and the requested State (receiving State) share the responsibility to protect and assess the child, which explains the mandatory nature of consultation provided for under Article 33.[5]
Article 33 further provides that the decision on the placement or provision of care may be made in the requesting State only if the Central Authority or other competent authority of the requested State has consented to the placement or provision of care, taking into account the child’s best interests.
If these rules are not respected, the placement may not be recognised abroad under the Convention.
The full article is published on the Local Government Lawyer website.
[1] https://www.judiciary.uk/guidance-and-resources/presidents-guidance-public-law-children-cases-with-an-international-element/
[2] https://www.judiciary.uk/wp-content/uploads/2014/11/pfd-guidance-icacu.pdf
[3] 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
[4] Practical Handbook on the Operation of the 1996 Hague Child Protection Convention, paragraph 13.38.
[5] Eighth SC 1980 Abduction & 1996 Child Protection: Conclusions and Recommendations, October 2023.
