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Family Court Rules on Jurisdiction and Asylum in Complex Care Case: [2024] EWFC 110 (Fam)



In [2024] EWFC 110 (Fam), Mrs. Justice Gwynneth Knowles dealt with complex care proceedings involving four children of Syrian origin who were unlawfully brought to the UK by their father. The court determined that the children were habitually resident in the UK, thus establishing jurisdiction under the 1996 Hague Convention. The case highlighted the tension between the children’s ongoing asylum application and potential welfare decisions, particularly regarding their return to Austria, where they had previously been granted asylum. The judgment also questioned whether existing legal frameworks adequately address public law cases involving international child movement and asylum claims.


Case Overview:

  • Case Name: A Local Authority v A Mother & Others

  • Court: Family Court, Royal Courts of Justice

  • Judgment Date: 23 May 2024

  • Judge: Mrs. Justice Gwynneth Knowles

  • Keywords: Care Proceedings, Habitual Residence, 1996 Hague Convention, Asylum, Child Welfare


Legal Issues:

Habitual Residence and Jurisdiction:

The court assessed whether the children had become habitually resident in the UK, considering their social and family integration since their arrival in June 2023. Despite their complex background, including trauma from the Syrian war and unsettled life in Austria, the court found that the children had established a sufficient degree of stability and integration in the UK, thereby granting the court jurisdiction.


Impact of Undetermined Asylum Claims:

A significant issue was whether the children’s undetermined asylum claim in the UK prevented the court from making or implementing welfare decisions, such as returning the children to Austria. The judgment considered recent legal developments, suggesting that current immigration law might not preclude the implementation of such decisions despite the pending asylum claim.


Court’s Analysis:

  • Jurisdiction Determination: The court concluded that the children had become habitually resident in the UK by the date of the hearing, based on their integration into the foster care system, educational environment, and social relationships, despite their unstable history.

  • Interaction with Asylum Law: The court explored whether UK immigration and asylum law would hinder the implementation of a welfare decision, such as returning the children to Austria. The judgment indicated that, unlike in cases where asylum claims prevent return orders, a return to Austria might not breach the principle of non-refoulement, as Austria is a safe third country where the children already have asylum status.


Judgment Summary:

The court ruled that the children are habitually resident in the UK, thereby affirming its jurisdiction under the 1996 Hague Convention. The judgment also addressed the complex interplay between the children's asylum claim and potential welfare decisions, suggesting that current legal frameworks might allow for the implementation of such decisions, despite the pending asylum application. The case underscored the need for clearer guidelines on handling public law cases involving international child movement and asylum claims.


Implications:

This ruling clarifies the application of the 1996 Hague Convention in cases where children are unlawfully brought to the UK and involved in ongoing asylum claims. It also highlights potential gaps in existing legal frameworks and calls for more detailed guidance on handling such complex public law cases.


For full details, refer to the published judgment.

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