Placement of children abroad: consultation and consent

March 7, 2025

Laura Williams provides some top tips on cases involving the placement of children abroad under the Hague 1996 Convention and in particular, the requirements of Article 33 of the Convention.

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 requested 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.

Does the proposed placement fall within Article 33?

There may be uncertainty about whether a proposed placement with extended family members (e.g. grandparents or an aunt or uncle) falls within the scope of Article 33. There is no definitive answer to this question. A placement which from a domestic perspective is a private law placement (e.g. placing with a grandparent under a special guardianship order or child arrangements order) may be regarded as a public law placement by the requested State. It will be a question for the requested State. A request for co-operation can be made to establish if, in principle, the consent of the other country would be required for the placement even if the care plan for the child is not yet fully formulated.

The United Kingdom has adopted the approach that all placements, save for a placement with a parent, are potentially within the scope of Article 33, unless ICACU is informed otherwise by the relevant authority in the other State.

Accordingly, the President’s Guidance advises that whenever a direction is made for a “connected persons assessment” of a person living in another 1996 Hague Convention country, enquiries are made at the same time about the Article 33 process and, if that assessment is positive, that the consultation and consent process is started on a timely basis.

Practitioners will note that ICACU cannot require the relevant authority in the other State to respond within a specified time.

Practice and procedure

The 1996 Convention does not provide exact details of how the procedure under Article 33 is to operate in practice. It is left to each Contracting State to establish a procedure to implement the basic rules.

Children and Families Across Borders (CFAB) have produced a series of very useful factsheets on local authority placements abroad, including one on Article 33. CFAB point out that “an overseas Contracting State needs to arrive at its own assessment of whether a placement is in a child’s best interests pursuant to Article 33 1996 Hague Convention, and each state may have its own requirements for the forms of evidence it might accept in arriving at this decision. This may mean that some states will only recognise assessments routed through the Central Authority or undertaken by an overseas competent authority (e.g. local children’s services) as sufficient to enable them to arrive at a decision over whether a placement is in a child’s best interest for the purposes of Article 33.”

Judicial guidance

The Court of Appeal^[6] recently reinforced:

The need to engage with foreign agencies, in particular through Chapter V of the 1996 Convention (either for information/assessments or in respect of a proposed placement), should be addressed as early as possible in the proceedings and
the guidance given by Black LJ in Re V-Z^[7] should be applied carefully and consistently.

In relation to the second point, Moylan LJ explained (at paragraph 68):

“This is to ensure that any requests for information or assessments are clearly focused on the matters which need to be addressed and to ensure that they are supported by the necessary information and documentation. It also involves steps being taken promptly to address any perceived deficiencies in the information or assessment which has been provided.”

Top tips

Do not assume that the proposed placement will not fall within the scope of Article 33. Raise an enquiry with the relevant authority in the other State, through ICACU, to clarify whether Article 33 is applicable. If necessary, also obtain specialist advice.
Find out what information and documents are required by the relevant authority in the other State for the purposes of consulting them about the proposed placement and obtaining consent.
Obtain the Court’s leave for the disclosure of information and documents to ICACU and to the requested central authority.
If the proposed placement is in a non-English-speaking country, factor in the time it will take to translate documents.
Follow the guidance in Re V-Z (set out below).

Guidance given by Black LJ in Re V-Z (at paragraph 42)

“Before leaving the case, I would add that what happened here in relation to the involvement of the Slovak authorities underlines how important it is, when seeking the assistance of foreign authorities, to:

i) Inform them clearly and comprehensively what questions they are requested to answer as part of their assessment;

ii) Provide them with all the information that they need in order to carry out the enquiry/assessment asked of them;

iii) Document carefully and comprehensively what material has been sent to them;

iv) Answer any queries posed by them in the course of their assessment;

v) Follow up assiduously any matters which require further exploration by them, or in respect of which they may be able to provide material information, such as details of local resources to assist in or supervise the care of the children;

vi) Consider creatively how progress might be made in the event that obstacles are encountered, bearing in mind that it may be possible to communicate directly with those who are responsible for carrying out the assessment in the foreign state, although it would be prudent first to consult our Central Authority for advice as to whether that would be acceptable to the foreign state in question.”

Laura Williams is a barrister at Garden Court Chambers.

^[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.

^[6] Re N (A Child)(Care Order: Welfare Evaluation) [2024] EWCA Civ 938

^[7] Re V-Z (Children) [2016] EWCA Civ 475