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ahulbertWhen considering child abduction most practitioners’ minds will turn to the Hague Convention of 25 October 1980 on the Civil aspects of International Child Abduction (“the 1980 Convention”).  There are currently 93 States contracted to the 1980 Convention, however there are nearly 200 recognised countries in the world.  Should an abduction be made to or from a non-contracted State, the Court may still have jurisdiction to make orders under:

  1. Brussels IIa;
  2. The inherent jurisdiction of the Court (and the case law flowing from it, most notably In re J (A Child) [2005] UKHL 40); or
  3. The Hague Convention of 1996 on the international protection of children (“the 1996 Convention”).

It is with the last of these instruments that the decision in the present case is primarily concerned.

As with all cases that reach the Supreme Court, the matter has a lengthy history.  The child concerned, called Saleem in the judgment, was born in January 2007.  His parents hold Moroccan and British citizenship.  Saleem was born in England but moved to Saudi Arabia in 2009.  The family then moved to Morocco in 2011 and the marriage broke down in December 2011.  Saleem’s mother was granted “residential custody” by the Family Court in Morocco in 2012 and his father was granted visiting rights.  Saleem and his mother lived with the maternal grandparents for the rest of 2012 but the mother came to England in January 2013, leaving Saleem in the care of her parents.  The mother then brought Saleem to England on 14 September 2013.

Saleem’s father then applied (on 23 September 2013) to the Moroccan Family Court for an order granting him residential custody of Saleem but was refused.

It is irrelevant that Morocco acceded to the 1980 Hague Convention because that accession has not been accepted by the United Kingdom.  Accordingly the father applied in the UK for Saleem’s return under the inherent jurisdiction of the High Court and under the 1996 Convention.  The case came before Roderick Wood J who found that the father had not consented to the mother’s removal of the child from Morocco and stated:

“It is clear that the Moroccan Court had, and continues to have….jurisdiction in this matter based on the continuing habitual residence of Saleem in that country, which was not terminated by his mother’s wrongful removal of him.”

He considered the principles established by the House of Lords in In re J [2005] and decided it was in Saleem’s best interest to return to Morocco.  The mother appealed the decision on a number of grounds including the consideration of expert evidence and the analysis of Saleem’s welfare needs.  Roderick Wood J was not addressed, and the appeal was not based, on the issue of whether the effect of the 1996 Convention was that the English court had no jurisdiction in the matter.

The appeal came before the Court of Appeal on 10 February 2015 and the approved Judgment was delivered by Black LJ.  The Court considered the relevant Articles of the 1996 Convention and the jurisdiction of the English Court to make orders.

The Court found that although the 1996 Convention does not contain express provision for return, it is entitled to do so under Articles 3a and 3b, supported by Article 50.  The Court also held that it could make a return order in a case of urgency under Article 11.  Articles 5 and 7 the 1996 Convention deal with jurisdiction and Article 7(1) states:

“In the case of wrongful removal or retention of the child, the authorities of the contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State…”

Bearing that provision in mind, and Roderick Wood J’s uncontested decision that Saleem was still habitually resident in Morocco, Black LJ considered that the Court in England could not possibly have jurisdiction to order Saleem’s return.  While noting that Roderick Wood J made the order ostensibly under the inherent jurisdiction, it found that where there is a specific instrument to regulate jurisdiction (in this case the 1996 Convention) the Court cannot go behind that on the basis of its own inherent jurisdiction.

Accordingly the Court could only order a return under Article 11. The Court considered guidance from the explanatory report on the 1996 Convention by Paul Lagarde and the Practical Handbook on the operation of the Convention and decided that the circumstances of this case did not meet the “urgency” criteria under Article 11 either, as there was nothing to stop the father from making an immediate application for a return order in Morocco. The Court likened “urgency” to a surgical operation or the rapid sale of perishable goods.

Accordingly the mother’s appeal to the Court of Appeal was successful, albeit for reasons she had not initially envisaged.

The father then appealed to the Supreme Court, which unanimously allowed his appeal, holding that the jurisdiction conferred by Article 11 is a complimentary, additional jurisdiction to the Court of the territory where the child is found to be habitually resident. Baroness Hale gave the sole judgment.

It is therefore open to the English Courts to exercise the Article 11 jurisdiction in cases of wrongful removal under the 1996 Convention.  The Court noted that the explanatory report (referred to above) and the Practical Handbook on the operation of the 1996 Convention should not be treated as if they were words in the Convention itself which merely asks whether the measure is necessary and the case urgent.

Hale LJ found that, if the child needs protection now (in this case, his return), that the Court should grant that protection while enquiries are made about the possibility of bringing proceedings in the home country, therefore providing a “soft landing” for the child and that it need not be impossible or impracticable for the courts of the country of habitual residence to exercise jurisdiction themselves. The courts of the country where the child is present are often better placed to make orders about the child’s return, and it is consistent with the overall focus of the 1996 Convention that measures of protection for the child should not be delayed, provided they are in support of, rather than in opposition to, the jurisdiction of the home country.

Given that Roderick Wood J was not properly addressed on jurisdiction, particularly with regard to Article 11 of the 1996 Convention, the Supreme Court has now remitted the case to him in the High Court to decide whether he can exercise the jurisdiction provided for in Article 11 of the 1996 Convention and, if so, in what way.