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On appeal from: [2015] EWCA Civ 329

The Supreme Court allowed the appeal concerning whether the courts of England and Wales had jurisdiction to make an order for the return of J (a minor) to Morocco because his father had not consented to his removal.

His father applied to the Morrocan Family Court in January 2014 for an order granting him residential custody over J. In March 2014 he applied to the High Court seeking an order that his son be made a ward of court and directions for his summary return to Morocco. The judge found that the father had not consented to the removal of Saleem from Morocco and that Saleem had been habitually resident in Morocco before his removal. He therefore order the mother to return J to Morocco. The mother appealed to the Court of Appeal which held that the English courts did not have jurisdiction under the 1996 Convention, or on any other basis, on the facts of this case. In cases where a child was habitually resident in another state, as in this case, jurisdiction only arose in cases of urgency under art 11. This was not such a case because the father could have made an immediate application to the Moroccan court for a return order.

In delivering the lead judgment, Lady Hale stated that the focus of the 1996 Convention is on the care and upbringing of the child and an order for the return of a child to the country of his or her habitual residence is a ‘measure of protection’ falling within its scope. Jurisdiction in wrongful removal cases remains with the authorities of the contracting state in which the child was habitually resident immediately before the removal (art 7) and art 11 supplies an additional jurisdiction to the courts of the territory where the child is present in the limited circumstances of ‘cases of urgency’.

Lady Hale reasoned that an abduction case governed solely by the 1996 Convention is not invariably one of ‘urgency’ but it is difficult to envisage a case in which the court should not consider it to be so and go on to consider whether it is appropriate to exercise the art 11 jurisdiction. The courts of the country where the child is present are often better placed to make orders about the child’s return, as they can take steps to locate the child and exert any necessary coercive powers. The machinery of obtaining and then enforcing orders made by the home country may be cumbersome and slow. The child’s interests may be compromised if the country where he or she is present is not able to take effective action in support of their return. She therefore concluded that the appeal should be allowed and the case should be returned to High Court for a new decision approached on the proper footing, namely whether the English court should exercise the jurisdiction conferred by art 11 of the 1996 Convention and, if so, in what way.

 

For judgment, please download: [2015] UKSC 70
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watching the hearing please visit: Supreme Court website