This case has now been reported in full in The Weekly Law Reports as In re J (A Child) [2015] 3 WLR 1827, SC(E).

CHILDREN — Custody rights — Jurisdiction — Child born in United Kingdom to Moroccan parents — Child living in Morocco with mother after divorce and subject to order to reside there — Mother subsequently remarrying in the United Kingdom and bringing child from Morocco — Father unsuccessfully applying to Moroccan court for residential custody — Father six months later issuing proceedings in United Kingdom for child’s return — Whether proceedings governed by international Convention — Whether criterion of urgency satisfied — Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996) (Cm 7727), art 11

In re J (A Child) (Reunite International Child Abduction Centre and others intervening)

[2015] UKSC 70; [2015] WLR (D) 486

SC: Baroness Hale of Richmond DPSC, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson JJSC: 25 November 2015

The jurisdiction conferred by article 11 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996) provided additional protection in cases of urgency and its exercise required a holistic approach; although not all child abduction cases were urgent, it was difficult to envisage a case where the court should not consider it to be so and go on to assess whether it was appropriate to exercise that jurisdiction.

The Supreme Court so held, when allowing the father’s appeal from the Court of Appeal (Moore-Bick, Black and Gloster LJJ) [2015] 3 WLR 747; [2015] WLR(D) 201 on 1 April 2015 to allow the mother’s appeal from Wood J [2014] EWHC 3588 (Fam) who, on 10 October 2014, on the father’s application under the inherent jurisdiction of the High Court, had found that the mother’s removal of the child, S, from Morocco to England had been wrongful and directed the child’s return to Morocco, as the country of his habitual residence. The Court of Appeal had found that the English courts did not have jurisdiction under the 1996 Convention where the child was habitually resident in another state, since jurisdiction under article 11 only arose in cases of urgency and the present case could not be said to be urgent because the father had not made an immediate application to the Moroccan court for a return order.

BARONESS HALE OF RICHMOND DPSC, with whom the other members of the court agreed, said that the focus of the 1996 Convention was on the care and upbringing of the child, or the protection of his property. An order for return to the country of the child’s habitual residence was “a measure of protection” for the purposes of the Convention and was provided for in article 7. Article 11 supplied an additional jurisdiction in the limited circumstances of cases of urgency. Unlike article 20 of Council Regulation (EC) No 2201/2003, article 11 was enforceable in other contracting states and an order could therefore have extra-territorial effect, although it would lapse once the authorities of the state of primary jurisdiction had taken the measures required by the situation. Thus decisions of the Court of Justice of the European Union in relation to article 20 would provide limited assistance. Article 11 was not limited to cases of wrongful removal but could safeguard children who might be habitually present in one country but present in another in a whole host of different situations. It could prove helpful in securing a “soft landing” for children whose return to their home country was ordered. Article 11 required three things: a case of urgency, the presence of the child or his property, and that measures of protection were necessary. That demanded a holistic approach. Consistent with the overall protective purpose was that protective measures which the child needed should not be delayed while the jurisdiction of the country of habitual residence was invoked. But the article 11 jurisdiction should not be used to interfere in issues which were more properly dealt with in the home country: it was a secondary, not a primary jurisdiction. It was one thing to use article 11 to support the home country by facilitating a return there after a wrongful removal; it was quite another to set up article 11 in opposition to that of the home country; that was clearly not its purpose. Although an abduction case was not always one of urgency, it was difficult to envisage a case where the court should not consider it to be so and go on to consider whether it was appropriate to exercise the article 11 jurisdiction. Courts of the country where the child was were often better placed to make orders about the child’s return. Those courts could take steps to locate the child and were likely to be better placed to discover the child’s current circumstances. Those courts could exert coercive powers directly on the parent who was here and, if necessary, on the child. The machinery of going back to the home country to get orders and enforcing them in the presence country might be cumbersome and slow. The child’s interests might be compromised if the country where the child was present could not take effective action in support of return. In the present case, the order made by the Court of Appeal would be set aside and the matter remitted to the High Court to a fresh decision based on a proper footing, namely whether the English court should exercise the jurisdiction conferred under article 11 and, if so, in what way.

Appearances

Henry Setright QC, Edward Devereux and Michael Gration (instructed by Dawson Cornwell) for the father.

James Turner QC and Finola Moore (instructed by JD Spicer Zeb) for the mother.

Teertha Gupta QC and Jacqueline Renton (instructed by Goodman Ray LLP) for Reunite International Child Abduction Centre, intervening by written submissions only).

David Williams QC and Michael Edwards (instructed by Freshfields Bruckhaus Deringer LLP) for the AIRE Centre (Advice on Individual Rights in Europe), intervening by written submissions only.

Richard Harrison QC and Dr Rob George (instructed by Bindmans LLP) for the International Centre for Family Law, Policy and Practice intervening by written submissions only.

Reported by: Diana Procter, Barrister

© 2015. The Incorporated Council of Law Reporting for England and Wales.