J (A Child) [2015] UKSC 70

A Moroccan mother wrongfully removed her son from Morocco to England in 2013. The father sought summary return. The Supreme Court held that the English court had jurisdiction under article 11 of the 1996 Hague Convention to order protective measures, including return, in cases of urgency.

Facts

Saleem, born in England in 2007 to Moroccan-British parents, lived with his family in Saudi Arabia and then Morocco. The parents divorced in Morocco in July 2012, with the mother granted residential custody and the father granted visiting rights. In September 2013, the mother removed Saleem from Morocco to England without the father’s consent, where she had established a new relationship. The father applied unsuccessfully in Morocco to vary custody and then, in March 2014, brought wardship proceedings in the High Court seeking summary return.

Roderic Wood J treated the matter as a non-Convention summary return application under the principles in In re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80, finding the child habitually resident in Morocco and the removal wrongful, and ordered return. The Court of Appeal allowed the mother’s appeal, holding that the English court lacked jurisdiction under article 11 of the 1996 Hague Convention because the case was not one of urgency, given that a speedy application could have been made in Morocco.

Issues

The principal issue was the scope of the jurisdiction conferred by article 11 of the 1996 Hague Convention upon a Contracting State in whose territory the child is present but in which the child is not habitually resident, particularly:

• Whether article 11 jurisdiction requires it to be impossible or impracticable for the courts of the country of habitual residence to act;
• How the conditions of “urgency” and “necessary measures of protection” should be interpreted;
• Whether a summary return order constitutes a “measure of protection” within the Convention.

Arguments

The father argued that the judge’s original return order should be restored. The mother argued that, if the appeal were allowed, the case should be remitted to the Court of Appeal to consider her remaining grounds of appeal. The interveners (Reunite, the AIRE Centre, and the International Centre for Family Law, Policy and Practice) broadly supported a flexible interpretation of article 11. Reunite submitted that no left-behind parent should be shut out from invoking article 11 in cases of wrongful removal, with welfare considerations addressed at the merits stage.

Judgment

Lady Hale, with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson agreed, allowed the appeal and set aside the Court of Appeal’s order.

Measures of protection

The Court agreed with the Court of Appeal that an order for return of a child to the country of habitual residence falls within the meaning of “measures of protection” under the 1996 Convention, as would an order prohibiting removal.

Article 11 and CJEU authority on article 20 of Brussels IIa

Lady Hale distinguished article 11 of the 1996 Convention from article 20 of Brussels IIa. Article 20 confers only a purely ancillary power to take provisional measures with no extra-territorial effect, whereas article 11 confers an additional substantive jurisdiction whose orders are enforceable in other Contracting States under Chapter IV. Accordingly, the assistance to be gained from Detiček v Sgueglia (Case C-403/09 PPU), upon which the Court of Appeal had relied for the proposition that “urgency” required impossibility of seising the home court, was limited.

Interpretation of article 11

The Court held that article 11 requires three conditions: presence of the child, necessity of measures of protection, and urgency. These should be approached holistically. There is no pre-condition that it be impossible or impracticable for the courts of habitual residence to act. The article 11 jurisdiction is secondary, but may be used in support of the home jurisdiction, particularly to facilitate return after wrongful removal. It should not, however, be used in opposition to the home country’s jurisdiction.

Lady Hale cautioned against treating phrases in the Lagarde Explanatory Report (such as “irreparable harm”) or the Practical Handbook as if they were words of the Convention itself. The Court noted that in non-1980 Convention abduction cases (such as this, since Morocco’s accession had not yet been accepted by the EU and hence the UK), it would be extraordinary if a summary return application were not considered a case of urgency. Practical considerations were emphasised: the courts of the presence country are often better placed to locate the child, ascertain current circumstances, and exercise direct coercive powers.

Disposition

The Court declined either to restore the judge’s return order or to remit to the Court of Appeal. Instead, the case was remitted to Roderic Wood J in the High Court to decide whether to exercise the article 11 jurisdiction and, if so, how, on up-to-date information. The Court noted the possibility, raised by the International Centre for Family Law, Policy and Practice, of interim contact orders to preserve the child’s relationship with the father.

Implications

This is the first decision of the Supreme Court on the 1996 Hague Convention. It establishes that, where a child has been wrongfully removed from a Contracting State and is present in England and Wales (in circumstances where the 1980 Convention does not apply), the English court may exercise jurisdiction under article 11 to order summary return as a “necessary measure of protection” in a case of “urgency”. The Court rejected the Court of Appeal’s narrower interpretation, which would have required demonstration that recourse to the home court was impossible or impracticable.

The decision preserves the long-standing practical utility of summary return procedures in non-1980 Convention cases and confirms that article 11 may also be used in a supportive role, including for “safe harbour” or interim contact orders, to reinforce the 1980 Convention return mechanism (as in B v B [2014] EWHC 1804 (Fam)). The judgment emphasises that article 11 is secondary to the primary jurisdiction of the country of habitual residence under articles 5 to 10, and orders made under it will lapse once the home jurisdiction takes the measures required by the situation.

The decision is significant for family practitioners handling international child abduction cases involving Contracting States to the 1996 Convention, particularly where the 1980 Convention does not apply. It provides important guidance on the holistic application of the three conditions of article 11 and clarifies that delays in the home jurisdiction or practical difficulties facing a left-behind parent are relevant factors. The Court was careful not to lay down a rigid rule, leaving the application of article 11 to a fact-specific assessment in each case.

Verdict: Appeal allowed. The order of the Court of Appeal dismissing the father’s application was set aside. The case was remitted to Roderic Wood J in the High Court to decide whether to exercise the jurisdiction conferred by article 11 of the 1996 Hague Convention and, if so, in what way.

Source: J (A Child) [2015] UKSC 70