Re NY (A Child) [2019] UKSC 49

A father sought the summary return of his young daughter from England to Israel. The Court of Appeal, having set aside a Hague Convention order, itself made a return order under the inherent jurisdiction. The Supreme Court allowed the mother's appeal, holding the jurisdiction was available but had been exercised without proper welfare analysis.

Facts

The parents, both Israeli nationals, married in 2013 and had one daughter, born in late 2016. In November 2018, due to marital difficulties, the family moved from Israel to London, renting a flat and enrolling the child in nursery. The marriage broke down quickly. On 10 January 2019 the father announced his intention to return to Israel and insisted the mother and child accompany him. The mother refused and, following an incident on 14 January in which she alleged to the police that the father intended to kidnap the child, the father returned to Israel alone. He issued divorce and custody proceedings in the Rabbinical Court of Jerusalem and applied under the Hague Convention 1980 for the summary return of the child.

At first instance, MacDonald J found the child remained habitually resident in Israel, held that the father had consented to the child’s removal (giving rise to a discretion under Article 13(a)), rejected the Article 13(b) defence (making reasonable assumptions about domestic abuse allegations and accepting undertakings), and ordered the child’s return under the Convention. In a postscript, the judge remarked that, had he found the child habitually resident in England, he would have reached the same decision under the inherent jurisdiction, though no application or submissions had been made regarding that jurisdiction.

The Court of Appeal set aside the Convention order (finding no wrongful retention on 10 January 2019) but substituted an order for return under the inherent jurisdiction, treating the judge as having effectively made such a determination.

Issues

The Supreme Court identified two questions: (1) whether the inherent jurisdiction was, in principle, available to make a summary order for the return of the child; and (2) whether the Court of Appeal’s exercise of that jurisdiction was flawed.

Arguments

The mother contended that, since the advent of sections 8 and 10 of the Children Act 1989, a summary order for a child’s return abroad could only be made as a specific issue order and no longer under the inherent jurisdiction. She relied on Richards v Richards [1984] AC 174 and on paragraph 1.1 of Practice Direction 12D, which states that inherent jurisdiction proceedings should not be commenced unless the issues cannot be resolved under the 1989 Act. She further argued that a specific issue order would require a more extensive welfare inquiry, engaging the welfare checklist in section 1(3) and Practice Direction 12J concerning domestic abuse allegations.

The father contended that the inherent jurisdiction remained available and that the Court of Appeal had been entitled to make the order on the materials before it.

Judgment

Availability of the Inherent Jurisdiction

Lord Wilson (with whom the other Justices agreed) held that the inherent jurisdiction remains available to make a summary order for the return of a child to a foreign state, alongside the power to make a specific issue order. Section 100 of the 1989 Act specifically restricts the inherent jurisdiction in relation to local authority care, but Parliament did not preclude its exercise in ways overlapping with section 8 orders. The categorical instruction in paragraph 1.1 of Practice Direction 12D goes too far; practice directions have no legislative force (U v Liverpool City Council [2005] EWCA Civ 475). Case law, including A v A (Children: Habitual Residence) [2013] UKSC 60 and In re L [2013] UKSC 75, confirms that the inherent jurisdiction may be exercised even where a specific issue order would have been available. Nevertheless, policy favours confining claims to the lowest appropriate court, and an applicant invoking the High Court’s inherent jurisdiction must justify doing so at the first directions hearing, for example by reference to urgency, complexity, or the need for particular judicial expertise.

The Court further held that, where the same order may be sought either under the inherent jurisdiction or as a specific issue order, the substantive welfare inquiry should not be conducted in significantly different ways. The welfare checklist in section 1(3) of the 1989 Act, while not strictly applicable to the inherent jurisdiction, is likely to be useful. Similarly, Practice Direction 12J, dealing with domestic abuse, while not expressly applicable, should inform the court’s approach.

The Court of Appeal’s Exercise of Jurisdiction

The Supreme Court held that the Court of Appeal’s exercise of the jurisdiction was flawed. The judge had not conducted any welfare-paramount inquiry, and the discretion he purported to exercise under the Convention was governed by different considerations, as explained by Baroness Hale in In re M (Children) [2007] UKHL 55, where Convention policy factors including deterrence and comity inform the discretion. The judge’s Convention-based discretion could not be treated as a welfare determination.

Lord Wilson identified eight matters the Court of Appeal ought to have considered but did not: (1) whether the evidence was sufficiently up to date; (2) whether findings were sufficient to justify a summary order, including as to current habitual residence; (3) whether an inquiry into the section 1(3) welfare aspects was needed; (4) whether a fact-finding inquiry into domestic abuse allegations was required in light of Practice Direction 12J; (5) whether arrangements in Israel (residence, support) were sufficiently identified; (6) whether oral evidence was needed; (7) whether a CAFCASS report should be directed; and (8) whether the relative abilities of the Rabbinical Court and the Family Court to resolve matters swiftly, including the power to authorise relocation, required comparison.

There was also significant doubt whether the mother had had sufficient notice that the Court of Appeal itself, rather than by remission to the judge, would exercise the inherent jurisdiction.

Implications

The decision clarifies that the High Court’s inherent jurisdiction to order the summary return of a child to a foreign state survives the 1989 Act and remains available alongside the specific issue order jurisdiction. It corrects the categorical terms of paragraph 1.1 of Practice Direction 12D, which has no legislative force. However, the judgment emphasises that, as a matter of policy, practitioners should ordinarily proceed by way of specific issue order in the Family Court; invocation of the inherent jurisdiction requires justification at the directions stage.

More importantly, the case establishes that a summary return order outside the Hague Convention framework demands a genuine welfare-paramount assessment. The eight considerations set out by Lord Wilson provide a structured framework for any court considering such an order. The judgment underlines the fundamental distinction between the Convention discretion, which incorporates policy considerations including deterrence and comity, and a welfare-based determination under domestic jurisdiction. It is significant for family practitioners dealing with international child cases falling outside or defeated under the Convention, and for appellate courts considering substituting their own orders where the basis of first-instance decisions falls away.

The decision does not prescribe the outcome of any individual case; the eight-point checklist represents matters that must be considered, not necessarily resolved through full inquiry in every case. The judgment leaves intact the principle that summary return may sometimes serve a child’s welfare even where the Convention does not apply.

Verdict: The mother’s appeal was allowed and the Court of Appeal’s order for the child’s return to Israel under the inherent jurisdiction was set aside. The Supreme Court held that, although the inherent jurisdiction was in principle available, the Court of Appeal’s exercise of it was flawed because it had failed to conduct or consider a proper welfare assessment.

Source: NY (A Child), Re [2019] UKSC 49