Supreme Court judgment on the application of the 1996 Hague Convention

Supreme Court judgment on the application of the 1996 Hague Convention

The Supreme Court has handed down its judgment in In the matter of J (a child) [2015] UKSC 70 (on appeal from [2015] EWCA Civ 329). The appeal concerned the application of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (‘the 1996 Convention’); in particular the scope of the jurisdiction conferred by article 11 in ‘all cases of urgency’ on a contracting state where a child is present but not habitually resident.

Background

The 1996 Convention came into force in the United Kingdom on 1 November 2012 and has not previously been considered by the Supreme Court. The subject of the proceedings is a child born in January 2007. His parents are both from Morocco and hold Moroccan and British citizenship. The parents lived in England when the child was born but moved first to Saudi Arabia in 2009 and then to Morocco in 2011. The marriage broke down in December 2011. The child lived with his mother, who was granted residential custody by the local family court in 2012. His father was granted and exercised visiting rights. The mother moved to England in January 2013 but the child remained in the care of his maternal grandparents until 14 September 2013, when the mother brought him to England. Since then the child has lived here with her and her new husband, whom she married in January 2013 and with whom she now has another child. The father has had no face-to-face contact with the child since.

The father applied on 23 September 2013 to the Moroccan Family Court for an order granting him residential custody but this was refused on 16 January 2014. On 14 March 2014 the father brought proceedings in the High Court seeking an order that the child be made a ward of court and for directions for his summary return to Morocco. The judge found that the father had not consented to the removal from Morocco, which was wrongful, and that the child had been habitually resident in Morocco before his removal. An order was made for the mother to return the child to Morocco. It was not argued before the High Court that the effect of the 1996 Convention was that he had no jurisdiction to make the order he did.

The mother appealed to the Court of Appea

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About the author:

Geraldine is Head of LexisPSL Family. She was admitted as a solicitor in 1992 and was in practice for 15 years, most recently as a partner and head of the family team at Hart Brown, a large Surrey firm.

Geraldine writes for Butterworths Family Law Service and is a past editor of the Resolution Review. She has been published in the New Law Journal, the Law Society Gazette and the District Judges’ Bulletin as well as in the national press including the Times and the Telegraph.

When in practice she was a member of the Law Society Family and Children Panels, and an accredited Resolution Specialist with a focus on advanced financial provision and pensions. A past Resolution regional secretary and press officer, Geraldine also contributed chapters to the Resolution publications, International Aspects of Family Law (3rd Edition 2009) and The Modern Family (2012).