When will the court exercise its inherent jurisdiction?

When will the court exercise its inherent jurisdiction?

Family analysis: The Supreme Court's use of its inherent jurisdiction to order the return of a child to another country is analysed by David Williams QC, of 4 Paper Buildings.

Original news

Re KL (A Child) [2013] UKSC 75, [2013] All ER (D) 24 (Dec)

K's mother had brought him to the United Kingdom pursuant to an order made in the United States under the Hague Convention on the Civil Aspects of International Child Abduction 1980. That order was later overturned on appeal. K's father issued proceedings in England, seeking his return to the US. The judge and the Court of Appeal, Civil Division, dismissed his applications. The Supreme Court, in allowing the appeal, held that K was habitually resident in the UK for the purposes of the Convention. But it exercised its inherent jurisdiction to order K's return to the US, having found it was in his best interests to return so the dispute between his parents could be decided there.

What is the significance of this decision?

The decision is of some significance in relation to habitual residence and of rather more significance in relation to the inherent jurisdiction.

Habitual residence

This is the second decision of the Supreme Court on habitual residence this year. The first was Re A (children) (jurisdiction: return of child) [2013] UKSC 60, [2013] All ER (D) 66 (Sep). Another case, Re L-C, was heard before Re KL but the judgment is still awaited. The justices build further on their judgments in Re A, and once Re L-C is delivered we will hopefully be able to draw some comprehensive conclusions on the proper approach to the evaluation of habitual residence for all purposes relating to children.

Inherent jurisdiction

The Supreme Court's approach to summary return of children using the inherent jurisdiction is a bold and robust one. The outcome was certainly unexpected in this case. In Re A, the Supreme Court resuscitated the use of the inherent jurisdiction in respect of UK nationals. This decision breathes further life into its use both in Hague Convention cases where for technical reasons the Convention does not apply and non-Convention cases where it builds on the earlier House of Lords decision in Re J (a child) (return to foreign jurisdiction: convention rights) [2005] UKHL 40, [2005] 3 All ER 291 by identifying further factors which are of significance in summary determination of child welfare.

Does the judgment affect our understanding of habitual residence?

The answer is yes, although our understanding will not be complete until judgment i

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