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 is given in Re L-C. The Supreme Court confirmed that the approach to the evaluation of habitual residence for children is the same whether the issue arises in a Hague Convention application or under the domestic jurisdiction. It also confirms that the same test applies whether or not the other state involved is an EU member state. The test to be applied is that given by the European Court of Justice in Family proceedings concerning A: C-523/07 [2009] All ER (D) 286 (Jun), [2009] ECR I-2805 and Mercredi v Chaffe: C-497/10 PPU [2012] Fam 22, [2010] ECR I-14309. It provides further clarity on the issue of whether the habitual residence of a child is automatically that of the person who cares for them (it is not) and whether habitual residence can change absent the consent of a holder of parental responsibility (it probably can but the Supreme Court did not definitively rule on the issue).

What are the implications for lawyers?

Habitual residence

The key is to bear in mind the Supreme Court has confirmed very clearly that habitual residence is a question of fact and is not to be overlaid with legal glosses. What must be looked at is the factual situation including what the parents had agreed. The key will always be looking at how things were and are on the ground and the collation of the evidence that demonstrates the integration of the child into the social and family environment. In terms of the intentions of the parents--which are part of, but not determinative of, the evaluation--the collation of contemporaneous evidence of their state of mind is critical. Letters, postcards, e-mails, texts, instant messaging, Facebook, Twitter and Instagram can all demonstrate those intentions.

Inherent jurisdiction

It is important to keep this in mind as a potential alternative remedy in Hague cases. If it looks as if there may be a technical defence to a Hague case, based on rights of custody or habitual residence, but the other country is better placed to determine the issue because of prior proceedings or orders, then the inherent jurisdiction might be used to secure a return. Making clear that both remedies are invoked will be important.

Are there still any unresolved issues lawyers need to watch out for?

A significant implication is a linked issue--whether sole holders of parental responsibility can terminate the habitual residence of a child by their will and act alone. This is not finally determined, but the implication of the judgment is that this will be harder now, particularly with an older child. There remains a tension between the assessment of habitual residence and the right of a sole holder of parental responsibility to freedom of movement. But if habitual residence is truly factual, then it will be difficult for that parent to terminate the child's integration into a social and family environment by the simple act of removal, albeit with an intention never to return. For those advising fathers or others without parental responsibility, it should not be assumed that just because the horse has bolted it is not worth closing the stable door.

A further significant unresolved issue is the temporary relocation. Does habitual residence shift with a one-year work placement abroad? The use of the inherent jurisdiction to secure a return even if habitual residence had shifted due to a temporary relocation should now be considered more frequently.

The habitual residence of adults remains under consideration.

Are there any trends emerging in the law in this area?

There is an undoubted trend towards making the assessment of habitual residence a truly factual test and to strip away the legal glosses that have been applied over the years. They were linked with other issues such as seeking to retain jurisdiction, but in the age of Brussels II Regulation 2201/2003/EC, art 10 and the Hague Convention on parental responsibility and protection of children 1996, art 7, such glosses are no longer necessary and hence are being stripped away. In Re L-C we might expect a final push to a comprehensive stripping away of legal glosses, leaving a pure assessment-of-fact test.

The use being made of the inherent jurisdiction rather bucks recent trends, particularly its use based on nationality. However, it may simply be an example of the court using the widest possible range of powers to achieve an outcome that is just and based on child welfare taking the longer-term view. The European Court of Justice has confirmed in Povse v Alpago: C-211/10 [2011] Fam 199, [2010] ECR I-6673 that a significant component in child welfare is that medium- to long-term decisions should be taken by the court best placed to take them and that those courts should be put in a position to properly assess those interests--if necessary by return of the child.

For more family law News Analysis see LexisPSL Family.

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