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Family analysis: The jurisdiction of an English court to order a wrongfully removed child to be returned to his country of habitual residence is examined by Michael Gration, barrister at 4 Paper Buildings, and Anne-Marie Hutchinson, partner at Dawson Cornwell, in light of the Supreme Court's recent judgment in Re J (A Child) (1996 Hague Convention).
Re J (A Child) (1996 Hague Convention) (Morocco)  UKSC 70,  All ER (D) 224 (Nov)
A couple and their son had lived together in Morocco until the couple divorced. The mother moved to England and she subsequently removed the child to England without the father's consent. The High Court found that the child was habitually resident in Morocco and ordered his summary return there. The Court of Appeal, however, held that the High Court had not had jurisdiction under the Hague Convention 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Hague Convention). Reversing that decision, the Supreme Court ruled that the English courts could exercise the jurisdiction under the 1996 Hague Convention, art 11 in urgent cases of wrongful removal of a child who was present, but not habitually resident in England. It therefore ordered the case to be returned to the High Court to decide if it should exercise that jurisdiction.
What was the main issue in this case?
The case concerned a father's application for the summary return of a child to Morocco, following what he asserted, and what the court found, to have been the mother's wrongful removal of the child from that country.
The father's application was made pursuant to the inherent jurisdiction of the High Court, on an application of the principles established by the House of Lords in Re J (a child) (return to foreign jurisdiction: convention rights)  UKHL 40,  3 All ER 291. The case was complicated as it was the first in which the Supreme Court
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