Wrongful removal—resolving issues of jurisdiction

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).

 Original news

Re J (A Child) (1996 Hague Convention) (Morocco) [2015] UKSC 70, [2015] 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) [2005] UKHL 40, [2005] 3 All ER 291. The case was complicated as it was the first in which the Supreme Court had to consider the impact of the 1996 Hague Convention on applications of this type.

At first instance, the judge made an order for the child's return. He noted the application of the 1996 Hague Convention to the proceedings, but did not take any modified approach on the basis of it. The mother then appealed.

It was on appeal that the full impact of the 1996 Hague Convention was considered. Black LJ had identified a preliminary jurisdictional issue, namely whether the 1996 Hague Convention gave the English court jurisdiction to make an order for a child's summary return in circumstances such as those that arose in this case. The Court of Appeal decided that it did not. In its judgment, Re J (A Child) (1996 Hague Convention) (Morocco) [2015] EWCA Civ 329, [2015] All ER (D) 53 (Apr), the Court of Appeal concluded that jurisdiction to make orders in relation to a child that as a result of an abduction or retention was present in a 1996 Hague Convention state, but not habitually resident there, was limited by arts 7(3), 11. Article 11 confers jurisdiction to take 'necessary measures of protection' in 'cases of urgency'. The Court of Appeal did not accept that this case was urgent, and accordingly the return order was set aside and the application dismissed.

The father appealed to the Supreme Court. A number of arguments were raised, but the crux of his argument was that the Court of Appeal had applied too restrictive a test when considering whether or not 1996 Hague Convention, art 11 applied, with the result that it improperly declined to exercise jurisdiction under that article.

What did the Supreme Court decide about the scope of the 1996 Hague Convention, art 11 jurisdiction?

The Supreme Court accepted that when considering jurisdiction in relation to abducted children pursuant to the 1996 Hague Convention, the court would have to consider arts 7(3), 11, but pointed out that the application of art 11 was not limited to situations of international child abduction (see para [30] of the judgment).

The Supreme Court held that art 11 was a substantive ground of jurisdiction. It differs from other presence-bases of jurisdiction (for example, article 20 of Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis) in that any order made pursuant to it 'can thus have extra-territorial effect, although it will lapse in accordance with art 11(2) once the authorities in the state of primary jurisdiction have taken the measures required by the situation' (at para [27]).

The article permits the court to take 'measures of protection' in relation to a child present within its territory. The 1996 Hague Convention, art 3 demonstrates that the term measures of protection 'goes far wider than the public law measures of child care and protection to which an English lawyer might otherwise think that they referred (although those are also included)'.

When considering the dual requirements of necessity and urgency, the assessment requires a holistic approach. Baroness Hale expressed the required evaluation in the following way:

'It requires, as Black LJ pointed out, (i) a case of "urgency", (ii) the presence of the child or his or her property, and (iii) that measures of protection be necessary. In my view that demands a holistic approach. It may be helpful for the court to ask itself three questions. Is the child here? Are measures of protection necessary? Are they urgent? But that is not to suggest that these questions must always be asked in that order. The article should be applied according to its terms.'(para [33])

However, that helpful summary of the issues was given with an accompanying caveat:

'It is a secondary, and not the primary, jurisdiction. Thus it is one thing to use the art 11 jurisdiction in support of the home country, for example, by facilitating a return there after a wrongful removal. It is quite another thing to set up the art 11 jurisdiction in opposition to that of the home country (as happened in Deticek v Sgueglia (Case C-403/09 PPU) [2010] All ER (EC) 313). Clearly it was not intended for that purpose.' (para [34])

The summary of the issues that are engaged when considering the application of art 11 leads inexorably to the question of how it is to be applied in an abduction context. That question arose because both the appellant and the Reunite International Child Abduction Centre--which intervened in the appeal both before the Court of Appeal and in the Supreme Court--had suggested that abductions might be considered to be urgent by definition. In relation to that argument, Baroness Hale said:

'I find it difficult to envisage a case in which the court should not consider it to be so, and then go on to consider whether it is appropriate to exercise the art 11 jurisdiction. It would obviously not be appropriate where the home country was already seized of the case and in a position to make effective orders to protect the child. However, as Lord Wilson pointed out in the course of argument, the courts of the country where the child is are often better placed to make orders about the child's return. Those courts can take steps to locate the child, as proved necessary in this case, and are likely to be better placed to discover the child's current circumstances. Those courts can exert their coercive powers directly upon the parent who is here and indeed if necessary upon the child. The machinery of going back to the home country to get orders and then enforcing them in the presence country may be cumbersome and slow. Getting information from the home country may also be difficult. The child's interests may indeed be compromised if the country where the child is present is not able to take effective action in support of the child's return to the country of his or her habitual residence.' (para [39])

To what extent is the judgment helpful in clarifying the law in this area? Are there any remaining unresolved issues?

The judgment of the Supreme Court in this case authoritatively addresses the proper approach to the 1996 Hague Convention, art 11 jurisdiction both in an abduction context and, it could be contended, generally. The points made in relation to the proper interpretation of the article are not limited to abduction cases, and Baroness Hale's comments about the much broader scope of the article may be taken as authority for that proposition.

There are, however, other aspects of the judgment of the Court of Appeal that the Supreme Court did not deal with. They are identified at para [19], but in reality they go further even than this, as the judgment of the Court of Appeal had identified--but not resolved--the complicated issues of priority that arise as between Brussels II bis, arts 61-62 as to parental responsibility and the 1996 Hague Convention. Those issues will have to wait for another day and a more fitting case before they are argued in full and properly resolved.

How does the judgment fit in with other developments in this area? Are there any trends emerging?

The Court of Appeal appears to have proceeded on the basis that 1996 Hague Convention, art 11 should be interpreted consistently with Brussels II bis, art 20--with which it shares a number of similarities--and that accordingly authority on the interpretation of Brussels II bis, art 20 could be used to assist in determining the proper approach to 1996 Hague Convention, art 11. Within its judgment, the Supreme Court helpfully and comprehensively illustrates the difficulties that may arise in any attempt to import decisions of the Court of Justice of the European Union on European law into consideration of the meaning of similar, but not identical, provisions in other international instruments (paras [27-29]).

Further, the court cautioned against too rigid an interpretation of the explanatory report and other documents that purport to assist in the interpretation of particular parts of the 1996 Hague Convention  (paras [36]-[38]). It concluded:

'Two comments seem appropriate. First, it would be unfortunate if words in the explanatory report were treated as if they were words in the Convention itself. There is a world of difference between "irreparable harm" and "compromising the protection or interests of the child". Neither expression is in the convention, which merely asks whether the measure is necessary and the case urgent. Secondly, the report and the [practical] handbook clearly have abduction in mind, but only in the context of proceedings for return under the 1980 Hague Convention [on the Civil Aspects of International Child Abduction]. In that context, both interim contact orders and "safe harbour" orders are contemplated. Abduction in cases where the 1980 Convention does not apply is not considered, yet the 1996 Convention clearly provides for wrongful removal and retention in art 7. Far from derogating from the jurisdiction of the home state in these circumstances, the use of art 11 would be supporting it. It would be extraordinary if, in a case to which the 1980 Convention did not apply, the question of whether to order the summary return of an abducted child were not a case of "urgency" even if it was ultimately determined that it was not "necessary" to order the return of the child.' (para [38]).

Of what should lawyers advising in this area of law take note?

While all of the guidance described above as to the proper operation of the 1996 Hague Convention, and in particular, art 11, is of course helpful, it might be said that the primary lesson that arises from these proceedings is the need to identify and resolve issues of jurisdiction at the earliest possible stage.

The 1996 Hague Convention was raised at first instance, but the jurisdictional complications only arose at the Court of Appeal stage. As a result of this, the return order made following the initial hearing has never been implemented, and it will now be necessary for the High Court to consider the issue afresh at a further hearing. Had it been otherwise, the child's future might by now have been resolved, whether in Morocco or in England and Wales.

Michael Gration and Anne-Marie Hutchinson represented the appellant father in this case.

Interviewed by Robert Matthews.

The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.

 

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