The court considered for the first time the scope of the jurisdiction conferred by article 11 of the 1996 Convention ‘in all cases of urgency’ upon the Contracting State where a child is present but not habitually resident. F had obtained an order under the inherent jurisdiction of the court for the return of J to Morocco.
Held: The appeal succeeded, and the court set aside the decision of the Court of Appeal to dismiss F’s application. ‘measures of protection’ in Article 3 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). The exclusions from the Convention in article 4 include ‘(a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the names and forenames of the child;’. The focus of the Convention is on the care and upbringing of the child (or the protection of his property).
Lady Hale said: ‘While I would not, therefore, go so far as to say that such a case is invariably one of ‘urgency’, 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 article 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.’
Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson
[2015] UKSC 70, [2015] 3 WLR 1827, [2016] AC 1291, [2015] WLR(D) 486, UKSC 2015/0176
Bailii, Bailii Summary, WLRD, SC, SC Summary
The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996 11, Regulation No 2201/2003 20(1)
England and Wales
Citing:
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Appeal ffrom – Re J (A Child) (1996 Hague Convention) (Morocco) CA 1-Apr-2015
M appealed against an order for the return of her child to Morocco. Both parents had dual Moroccan and UK citizenship. The child was born in the UK, but later lived with them in Morocco. The parents split, with M awarded custody in Morocco, but . .
Cited – Purrucker v Valles Perez (No 1) ECJ 15-Jul-2010
ECJ (Judgment) Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of decisions in matrimonial matters and in the matters of parental responsibility – Regulation (EC) No 2201/2003 – . .
Cited – Deticek v Sgueglia ECJ 23-Dec-2009
ECJ (Area Of Freedom, Security and Justice) Judicial cooperation in civil matters Matrimonial matters and matters of parental responsibility Regulation (EC) No 2201/2003 Provisional measures concerning custody . .
Cited – B v B FD 21-May-2014
Mostyn J used the 1996 Convention for just this purpose, when ordering the return of a child to Lithuania pursuant to the 1980 Convention, so as to ensure that there was no grave risk of harm within the meaning of article 13(1)(b) of that . .
Lists of cited by and citing cases may be incomplete.
Children, International, European
Updated: 06 January 2022; Ref: scu.554899