The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (‘the Convention’), was nonetheless entitled to grant it under the inherent jurisdiction of the High Court to make orders in relation to children. The Israeli parents lived in England. F returned to Israel and sought an order based on M’s alleged wrongful detention of D in England. M’s appeal succeeded on the basis of the Court of Appeal exercising its inherent jurisdiction to order the return. M now appealed.
Held: The Court had had jurisdiction, but the decision applying it was flawed.
The statement in 1.1 of Practice Direction 12D that the inherent jurisdiction should only be invoked where the issues cannot be resolved under the 1989 Act, went too far. Neither at first instance, nor on appeal had the court inquire as to the child’s welfare requiring return under the inherent jurisdiction. The Court of Appeal could not itself exercise the inherent jurisdiction without M having notice of it and having proper opportunity to argue the issue.
Judges:
Lord Wilson, Lord Hodge, Lady Black, Lord Kitchin, Lord Sales
Citations:
[2019] UKSC 49, [2019] 2 FLR 1247, [2019] WLR(D) 601, [2019] 3 WLR 962, [2020] AC 665, [2020] 1 All ER 923, [2020] 1 FCR 56, UKSC 2019/0145
Links:
Bailii, Bailii Summary, WLRD, SC 2019 Jul 18 pm Video, SC Summary, SC Summary Video, SC 2019 Jul 18 am Video
Statutes:
Hague Convention on the Civil Aspects of International Child Abduction 1980, Child Abduction and Custody Act 1985, Children Act 1989, Family Procedure Rules 2010
Jurisdiction:
England and Wales
Citing:
Appeal from – NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction) CA 18-Jun-2019
M appealed from an order ordering the summary return of a girl to Israel. . .
At FD – TY v HY (Return Order) FD 17-Apr-2019
F sought a summary order for the return of his 2 year old daughter to Israel. M claimed habitual residence within the UK.
Held: The court had ‘considerable concerns regarding the credibility of the mother’s evidence’. She made several . .
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Cited – KW v PW 2-Sep-2016
Irish High Court O’Hanlon J said: ‘This Court finds that the inherent jurisdiction is not applicable in this case. The inherent jurisdiction exists to fill a lacuna in the law and there is no lacuna here. To use the inherent jurisdiction to make an . .
Cited by:
Cited – V v W FC 2-Dec-2020
FDR Appointment Must Remain Confidential
XYZ had been appointed to value a family company within financial relief proceedings, but on seeking payment of their fees, and facing a counterclaim alleging negligence, they sought disclosure of the transcript of the Financial Dispute Resolution . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 05 May 2022; Ref: scu.642828
