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 his summary return to Saudi Arabia, a non-Convention country.
Held: The appeal was allowed. The Court of Appeal was wrong to interfere with the exercise of the trial judge’s discretion, but the trial judge was wrong to leave out of account the absence of a jurisdiction in the home country to enable the mother to bring the child back here without the father’s consent. In every case where a child was to be returned to a non-convention country, the welfare of the child was the paramount consideration, and policies contained in the Convention were not to be applied even by analogy.
Baroness Hale of Richmond said: ‘In all non-Convention cases the courts have consistently held that they must act in accordance with the welfare of the individual child. If they did decide to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration.’
The welfare principle is sufficiently broad and flexible to accommodate many cultural and religious practices: ‘It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed we do not have any fixed concept of what will be in the best interests of the individual child . . We are not so arrogant as to think that we know best . .Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well known checklist in section 1 (3) of the Children Act 1989: These include his own wishes and feelings, his physical and emotional and educational needs, and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one.’
Judges:
Lord Nicholls Of Birkenhead, Lord Hoffmann, Lord Walker Of Gestingthorpe, Baroness Hale Of Richmond, Lord Brown Of Eaton-Under-Heywood
Citations:
[2005] UKHL 40, Times 17-Jun-2005, [2005] 2 FLR 802, [2006] 1 AC 80, [2005] 2 WLR 14, [2005] Fam Law 689, [2005] 3 WLR 14, [2005] 2 FCR 381, [2005] 3 All ER 291
Links:
Statutes:
Hague Convention on the Civil Aspects of International Child Abduction
Jurisdiction:
England and Wales
Citing:
Appeal from – In re J (a child) (Child returned abroad: Convention Rights, Human Rights) CA 2-Apr-2004
The mother resisted an order requiring her to return to Saudi Arabia her child, saying that his human rights would be breached in Saudi.
Held: The court could apply the convention only as regards actions which would take place in a convention . .
Cited – G v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Re JA (Child Abduction: Non-Convention Country) CA 1998
The court accepted a submission that ‘the court cannot be satisfied that it is in the best interests of the child to return it to the court of habitual residence in order that that court may resolve the disputed question unless this court is . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – Osman v Elasha CA 24-Jun-1999
The court was asked to make an order for return of three children from the Sudan.
Held: The court emphasised ‘the importance of according to each state liberty to determine the family justice system and principles that it deems appropriate to . .
Cited – Re B’s Settlement, B v B 1940
Morton J said: ‘I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of . .
Cited – McKee v McKee PC 15-Mar-1951
(Canada) There was a choice open to the trial judge facing a contest for the custody of a child: ‘It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best . .
Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – Re L (Minors) (Wardship: Jurisdiction) CA 1974
The court summarised the principles as to the return of a child to a foreign country without conducting a full investigation of the merits: ‘To take a child from his native land, to remove him to another country where, maybe, his native tongue is . .
Cited – Re P (A Minor)(Child Abduction: Non Convention Country) CA 1997
The Hague Convention concepts are not to be applied in a non-Convention case. . .
Cited – Re R (Minors)(Wardship: Jurisdiction) CA 1981
When considering tha return of a child to a foreign jurisdiction, the ‘so-called kidnapping’ of the child, or the order of a foreign court, were relevant considerations: ‘but the weight to be given to either of them must be measured in terms of the . .
Cited – In Re M (Minors) (Abduction: Peremptory Return Order) CA 20-Nov-1995
An English court should usually assume that proceedings abroad will provide for a fair hearing. The court refused to admit evidence of the legal system in Dubai and assumed that the wife would receive a fair hearing there. . .
Cited – Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department CA 16-Dec-2002
The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient . .
Cited by:
Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Re S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
Cited – AI v MT FD 30-Jan-2013
The parties had asked the court to apply rabbinical law in resolving their matrimonial proceedings, applying by consent the result of a rabbinical arbitration.
Held: The court could not accept an ouster of its jurisdiction over children of the . .
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 – In re J (A Child) SC 25-Nov-2015
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 . .
Cited – 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 – Re C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
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 . .
Lists of cited by and citing cases may be incomplete.
Children, International
Updated: 06 May 2022; Ref: scu.226746