JUDGMENT
In the matter of J (a child)
before
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
25 November 2015
Heard on 17 November 2015
Appellant (AJ Father) Respondent (FB Mother)
Henry Setright QC James Turner QC
Edward Devereux Finola Moore
Michael Gration
(Instructed by Dawson
Cornwell
)
(Instructed by JD Spicer
Zeb
)
Intervener (Reunite
International Child
Abduction Centre)
Teertha Gupta QC
Jacqueline Renton
(Instructed by Goodman
Ray LLP
)
Intervener The AIRE
Centre)
David Williams QC
Michael Edwards
(Instructed by Freshfields
Bruckhaus Deringer LLP)
Intervener (International
Centre for Family Law,
Policy and Practice)
Richard Harrison QC
Dr Rob George
(Instructed by Bindmans
LLP)
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LADY HALE: (with whom Lord Wilson, Lord Reed, Lord Hughes and Lord
Toulson agree)
1. 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 (“the 1996
Convention”), came into force in the United Kingdom on 1 November 2012. This is
the first case about that Convention to reach this Court. It concerns the scope of the
jurisdiction conferred by article 11 “in all cases of urgency” upon the Contracting
State where a child is present but not habitually resident.
The facts
2. The child, whom I shall call Saleem, was born in England in January 2007.
His parents are both Moroccan citizens, although they also hold British citizenship.
The father lived in England from 1996 until 2009. He married the mother in
Morocco in 2005 and the mother came to join him here. From 2009 to 2011, the
family lived in Saudi Arabia, where the father held an academic post. Then in 2011
they moved to Morocco, so that the father could take up the academic post which he
now holds. However, from August 2011 there were problems in their marriage, and
in December 2011, the father instituted proceedings for divorce. In the spring of
2012, the mother moved with the child to her parents’ home in another city, some
50 miles from where the family home is.
3. The local Family Court made an order divorcing the parents on 12 July 2012.
The mother was granted “residential custody” of the child. The mother was also
ordered to allow the father to visit his child on Sundays and holidays, from 9.00 am
until 5.00 pm, “under the condition that the child must spend the night at his
mother’s residence”. The order also provided for the father to pay maintenance for
the child. It did not say anything about whether the mother could, or could not, take
the child out of the country.
4. Mother and child lived with the mother’s parents for the rest of 2012, but in
January 2013, the mother came to England, leaving the child in the care of her
parents. The mother’s case is that she met her current partner, a Moroccan living in
England, when he visited Morocco in 2012. They went through an Islamic ceremony
of marriage in January 2013, after the mother’s arrival in England, and they have
lived here together since then. They have a child together, born in November 2014.
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5. The father’s case is that he and the child were in regular and frequent contact
while the mother was away and in particular that the child spent the whole of the
2013 summer holiday, from 1 July until he went back to school in September, in his
father’s care (this is borne out by what the child told the Cafcass officer). However,
on 14 September 2013 the mother removed the child from her parents’ home and
brought him to England. He has lived here with her and her new partner ever since.
He has had some contact with his father by phone and skype but no face to face
contact since he left Morocco. The father suffered from polio as a child and has
problems with mobility. Regular and frequent international travel is difficult for him
and he also lacks the means to afford it.
6. On 23 September 2013, the father applied to the Family Court in the district
where the child had been living to revoke the order of 12 July 2012, granting the
mother residential custody and child maintenance, and to grant him the residential
custody of the child. That application was refused on 16 January 2014. The mother
had asked the court to reject the application “due to lack of evidence on the nature
of [her] stay abroad”. The court concluded that “Since the applicant could not
provide any evidence whether the respondent’s departure with her child to England
was intended to be a casual and temporary or a permanent stay, and since he has no
females available to look after his child, his request does not meet the legal and
religious conditions required to allow him to look after his own child pursuant to
article 400 of the [Family] Code”.
These proceedings
7. On 14 March 2014, the father brought proceedings in the High Court, seeking
an order that the child be made a ward of court and directions for his summary return
to Morocco. The final hearing of this application did not take place until 10 October
2014. Some of this delay was occasioned by the need to locate the mother and child,
some by enabling her to seek legal aid and legal representation, some by attempts to
obtain clarification of Moroccan law through the Moroccan Central Authority, and,
that having been unsuccessful, by the parties’ jointly instructing an expert in
Moroccan law. The mother had also to be ordered to disclose details of her
relationship with her new husband and her pregnancy. In the meantime, Saleem had
been interviewed by a Cafcass officer, who filed her report on 15 August 2014.
8. Although Morocco has acceded to the 1980 Hague Convention on the Civil
Aspects of International Child Abduction (“the 1980 Convention”), that accession
has not yet been accepted by the European Union, and thus by the United Kingdom.
The case therefore proceeded before Roderic Wood J as an application under the
inherent jurisdiction of the High Court: [2014] EWHC 3588 (Fam). He referred (at
para 1) to the proceedings also having been brought under the 1996 Convention, and
mentions that his attention had been drawn to articles 5, 7, 19 and 22 (but not 11) of
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that Convention. However, in his section headed “The law”, he refers only to article
22, which deals with applicable law, and not with jurisdiction. He dealt with the case
as a straightforward application of the principles applicable to such “non-Hague”
applications for summary return, as contained in the decision of the House of Lords
in In re J (A Child)(Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC
80.
9. The judge dealt with the matter on the basis of the written evidence and
submissions only. The parties had agreed that it was not necessary to call the Cafcass
officer to give oral evidence. The judge refused applications by the mother for her
to give oral evidence and for supplementary questions to be asked of the expert in
Moroccan law.
10. The judge found as a fact that the father had not consented to the mother’s
removal of the child from Morocco. Her own version was that she had told the father
of her plans but “he just swore at me” and that she “had been saying to the father for
quite some time that I wanted to return to the United Kingdom with S[aleem]. I do
not know whether he believed me or not when I used to say this”. Her own evidence,
therefore, fell a very long way short of consent. Saleem himself had told the Cafcass
officer that he did not know where they were going on 14 September 2013 until they
got to the airport. This suggested strongly that she knew that Saleem would tell his
father if he knew beforehand and that was a thing she wished to avoid (para 16). The
father not having given his consent to the removal, the judge also found that it was
“wrongful” (para 37).
11. He also found that mother and father and child were habitually resident in
Morocco before the mother wrongfully removed the child (para 37). In a further
reference to the 1996 Convention, articles 5 and 6, he commented that “it is clear
that the Moroccan court had, and continues to have, … jurisdiction in this matter
based on the continuing habitual residence of S[aleem] in that country, which was
not terminated by his mother’s wrongful removal of him” (para 45). No argument
was addressed to him that the effect of the 1996 Convention was that the English
court had no jurisdiction at all in the matter.
12. He considered, therefore, whether under the established principles this was
an appropriate case for summary return and concluded that it was. Saleem had told
the Cafcass officer that he liked his maternal grandparents and his father. Asked
what was good about Morocco he spoke of swimming and his holidays with his
father (he shivers at an English winter). He had nothing bad to say about his life in
Morocco. But he was happy about coming to England because he wanted to live
with his mother (para 22). He liked his school in England. He would be sad if the
judge ordered his return to Morocco because he wants to stay with his mother. But
he did not seem to have contemplated the possibility that his mother might return to
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Morocco with him. If the judge decided that he should stay here, he would like to
go to Morocco and see his father in the school holidays, If the judge decided he
should go to Morocco, he would like to come back to the United Kingdom to see his
mother in the school holidays (para 23). The Cafcass officer’s conclusions were that
Saleem is a well-presented, intelligent and polite child with a good command of
English. He was “a resilient child who did not appear to be badly caught up in the
conflict between his parents. He had nothing bad to say about his father or about life
in Morocco. He was clear about his reasons for wanting to remain in the United
Kingdom, which was to be with the mother, but showed no outward sign of distress
at the mention of a possible return to Morocco” (para 24).
13. The questions asked of the expert in Moroccan law were directed to two
subjects: first, the general principles of Moroccan law concerning the allocation of
parental responsibility, custody, access and relocation; and second, whether there
was jurisdiction to allow one parent to move to another country and if so how it was
exercised. The expert answered by reference to the Moroccan Family Code of 2004,
of which we have an unofficial translation. Custody of children during the marriage
is the responsibility of both parents (article 164). When the marriage is terminated
by divorce, custody goes first to the mother, then to the father, then to the maternal
grandmother (article 171). It would appear that the general rule is that the mother
loses custody on remarriage, as long as the father claims it within a year of finding
out about it (article 176). But her remarriage does not cause her to lose custody if
the child is aged seven or less, or will suffer harm from being separated from her, or
has a health condition or handicap which will render custody of the non-mother
extremely burdensome, or if the mother’s new husband or the mother herself is the
child’s legal representative (not so here, as the father is the child’s legal
representative) (article 175). The Code does not mention anywhere the relocation of
the child to another country. It does state that the mother does not lose custody if
she moves permanently to another town in Morocco (article 178). The lawyer’s
opinion was that “If such Lawsuit to relocate the child to another country is brought,
the Family Court in giving its decision may consider the child’s best interests and
the ability of the non custodian parent to visit the child”.
14. The expert was not asked whether the effect of the order of 12 July 2012 was
to prohibit the mother from removing the child permanently from Morocco without
consent. Roderic Wood J held that the terms of the order “make it abundantly clear
that the intention was that the mother and children [sic] should live in Morocco, …
for if it permitted the mother to move countries, … the provision for the father’s
contact would be otiose” (para 10). Nor was the expert asked whether the Moroccan
court had power to make an order compelling the mother to return the child from
England to Morocco. At that stage in the proceedings, no-one had focussed their
mind on the precise nature and extent of the jurisdiction of the English court.
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15. Roderic Wood J concluded that this was an appropriate case in which to deal
with matters summarily (para 33). Overall, he had “no hesitation that it is in
S[aleem]’s best interests to return to Morocco where he was habitually resident for
the courts of that country to adjudicate, if required to do so, on welfare issues relating
to [him]” (para 46). He ordered the mother to return the child, or cause the return of
the child, to Morocco no later than 4.00 pm on 11 January 2015. The delay was
permitted because the mother was about to give birth.
16. The mother sought permission to appeal on a number of grounds, but again
these did not question the jurisdiction of the English court. She was refused
permission to appeal against the finding that Saleem was habitually resident in
Morocco before his removal to this country and that his removal had been wrongful.
When the father applied for permission to appeal to this Court, she applied to crossappeal against the finding of wrongful removal. She was refused permission so to
do. The mother cannot now challenge the findings that the child was habitually
resident in Morocco before his removal to this country and that his removal was
wrongful.
17. The mother was, however, given permission to appeal to the Court of Appeal
on three grounds:
“(i) that the judge had erred in his consideration of the expert
evidence, by failing to allow oral evidence and crossexamination, and by drawing the wrong conclusions from it;
(ii) that in considering the child’s welfare and the Cafcass
report, (a) he failed to carry out a sufficiently deep, thorough
and realistic analysis of the child’s welfare needs and wishes,
(b) was unclear as to the approach adopted, and (c) erred in his
evaluation of the welfare considerations; and (iii) that he erred
in failing to consider article 9 of the 1996 Convention.”
However, when giving judgment in the Court of Appeal ([2015] EWCA Civ 329;
[2015] 3 WLR 747), Black LJ stated that “When I gave permission, like the parties
I was thinking in terms of whether the well known principles in In re J (A
Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80 would need modification in
the light of the coming into force of the 1996 Hague Convention” (para 76). It had,
however, become clear to her that “the impact of the 1996 Hague Convention is far
more radical” (para 77).
18. The focus of the Court of Appeal’s attention was entirely upon the 1996
Convention. It will be necessary to return to the precise reasoning later. In summary,
Black LJ explained that article 11(1) imports three conditions before a court “can
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exercise” jurisdiction: “(i) The case is one of urgency, (ii) The child (or, where
relevant, property belonging to the child) is present in the contracting state of the
court in question; (iii) The steps the court is going to take are ‘necessary measures
of protection’” (para 68). “Measures of protection” has a wider meaning than might
be thought and was capable of including a return order (para 70). There may be cases
in which a return order is urgent and necessary (para 71), but this was not one of
them (para 72). Six months had passed before the father took action here and over a
year before the judge’s decision. A speedy application to the Moroccan court was
possible and there was no explanation for why the father had not applied for a return
order rather than a change of residence. Accordingly the judge did not have
jurisdiction under article 11 (para 73) and there was no other basis upon which he
could assume jurisdiction (para 74). Hence the appeal was allowed and the father’s
application dismissed.
19. Black LJ pointed out that the consequence may seem “rather strange”. If the
father were now to make a fresh application (presumably under the inherent
jurisdiction or the Children Act 1989), it was possible that the child’s habitual
residence had changed, and the Moroccan jurisdiction was no longer preserved by
article 7 of the 1996 Convention. The English court would therefore have full
jurisdiction under article 5 (para 83). Others have pointed out that the consequence
of the interpretation of article 11 adopted by the Court of Appeal is also rather
strange. A procedure which had been adopted for many years by the English court
in order to effect the summary return of an abducted child from this country to his
home country had apparently been precluded by a Convention, which was designed
“to improve the protection of children in international situations”.
The 1996 Convention
20. The Preamble to the 1996 Convention states that the State parties, in agreeing
its provisions, had six objectives:
“Considering the need to improve the protection of children in
international situations;
Wishing to avoid conflicts between their legal systems in
respect of jurisdiction, applicable law, recognition and
enforcement of measures for the protection of children;
Recalling the importance of international co-operation for the
protection of children;
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Confirming that the best interests of the child are to be a
primary consideration;
Noting that the Convention of 5 October 1961 concerning the
powers of authorities and the law applicable in respect of the
protection of minors is in need of revision;
Desiring to establish common provisions to this effect, taking
into account the United Nations Convention on the Rights of
the Child of 20 November 1989.”
21. Article 1 sets out the objects of the Convention, which include “(a) to
determine the state whose authorities have jurisdiction to take measures directed to
the protection of the person or property of the child”.
22. Article 3 provides, so far as relevant:
“The measures [of protection] referred to in article 1 may deal
in particular with – (a) the attribution, exercise, termination or
restriction of parental responsibility, as well as its delegation;
(b) rights of custody, including rights relating to the care of the
person of the child and, in particular, the right to determine the
child’s place of residence, as well as rights of access including
the right to take the child for a limited period of time to a place
other than the child’s habitual residence; (c) guardianship,
curatorship and analogous institutions; (d) the designation and
functions of any person or body having charge of the child’s
person or property, representing or assisting the child; (e) the
placement of a child in a foster family or in institutional care,
… (f) the supervision by a public authority of the care of a child
by any person having charge of the child; …”
23. This is a non-exhaustive list and it is apparent that “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). 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; …”
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None is relevant in this case, but the exclusions do indicate that the focus of the
Convention is on the care and upbringing of the child (or the protection of his
property). In my view the Court of Appeal was entirely right to consider that an
order for the return of the child to the country of his or her habitual residence is a
“measure of protection” for the purpose of the Convention, as indeed would be an
order prohibiting the child from being taken out of that country.
24. The primary rule of jurisdiction is contained in article 5:
“(1) The judicial or administrative authorities of the
Contracting State of the habitual residence of the child have
jurisdiction to take measures directed to the protection of the
child’s person or property.
(2) Subject to article 7, in case of a change of the child’s
habitual residence to another Contracting State, the authorities
of the State of the new habitual residence have jurisdiction.”
25. Article 7 deals with jurisdiction after wrongful removal or retention:
“(1) In case of wrongful removal or retention of the child, the
authorities of the Contracting State in which the child was
habitually resident immediately before the removal or retention
keep their jurisdiction until the child has acquired a habitual
residence in another State, and
(a) each person, institution or other body having rights
of custody has acquiesced in the removal or retention;
or
(b) the child has resided in that other state for a period
of at least one year after the person, institution or other
body having rights of custody has or should have had
knowledge of the whereabouts of the child, no request
for return lodged within that period is still pending, and
the child is settled in his or her new environment.
(2) The removal or retention of a child is to be considered
wrongful where –
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(a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or
alone, under the law of the state in which the child was
habitually resident immediately before the removal or
retention; and
(b) at the time of removal or retention those rights were
actually exercised, ether jointly or alone, or would have
been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above,
may arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State.
(3) So long as the authorities first mentioned in paragraph 1
keep their jurisdiction, the authorities of the Contracting State
to which the child has been removed or in which he or she has
been retained can only take such urgent measures under article
11 as are necessary for the protection of the person or property
of the child.”
26. Article 11 supplies an additional jurisdiction in limited circumstances:
“(1) In all cases of urgency, the authorities of any contracting
state in whose territory the child or property belonging to the
child is present have jurisdiction to take any necessary
measures of protection.
(2) The measures taken under the preceding paragraph with
regard to a child habitually resident in a Contracting State shall
lapse as soon as the authorities which have jurisdiction under
articles 5 to 10 have taken the measures required by the
situation.
(3) The measures taken under paragraph 1 with regard to a child
who is habitually resident in a non-Contracting State shall lapse
in each Contracting State as soon as measures required by the
situation and taken by the authorities of another State are
recognised in the Contracting State in question.”
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27. There are several things to note about this provision. First, it bears a striking
resemblance to article 20 of Council Regulation (EC) No 2201/2003 concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial
matters and matters of parental responsibility, otherwise known as the Brussels II
revised Regulation (“the Regulation”). Article 20, however, merely allows one
member state to “take provisional, including protective measures in respect of
persons or assets in that State as may be available under the law of that member
state”, even if, under the Regulation, the court of another member state has
jurisdiction. Article 11, in contrast, confers an additional jurisdiction upon the State
where the child or the property is. An order made under article 20 is not enforceable
in another member state: Purrucker v Valles Perez (No 1) (Case C-256/09) [2011]
Fam 254. In contrast, an order made under article 11 is enforceable in the other
Contracting States in accordance with Chapter IV of the 1996 Convention. The order
can thus have extra-territorial effect, although it will lapse in accordance with article
11(2) once the authorities in the State of primary jurisdiction have taken the
measures required by the situation.
28. Secondly, this means that the assistance to be gained from decisions of the
Court of Justice of the European Union in relation to article 20 is limited. In
particular, in the Court of Appeal, at paras 67 and 72, Black LJ placed some
emphasis upon the case of Detiček v Sgueglia (Case C-403/09 PPU), [2010] Fam
104, at para 42:
“Since article 20(1) of Regulation No 2201/2003 authorises a
court which does not have jurisdiction as to the substance to
take, exceptionally, a provisional measure concerning parental
responsibility, it must be considered that the concept of
urgency in that provision relates both to the situation of the
child and to the impossibility in practice of bringing the
application concerning parental responsibility before the court
with jurisdiction as to the substance.”
29. Since it was not obviously impossible for the father in this case to take his
case to the Moroccan court, she held that this was not a case or “urgency” within the
meaning of article 11. However, the interpretation of a word in the context of a
provision giving a purely ancillary power is not necessarily transferable into the
context of a provision giving a substantive, albeit additional, jurisdiction. In
particular, if the child needs protection now, it is not obvious why the courts of the
country where the child is should refrain from granting that protection while
inquiries are made about the possibility of bringing proceedings in the home country.
If the courts of the home country do take action, the measures they take will “trump”
those taken in the presence country. But if no action is taken, the measures taken in
the presence country will continue to operate throughout the Convention space. That
is a very different situation from that in Detiček, where the Italian court which had
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jurisdiction under the Regulation had made a custody order in favour of the father
and the mother had taken the child to Slovenia, where she persuaded the Slovenian
court to make a completely different order.
30. Thirdly, it must be borne in mind that article 11 confers jurisdiction on the
presence country in all situations to which its terms apply. It is not limited to cases
of wrongful removal or retention covered by article 7. Article 7 is concerned with
the very specific situation where jurisdiction is retained in the country of former
habitual residence because the child has been wrongfully taken or kept away from
that country. But a child may be habitually resident in one country but present in
another in a whole host of situations which do not involve an unlawful removal or
retention. Take, for example, a family who come here on holiday or for short term
study or employment and an incident of serious domestic violence takes place
between the parents, as a result of which the parents separate. It may very well be
necessary to decide where the children shall live while they remain here. The local
authority may well consider that unless the children are safeguarded in the care of
the non-violent parent it will be necessary to take steps to remove them temporarily
from the family for their own safety. It cannot be the case that the courts of the
presence country are prohibited from taking those steps because it has not been
shown to be impossible for the courts of the home country to do so.
31. Fourthly, where there has been a wrongful removal or retention, article 11
has proved very helpful in securing a “soft landing” for children whose return to
their home country is ordered. As Dr Hans van Loon observes, in a study prepared
for the European Parliament, The Brussels IIa Regulations: towards a review?, at
paragraph 3.1.3, the Regulation does not contain the equivalent of articles 7(3) and
11 of the 1996 Convention:
“Under the 1996 Convention, where the court of refuge orders
return subject to certain undertakings by the parties or to
protective measures ‘as are necessary for the protection of the
person or property of the child’, these orders will be urgent
measures under its article 11. They must be recognised and
enforced under Chapter IV of the Convention, and remain
effective until the court of origin has taken ‘the measures
required by the situation’. As practice under the 1980
Convention has shown, without this enforcement obligation,
undertakings and protective measures will often not be
respected and remain ineffective. This has given rise to the
need to obtain mirror or safe harbour orders in the state of
origin, but these may not always be available, or, again, not be
effective. Articles 7(3) and 11 1996 Convention, therefore,
strongly reinforce the return mechanism of the 1980
Convention.”
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Dr van Loon noted the English case of B v B [2014] EWHC 1804 (Fam), where
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 Convention.
32. Dr van Loon’s understanding of the 1996 Convention is of particular
relevance, as he was Secretary General of the Hague Conference on Private
International Law from 1996 to 2013. It would obviously place in jeopardy this
valuable aspect of the 1996 Convention, in assisting the objectives of the 1980
Convention, if the courts in the presence country could not invoke the article 11
jurisdiction without first assuring themselves that it was impossible for the courts of
the home jurisdiction to take action. Indeed, Dr van Loon recommends that the
Regulation be amended so as to delete article 20 and insert the equivalent of article
11.
33. If there is no pre-condition to jurisdiction under article 11 that it be
impossible or impracticable for the courts of the country of habitual residence to
exercise jurisdiction, then how is it to be interpreted? 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.
34. It is obviously consistent with the overall purposes of the Convention that
measures of protection which the child needs now should not be delayed while the
jurisdiction of the country of habitual residence is invoked. On the other hand, the
article 11 jurisdiction should not be used so as to interfere in issues that are more
properly dealt with in the home country. It is a secondary, and not the primary,
jurisdiction. Thus it is one thing to use the article 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 article 11 jurisdiction in opposition to that of
the home country (as happened in Detiček). Clearly it was not intended for that
purpose.
35. We have received very helpful written submissions from three interveners:
Reunite International Child Abduction Centre, the AIRE Centre, and the
International Centre for Family Law, Policy and Practice. All are broadly supportive
of the above approach. Reunite argues that, in cases of wrongful removal or
retention, no left-behind parent should be shut out from invoking the jurisdiction
under article 11. It is then a question for the court whether the circumstances are
such that a return order is necessary. At this stage, questions of long delay, or
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possible objections to return, analogous to those in article 13 of the 1980
Convention, may become relevant. In this way, the position under the 1996
Convention would broadly mirror that under the 1980 Convention in child abduction
cases.
36. On the other hand, this view of the matter does not emerge either from the
Explanatory Report on the 1996 Convention by Paul Lagarde (HCCH Publications
1998) or from the Practical Handbook on the Operation of the 1996 Hague Child
Protection Convention, the most recent edition of which is dated 2014. The Lagarde
Report points out, at para 68, that the Convention does not define the notion of
urgency, but as it is a derogation from the normal rule it ought to be construed “rather
strictly”. It might be present “where the situation, if remedial action were only
sought through the normal channels of articles 5 to 10, might bring about irreparable
harm for the child”. However, he later puts it more broadly, when explaining the
justification for this concurrent jurisdiction. “If this jurisdiction had not been
provided, the delays which would be caused by the obligation to bring a request
before the authorities of the state of the child’s habitual residence might compromise
the protection or the interests of the child”. The examples he gives are an urgent
surgical operation or the rapid sale of perishable goods.
37. The Practical Handbook suggests that “A useful approach for Authorities
may therefore be to consider whether the child is likely to suffer irreparable harm or
to have his/her protection or interests compromised if a measure is not taken to
protect him/her in the period that is likely to elapse before the authorities with
general jurisdiction under articles 5 to 10 can take the necessary measures of
protection” (para 6.2). The examples given cover (1) medical treatment to save the
child’s life or prevent irreparable harm occurring to the child or his interests being
compromised; (3) a rapid sale of perishable goods; but also (2) the child is having
contact with a non-resident parent outside his home State and makes an allegation
of abuse against that parent such that contact needs to be suspended immediately
and alternative care arranged; (4) there has been a wrongful removal or retention of
the child and, in the context of 1980 Hague Convention proceedings, measures need
to be put in place to ensure the safe return of the child” (para 6.4). Among the fuller
example scenarios given (in para 6.12) is the case where a mother wrongfully
removes the child from Contracting State A to Contracting State B, the father makes
an application under the 1980 Convention, but the mother is not permitting any
contact to take place and the proceedings may take two months. The authorities in
Contracting State B may consider that the lack of contact between father and child
will cause irreparable harm or otherwise compromise the protection or interests of
the child and make an order for interim contact.
38. 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
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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 Handbook clearly have abduction in mind, but only in the context of
proceedings for return under the 1980 Convention. 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 article 7. Far
from derogating from the jurisdiction of the home state in these circumstances, the
use of article 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.
39. 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.
40. I would therefore allow this appeal and set aside the order of the Court of
Appeal dismissing the father’s application.
Next steps
41. Mr James Turner QC, who appears for the mother, first argued that, were we
to allow this appeal, the case should return to the Court of Appeal, so that it could
deal with the other grounds upon which the mother had been given permission to
appeal (see para 17 above). That would simply add to the inordinate delays which
have already taken place in this case and further delay the proper consideration of
the substance of the matter. Any complaints about how the judge decided the case
when approaching it as a standard In re J exercise are now water under the bridge
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(although they do not appear to me to have much substance, given the task on which
the judge thought that he was engaged).
42. Mr Henry Setright QC, who appears for the father, first argued that we should
restore the judge’s order for return. That too would not be right. It is necessary for
this case now to be approached on its proper footing: should the English High Court
exercise the jurisdiction conferred by article 11 of the 1996 Convention and if so in
what way? That question will have to be answered on the basis of up to date
information about the child and his circumstances and, to the extent deemed
necessary, about Moroccan law. Under article 15(1) of the 1996 Convention, in
exercising their jurisdiction under Chapter II Contracting States are to apply their
own law. However, under article 15(2) “in so far as the protection of the person or
the property of the child requires, they may exceptionally apply or take into
consideration the law of another State with which the situation has a substantial
connection”.
43. The International Centre for Family Law, Policy and Practice has helpfully
pointed out that one option which does not appear to have been canvassed in the
Court of Appeal, either by the parties or the court, was whether it was necessary to
make an order for interim contact in any event. Research by Professor Marilyn
Freeman for the Centre “has made it clear that contact with the left-behind parent is
of crucial importance in preserving the relationship between the child and that
parent, as well as in ending the abduction itself in some cases”. Black LJ herself
acknowledged the potential harm to Saleem in not keeping up his relationship with
his father by direct contact (para 72). For the reasons given earlier, there may well
be a need for such protection, protection which may have become more urgent the
longer this case has gone on.
44. The obvious solution is to return the case to Roderic Wood J in the High
Court, for him to decide whether he can exercise the jurisdiction provided for in
article 11 of the 1996 Convention and, if so, in what way.
