The Supreme Court held that the High Court’s inherent jurisdiction can still be used to make a summary order for a child’s return to another country even where the Hague Convention does not require return. It nevertheless allowed the mother’s appeal: the Court of Appeal had not itself assessed whether the child’s welfare required an immediate return to Israel before making such an order.
The parents and their child moved from Israel to England. The father later wanted to return to Israel with the child. The parents had not agreed in advance what would happen if their relationship broke down.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The father returned to Israel. The mother and child remained in England. The resulting proceedings concerned whether the child should return promptly, before any fuller decision about the child’s upbringing.
The Convention application
The father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for a summary order returning the child to Israel. He alleged that the mother had wrongfully retained the child in England and Wales on 10 January 2019. The mother raised three defences.
MacDonald J rejected her contention that the child had become habitually resident in England and Wales by 10 January 2019. The Court of Appeal refused permission to appeal that conclusion, so it was established for these proceedings that the child remained habitually resident in Israel at least until that date.
The mother disputed that her retention of the child was wrongful. The question was whether the move to England had been on terms requiring a return to Israel on the father’s demand.
The mother also relied on the grave-risk exception in article 13(b). The judge considered the disputed allegations and possible protective arrangements within the Convention framework. That inquiry was different from deciding what the child’s welfare positively required.
On the discretion he thought had arisen, the judge had regard to the Convention’s policy that decisions about a child’s welfare should be taken in the country of habitual residence. He contrasted the child’s many connections with Israel with less than five months in the United Kingdom and ordered return under the Convention.
In a postscript he said that, had he found the child habitually resident in England, he would have reached the same decision under the inherent jurisdiction. The father had made no such application, and neither counsel nor the judge had referred to that jurisdiction at the hearing. Lord Wilson observed that the postscript left unaddressed substantial questions which habitual residence in England would itself have raised, including the benefit of welfare decisions being taken in the country of habitual residence.
The Court of Appeal
On 18 June 2019 the Court of Appeal (Moylan LJ, with whom Flaux and Haddon-Cave LJJ agreed) set aside the Convention order. There had been no focus on whether retention on 10 January was wrongful. Once the judge had found no agreement to return to Israel if the marriage broke down, there was no basis for treating the mother’s retention as wrongful, so the Convention was not engaged.
The Court of Appeal then made a summary return order under the inherent jurisdiction in place of the Convention order. It treated the judge as having made a determination under that jurisdiction, asked whether the mother had been significantly prejudiced by the lack of an application, and asked whether the judge had been able to make a sufficient welfare assessment. It reasoned that his analysis of the Convention discretion covered the matters relevant to welfare, and concluded that he had been entitled to order return and that his summary welfare decision was supported by his reasons. The order is dated 24 June 2019.
Was the inherent jurisdiction available?
The mother argued that a summary return order outside the Convention could be made only as a specific issue order under the Children Act 1989. Lord Wilson, with whom Lord Hodge, Lady Black, Lord Kitchin and Lord Sales agreed, held that a specific issue order could have been made, summarily or after a fuller inquiry, and that the court would have had jurisdiction to make it whether the child was still habitually resident in Israel on 18 June 2019 or had by then become habitually resident in England.
The inherent jurisdiction was also available in principle. Before the 1989 Act, the High Court could make a prompt return order under that jurisdiction so that the foreign court could decide the child’s future, as explained by Buckley LJ in In re L (Minors). The Convention will generally identify when summary return to another contracting state is, or is not, in a child’s interests, and an application for summary return outside the Convention, to a contracting state and in respect of a child held not to be within it, should be viewed critically. Even so, the court should not treat the inherent jurisdiction as automatically unavailable. Welfare is not the paramount consideration under the Convention, so it remains possible that welfare could require summary return even where the Convention does not.
The Children Act did not expressly abolish the inherent jurisdiction to order return. In practice, a section 8 order should ordinarily be used where it would suffice. Whichever route is used outside the Convention, the child’s welfare is paramount.
Where the same order can be sought in either set of proceedings and welfare is paramount in both, the inquiry should not differ significantly. The first six features in the section 1(3) welfare checklist are not expressly applied to the inherent jurisdiction, but a court is likely to find them useful and, before making a summary order, should consider whether any of them needs inquiry and how extensive that inquiry should be. Practice Direction 12J on domestic abuse does not expressly apply either, but the court is likely to find its requirements helpful when disputed allegations are made and should consider, in the same initial way, whether an inquiry into them is needed.
Why the Court of Appeal’s order could not stand
The Court of Appeal did not itself ask whether the child’s welfare required summary return. It treated the judge as having done so. He had not. He had made no determination under the inherent jurisdiction and had conducted no inquiry in which welfare was paramount.
Nor could his refusal to withhold a Convention return order stand in its place. Discretion under the Convention is not governed by paramount welfare. As Baroness Hale explained in In re M, general policy considerations, including swift return, comity, respect for other states’ processes and deterrence, may be weighed against the interests of the individual child, and the discretion is at large.
An order under the inherent jurisdiction can be made of the court’s own motion, just as a specific issue order can be made without an application. The court must still ask whether the effective respondent had enough notice to oppose it. The mother knew from the father’s skeleton argument, three weeks before the Court of Appeal hearing, that he would seek an inherent-jurisdiction order if her Convention appeal succeeded. The Supreme Court nevertheless doubted whether she could reasonably have expected an appellate court, rather than at most remitting the matter, itself to exercise the jurisdiction without material on which to analyse welfare.
A court contemplating a summary order must consider whether it has enough evidence about the child’s welfare, whether disputed issues need to be investigated, whether the parties need time to address the different test and whether an immediate decision or fuller hearing is in the child’s interests.
These were obligations to consider the matters, not to conduct a full inquiry in every case. The Court of Appeal did not consider them. It therefore made the summary order without a defensible analysis of the child’s welfare.
Verdict: The Court unanimously allowed the mother’s appeal and set aside the summary return order. Although the inherent jurisdiction was available, the Court of Appeal had not carried out the necessary welfare assessment. The Supreme Court made no fresh return order.
