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Family Law

The leading authority on all aspects of family law

04 JAN 2016

Saleem, shivering and English winters: jurisdiction under Art 11 of the 1996 Hague Convention

Alex Laing

Pupil Barrister

Saleem, shivering and English winters: jurisdiction under Art 11 of the 1996 Hague Convention

On 25 November 2015, the Supreme Court gave judgment in the first case on the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention) to have come before it.

In Re J (A child) [2015] UKSC 70, the specific question was one of interpretation: how should ‘in all cases of urgency’ be read in Art 11 of the 1996 Convention?

A reminder

For those in need of a quick reminder, the 1996 Hague Convention came in to force in the UK on 1 November 2012. Its objectives include the improvement of the protection of children in international situations and the avoidance of conflict between international legal systems as regards jurisdiction, applicable law, recognition and enforcement of protective measures. It sits alongside Brussels IIa and the 1980 Hague Convention in the panoply of international law with which family practitioners must now be conversant.

In jurisdictional terms, Art 5 is the starting point: jurisdiction is founded on habitual residence. Article 11 confers an additional jurisdiction in limited circumstances. Namely,

‘(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.’

Saleem

The case concerned Saleem (so christened by Lady Hale in the Court’s sole judgment), a child who, by the time proceedings reached the Supreme Court, would soon turn 9. He was born in England and had moved to Morocco in 2011. His parents’ marriage subsequently broke down and, having been subject to an order of the local family court awarding ‘residential custody’ to his mother in July 2012, was, in September 2013, removed from family with whom he had been staying in Morocco and taken by his mother to England. His father had remained in Morocco and Saleem had enjoyed no face-to-face contact with him since.

In early 2014, the father asked the High Court here to make Saleem a ward of court and to order his summary return to Morocco. The case was treated as one under the inherent jurisdiction (Morocco’s accession to the 1980 Hague Convention not yet having been accepted by the EU). Wood J found as facts that: the father had not consented to Saleem’s removal from Morocco; this removal was, therefore, ‘wrongful’; and, Saleem (and his mother and father) had been habitually resident in Morocco prior to Saleem’s removal in September 2013.

As for Saleem himself, he was a ‘resilient child who did not appear to be badly caught up in the conflict’ and one who enjoyed ‘swimming and his holidays with his father’ in Morocco, but ‘shivers’ at an English winter (para [13] of Lady Hale’s judgment).

Not having been addressed on the precise nature and extent of his jurisdiction, Wood J ordered the mother to return Saleem to Morocco, so that the Moroccan courts might have the chance to adjudicate on any welfare issues.

Court of Appeal’s decision

The mother was granted permission to appeal on limited grounds. It was only from that point that minds focussed on the 1996 Convention and on Art 11 in particular.

Black LJ, giving the leading judgment, delineated the three components of Art 11: (1) the case is one of ‘urgency’; (2) the child (or, where relevant, the property of the child) is present in the contracting state of the court in question; and (3) the steps that the court is going to take are ‘necessary measures of protection’.

Applying them to the present facts, Black LJ found that whilst a return order was capable of being a ‘measure of protection’ this was not a case in which a return order was urgent and necessary. In particular: 6 months had passed before the father took action in England; a year had passed before Wood J’s decision; and, a speedy application to the Moroccan court was possible (indeed, it had, on Black LJ’s view, not been explained why the father had not applied for a return order rather than the change of residence that he had sought from the Moroccan court in September 2013).

The Court of Appeal therefore held that Wood J did not have jurisdiction under Art 11 (or any other basis). In doing so, Black LJ noted that the consequence of this might seem ‘rather strange’: if the father were to have made a fresh application at this point, it was possible that Saleem’s habitual residence would have changed and Morocco’s jurisdiction under Art 7 might have come to an end, allowing the English court to have jurisdiction under Art 5.

Additionally, it was noted by others, and picked up on by Lady Hale in the Supreme Court, that such an interpretation of Art 11 sits uncomfortably with a convention designed to improve international child protection.

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Supreme Court’s judgment

On the father’s appeal to the Supreme Court, Lady Hale made a number of points of interest to family law practitioners.  

Dealing first with her reasoning, she noted:

  1. Despite the striking resemblance between Art 11 of the 1996 Convention and Art 20 of Brussels IIa, there is a fundamental distinction: Art 20 confers a purely ancillary power; Art 11 provides a substantive (additional) jurisdiction (albeit one whose measures lapse when the Contracting State of habitual residence takes the measures required), (para [27] of Lady Hale’s judgment).

  2. As such, the assistance to be gained from CJEU decisions in relation to Art 20, Brussels IIa is limited. Black LJ’s transfer of a concept of impossibility (ie that urgency in part relates to the practical impossibility of bringing the application before the court with substantive jurisdiction) from Art 20, Brussels IIa to Art 11, 1996 Convention was found to be inappropriate, (paras [28]–[29]).

  3. Article 11’s importance is not limited to abduction-type (or Art 7) cases. A child may be present in one country and habitually resident in another for a host of innocent reasons, including, for example, a holiday (para [30]).

  4. Article 11 has proved very helpful in affording children a ‘soft landing’ when a return to their home country is ordered in conjunction with the 1980 Convention (para [31]).

Tying together these threads, Lady Hale reached the following conclusions:

  1. There is no pre-condition of impossibility or impracticability in determining whether jurisdiction is founded under Art 11. Instead, a holistic approach is required by which a court focusses on urgency, presence and necessary measures of protection (para [33]).

  2. Article 11 is a secondary jurisdiction. As such, it should ‘not be used to interfere in issues that are more properly dealt with in the home country’. A distinction is drawn between cases in which the jurisdiction is used in support of the home country (eg facilitating a return there after wrongful removal) and those in which is it used in opposition to the country of habitual residence (eg if, say, a Slovenian court makes an order that goes against, say, a custody order made by an Italian court) (para [34]). Practitioners might query whether this distinction will always be as easy to draw as Lady Hale hopes and how this will feed in to the Art 11 exercise in factually different cases.

  3. Views expressed in the Explanatory Report on the 1996 Convention by Paul Lagarde and in the Practical Handbook on the Operation of the 1996 Hague Child Protection Convention require careful handling. The Lagarde report, for example, suggests that urgency be associated with ‘irreparable damage’ and situations in which ‘the protection or the interest of the child’ might be compromised, respectively (paras [36]–[38]).

  4. Instead, the Supreme Court’s view is that, in a non-1980 Convention abduction case (ie one that came only under Art 7, 1996 Convention) it would be ‘extraordinary’ if the question of whether to order the summary return of an abducted child were not a case of ‘urgency’ (even if the ‘necessary’ hurdle could not be surmounted) (para [39]).

  5. Indeed, whilst it would ‘obviously not be appropriate’ to exercise jurisdiction in cases in which the country of habitual residence was already seized of the case and in a position to make effective orders to protect the chid, it should be borne in mind that the courts in the country of presence are still (on a practical level) often better placed to make orders about the child’s return (para [39]).

Allowing the appeal and setting aside the order of the Court of Appeal, the case was returned to Wood J in the High Court for an application of the correct legal principles. Saleem’s wait for a resolution goes on, through another English winter.

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