In re J (A Child) (Custody Rights: Jurisdiction)

The House of Lords allowed the mother's appeal and restored the trial judge's orders. The court reaffirmed that where the English courts have jurisdiction the child's welfare is the paramount consideration (Children Act 1989, s 1(1)) and that the specialist rules of the Hague Convention are not to be applied by analogy in cases involving countries which are not parties to the Convention. A trial judge's findings of primary fact and credibility and his evaluation and balancing of welfare factors are matters for his discretion and an appellate court should only interfere if the decision is plainly wrong. Nevertheless, differences between the foreign legal system and English law can be relevant and, in particular, the absence in the foreign forum of any jurisdiction to consider relocation (so that the parent could not seek to return the child to England) may be a decisive factor to be weighed in the welfare balance. The court preferred the approach in Re JA to that in Osman v Elasha and held that human rights considerations (including ECHR articles 8 and 14 and the Hague Convention's article 20) may be relevant in deciding whether summary return to a non-Convention country is appropriate.

This is an appeal concerning the summary return of a child to a country which is not a party to the Hague Convention. The child, born in the United States in 2000, had United States, United Kingdom and Saudi Arabian citizenship. After marital difficulties the mother returned to the United Kingdom with the child and later sought a residence order here. The father, a Saudi national, applied for a summary order under section 8 of the Children Act 1989 for the child to be returned to Saudi Arabia and for the English divorce proceedings to be stayed so that matters could be determined in the Shariah courts.

At first instance Mr Justice Hughes considered whether the child should be summarily returned. He identified relevant principles from the authorities, heard expert evidence on Saudi law and found that, on balance, return would have been appropriate except for a particular factor: the father had previously made and then withdrawn damaging allegations about the mother and the judge concluded there was a serious risk he might resurrect them in Saudi proceedings with harmful consequences for the child. On that basis the judge declined to order summary return and made a residence order for the mother. The Court of Appeal allowed the father's appeal, finding that the judge had given disproportionate weight to the father's alleged propensity to resurrect the allegations.

The House of Lords considered (i) the standard for appellate interference with a trial judge's discretion and findings of fact; (ii) whether the Hague Convention principles should be applied by analogy to non-Convention countries; and (iii) how differences between foreign legal systems and English law, including human rights considerations, should be treated when deciding summary return. The court held that appellate interference was not justified because the judge had made findings of credibility and primary facts which were open to him and had exercised his discretion in weighing competing welfare factors. The House of Lords ruled that Hague Convention concepts are not to be imported into non-Convention cases but that the absence of a foreign jurisdiction to entertain a relocation dispute (so that the mother could not seek a return to England) is a relevant factor which may be decisive in the welfare balance. Article 20 of the Hague Convention (on fundamental principles of human rights) and ECHR considerations (articles 8 and 14) can inform the inquiry. The court preferred the approach in Re JA to that in Osman v Elasha, allowed the appeal and restored the trial judge's orders.

Nature of the claim: application for summary return of a child and related children/relocation relief under the Children Act 1989; appeal from the Court of Appeal. Issues framed: whether Hague Convention concepts apply by analogy in non-Convention cases; standard for appellate interference with trial judge's discretion; relevance of differences in foreign legal systems and of human rights provisions. Reasoning summary: welfare principle paramount; no extension of Hague Convention concepts to non-Party states; weight is to be given to trial judge's findings of fact and credibility; differences in foreign law and absence of relocation jurisdiction are relevant and may be decisive; human rights considerations (including article 20 of the Hague Convention and ECHR articles) reinforce this approach.

This was an appeal allowed. The House of Lords held that the Court of Appeal was wrong to interfere with the trial judge's exercise of discretion and findings of fact. The welfare principle under the Children Act 1989 remained paramount; the Hague Convention's specialist rules are not to be applied by analogy in non-Convention cases; however, differences between the foreign legal system (including absence of a relocation jurisdiction) and English law are relevant and may be decisive. The judge should be afforded deference on credibility findings; the appeal was therefore allowed and the trial judge's orders restored.

First instance: Family Division, Mr Justice Hughes (October 2003) — trial judge refused summary return and made a residence order for the mother. Court of Appeal: Re J (Child Returned Abroad: Human Rights) [2004] EWCA Civ 417; [2004] 2 FLR 85 — allowed the father's appeal. House of Lords: appeal allowed ([2005] UKHL 40).