J (A Child) (1996 Hague Convention) (Morocco)

Under the 1996 Hague Convention, international jurisdiction must be established before welfare or return issues are considered. After wrongful removal, the authorities of the child’s pre-removal habitual-residence State retain jurisdiction until the Article 7 conditions are met. The destination court is then confined to urgent and necessary protective measures under Article 11. A return order may in principle be such a measure, but urgency depends on the facts. The inherent jurisdiction cannot provide a domestic route around the Convention, although it may supply the power to make orders once the English court has substantive jurisdiction.

S was habitually resident in Morocco when his mother removed him to England without the father’s consent. The High Court found the removal wrongful and ordered the mother to return S to Morocco, considering that outcome to be in his best interests. The mother appealed. The Court of Appeal considered the interaction between the 1996 Hague Convention, Brussels IIa and domestic jurisdiction, including whether the English court could make a return order under Article 11 or its inherent jurisdiction.

Appeal allowed. Black LJ gave the leading judgment, with Gloster LJ and Moore-Bick LJ agreeing. The return order was set aside and the father’s application was dismissed.

1. Jurisdiction had to be considered first. Jurisdiction existed or did not exist irrespective of whether the parties raised the issue. Where Brussels IIa or the 1996 Hague Convention applied, domestic jurisdictional rules could not provide an independent alternative.
2. Brussels IIa did not govern the case. Article 61 could only displace the 1996 Convention through Article 61(a) if S had been habitually resident in England and Wales. The court proceeded on the basis that he had not been. Article 62(1) therefore left the field clear for the 1996 Convention.
3. The Convention covered the order sought. A return order following wrongful removal fell within the Convention’s measures of protection under Articles 1 and 3, reinforced by Article 50. Morocco retained jurisdiction under Article 7, and Article 7(3) confined the English court to urgent measures under Article 11. Article 12 did not enlarge that jurisdiction.
4. Article 11 was not satisfied. It required urgency, the child’s presence in the State of the court, and necessary protective measures. A return order could in principle satisfy the latter requirement, but this case was not urgent. More than six months had passed before proceedings were issued and more than a year before the High Court’s decision. The father could have applied promptly in Morocco, and the immediate problem was loss of direct contact, not unsafe living arrangements.
5. The inherent jurisdiction could not cure the absence of Convention jurisdiction. It could be used as the source of orders once the English court had substantive jurisdiction, but no such route existed here. The principles in In re J (a child) (Custody Rights: Jurisdiction) [2005] UKHL 40 [2006] 1 AC 80 could have a role where substantive jurisdiction existed, but not where jurisdiction was confined to Article 11.
6. The High Court therefore had no jurisdiction to make the return order. Welfare evaluation and the disputed expert evidence on Moroccan law did not affect that conclusion. The proceedings should have been dismissed.

• Court of Appeal (Civil Division) [2015] EWCA Civ 329: allowed the appeal, set aside the return order and dismissed the father’s application.
• High Court of Justice, Family Division: Wood J ordered on 10 October 2014 that the mother return or cause the return of S to Morocco.