In the matter of J (a child)

Article 11 of the 1996 Hague Child Protection Convention confers substantive but secondary jurisdiction on the Contracting State where a child is present. Its exercise does not depend on proving that proceedings in the State of habitual residence are impossible or impracticable.

The court must assess holistically whether the child or relevant property is present, whether protective measures are necessary and whether the case is urgent. A return order can constitute a measure of protection. A wrongful-removal case is not invariably urgent, but the court should ordinarily consider it urgent before deciding whether protective action is appropriate. Article 11 should support, rather than oppose, the primary jurisdiction of the State of habitual residence.

A child habitually resident in Morocco was wrongfully removed to England by his mother. His father invoked the High Court’s inherent jurisdiction and sought wardship and summary return. Roderic Wood J ordered the child’s return in [2014] EWHC 3588 (Fam), applying the established approach to non-Hague summary-return applications.

The Court of Appeal allowed the mother’s appeal in [2015] EWCA Civ 329, [2015] 3 WLR 747. It held that article 11 of the 1996 Hague Child Protection Convention conferred the only available jurisdiction and that the case was not urgent because the father could have applied to the Moroccan court.

The father appealed. The central issue was whether article 11 required it to be impossible or impracticable to seek relief in the State of the child’s habitual residence, and how urgency and necessity should be assessed in a wrongful-removal case outside the 1980 Hague Convention.

1. Appeal allowed unanimously. Lady Hale delivered the judgment, with which Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson agreed. The Court of Appeal’s order dismissing the father’s application was set aside. The proceedings were remitted to Roderic Wood J to decide, using current information, whether and how the High Court should exercise article 11 jurisdiction.

2. “Measures of protection” under the 1996 Convention extend beyond public-law child-protection measures. Article 3 demonstrates that they encompass decisions about parental responsibility, custody, residence and access. An order returning a child to the State of habitual residence, or prohibiting removal from that State, can therefore be a measure of protection.

3. Article 11 differs materially from article 20 of Council Regulation (EC) No 2201/2003. Article 11 confers substantive additional jurisdiction, and its orders can operate throughout the Convention system until displaced by measures of the authorities having primary jurisdiction. The interpretation of article 20 in Detiček v Sgueglia Case C-403/09 PPU was therefore not transferable. In particular, article 11 contains no precondition that resort to the court of habitual residence must be impossible or impracticable.

4. Article 11 requires a holistic inquiry into three matters: whether the child or relevant property is present, whether protective measures are necessary and whether the case is urgent. The jurisdiction is secondary. It should support the primary jurisdiction of the State of habitual residence, including by facilitating return after wrongful removal, rather than create competing custody arrangements.

5. A non-1980 Convention application concerning a wrongfully removed child is not invariably urgent. Nevertheless, it is difficult to envisage such a case in which urgency should not be considered established before the court examines whether exercise of the jurisdiction is appropriate. Exercise would ordinarily be inappropriate if the home-State court was already seized and able to make effective protective orders.

6. The High Court’s original return order could not simply be restored. The case had previously been addressed as a conventional In re J (A Child) (Custody Rights: Jurisdiction) exercise, whereas it now required determination under article 11 on updated evidence. Under article 15(1), the English court ordinarily applies its own law. Article 15(2) permits exceptional application or consideration of the law of a substantially connected State. The remitted court should also consider whether interim direct contact with the left-behind parent is a necessary protective measure.

1. United Kingdom Supreme Court: The father’s appeal was allowed unanimously. The order dismissing his application was set aside and the proceedings were remitted to the High Court: [2015] UKSC 70.

2. Court of Appeal: The mother’s appeal was allowed and the father’s application dismissed because article 11 jurisdiction was held unavailable: [2015] EWCA Civ 329, [2015] 3 WLR 747.

3. High Court: Roderic Wood J ordered the mother to return, or cause the return of, the child to Morocco: [2014] EWHC 3588 (Fam).