NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction)

The 1980 Convention applies only where a removal or retention is wrongful, requiring a breach of custody rights. A parent’s unilateral decision to remain abroad is not a wrongful retention unless it repudiates an agreed temporary or time-limited stay. Where no such agreement is proved, the Convention does not apply.

The court may nevertheless order summary return under the inherent jurisdiction. Welfare is paramount, but a full welfare inquiry is not always required. The court must make a sufficient and fair assessment. Protective measures must be assessed in the particular case and be effective against the identified risk. Practical connection with the child’s habitual residence may make return beneficial despite temporary disruption.

NY, aged two, moved from Israel to England with both parents in November 2018. Following the breakdown of the marriage, the father returned to Israel and sought NY’s return under the 1980 Convention, asserting that the move had been a trial period. MacDonald J found that NY remained habitually resident in Israel, that the father had consented to her removal, and that the Article 13(b) defence was not established. He ordered her return under the Convention and stated that he would have made the same order under the inherent jurisdiction: TY v HY (Return Order) [2019] EWHC 1310 (Fam).

The mother appealed. The Court of Appeal considered whether there had been a wrongful retention, whether the protective measures were sufficient, and whether a summary return could properly be ordered under the inherent jurisdiction.

The appeal was dismissed. The order was substituted so that NY’s return was ordered under the inherent jurisdiction, rather than under the 1980 Convention.

1. Wrongful retention. The appeal concerned retention, not removal. Removal and retention are mutually exclusive events occurring on a specific occasion. A retention may arise where a child has been taken abroad for a limited period and is not returned when that period expires, or where a parent repudiates the temporary basis of the stay and keeps the child without intending to return her. This approach was drawn from In re H; In re S [1991] 2 AC 476, In Re S [1994] Fam 70 and In re C [2019] AC 1.
2. The father’s case depended on an alleged conditional or time-limited agreement. MacDonald J had rejected that case. There was therefore no agreement which the mother had repudiated and no breach of the father’s custody rights. The Convention did not apply. This conclusion depended on the absence of wrongful retention, not on consent under Article 13(a).
3. Inherent jurisdiction. Article 18 did not limit the High Court’s domestic power to order return. Under In re L [2014] AC 1017, the inherent jurisdiction was available where the Convention did not apply. The court’s welfare jurisdiction arose under the Family Law Act 1986 and the child’s welfare remained paramount under the Children Act 1989. A full welfare inquiry was not required in every summary-return case, provided the assessment was sufficient.
4. Fairness and protective measures. An applicant intending alternatively to seek relief under the inherent jurisdiction should identify that route and give the parties a proper opportunity to address it. The appellate questions were whether the mother had suffered significant prejudice and whether the judge had sufficient evidence and submissions for a welfare assessment. Neither issue was established. Protective measures had to be assessed in the particular case, by reference to whether they would effectively mitigate the identified risk. The judge had applied that approach and his conclusion was open to him.
5. In exercising the inherent jurisdiction, the judge was entitled to attach substantial weight to NY’s practical connections with Israel, including her extended family, identity, culture, language and the location of welfare evidence. The benefit of informed welfare decisions in that jurisdiction outweighed the temporary disruption and impact of return. The court cautioned that inherent-jurisdiction applications should ordinarily be made only where there are real doubts about whether the Convention applies.

1. Court of Appeal (Civil Division): The appeal was dismissed. The return order was substituted so that it was made under the inherent jurisdiction.
2. Family Division of the High Court: MacDonald J ordered NY’s summary return to Israel under the 1980 Convention and stated that he would have made the same order under the inherent jurisdiction: TY v HY (Return Order) [2019] EWHC 1310 (Fam).