I-L (Children) (1996 Hague Child Protection Convention : Inherent Jurisdiction)

Where the 1996 Hague Child Protection Convention applies, it supplies the jurisdictional code for measures concerning a child. The English court may not use its inherent jurisdiction to make a return order unless the Convention permits that course.

Article 11 provides a secondary jurisdiction for urgent and necessary protective measures. It will not ordinarily be appropriate to exercise it where the court of the child’s habitual residence is already seised and can make effective orders. Where that court has made a return order that is being enforced in England, the Convention enforcement process must be followed.

Findings on habitual residence and repudiatory retention are evaluative. An appellate court will not interfere where the judge applied the correct law and reached a conclusion open on the evidence.

The Russian mother and British father had two young children, who had lived between Russia and England. Following disputes about their future arrangements, the father began Children Act proceedings in England. The mother applied under the 1980 Child Abduction Convention, alleging that this amounted to a repudiatory retention.

The Deputy High Court Judge found that the children remained habitually resident in Russia and that the father had not repudiated the mother’s rights of custody. He dismissed the Convention application but ordered the children’s return to Russia under the inherent jurisdiction.

The father appealed the findings on habitual residence and the inherent-jurisdiction order. The mother cross-appealed the finding on repudiatory retention. The central issue was whether the 1996 Hague Child Protection Convention allowed an English return order where the Russian court was already dealing with the children’s welfare and enforcement of its return order was underway.

1. The appeal was allowed in part. The court unanimously dismissed the father’s challenge to habitual residence and the mother’s cross-appeal on repudiatory retention. It set aside the return order made under the inherent jurisdiction.

2. The judge had correctly applied the child-focused and fact-sensitive approach to habitual residence in In re B. He had assessed stability rather than permanence, undertaken a qualitative rather than quantitative evaluation, and considered the children’s links with both countries. His conclusion that the children had not put down the roots needed to become habitually resident in England was reasonably open to him.

3. The judge had also been entitled to find that the father’s English application was reactive to the mother’s proposed move to the United States, rather than an intended denial or repudiation of her rights of custody. An application for a child arrangements order may itself amount to such a breach, but it did not do so on these facts.

4. Once the 1996 Hague Child Protection Convention applied, it governed jurisdiction. Following Re J, the inherent jurisdiction could be used only through a route permitted by the Convention. Russia had substantive jurisdiction as the children’s State of habitual residence. The English court could not bypass the Convention by using a domestic inherent power.

5. Article 11 was the only possible English route to a return order. Its secondary jurisdiction was unavailable in practice because the Russian court was already actively seised, had made a return order, and was able to protect the children. The appropriate course was determination of the mother’s enforcement application, including the father’s challenge to registration, under the Convention framework. The inherent-jurisdiction order was therefore set aside.

• Court of Appeal (Civil Division) Allowed the father’s appeal only insofar as it challenged the inherent-jurisdiction return order; dismissed his habitual-residence appeal and the mother’s cross-appeal on repudiatory retention.
• High Court (Family Division) Deputy High Court Judge Geekie QC, by order of 16 July 2019, dismissed the mother’s application under the 1980 Child Abduction Convention but ordered the children’s return to Russia under the inherent jurisdiction.