In the matter of NY (A Child)

The High Court's inherent jurisdiction remains available to order a child's summary return abroad even where a specific issue order could be sought under the Children Act 1989. Its invocation may nevertheless require exceptional justification.

Under either procedure, the child's welfare is paramount. Before ordering summary return, the court must conduct a defensible welfare analysis. It must consider the adequacy and currency of the evidence, the need for welfare and domestic-abuse inquiries, arrangements abroad, oral evidence, professional assessment and the comparative ability of the competing courts to determine the dispute.

A Convention discretion does not provide an equivalent assessment because Convention policy may be weighed alongside individual welfare. An order may be made without an application, but the affected party must receive sufficient notice and a reasonable opportunity to oppose it.

The Israeli parents moved with their young daughter from Israel to England. After the marriage broke down, the father returned to Israel and sought the child's return under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

The High Court ordered her return under the Convention: [2019] EWHC 1310 (Fam), [2019] 3 FCR 82. The Court of Appeal held that the Convention had not been engaged because the mother's retention was not wrongful. It nevertheless substituted its own summary return order under the inherent jurisdiction: [2019] EWCA Civ 1065, [2019] 3 FCR 49.

The issues were whether the inherent jurisdiction was available despite the possibility of a specific issue order under the Children Act 1989, and whether the Court of Appeal had conducted the welfare assessment required before exercising that jurisdiction.

The appeal was allowed unanimously. The Court of Appeal's order under the inherent jurisdiction was set aside. Lord Wilson gave the judgment, with which Lord Hodge, Lady Black, Lord Kitchin and Lord Sales agreed.

1. The inherent jurisdiction was available in principle. The creation of specific issue orders by the Children Act 1989 did not exclude an overlapping power to order a child's summary return abroad. Parliament had expressly restricted the inherent jurisdiction in section 100(2)(a), but had not prohibited orders equivalent to those available under sections 8 and 10. Paragraph 1.1 of Practice Direction 12D therefore went too far in stating that inherent-jurisdiction proceedings should not begin unless the issue could not be resolved under the 1989 Act.
2. Where the same relief could be obtained under the 1989 Act, the applicant must address the policy favouring proceedings in the lowest appropriate court. Urgency, complexity or a need for specialised cross-border expertise may justify invoking the inherent jurisdiction. Otherwise, the court may decline to hear the application through that route.
3. Under both the inherent jurisdiction and the statutory procedure, the child's welfare is paramount. The form of proceedings should not produce materially different substantive inquiries. Although the section 1(3) welfare checklist and Practice Direction 12J do not expressly govern the inherent jurisdiction, the court will ordinarily find their considerations useful when deciding whether a summary welfare assessment is sufficient.
4. The Convention assessment undertaken at first instance could not substitute for a paramount-welfare assessment. A discretion arising under the Convention permits policy considerations—including prompt return, comity and deterrence—to be weighed alongside the child's rights and welfare. The judge had neither purported to exercise the inherent jurisdiction nor conducted the welfare inquiry required by it.
5. The absence of an application did not itself prevent the Court of Appeal from acting on its own motion. Its flexibility carries a heavy duty, however, to give the effective respondent sufficient notice and a reasonable opportunity to oppose the proposed order.
6. Before making the return order, the Court of Appeal should at least have considered eight linked matters: whether the evidence was current; whether sufficient findings existed; whether inquiry under the welfare checklist was needed; whether domestic-abuse allegations required inquiry; whether arrangements in Israel were adequately identified; whether oral evidence was required; whether a CAFCASS report was needed; and the relative ability of the Israeli and English courts to resolve the dispute swiftly, including the Israeli court's power to permit relocation to England. These were duties to consider the matters, not automatic duties to undertake every investigation. The failure to consider any of them meant that no defensible welfare analysis had been conducted.

1. United Kingdom Supreme Court: By [2019] UKSC 49, unanimously allowed the mother's appeal and set aside the summary return order made under the inherent jurisdiction.
2. Court of Appeal: By [2019] EWCA Civ 1065, [2019] 3 FCR 49, set aside the Convention order because the mother's retention was not wrongful, but substituted its own summary return order under the inherent jurisdiction.
3. High Court: By [2019] EWHC 1310 (Fam), [2019] 3 FCR 82, ordered the child's return to Israel under the Convention.