A (A Child) (Abduction: Jurisdiction: 1996 Hague Convention)

Where a child has been wrongfully removed from a Contracting State, that State retains jurisdiction under Article 7 of the 1996 Hague Convention until the Convention’s conditions for transfer are met. Article 8 does not provide an alternative transfer route while Article 7 jurisdiction is retained. A transfer power under Article 15 of BIIa is confined to transfers between Member States and cannot transfer proceedings to Switzerland. Domestic powers under section 5 of the Family Law Act 1986 cannot circumvent those Convention limits. The court also held that the Practical Handbook was non-binding and could not displace the Convention’s text and explanatory materials.

The father wrongfully removed the parties’ young child from England to Switzerland. The child had been habitually resident in England, and the mother had not acquiesced in the removal. Swiss proceedings included urgent protective measures and unsuccessful return proceedings under the 1980 Hague Convention. The father sought transfer of the substantive welfare proceedings to Switzerland.

The court had to determine whether transfer was available under BIIa or Article 8 of the 1996 Hague Convention, whether section 5 of the Family Law Act 1986 supplied an alternative route, and, if transfer were available, whether Switzerland was better placed to assess the child’s best interests.

1. The application to transfer the proceedings to Switzerland was dismissed. The court held that Article 15 of BIIa permits transfer only to another Member State. Switzerland was not a Member State. Articles 61 and 62 did not alter that conclusion: the 1996 Convention continued to govern matters not governed by BIIa, including transfer to a non-Member State.

2. The court preferred JA v TH [2017] 2 FLR to H (A Child) (Care Proceedings Jurisdiction) [2014] EWHC 2550. The former approach recognised the application of the 1996 Convention where BIIa did not govern transfer to a non-Member State. The latter approach was not followed because it had not considered Article 62 and had proceeded without full argument.

3. On a plain reading of Articles 5, 7 and 8 of the 1996 Convention, Article 7 is confined to wrongful-removal cases. The authorities of the State of habitual residence immediately before removal retain jurisdiction until the child acquires habitual residence elsewhere and the additional Article 7 conditions are met. Article 8 refers only to authorities having jurisdiction under Articles 5 or 6 and does not provide a transfer power where jurisdiction is retained under Article 7.

4. The explanatory material supported that construction. The Practical Handbook was not legally binding. One example appeared inconsistent with the Convention’s wording, while the Handbook generally supported the policy that wrongful removal should not confer a jurisdictional benefit on the abducting party.

5. Even if Article 8 applied, Switzerland would not have been selected. England was better placed to assess the child’s best interests because the relevant background, the mother’s care of the older children, and the disputed allegations arose there. Delay of up to a year in Switzerland was also significant given the child’s age.

6. Section 5 of the Family Law Act 1986 provided no alternative route. Section 5(2)(d) addressed a stay connected with an Article 8 request and could not be used to circumvent the Article 7 restriction. The question of contact was to be determined separately.