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In the matter of NY (a child)
The leading, international children law case of 2019, heard by the High Court, Court of Appeal and UK Supreme Court, examines the use of the inherent jurisdiction to order the summary return of children following relocation or child abduction. Three members of the team – Mark Twomey QC, Michael Horton and Alex Laing – represented the appellant mother, working with Dr Rob George, and instructed by Anne-Marie Hutchinson OBE, QC (Hon), James Netto and Olivia Longrigg of Dawson Cornwell.
Following a move to England in late 2018 and the father’s application under the 1980 Hague Convention for summary return, in the spring and early summer MacDonald J and then the Court of Appeal ordered the return, against her mother’s wishes, of a two-and-a-half-year-old girl to Israel. MacDonald J made his order under the 1980 Hague Convention; the Court of Appeal substituted that for one under the inherent jurisdiction.
24 hours before the Court of Appeal’s return order bit, the Supreme Court granted the mother an urgent stay and further permission to appeal. The mother invited the Supreme Court to look at the approach that has been taken over the past decades to the use of the inherent jurisdiction to order the summary return of children. In particular, the mother challenged the approach to return adopted by the Court of Appeal in non-1980 Hague Convention cases and asked whether, since the English Civil War and overthrow of King James II in the 1640s, it is right in law for judges to exercise the monarch’s prerogative to effect this outcome as opposed to applying the statutory scheme of the Children Act 1989 enacted by Parliament.
An expedited oral hearing took place in July. Given the difficult legal issues raised, a number of interveners were joined: Reunite International, the International Centre for Family Law, Policy and Practice, and the International Academy of Family Lawyers. Each intervener focussed its submissions on the questions raised about the appropriate use of the inherent jurisdiction in this field of law in 2019.
In November 2018, the mother, father and daughter relocated from Israel to England. That relocation was, on the father’s case, potentially short-term and dependent on its success; it was, on the mother’s case, a move intended to be permanent. In early 2019, the father issued proceedings to secure the child’s return to Israel under the 1980 Hague Convention, alleging child abduction. The father was successful at first instance, with an immediate order made for return. MacDonald J found that, at the relevant date, the child had not acquired habitual residence in this jurisdiction. Further that, whilst the mother had made out her defence of consent, this was a rare case in which the 1980 Hague Convention discretion should nevertheless be exercised to order the child’s summary return. In the alternative, his Lordship explained that he would have ordered return under the inherent jurisdiction. His Lordship in addition found that the mother’s consent of grave risk of harm was not made out given the protective measures available. That judgment is reported as TY and HY  EWHC 1310 (Fam).
Following the provision of a short stay, the mother applied for and was granted urgent permission to appeal to the Court of Appeal. The expedited appeal hearing took place in June. Debate in that court focussed on the law in relation to consent under the 1980 Hague Convention and, in particular, whether consent falls to be considered under article 3, 1980 Hague Convention (i.e. where there is consent to a move, is that child abduction – so as to fall within the 1980 Hague Convention – at all?) or article 13 (i.e. is it no more than a defence to the wrongful act of abduction which permits of discretionary return?). To assist the court, Reunite International was given permission to intervene and make written submissions.
The Court of Appeal, in a leading judgment given by Moylan LJ, dismissed the mother’s appeal: Re NY (A Child) (1980 Hague Abduction Convention) (Inherent Jurisdiction)  EWCA Civ 1065. The mother succeeded on her primary argument: namely, that this was not a case of child abduction as, in circumstances in which a family relocates by consent to a new jurisdiction, such a move does not fall within article 3, 1980 Hague Convention and so summary return under that international framework is not available. Nevertheless, the Court of Appeal substituted the order of MacDonald J for the one that, at first instance, the judge had indicated that he would have made under the inherent jurisdiction. The mother and child were given two weeks to pack up and leave the country. The Court of Appeal refused to grant even a short stay of its own order.
With less than 24 hours until the Court of Appeal’s return order bit, the Supreme Court granted the mother further permission to appeal and an urgent stay of the Court of Appeal’s order. In mid-July, the Supreme Court heard oral argument. Permission was given to Reunite International, the International Centre for Family Law, Policy and Practice, and the International Academy of Family Lawyers to intervene, each of whom provided written submissions. The case now not being one under the 1980 Hague Convention, the mother argued that it is wrong in law to use the inherent jurisdiction for compulsory relocation, this being a matter to be determined in accordance with the statutory scheme enacted by Parliament. In the alternative, that the Court of Appeal’s analysis was flawed. Finally, that the process at first instance and on first appeal had been procedurally irregular so as to offend article 6, ECHR and her common-law rights to a fair trial.
The Supreme Court has informed the parties of its decision, albeit that is not yet released to the public. Judgments will be handed down in the autumn, with those judgments to consider in detail the use of the inherent jurisdiction in child abduction and relocation cases.
This post was written for Coram’s international children law blog and is featured in our September 2019 newsletter. To subscribe, email firstname.lastname@example.org. Our International Children Law team has extensive experience in public and private child disputes. We act as family law barristers on a range of international children law matters, including relocation, Hague and non-Hague child abduction, international surrogacy, and cases of contested jurisdiction.