Judgement Given On The Use Of Inherent Jurisdiction
This week saw the much-awaited judgement from the Supreme Court regarding the use of inherent jurisdiction regarding the re-location of a child.
Brief background to the case
The original case was one where a married couple with their young child (aged 2) had moved to the UK from Israel, looking for a fresh start for their failing marriage. Both had agreed to the move but within 6 weeks felt that the marriage was not salvageable. The father returned to Israel however the mother remained with the child in the UK.
As the father did not agree to the child remaining in the UK, he sought the immediate return of the child on the basis that the mother was wrongfully retaining the child. Applying under the 1980 Hague Child Abduction Convention, of which Israel is a signatory, the father stated the child was still a resident of Israel due to being in the UK for a short period.
The mother however argued that the child had become a resident of the UK in the time the father had applied under the 1980 Convention, that he had consented to the child moving to the UK (rather than being abducted) and that it would not be in the child’s best interests, and that there was grave risk of harm.
The judge in the case was MacDonald, J did not find adequate grounds regarding alleged domestic abuse under Article 13, so did not agree there was a grave risk of harm. MacDonald also found that the father had consented to the removal from Israel, but that the child was a resident of Israel, and therefore the case fell within the 1980 Convention. The return of the child was therefore ordered.
In July 2019, the mother appealed the decision stating that the judge had failed to address how there had been a retention under the 1980 Convention and that the judge was wrong to make any determination under the inherent jurisdiction; the judge was not in a position to make a sufficient welfare assessment necessary to the proper exercise of the inherent jurisdiction.
However, the Court of Appeal dismissed the mother’s case but on the basis that although there had been no wrongful retention, therefore the 1980 Convention would not apply, but that the court could rely on the doctrine of inherent jurisdiction.
The return order therefore was substituted from being under the 1980 Convention to that of inherent jurisdiction but under MacDonald’s comments that it was in the child’s best interests to return to Israel.
It was the decision regarding the best interests however that was argued on the appeal to the Supreme Court and proved fatal to the father’s case.
The Supreme Court Case
The final case took place on the 14th August 2019 and set aside the Court of Appeal decision. The two questions raised were, was the inherent jurisdiction available to the Court of Appeal in principle? And if so, was the way it was exercised flawed?
Inherent jurisdiction is a power that does not come from statute or legislation, but from inherent powers invested in the court to control any proceedings before it.
The court found that despite the mother’s arguments that inherent jurisdiction had not been available to the Court and that a ‘specific issue order’ under the Children Act 1989 should have been made, so that a full investigation could have been made, inherent jurisdiction was still available to courts, alongside ‘specific issue orders’.
However, even though the Court had the right to use inherent jurisdiction, it was found that in determining it, it was flawed. By using inherent jurisdiction the Court of Appeal had a duty to inform the mother of its intention to use it and allow her to seek to oppose it. There should also have been consideration of eight further questions before making the order, including whether the evidence was sufficient and whether the High Court Judge had made sufficient findings to make the order. It was the failure to consider these questions that led the Supreme Court to uphold the appeal.
Matthew Brunsdon-Tully, Partner in the Family Team at Forsters LLP, commented:
“Today’s judgement has confirmed that the courts do have the power to make orders for the summary return of children in cases of child abduction in cases where the 1980 Hague Convention does not apply, e.g. where there is no breach of rights of custody. However, the court has also made it clear that the jurisdiction to do so is likely to be exercised only exceptionally. It has also explained that the exercise of the jurisdiction has to be carried out in accordance with the welfare checklist. That may seem obvious but it has to be remembered that the 1980 Convention is underpinned by the principle that abduction is contrary to the welfare of the children generally (even if on the facts of a given case it would not accord with a child’s welfare for them to return home). On balance the decision is still good news for ‘left behind’ parents; as ever the court has maintained an element of flexibility in the right case. However it is clear that this summary jurisdiction is not to be exercised quite so summarily as was thought by the Court of Appeal. Indeed in practice “summary return” might now be somewhat of a misnomer where the inherent jurisdiction is utilised.”
Victoria Sterritt, Partner in the Family Team at Seddons, said:
“The Court of Appeal wrongly relied upon the findings of the High Court Judge that it was in the child’s best interests to return to Israel. What the Court of Appeal failed to do was to conduct its own analysis and investigations into what was in the best interests of the child. The fatal flaw being that the High Court had based its decision to order a return under the 1980 Convention. The 1980 Convention is not based upon the paramountcy of the child’s welfare. The exercise of the inherent jurisdiction to order a summary return is based firmly upon an analysis of what is in the best interests of the child. By simply substituting one for the other denied the Mother the opportunity to address this fundamental principle separately and independently and importantly provide the Court with contemporary evidence in respect of the child’s best interests. The decision of the Court of Appeal could therefore not safely be upheld in the absence of a proper and informed identification of which path one is choosing to take as the considerations are separate and distinct.
There is no reason why not to prepare and advance both routes if faced with such a situation and where the application of the 1980 Convention is doubtful. The applications can run alongside on a parallel basis. The Judgement acts as a timely reminder that decisions concerning arrangements for children can and should be approached from different angles and perspectives. What is suitable and appropriate in one situation may not necessarily be the best in another. More starkly we as practitioners are remined of the fundamental need to assess what is in the best interests of any child as their needs change and evolve and to be ensure that those charged with making decisions are kept informed as changes arise so that the vast armoury of the Court’s resources are not unnecessarily limited.”