The mother appealed Wood J's decision and sought to have it set aside. In her judgment, Black LJ identified significant gaps in Wood J's judgment, namely:
Habitual residenceHabitual residence is a determining factor on whether the court has jurisdiction to hear a case relating to that child.
Wood J had made no finding as to the child's habitual residence other than at the time of his removal from Morocco in September 2013, Black LJ said that it might have been material to know where the child was habitually resident in March 2014 when the English proceedings began, and in October 2014 when Wood J determined them. Wood J had found the child to be habitually resident in Morocco and this was upheld by Black LJ, who then proceeded on the basis that the child had not since become habitually resident in England and Wales in March 2014, nor in October 2014.
JurisdictionThe question of who had jurisdiction had not attracted enough critical attention. If the English courts do not have jurisdiction then, very simply, no order can be made relating to that child. Jurisdiction is usually conferred by domestic legislation or together with EU law.
Black LJ's judgment involved a careful consideration of the 1996 Hague Convention, of Brussels IIa and of domestic case-law. Black LJ decided that England did not have jurisdiction to make the return order under 1980 Hague Convention as the UK has not accepted Morocco's accession to the Convention. She also found that England did not have jurisdiction under the Council Regulation (EC) No 2201/2003 (BIIR) in the absence of a finding that S had been habitually resident in the UK or another member state.
The order sought by the father fell within the scope of the 1996 Hague Convention, Arts 3(a) or (b) (see
A v A [2013] UKSC 60). However, Art 5 conferred jurisdiction to the Moroccan courts because S was habitually resident there before his removal. The English court could only therefore make protective measures in urgent circumstances (Art 11). The father had delayed for 6 months before making his application in England and there was a further year's delay before the case was heard.
The protection required by the father was of the child's relationship with him, but the delays showed this was not an urgent issue; thereby determining that England did not have jurisdiction. Without jurisdiction, the inherent jurisdiction of the English court was not then available for Wood J to make the order her did. Wood J was wrong to order the return of S to Morocco.
ConclusionWhenever a case has any connection to another country, it is vital to consider jurisdiction from the outset. The Supreme Court's judgment is expected to clarify the position on jurisdiction and, in particular, the interpretation of the requirement of urgency within Art 11 of the Hague Convention.
This article was originally published on the Pennington Manches website and has been reproduced here with kind permission.
