Re J (A Child) (1996 Hague Convention) (Morocco)
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Wilson,Lord Reed,Lord Hughes,Lord Toulson |
| Judgment Date | 25 November 2015 |
| Neutral Citation | [2015] UKSC 70 |
| Court | Supreme Court |
| Date | 25 November 2015 |
[2015] UKSC 70
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
Appellant (AJ Father)
Henry Setright QC
Edward Devereux
Michael Gration
(Instructed by Dawson Cornwell)
Respondent (FB Mother)
James Turner QC
Finola Moore
(Instructed by JD Spicer Zeb)
Intervener (Reunite International Child Abduction Centre)
Teertha Gupta QC
Jacqueline Renton
(Instructed by Goodman Ray LLP)
Intervener The AIRE Centre)
David Williams QC
Michael Edwards
(Instructed by Freshfields Bruckhaus Deringer LLP)
Intervener (International Centre for Family Law, Policy and Practice)
Richard Harrison QC
Dr Rob George
(Instructed by Bindmans LLP)
Heard on 17 November 2015
The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, concluded on 19 October 1996 ("the 1996 Convention"), came into force in the United Kingdom on 1 November 2012. This is the first case about that Convention to reach this Court. It concerns the scope of the jurisdiction conferred by article 11 "in all cases of urgency" upon the Contracting State where a child is present but not habitually resident.
The child, whom I shall call Saleem, was born in England in January 2007. His parents are both Moroccan citizens, although they also hold British citizenship. The father lived in England from 1996 until 2009. He married the mother in Morocco in 2005 and the mother came to join him here. From 2009 to 2011, the family lived in Saudi Arabia, where the father held an academic post. Then in 2011 they moved to Morocco, so that the father could take up the academic post which he now holds. However, from August 2011 there were problems in their marriage, and in December 2011, the father instituted proceedings for divorce. In the spring of 2012, the mother moved with the child to her parents' home in another city, some 50 miles from where the family home is.
The local Family Court made an order divorcing the parents on 12 July 2012. The mother was granted "residential custody" of the child. The mother was also ordered to allow the father to visit his child on Sundays and holidays, from 9.00 am until 5.00 pm, "under the condition that the child must spend the night at his mother's residence". The order also provided for the father to pay maintenance for the child. It did not say anything about whether the mother could, or could not, take the child out of the country.
Mother and child lived with the mother's parents for the rest of 2012, but in January 2013, the mother came to England, leaving the child in the care of her parents. The mother's case is that she met her current partner, a Moroccan living in England, when he visited Morocco in 2012. They went through an Islamic ceremony of marriage in January 2013, after the mother's arrival in England, and they have lived here together since then. They have a child together, born in November 2014.
The father's case is that he and the child were in regular and frequent contact while the mother was away and in particular that the child spent the whole of the 2013 summer holiday, from 1 July until he went back to school in September, in his father's care (this is borne out by what the child told the Cafcass officer). However, on 14 September 2013 the mother removed the child from her parents' home and brought him to England. He has lived here with her and her new partner ever since. He has had some contact with his father by phone and skype but no face to face contact since he left Morocco. The father suffered from polio as a child and has problems with mobility. Regular and frequent international travel is difficult for him and he also lacks the means to afford it.
On 23 September 2013, the father applied to the Family Court in the district where the child had been living to revoke the order of 12 July 2012, granting the mother residential custody and child maintenance, and to grant him the residential custody of the child. That application was refused on 16 January 2014. The mother had asked the court to reject the application "due to lack of evidence on the nature of [her] stay abroad". The court concluded that "Since the applicant could not provide any evidence whether the respondent's departure with her child to England was intended to be a casual and temporary or a permanent stay, and since he has no females available to look after his child, his request does not meet the legal and religious conditions required to allow him to look after his own child pursuant to article 400 of the [Family] Code".
On 14 March 2014, the father brought proceedings in the High Court, seeking an order that the child be made a ward of court and directions for his summary return to Morocco. The final hearing of this application did not take place until 10 October 2014. Some of this delay was occasioned by the need to locate the mother and child, some by enabling her to seek legal aid and legal representation, some by attempts to obtain clarification of Moroccan law through the Moroccan Central Authority, and, that having been unsuccessful, by the parties' jointly instructing an expert in Moroccan law. The mother had also to be ordered to disclose details of her relationship with her new husband and her pregnancy. In the meantime, Saleem had been interviewed by a Cafcass officer, who filed her report on 15 August 2014.
Although Morocco has ratified the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("the 1980 Convention"), that ratification has not yet been accepted by the European Union, and thus by the United Kingdom. The case therefore proceeded before Roderic Wood J as an application under the inherent jurisdiction of the High Court: [2014] EWHC 3588 (Fam). He referred (at para 1) to the proceedings also having been brought under the 1996 Convention, and mentions that his attention had been drawn to articles 5, 7, 19 and 22 (but not 11) of that Convention. However, in his section headed "The law", he refers only to article 22, which deals with applicable law, and not with jurisdiction. He dealt with the case as a straightforward application of the principles applicable to such "non-Hague" applications for summary return, as contained in the decision of the House of Lords in In re J (A Child)(Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80.
The judge dealt with the matter on the basis of the written evidence and submissions only. The parties had agreed that it was not necessary to call the Cafcass officer to give oral evidence. The judge refused applications by the mother for her to give oral evidence and for supplementary questions to be asked of the expert in Moroccan law.
The judge found as a fact that the father had not consented to the mother's removal of the child from Morocco. Her own version was that she had told the father of her plans but "he just swore at me" and that she "had been saying to the father for quite some time that I wanted to return to the United Kingdom with S[aleem]. I do not know whether he believed me or not when I used to say this". Her own evidence, therefore, fell a very long way short of consent. Saleem himself had told the Cafcass officer that he did not know where they were going on 14 September 2013 until they got to the airport. This suggested strongly that she knew that Saleem would tell his father if he knew beforehand and that was a thing she wished to avoid (para 16). The father not having given his consent to the removal, the judge also found that it was "wrongful" (para 37).
He also found that mother and father and child were habitually resident in Morocco before the mother wrongfully removed the child (para 37). In a further reference to the 1996 Convention, articles 5 and 6, he commented that "it is clear that the Moroccan court had, and continues to have, … jurisdiction in this matter based on the continuing habitual residence of S[aleem] in that country, which was not terminated by his mother's wrongful removal of him" (para 45). No argument was addressed to him that the effect of the 1996 Convention was that the English court had no jurisdiction at all in the matter.
He considered, therefore, whether under the established principles this was an appropriate case for summary return and concluded that it was. Saleem had told the Cafcass officer that he liked his maternal grandparents and his father. Asked what was good about Morocco he spoke of swimming and his holidays with his father (he shivers at an English winter). He had nothing bad to say about his life in Morocco. But he was happy about coming to England because he wanted to live with his mother (para 22). He liked his school in England. He would be sad if the judge ordered his return to Morocco because he wants to stay with his mother. But he did not seem to have contemplated the possibility that his mother might return to Morocco with him. If the judge decided that he should stay here, he would like to go to Morocco and see his father in the school holidays, If the judge decided he should go to Morocco, he would like to come back to the United Kingdom to see his mother in the school holidays (para 23). The Cafcass officer's conclusions were that Saleem is a well-presented, intelligent and polite child with a good command of English. He was "a resilient child who did not appear to be badly caught up in the conflict between his parents. He had nothing bad to say about his father or about life in Morocco. He was clear about his reasons for wanting to remain in the United Kingdom, which was to be with the...
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