Re J (A Child) (1996 Hague Convention) (Morocco)
| Jurisdiction | England & Wales |
| Judge | Black LJ,Gloster LJ,Moore-Bick LJ |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWCA Civ 329 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2014/3515 |
| Date | 01 April 2015 |
[2015] EWCA Civ 329
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE WOOD
FD14P00436
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Vice President of the Court of Appeal, Civil Division
Lady Justice Black
Lady Justice Gloster
Case No: B4/2014/3515
Mr James Turner QC & Ms Finola Moore (instructed by JD Spicer Zeb Solicitors) for the Appellant
Mr Henry Setright QC & Mr Edward Devereux (instructed by Dawson Cornwell) for the Respondent
Teertha Gupta QC & Jacqueline Renton (instructed by Bindmans LLP) for the Intervener
Hearing date: 10th February 2015
This appeal concerns S who was born in January 2007 and is 8 years old. It is against an order made by Wood J on 10 October 2014 that S's mother return or cause the return of S to the jurisdiction of Morocco. The mother appealed against that decision. S's father opposed the appeal.
Both parents were represented by leading and junior counsel before us. We also had the benefit of a skeleton argument and short oral submissions from Reunite which was permitted to intervene to this limited extent in view of the importance of the issues arising in the appeal.
The appeal has involved a consideration of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children ("the 1996 Hague Convention"), Council Regulation (EC) No 2201/2003 ("Brussels IIa") and domestic law, including the case of In re J (a child) (Custody Rights: Jurisdiction [2005] UKHL 40 [2006] 1 AC 80.
The 1996 Hague Convention came into force between England and Wales and Morocco on 1 November 2012 and is therefore undoubtedly of potential relevance to the present case. As always, Brussels IIa must be considered because its reach is wide and case law makes clear that it can apply even when the foreign state is not a Member State of the European Union. The 1980 Hague Convention on the Civil Aspects of International Child Abduction is not relevant because, although Morocco has acceded to that Convention, its accession has not been (indeed cannot be, see Opinion 1/13 of the CJEU) accepted by United Kingdom.
The ground covered in the appeal has been rather different from that covered in front of Wood J and has included a consideration of whether jurisdiction to determine the case lay with Morocco or England and Wales, what orders it was open to Wood J to make, and what principles governed his determination. I think it is fair to say that the argument continued to develop even during the currency of the appeal proceedings. This evolutionary approach to the litigation may not be particularly surprising, given that this is only the second case in the Court of Appeal to focus upon the 1996 Hague Convention, but it has not made the issues any easier to determine.
Background facts
I take the background facts largely from the judgment of Wood J.
The parties were born in Morocco but they have travelled quite extensively and lived abroad at times. Both are Moroccan nationals and now also have British nationality.
They met in Morocco and married there in 2005. They then came to England together and S was born here.
The father is an academic. His career took the family to Saudi Arabia in 2009 and then, in February 2011, they moved back to Morocco. By then, the marriage was failing. There were divorce proceedings and, on 12 July 2012, an order was made by the Moroccan court entrusting "residential custody" to the mother and entitling the father to visiting rights on Sundays and holidays. Wood J considered that the terms of the Moroccan order made it "abundantly clear" that the intention was that the mother and S should live in Morocco.
The mother and S lived for a period with the maternal grandparents, some 90 kilometres from where the father lived and worked. Contact between S and the father took place as far as the practicalities permitted. This included S spending the summer holidays in 2012 with the father. There was also regular and frequent indirect contact.
In due course, the mother left to live in England. The judge concluded that this was, at the latest, in January 2013. S was left with his maternal grandparents. He saw his father for contact and spent most of the 2013 summer holidays, from 1 July to 7 September, with him. He then returned to school near his maternal grandparents' home.
As for the mother, she has formed a new relationship with a man to whom she was married in January 2013 according to Islamic law. In her statement of 9 September 2014, she said that her new husband arrived in the UK in 1996 and has been in employment here since then. From 2008 until December 2013, he was employed in a restaurant in London. In December 2013, he was made redundant and at the time of the hearing before Wood J, he was seeking new employment here. He is a Moroccan national but has indefinite leave to remain in this country. The mother was pregnant at the time of the hearing before Wood J and a baby has since been born to her and her husband.
The sequence of events which culminated in the hearing before Wood J commenced on 12 September 2013 when the mother flew to Morocco from this country, collected S and, on 14 September 2013, returned to England with him.
In response, the father issued proceedings in Morocco on 23 September 2013 complaining that the mother had removed S from Morocco without his consent and prevented him from maintaining his parental relationship with his son, and seeking the revocation of the order of 12 July 2012. He sought an order granting him residential custody instead. The Moroccan court refused his application by order of 16 January 2014. It is recorded in the order that there was no evidence which would enable the court to decide conclusively whether the mother had gone to England for a "casual, temporary stay" or to stay on a permanent basis and for that reason, and because the father was unable to make a woman available to look after the 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 aforesaid code" (E11). It is not clear to me from the translation of the order to which code this is a reference.
The father commenced proceedings in England and Wales on 14 March 2014. The delay in doing so was because of a lack of money. The judge commented that the case had since proceeded at "a somewhat laggardly pace", partly because of funding problems on the mother's part.
S meanwhile had started school here. He began at an infant school and moved to primary school from about April 2014. He spoke almost no English when he arrived and, at the time of the hearing before Wood J, he still had significant problems with the language despite a very positive attitude on his part and the provision of daily tuition. Nevertheless, overall the school report available to Wood J was a good one and S was popular and trying hard. By the time of the hearing before Wood J, he had been here for 14 months.
The judge's findings
The father's case was that S was habitually resident in Morocco prior to the mother wrongfully removing him on 14 September 2013 and that, by virtue of Article 7 of the 1996 Hague Convention, the Moroccan courts had retained jurisdiction to resolve disputes between his parents about him.
The judge found that the mother, the father and S were indeed habitually resident in Morocco prior to 14 September 2013. Whatever questions there might have been as to the mother's habitual residence by that time, the judge's conclusion about S's habitual residence could not realistically be questioned and I refused permission to appeal in relation to it. He considered, on good evidence, that S was "rooted" in Morocco before the mother brought him here (§36).
The mother took issue with the suggestion that she had wrongfully removed S from Morocco but it seems that, although she referred in her statements to her belief that she had the right to bring him here under the Moroccan court order giving her residential custody, by the time of the hearing before Wood J, her case was put only on the basis that the father had agreed to the removal. The questions put by the parties in writing to the expert on Moroccan law, Maître Abdellah Benlamhidi, did not include any enquiry about the effect of the Moroccan custody order and, although there was a general question about the principles that determine an application under Moroccan law for parental responsibility or rights, custody, access and permission to relocate permanently abroad, there was no question directed to whether or not the mother was entitled to bring S to live here without the father's consent
On the basis of the mother's own evidence, the judge rejected the mother's case that the father had agreed to the removal. Given the terms of §14 of the mother's statement of 13 June 2014 (C26), this is not surprising. He found that she did not tell the father that she was removing S from Morocco until after it had happened and that the removal of S from Morocco was wrongful (see §§16 and 37 of the judgment).
Neither in the mother's written grounds of appeal nor in her oral submissions at the permission hearing (at which time she was represented by Ms Moore who had also represented her before Wood J) was there any direct challenge to the judge's finding of wrongful removal. Mr Turner QC was instructed to lead Ms Moore at the appeal hearing and...
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