Re NY (A Child) (1980 Hague Abduction Convention) (Inherent Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Hodge,Lady Black,Lord Kitchin,Lord Sales |
| Judgment Date | 30 October 2019 |
| Neutral Citation | [2019] UKSC 49 |
| Court | Supreme Court |
| Date | 30 October 2019 |
[2019] UKSC 49
Lord Wilson
Lord Hodge
Lady Black
Lord Kitchin
Lord Sales
Appellant
Mark Twomey QC
Alex Laing
Dr Rob George
(Instructed by Dawson Cornwell)
Respondent
Henry Setright QC
Mark Jarman
Michael Gration
(Instructed by Ellis Jones Solicitors LLP (Bournemouth))
Intervener (1)
Teertha Gupta QC
Jacqueline Renton
Jennifer Perrins
(Instructed by Freemans Solicitors)
Intervener (2)
Christopher Hames QC
Michael Edwards
Charlotte Baker
(Instructed by Bindmans LLP)
Intervener (3)
Timothy Scott QC
(Instructed by SKO Family Law Specialists (Edinburgh))
Interveners:- (written submissions only)
(1) Reunite International
(2) The International Centre for Family Law, Policy & Practice
(3) International Academy of Family Lawyers
Heard on 18 July 2019
( with whom Lord Hodge, Lady Black, Lord Kitchin and Lord Sales agree)
A father applies under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”), set out in Schedule 1 to the Child Abduction and Custody Act 1985 (“the 1985 Act”), for a summary order for the return of his young daughter from England to Israel. The mother opposes the application but a High Court judge grants it. On the mother's appeal the Court of Appeal rules that it had not been open to the judge to make an order under the Convention. So it sets his order aside. But the Court of Appeal then proceeds to invoke the inherent jurisdiction of the High Court (“the inherent jurisdiction”) and, pursuant to it, the court makes a summary order analogous to that made by the judge, namely for the immediate return of the child to Israel, in substitution for his order under the Convention.
The overall question raised before us by the mother's further appeal has been whether the Court of Appeal was entitled to make the summary order for the child's return to Israel under the inherent jurisdiction. But the question has been broken down into two parts. First, was the inherent jurisdiction in principle available to be exercised in the making of a summary order for the child's return? Second, if so, was the Court of Appeal's approach to the exercise of the jurisdiction flawed?
This court has already answered the overall question. It heard the appeal on 18 July 2019 and received the last of the parents' further written submissions on 1 August. It was conscious of the urgency of the decision. The aspiration set out in Practice Direction 3.4.5(c), annexed to the Supreme Court Rules 2009, is for the result of an appeal in a Convention case to be given within two weeks of the end of the hearing; and the court considered that the aspiration should apply equally to the instant appeal. On 14 August 2019 it therefore made its order, which was that the mother's appeal be allowed and that the Court of Appeal's order under the inherent jurisdiction be set aside. By today's judgments, the court will explain its reasons for having made that order. In doing so it will explain why its answer to both parts of the overall question is “yes”.
The mother and father are Israeli nationals, aged 31 and 29 respectively. They married in 2013 and have only the one child to whom I have referred. She is now aged almost three. They lived in Israel with the father's parents. The father worked as a police officer. The marriage ran into difficulties and, partly as a result of them, the parties decided to move, with the child, to England. The move took place on 25 November 2018. They rented a flat in North London. The father found employment as a waiter and the child started to attend nursery school. Although both parents regarded it as possible that, were the marriage to break down, they would return to live separately in Israel, there was no agreement that they would necessarily do so.
In London the marriage quickly broke down. On 10 January 2019 the father told the mother that he intended to return to live in Israel; and he sought to insist that, with the child, the mother should also return there, where issues between them could be resolved. While accepting that the marriage had broken down, the mother replied that she proposed to remain with the child in London. On 14 January 2019 the mother called the police and alleged to them that the father intended to kidnap the child. The police advised the father to leave the flat. He thereupon returned to Israel, where he continues to live. The mother continues to live with the child in London. Acting by lawyers, the father quickly issued proceedings for divorce and custody of the child in the Rabbinical Court of Jerusalem, which remained pending at the date of the hearing before the judge.
The factual allegation which formed the basis of the father's application under the Convention was that, on the day when the marriage finally broke down, namely 10 January 2019, the mother had wrongfully retained the child in England and Wales.
The first of the mother's three contentions by way of defence was that the child had become habitually resident in England and Wales by 10 January 2019. By his written judgment handed down on 17 April 2019, [2019] EWHC 1310 (Fam), [2019] 3 FCR 82, following a hearing on 15 April, the judge (MacDonald J) rejected this contention and the Court of Appeal refused to permit the mother to appeal against his rejection of it. For present purposes it is therefore an established fact that, at any rate until 10 January 2019, the child remained habitually resident in Israel.
The second of the mother's contentions was that her retention of the child on 10 January 2019 had not been wrongful. She linked this contention with an assertion pursuant to article 13(a) of the Convention that the father had given a relevant consent. Although in earlier presentations of her case she had alleged that he had consented both to the child's removal from Israel on 25 November 2018 and to the retention of her in England on 10 January 2019, her case of consent became properly focussed in the position statement laid on her behalf before the judge: it was simply that he had consented to her retention of the child on 10 January. For the father's consent to the child's removal from Israel on 25 November was irrelevant to his claim of wrongful retention.
As the Court of Appeal was later to hold, the proper focus of the mother's case of consent for some reason became lost during the hearing before the judge. Her case was taken to be that the father had consented to the child's removal from Israel on 25 November. In relation to that point, the judge received brief oral evidence from the mother, from a male friend of hers and from the father; and it is important to note that the judge received no oral evidence on any other aspect of the case. In the event he held that the father's consent had been operative at the time of the child's removal from Israel; that the mother had therefore established a defence under article 13(a) of the Convention; and that the defence yielded to him a discretion not to order the child's return to Israel.
The third of the mother's contentions, made pursuant to article 13(b) of the Convention, was that there was a grave risk that a return to Israel would expose the child to physical or psychological harm or would otherwise place her in an intolerable situation. In this regard the mother, in her written evidence, made what appeared to be serious allegations of domestic abuse against the father. She alleged that his work as an Israeli policeman had in effect brutalised him; that during the marriage he had pushed or hit her every two or three weeks; that he had once held a gun to her head and had frequently demonstrated how he could crush her skull with his hands; and that once in Israel and again on an underground train in London he had even assaulted the child.
The judge weighed the mother's allegations of domestic abuse against the father's written denials and, in particular, against other material which on any view raised substantial concern about her credibility in that respect. For, in text messages sent to the mother on 13 January 2019, the male friend who gave oral evidence on her behalf had suggested that, in any approach on her part to the Rabbinical Court in London, she should “play the game”; should dress modestly; should pretend that she was religious; and should express fear that the father would kidnap the child. He had also suggested that she should offer the father greater contact with the child than she genuinely intended to afford to him in order to induce him to give her a Jewish “get”. Indeed it was on the day following her receipt of these messages that the mother had alleged to the police that the father intended to kidnap the child.
The judge was fully entitled to observe that, in the light of the above material, he should approach the mother's allegations of domestic abuse with caution. He then evaluated them in accordance with the approach recommended for Convention cases in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144. He therefore heard no oral evidence in relation to them and made no findings about them. Instead he sought to make a reasonable assumption about the maximum level of risk to the child in the light of all the available evidence. On this basis his assumption was of some risk to the mother, but not directly to the child, of physical and verbal abuse on the part of the...
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