LORD WILSON: (with whom
Lord Hodge, Lady Black, Lord Kitchin and Lord Sales agree)
Introduction
1.
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.
2.
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?
3.
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”.
Facts
4.
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.
5.
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.
Judgment at First Instance
6.
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.
7.
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.
8.
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.
9.
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.
10.
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.
11.
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.
12.
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 father. The judge then addressed a series of undertakings offered
to him by the father, including not to molest the mother in Israel, not to
remove the child from her care in Israel without an order of the Israeli court
and to provide reasonable financial support for both of them there until that
court might otherwise order. The judge’s conclusion was that, in the light of
the undertakings, the risk to the child, if returned to Israel, did not reach
the level of gravity required by article 13(b). So that defence failed. The
judge did not consider, because he was not asked to consider, whether the
undertakings would be enforceable against the father in Israel. The Court of
Appeal’s view, however, was that the judge would have been unlikely to have
overlooked the well-recognised concern about the enforceability in a foreign
state of undertakings given to the English court.
13.
Then the judge turned to the discretion whether to order the child’s
return to Israel, to which his finding that the father had consented to her
removal from Israel appeared to him to have given rise. In this regard he
reminded himself that he was entitled to have regard to the policy aims of the
Convention. He regarded them as based on
“the recognition that it is of
manifest benefit to a child to have decisions regarding their welfare taken in
the jurisdiction of their habitual residence.”
The judge surveyed the multitude of features which
connected the child to Israel and, by contrast, her connection with the UK for
less than five months prior to the hearing; and he concluded that he should not
exercise his discretion to decline to order her return to Israel.
14.
It was by those steps that the judge’s order for the child’s return to
Israel was made under the Convention.
15.
But then the judge added a postscript. It was based on passing
observations which he had made earlier. He had there reminded himself that,
under article 18 of the Convention, its provisions for the return of children
did not limit the domestic powers of a contracting state to order their return
at any time; and he had referred to the decision of this court in In re L (A
Child) (Custody: Habitual Residence) [2013] UKSC 75, [2014] AC 1017 (“the L
case”), as for which see para 43 below. His postscript was:
“As I have made clear above, I am
satisfied that had I concluded that [the child] was habitually resident in this
country, I would have reached the same decision under the inherent jurisdiction
…”
16.
The father had issued no application for an order for the child’s return
to Israel to be made under the inherent jurisdiction. Indeed no reference had
been made to that jurisdiction in the course of the hearing, whether by counsel
for either party in the course of their written or oral submissions to the
court or by the judge himself.
17.
No doubt many judges (at any rate I speak for myself) have occasionally
been guilty of including in judgments ill-considered, off-the-cuff, remarks
which later prove highly unfortunate.
18.
The counterfactual hypothesis of the judge’s postscript was that the
child had been habitually resident in England on 10 January 2019, with the
result that the Convention would, for that reason alone, not have applied to a
retention on that date. But, apart from the wider principles applicable to the
making of an order under the inherent jurisdiction addressed below, the
hypothesis of the child’s habitual residence in England should by itself have
generated substantial questions, never addressed by the judge, about the
propriety of such an order. One question would of course have surrounded
recognition of the fact that (to use the judge’s own words quoted in para 13
above)
“it is of manifest benefit to a
child to have decisions regarding their welfare taken in the jurisdiction of
their habitual residence.”
Judgment of the Court of Appeal
19.
On 18 June 2019 the Court of Appeal (Flaux, Moylan and Haddon-Cave LJJ)
not only heard the mother’s appeal but determined it, by a judgment delivered
by Moylan LJ with which the other members of the court agreed: [2019] EWCA Civ 1065, [2019] 3 FCR 49. The court’s order is however dated 24 June 2019.
20.
There is no need to consider in detail the court’s reasons for setting
aside the judge’s order under the Convention. They will already be apparent in
any event. In summary the court held that there had been no focus in the
judgment on the father’s foundational assertion that there had been a wrongful
retention of the child by the mother on 10 January 2019; and it held that, once
the judge had found that there was no agreement between the parties to return
to Israel if the marriage broke down, there was no ground for concluding that
the mother’s retention of the child in England on and after that date had been
wrongful. Therefore the Convention had not been engaged.
21.
There is, by contrast, every need to consider in detail the court’s
reasons for substituting an order for the child’s return to Israel under the
inherent jurisdiction.
22.
In this regard the court in para 63 identified the following two issues:
“(i) whether the mother was
prejudiced by the absence of any … application [for the exercise of the
inherent jurisdiction] and by the other matters relied on by her so as to make
the judge’s determination unfair; and
(ii) whether the judge
was in a position to make a sufficient welfare assessment necessary to the
proper exercise of the inherent jurisdiction.” (Emphasis supplied)
23.
It is worthwhile to note the court’s use of the word “determination” in
its formulation of the first issue. In at least six places in the judgment the
court referred to the judge’s “determination” or “decision” to make an order
under the inherent jurisdiction. The court well knew that he had made no such determination
or decision but it clearly regarded it as appropriate to deem him to have done
so. In what follows, however, it is as well to remember that the order under
the inherent jurisdiction was made not by the judge on 17 April 2019 but by the
Court of Appeal on 18 June 2019. This leads to the second issue identified by
that court. If the Court of Appeal, always invested with the powers of the
judge against whose judgment an appeal is brought and thus in this case
invested with his inherent jurisdiction, was considering whether to make a
fresh order on a different basis, it had to survey the relevant evidence for
itself; indeed, as is agreed between the parties, it had to satisfy itself that
the evidence was sufficiently up-to-date to form the basis of an order which
could be made that day by reference to circumstances which then existed. On the
contrary, however, in its formulation of the second issue, the court asked
whether the judge had been in a position to make the requisite welfare
assessment.
24.
Central to the mother’s objections in the Court of Appeal to the making
of any order under the inherent jurisdiction was a contention that the court’s
exercise of that jurisdiction had to be conducted by reference to an
overarching consideration, namely the paramountcy of the child’s welfare,
entirely different from the considerations by reference to which the
jurisdiction under the Convention would fall to be exercised. The Court of
Appeal’s answer was to rely on the judge’s analysis of the discretion not to
make an order under the Convention which, however mistakenly, he had considered
to have arisen from the father’s consent to the child’s removal from Israel. In
the judgment the Court of Appeal reasoned as follows:
“65. … there were no
additional matters of substance which would not be relevant to the exercise of
that discretion but would be relevant to the discretion under the inherent
jurisdiction.
…
66. … it could be argued
that the inherent jurisdiction has a wider canvas based, as it is, on welfare
being the court’s paramount consideration but, when the court is deciding
whether to exercise its discretion to make a return order under the 1980
Convention once a ground for opposing the return has been established, the
court will consider the wider canvas, in particular when the ground is other
than grave harm.”
25.
The Court of Appeal’s resolution of the two issues set out in para 22
above was therefore as follows, at para 68:
“(i) the mother was not
significantly prejudiced in this case so as to make the judge’s
determination unfair; and
(ii) the judge was in
a position to make a sufficient welfare assessment.” (Emphasis supplied)
Their resolution led to the court’s overall conclusion as
follows, at para 73(c):
“The judge was entitled to
make an order for [the child’s] return under the court’s inherent jurisdiction
and his summary welfare decision to do so is fully supported by the
reasons he gave.” (Emphasis supplied)
Inherent Jurisdiction Available
26.
The first basis of the mother’s assault on the Court of Appeal’s summary
order for the child’s return to Israel under the inherent jurisdiction is that
it was not open to that court, and would not have been open to the trial judge,
to deploy the inherent jurisdiction in that way. Her case is that a summary
order for the child’s return outside the Convention could have been made only
as a specific issue order under the Children Act 1989 (“the 1989 Act”).
27.
Section 10 of the 1989 Act empowers the court to make the orders
specified in section 8(1). They include a specific issue order, there defined
as “an order giving directions for the purpose of determining a specific
question which has arisen … in connection with any aspect of parental
responsibility for a child”. An order for the return of a child to a foreign
state falls within that definition; and a specific issue order to that effect
can be made not only after a full inquiry into the merits of the case but also
on a summary basis; see paras 34 and 35 below.
28.
Had it been otherwise appropriate for the Court of Appeal to make a
summary order in the circumstances of the present case, it could have been made
as a specific issue order. There would have been jurisdiction to make such an
order in relation to this child. For, had the child remained habitually
resident in Israel on the date when, in the absence of an application, the
court was considering whether to make the order (18 June 2019), her presence in
England and Wales, coupled with the absence of her habitual residence in any
part of the United Kingdom, would have endowed the court with jurisdiction to
make it: sections 2(1)(b)(ii) and 3(1)(b) of the Family Law Act 1986 (“the 1986
Act”). If, alternatively, the child had become habitually resident in England
by that date, article 8(1) of Council Regulation (EC) No 2201/2003 (“Regulation
B2R”), which applies even when the other possible jurisdiction is not a member
state as there defined, would, as confirmed by section 2(1)(a) of the 1986 Act,
have endowed the court with jurisdiction to make it.
29.
But could a summary order for the child’s return to Israel also have
been made under the inherent jurisdiction? In principle the inherent
jurisdiction was as fully available in relation to this child as was the
jurisdiction to make a specific issue order. For, had she remained habitually
resident in Israel on 18 June 2019, a summary order for the child’s return
there under the inherent jurisdiction, not being an order which “gives care of
a child to any person”, would have fallen neither within section 1(1)(d) of the
1986 Act nor otherwise within Part 1 of it; and the result would have been the
application of the bases of jurisdiction under common law, including that of
the child’s presence in England. If, alternatively, she had become habitually
resident in England by that date, article 8(1) of Regulation B2R would, as in
the case of a specific issue order, have endowed the court with jurisdiction to
deploy the inherent jurisdiction in relation to her.
30.
The mother accepts that, prior to the advent of the 1989 Act, a summary
order for the return of a child abroad could be made by the High Court in the
exercise of its inherent jurisdiction. She reminds the court of the classic
exposition of Buckley LJ in In re L (Minors) (Wardship: Jurisdiction)
[1974] 1 WLR 250. It is easy to forget that, before ordering the return of the
child to Germany in that case, the High Court judge had conducted a full
merits-based inquiry into what the child’s welfare required. Strictly speaking,
the remarks of Buckley LJ at pp 264-265 were therefore only passing
observations. Nevertheless he there convincingly explained why an order under
the inherent jurisdiction for a prompt return of children wrongly taken from a
foreign state, in order that the courts there might determine their future,
might well be in their best interests at that stage; and that a full
investigation of the merits of the parental dispute in the English courts might
be incompatible with them. These remarks formed the basis of a number of
decisions in the following decade, beginning with that of In re C (Minors)
(Wardship: Jurisdiction) [1978] Fam 105.
31.
On 1 August 1986 the 1985 Act, to which the Convention was scheduled,
came into force. It is a fair working assumption that application of the
Convention will generally identify the circumstances in which it is, and is
not, in the interests of a child to be the subject of a summary order for
return to another contracting state. The court should look critically at any
application for a summary order, whether as a specific issue order or as an
order under the inherent jurisdiction, for the return to a contracting state of
a child who as in the present case has been held not to be susceptible, or who
would probably be held not to be susceptible, to the making of an order under
the Convention. In her judgment in the Irish High Court in KW v PW
[2016] IEHC 513, O’Hanlon J went further:
“57. This Court finds that the
inherent jurisdiction is not applicable in this case. The inherent jurisdiction
exists to fill a lacuna in the law and there is no lacuna here. To use the
inherent jurisdiction to make an order returning these children to Australia
after holding that they are habitually resident in Ireland would be to circumnavigate
the content and the principles of the Hague Convention.”
One has considerable sympathy for the judge’s approach;
but I respectfully suggest that it would be better for our approach in England
and Wales to be less categorical. For, as I will explain in para 53 below, the
principles of the Convention are not constructed by reference to the
paramountcy of the child’s welfare and so we must recognise, as being at any
rate a possibility, that a child’s welfare will require a summary order for his
return to a contracting state even when the Convention does not so operate as
to require it.
32.
On 14 October 1991 sections 8 and 10 of the 1989 Act came into force. It
was, according to the mother, at this moment, which marked the advent of the
specific issue order, that it became impermissible for a summary order for the
child’s return abroad to be made instead under the inherent jurisdiction.
33.
The mother cites the decision of the appellate committee of the House of
Lords in Richards v Richards [1984] AC 174. It held that, following an
enactment in 1967 which conferred specific jurisdiction to order a spouse to
leave the home, a court could no longer make such an order pursuant to its
general jurisdiction to grant an injunction. Lord Hailsham of St Marylebone,
Lord Chancellor, said at pp 199, 200:
“… where, as here, Parliament has
spelt out in considerable detail what must be done in a particular class of
case it is not open to litigants to bypass the special Act, nor to the courts
to disregard its provisions by resorting to the earlier procedure, and thus
choose to apply a different jurisprudence from that which the Act prescribes.”
Lord Brandon of Oakbrook spoke at p 221 to similar
effect.
34.
The mother also relies heavily on the decision of the appellate
committee in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80. The issue was whether, as his father contended, there
should be a summary order for the return of a five-year-old boy to Saudi
Arabia, which was not (and is not) a contracting state under the Convention.
The committee set aside the summary order made by the Court of Appeal and
restored the order by which the judge had refused to make it. Baroness Hale of
Richmond made the only substantive speech. She observed at para 5 that, had the
Convention applied, the mother’s retention of the boy in England would probably
have been categorised as wrongful. She said at para 28:
“It is plain, therefore, that
there is always a choice to be made. Summary return should not be the automatic
reaction to any and every unauthorised taking or keeping a child from his home
country. On the other hand, summary return may very well be in the best interests
of the individual child.”
In concluding that the Court of Appeal had not been
entitled to interfere with the judge’s order, Baroness Hale referred at paras
39, 40 and 46 not only to the relevance of the effect of an order for the
child’s return on his primary carer but also to the occasional relevance of
differences in the criteria applied by the rival courts to resolution of the
substantive issues in relation to the child and, in particular, to any absence
of a power in the foreign court to authorise the primary carer to relocate with
the child back to England.
35.
The decision in In re J was, says the mother, impeccable. And her
point is this: the application by the father under consideration in all three
courts was for a specific issue order for the child’s return to Saudi Arabia,
not for an order to that effect under the inherent jurisdiction. It was thus in
relation to a specific issue order that, for example, Baroness Hale stressed
the facility in principle for an order for return to be made summarily.
36.
We now reach the high-point of the mother’s case that the inherent
jurisdiction is no longer available for the making of a summary order for a
child’s return abroad. It is Practice Direction 12D, which supplements Chapter
5 of Part 12 of the Family Procedure Rules 2010 (“the 2010 Rules”) and which is
entitled “Inherent Jurisdiction … Proceedings”. Paragraph 1.2 emphasises the
width of the jurisdiction:
“The court may under its inherent
jurisdiction, in addition to all of the orders which can be made in family
proceedings, make a wide range of injunctions for the child’s protection of
which the following are the most common -
…
(e) orders for the return
of children to and from another state.”
For the purpose of the 2010 Rules, the phrase “family
proceedings” has the broad meaning ascribed to it by section 75(3) of the
Courts Act 2003 (“the 2003 Act”). But the mother’s case focusses on para 1.1 of
the Practice Direction which provides:
“It is the duty of the court under
its inherent jurisdiction to ensure that a child who is the subject of
proceedings is protected and properly taken care of. The court may in
exercising its inherent jurisdiction make any order or determine any issue in
respect of a child unless limited by case law or statute. Such proceedings
should not be commenced unless it is clear that the issues concerning the child
cannot be resolved under the Children Act 1989.” (Emphasis supplied)
37.
An application for a specific issue order for the return of a child to a
foreign state cannot be issued in the High Court. It has to be issued in the
Family Court: rule 5.4(1) of the 2010 Rules. It can then, however, be allocated
to be heard by a judge of High Court level sitting as a judge of the Family
Court or it can indeed be transferred to the High Court. There are strong
reasons of policy, applied to all areas of civil justice, to confine claims to
the lowest court which has jurisdiction to hear them in order to preserve the
ability of the higher courts, in particular the High Court, to address only the
claims strictly identified as deserving their attention. Is the italicised
instruction in para 1.1 of the Practice Direction nevertheless too categorical?
Does it have to be clear that the issues cannot be resolved under the
1989 Act before the inherent jurisdiction can be invoked?
38.
The 2010 Rules are made pursuant to section 75(1) of the 2003 Act and so
have legislative force. But practice directions, even including those which are
stated to supplement the 2010 Rules, are not made pursuant to that or any other
statutory authority. As Brooke LJ said in U v Liverpool City Council
(Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657, at para 48:
“… a practice direction has no
legislative force. Practice directions provide invaluable guidance to matters
of practice in the civil courts, but in so far as they contain statements of
the law which are wrong they carry no authority at all.”
39.
The question therefore is whether the categorical instruction in para
1.1 of Practice Direction 12D is wrong.
40.
One of the major achievements of the 1989 Act was to streamline the
procedure for ordering a child to be placed in the care of a local authority.
One of the former procedures for doing so had been by way of exercise by the
High Court of its inherent jurisdiction. Section 100 of the 1989 Act provides:
“(2) No court shall exercise
the High Court’s inherent jurisdiction with respect to children -
(a) so
as to require a child to be placed in the care of a local authority;”
What is significant is that, in making the 1989 Act, Parliament,
by contrast, nowhere sought to preclude exercise of the inherent jurisdiction
so as to make orders equivalent to those for which sections 8 and 10 of it
provide, including specific issue orders.
41.
In the absence of any statutory provision which the instruction in para
1.1 of Practice Direction 12D could be said to reflect, the court should turn
to consider case law.
42.
In A v A (Children: Habitual Residence) [2013] UKSC 60, [2014] AC 1, the trial judge had invoked the inherent jurisdiction to make a summary
order of the obverse kind, namely for the return of four children from abroad,
specifically from Pakistan, to England and Wales. By the time of the arrival of
the case in the Supreme Court, the issue surrounded only the order in relation
to the youngest child, who was a British national but who had been born in
Pakistan and, unlike his siblings, had never lived or even been present in
England. The majority of this court expressed doubt as to whether in these
circumstances the trial judge had been right to ascribe to him habitual
residence in England. But it perceived a different basis for the possible
exercise of the inherent jurisdiction in relation to him, namely the basis at
common law of his British nationality; and it remitted the case to the judge to
determine whether it was appropriate to exercise it. In that a specific issue
order cannot be made on the basis only of nationality, it could be said that
the decision in the A case does not carry the present inquiry much
further. It is however worthwhile to note that, at para 26 of her judgment,
Baroness Hale rejected the submission that the judge’s order, based on the
child’s perceived habitual residence, had been a specific issue order and
observed that there were many orders relating to children which could be made
either under the 1989 Act or under the inherent jurisdiction.
43.
In the L case, cited in para 15
above, the mother brought a boy, then aged seven, from Texas to England with
the permission of a federal court. A year later a federal appeal court reversed
the trial court’s ruling; and the latter then made a revised order for the
mother to return the boy to Texas. The father thereupon applied to the High
Court for an order under the Convention and alternatively under the inherent
jurisdiction for the boy’s return to Texas. On appeal this court held that the
trial judge had been entitled to find that, by the time of the revised order
made by the trial court, the boy had acquired habitual residence in England;
and that therefore the mother’s retention of him had not been wrongful and that
the application under the Convention failed. Nevertheless this court proceeded
to hold that in all the circumstances the boy’s welfare required a summary
order to be made under the inherent jurisdiction for his return to Texas. In
that the child was habitually resident in England, there is no doubt that his
return to Texas could equally have been made the subject of a specific issue
order. But it was not made the subject of such an order; and it was never
suggested that it should have been so made.
44.
The instruction in para 1.1 of Practice Direction 12D goes too far.
There is no law which precludes the commencement of an application under the
inherent jurisdiction unless the issue “cannot” be resolved under the 1989 Act.
Some applications, such as for a summary order for the return of a child to a
foreign state, can be commenced in the High Court as an application for the
exercise of the inherent jurisdiction. But then, if the issue could have been
determined under the 1989 Act as, for example, an application for a specific
issue order, the policy reasons to which I have referred will need to be
addressed. At the first hearing for directions the judge will need to be
persuaded that, exceptionally, it was reasonable for the applicant to attempt
to invoke the inherent jurisdiction. It may be that, for example, for reasons
of urgency, of complexity or of the need for particular judicial expertise in
the determination of a cross-border issue, the judge may be persuaded that the
attempted invocation of the inherent jurisdiction was reasonable and that the
application should proceed. Sometimes, however, she or he will decline to hear
the application on the basis that the issue could satisfactorily be determined
under the 1989 Act.
45.
Why has the mother been so concerned to argue that the Court of Appeal’s
consideration of the making of a summary order for the child’s return to Israel
needed to take place within the framework of a specific issue order?
46.
The answer is that, although the child’s welfare is the paramount
consideration in the making of such an order whether made under the inherent
jurisdiction or as a specific issue order, the mother considers that a specific
issue order could be made only following a more extensive inquiry into the
child’s welfare.
47.
Where an application for the same order can be made in two different
proceedings and falls to be determined by reference to the same overarching
principle of the child’s welfare, it would be wrong for the substantive inquiry
to be conducted in a significantly different way in each of the proceedings.
48.
Of course, when in each of the proceedings it is considering whether to
make a summary order, the court will initially examine whether the child’s
welfare requires it to conduct the extensive inquiry into certain matters which
it would ordinarily conduct. Again, however, it would be wrong for that initial
decision to be reached in a significantly different way in each of them.
49.
The mother refers to the list of seven specific aspects of a child’s
welfare, known as the welfare check-list, to which a court is required by
section 1(3) of the 1989 Act to have particular regard. She points out,
however, that, by subsections (3) and (4), the check-list expressly applies
only to the making of certain orders under the 1989 Act, including a specific
issue order, as is confirmed by the seventh specific aspect, namely the range
of powers under that Act. The first six specified aspects of a child’s welfare
are therefore not expressly applicable to the making of an order under the
inherent jurisdiction. But their utility in any analysis of a child’s welfare
has been recognised for nearly 30 years. In its determination of an application
under the inherent jurisdiction governed by consideration of a child’s welfare,
the court is likely to find it appropriate to consider the first six aspects of
welfare specified in section 1(3) (see In re S (A Child) (Abduction: Hearing
the Child) [2014] EWCA Civ 1557, [2015] Fam 263, at para 22(iv), Ryder LJ);
and, if it is considering whether to make a summary order, it will initially
examine whether, in order sufficiently to identify what the child’s welfare
requires, it should conduct an inquiry into any or all of those aspects and, if
so, how extensive that inquiry should be.
50.
The mother also refers to Practice Direction 12J, which supplements Part
12 of the 2010 Rules and which is entitled “Child Arrangements and Contact
Orders: Domestic Abuse and Harm”. By para 4, the Practice Direction explains that
harm is suffered not only by children who are the direct victims of domestic
abuse but also by children who live in a home in which it is perpetrated. When
disputed allegations of domestic abuse are made, the Practice Direction makes
detailed requirements of the court, in particular to consider whether to
conduct a fact-finding hearing in relation to them (para 16), whether to direct
the preparation of a report by a CAFCASS officer (para 21) and whether to order
a child to be made a party and be separately represented (para 24). The mother
points out, however, that, by para 1, the Practice Direction applies only to
proceedings under the relevant parts of the 1989 Act (which would include an
application for a specific issue order) or of the Adoption and Children Act
2002. Therefore it does not expressly apply to the determination of any
application under the inherent jurisdiction, including of an application
governed by consideration of a child’s welfare in which disputed allegations of
domestic abuse are made. Nevertheless, as in relation to the welfare
check-list, a court which determines such an application is likely to find it
helpful to consider the requirements of the Practice Direction; and if it is
considering whether to make a summary order, it will initially examine whether,
in order sufficiently to identify what the child’s welfare requires, it should,
in the light of the Practice Direction, conduct an inquiry into the allegations
and, if so, how extensive that inquiry should be.
Exercise of Inherent Jurisdiction Flawed
51.
The Court of Appeal did not conduct for itself an inquiry into whether
the welfare of the child required her to be the subject of a summary order for
return to Israel. It considered that the judge had conducted such an inquiry
and had determined that her welfare did so require; and it held that his
perceived determination was not wrong.
52.
With great respect, I find it impossible to agree that the judge had
conducted any such inquiry or had made any such determination. The judge had
not purported to make any determination at all under the inherent jurisdiction;
and he had not conducted any inquiry in relation to which the child’s welfare
was the paramount consideration; still less had he conducted what was commended
by the Court of Appeal as a “sufficient welfare assessment”.
53.
The Court of Appeal held that, in determining not to exercise the
discretion so as to decline to order the child’s return to Israel, which he
perceived to have arisen under the Convention, the judge had considered the
“wider canvas based … on welfare being the court’s paramount consideration”.
But the discretion which arises under the Convention lacks that basis. It has
been best explained by Baroness Hale in In re M (Children) (Abduction:
Rights of Custody) [2007] UKHL 55, [2008] AC 1288 as follows:
“42. In Convention cases,
however, there are general policy considerations which may be weighed against
the interests of the child in the individual case. These policy considerations
include, not only the swift return of abducted children, but also comity
between the contracting states and respect for one another’s judicial
processes. Furthermore, the Convention is there, not only to secure the prompt
return of abducted children, but also to deter abduction in the first place.
The message should go out to potential abductors that there are no safe havens
among the contracting states.
43. My Lords, in cases where
a discretion arises from the terms of the Convention itself, it seems to me
that the discretion is at large. The court is entitled to take into account the
various aspects of the Convention policy, alongside the circumstances which
gave the court a discretion in the first place and the wider considerations of
the child’s rights and welfare.”
The judge’s determination not to exercise the discretion
perceived to have arisen under the Convention cannot stand as a determination
that the child’s welfare required her return to Israel.
54.
The initial question for the Court of Appeal was whether the mother had
had sufficient notice of its intention to make a summary order under the
inherent jurisdiction. The fact that the father had not applied for an order
under the inherent jurisdiction did not, of itself, inhibit the Court of Appeal
from making the order; and, had the judge made such an order, the absence of an
application would not, of itself, have inhibited him from doing so. Section
10(1)(b) of the 1989 Act provides that a
specific issue order can be made even though no application for it has been
made; and there is no reason to doubt that an order under the inherent
jurisdiction, the flexibility of which is a key feature of it, can also be made
of the court’s own motion. But in such circumstances a heavy duty lies upon a
court to ask whether the effective respondent has had notice of the court’s intention
sufficient to afford to her (or him) a reasonable opportunity to mount
opposition to it. In the present case the Court of Appeal did address this
initial question; and it answered it affirmatively. It is correct that, upon
her receipt of the father’s skeleton argument three weeks prior to the hearing
in the Court of Appeal, the mother became aware that, in the event of the
success of her appeal against the order under the Convention, the father
aspired to persuade that court to make an order under the inherent
jurisdiction; and respect must be given to the Court of Appeal’s observation
that Mr Twomey QC, on behalf of the mother, had at its hearing (unlike at ours)
struggled to identify any additional evidence which he might have adduced, or
submission which he might have made, had such notice been given to him prior to
the conclusion of the hearing before the judge. But, since it was the Court of
Appeal which made the order, the real question was whether the mother had had
sufficient notice of the intention of that court to do so. It is sufficient to
record significant doubt whether the mother could reasonably have anticipated
that, in the event of the success of her appeal, an appellate court, instead
of, at most, remitting to the judge consideration of the exercise of the
inherent jurisdiction, would itself exercise it even in the absence of material
with which to analyse what the child’s welfare required.
55.
I respectfully suggest, however, that, before making a summary order
under the inherent jurisdiction for this child to be returned to Israel, the
Court of Appeal should have given (but did not give) at least some
consideration to eight further, linked, questions.
56.
First, the court, which was sitting on 18 June 2019, should have
considered whether the evidence before it was sufficiently up to date to enable
it then to make the summary order. The mother’s statement in answer to the
claim under the Convention was dated 29 March 2019. In it she had devoted seven
out of 67 paragraphs to assertions of the child’s habitual residence in England
and of particular circumstances said to demonstrate how happy and settled she
had become. In his statement in reply dated 11 April the father had joined
issue with the mother’s assertions. The oral evidence given by the parties to
the judge on 15 April had been limited to the issue of consent to the child’s
removal from Israel and so had not addressed these matters.
57.
Second, the court should have considered whether the judge had made, or
whether it could make, findings sufficient to justify the summary order. The
only relevant finding made by the judge had been that on 10 January 2019, only
seven weeks after her arrival in England, the child had retained habitual
residence in Israel. Was that sufficient to justify the making of a summary
order five months later? In the light of the policy in favour of the making of
substantive welfare determinations by the courts of habitual residence, did
there need to be inquiry into the child’s habitual residence at the relevant
date, which, in the absence of an application, was in this case the date of the
proposed order?
58.
Third, the court should have considered whether, in order sufficiently
to identify what the child’s welfare required for the purposes of a summary
order, an inquiry should be conducted into any or all of the aspects of welfare
specified in section 1(3) of the 1989 Act and, if so, how extensive that
inquiry should be: see para 49 above. It might in particular have considered
that the third of those aspects, namely “the likely effect on [the child] of
any change in [her] circumstances”, merited inquiry.
59.
Fourth, the court should have considered whether in the light of
Practice Direction 12J, an inquiry should be conducted into the disputed
allegations made by the mother of domestic abuse and, if so, how extensive that
inquiry should be: see para 50 above. The judge had made no findings about
them. Instead, in accordance with the E case cited in para 12 above, he
had, for the purposes of the claim under the Convention, made a reasonable
assumption in relation to the maximum level of risk to the child arising out of
any domestic abuse to be perpetrated by the father and had considered that such
risk would be contained within acceptable limits by undertakings offered by the
father, the enforceability of which in Israel the judge had not explored.
Consideration should therefore have been given to whether, in a determination
to be governed by the child’s welfare, the judge’s approach to the mother’s
allegations remained sufficient.
60.
Fifth, the court should have considered whether, without identification
in evidence of any arrangements for the child in Israel, in particular of where
she and the mother would live, it would be appropriate to conclude that her
welfare required her to return there.
61.
Sixth, the court should have considered whether, in the light of its
consideration of the five matters identified above, any oral evidence should be
given by the parties and, if so, upon what aspects and to what extent.
62.
Seventh, the court should have considered whether, in the light of its
consideration of the same matters, a CAFCASS officer should be directed to
prepare a report and, if so, upon what aspects and to what extent. It is
noteworthy that in the L case discussed in para 43 above, a CAFCASS
report had been prepared. It had been designed to ascertain the boy’s wishes
and feelings and so was apparently made as if pursuant to section 1(3)(a) of
the 1989 Act: see para 14 of Baroness Hale’s judgment. In her careful weighing,
in paras 34 to 37 of her judgment, of the welfare considerations which
militated both in favour of, and against, the boy’s return to Texas, Baroness
Hale relied to a significant extent upon the content of the CAFCASS report.
63.
Eighth, the court should have considered whether it needed to compare
the relative abilities of the Rabbinical Court in Jerusalem and the Family
Court in London to reach a swift resolution of the substantive issues between
the parents in relation to the child and to satisfy itself that the Rabbinical
Court had power to authorise the mother to relocate with the child back to
England: see para 34 above.
64.
The effect of the above is not to submerge efficient exercise of the
inherent jurisdiction to make a summary order within an ocean of onerous
judicial obligations. The linked obligations are obligations only to consider
the eight specified matters. There is no need for us to contemplate what the
proper outcome of the Court of Appeal’s consideration of them might have been.
It is the fact that it failed even to consider them which yields the conclusion
that it conducted no defensible analysis of the child’s welfare prior to its
determination to make the summary order and which led this court to uphold the
mother’s appeal.
