Claire Edgar

The majority of child abduction cases do not involve strangers. Children, who are caught up in the relationship disputes of their parents, are often removed from their country of residence or retained in another country by one parent without the consent of the other. Few cases of this nature make the news however figures reveal that the number of parental child abduction cases dealt with by the Foreign & Commonwealth Office has risen by 88 per cent in just under a decade.

The 1980 ‘Hague Convention on the Civil Aspects of International Child Abduction’ is an agreement between various countries which aims to ensure the return of an abducted child to the country where he or she normally lives, so that issues of residence and contact can be decided by the Courts of that country. Essentially, the Hague Convention provides that the Court dealing with the application must order the return of a child who has been unlawfully removed or retained.

The Court does have the power not to order a return in the following cases:

• If more than a year has passed since the removal or retention of the child and the child is settled in their new environment.
• If the person with “rights of custody” agreed to the removal or retention either beforehand or afterwards.
• If there is a grave risk that the return of a child would “expose them to physical or psychological harm or otherwise place them in an intolerable situation”.
• If “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views”.

These defences are interpreted very narrowly by the Courts and are normally only successfully used in very strong cases.

But what about cases where the factual matrix means that the Hague Convention is not engaged? The UK Supreme Court handed down judgement on 30th October 2019 in the case of NY (A Child) [2019] UKSC49, a case which considers the powers of the Court in child abduction cases and particularly the powers which the High Court has under the inherent jurisdiction.

The case involved a family who came from Israel to live in the UK with their child in November 2018. When their marriage broke down in January 2019, the father returned to Israel and the mother remained in the UK with the child. The father brought an application under the Hague Convention for the child to be summarily returned to Israel, alleging that the mother was unlawfully retaining the child in the UK. The Court of Appeal decided that there were no grounds for determining that the mother’s retention of the child in the UK was wrongful and therefore the Hague Convention had not been engaged. However, the Court of Appeal went on to decide that an order for summary return could instead be made under the Court’s inherent jurisdiction. The mother appealed against this decision to the Supreme Court.

The mother argued that the inherent jurisdiction was not available as an order for the child’s return outside the Hague Convention should have been made by way of a Specific Issue Order under the Children Act. The Supreme Court found that the availability of a Specific Issue Order did not preclude the Court from making an order under its inherent jurisdiction. It determined that both the Children Order and the exercise of inherent jurisdiction were available to the Court and furthermore, that a decision under each involved consideration of the welfare principle.

The mother’s appeal was however ultimately allowed by the Supreme Court as she had not been given sufficient notice of the Court of Appeal’s intention to use the inherent jurisdiction and also the Court of Appeal had not fully considered matters before making its decision under the inherent jurisdiction including whether the High Court had made findings sufficient to justify the order and whether the evidence before it was sufficiently up-to-date.

This judgment effectively meant that in cases where the Court cannot exercise powers of summary return of a child under the Hague Convention, it can instead order the return of a child by relying on its powers under the inherent jurisdiction.

At Francis Hanna & Co Solicitors, we have experience in dealing with international parental child abduction cases and matters invoking the Hague Convention.

• Claire Edgar is a partner at Francis Hanna & Co Solicitors in Belfast.