In the matter of NY (A Child)

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Case summary

Case ID

UKSC/2019/0145

Parties

Appellant(s)

NY’s Mother

Respondent(s)

NY’s Father

Intervener(s)

1) Reunite International

2) The International Centre for Family Law Policy & Practice

3) International Academy of Family Lawyers

Issue

Whether the inherent jurisdiction can be used to order the summary re-relocation of a child where there is a statutory scheme and where the substantive and procedural characteristics of that scheme are avoided.

Facts

The appellant mother and respondent father were born in Israel and were married there in 2013. NY (aged 2) was born in November 2016. In November 2018, following marital difficulties and after some discussion, the parents moved with NY to live in England. The move to England was not successful and on 10 January 2019 the parents agreed that they would divorce. On or about 14 January 2019, the father returned to Israel and commenced proceedings in the Rabbinical Court in Israel for divorce and custody of the child. By letter dated 6th February 2019 the Israeli Central Authority sent an application under the 1980 Hague Child Abduction Convention (‘the 1980 Convention’) to the English Central Authority. Proceedings were commenced in England on 26th February 2019. The father’s case was that an alleged wrongful retention took place on 10th January 2019. The mother’s case was that NY was habitually resident in England at that date; that the father had consented to NY’s removal from Israel and subsequent retention in England; and that Article 13(b) of the 1980 Hague Child Abduction Convention was established. The first instance judge concluded that: NY was not habitually resident in England at the relevant date; that the father had consented to NY’s “removal” from Israel; that the Article 13(b) defence was not established; and that, notwithstanding the father’s consent, he would exercise his discretion to order NY’s summary return to Israel. The judge added that, had he been satisfied that NY was habitually resident in England, he would nonetheless have concluded that it was in her best interests for an order to be made under the inherent jurisdiction of the High Court returning her to Israel for decisions concerning her welfare to be made in that jurisdiction. The Court of Appeal found that: there was no retention in breach of rights of custody in this case, such that the 1980 Convention does not apply; the judge properly took into account the identified protective measures and reached a determination that was open to him; and the judge was entitled to make an order for NY’s return under the court’s inherent jurisdiction and his summary welfare decision to do so is fully supported by the reasons he gave.