Summary
This was a complex case which reached the UK Supreme Court (see below.)
The proceedings were in respect of a child, Saleem, born in England in January 2007.
The parties married in Morocco, and lived in England till 2009. From 2009 to 2011, they were in Saudi Arabia; and they returned to Morocco in 2011.
The marriage had problems, and the parties divorced in 2012.
The mother had “residential custody”. However, she came to England in January 2013, starting a new relationship.
The child remained in Morocco, with the mother’s parents. The father had contact.
In September 2013, the mother and the child arrived in the UK.
Due to financial problems, the father could not start proceedings in England before March 2014.
On 1st April 2015, Mr Justice Wood ordered the return of the child.
This was an appeal against the order of Wood J. The Court of Appeal set aside the return order and dismissed the father’s application. In this context, Lady Justice Black held:
“30 […] I think it proper to proceed upon the basis that [the child] was not habitually resident here either in March 2014 when the English proceedings began or in October 2014 when Wood J determined them.
[…]
74 So far, I have established that Brussels IIa did not apply to this case and that the 1996 Hague Convention did not confer jurisdiction to make the order that was made. It remains to consider whether there was any other basis on which Wood J had jurisdiction to make the order that he did. The instinctive reaction of the English lawyer in these circumstances is to reach for the inherent jurisdiction. However, in my view, it cannot assist here. In so far as it concerns jurisdiction, the whole purpose of the 1996 Hague Convention , as with Brussels IIa, is to determine, as between Contracting States, the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child (see Article 1(1) a) ). That would be defeated if, notwithstanding an absence of jurisdiction under the Convention, a Contracting State were to be able to assume jurisdiction by virtue of a domestic rule. I referred earlier to A v A in order to explain how it was that the Supreme Court had recourse to the inherent jurisdiction there – it was through the Brussels IIa jurisdiction provisions not in spite of them. There is no similar route available in this case. I conclude, therefore, that the inherent jurisdiction had no proper part to play in Wood J's decision.” [30 and 74]
That said, the case reached the UK Supreme Court.
Lady Hale, with whom Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson agreed, held that:
“41 The obvious solution is to return the case to Roderic Wood J in the High Court, for him to decide whether he can exercise the jurisdiction provided for in article 11 of the 1996 Convention and, if so, in what way.” [2015] UKSC 70 [41]