Supreme Court of the United Kingdom

Supreme Court of the United Kingdom

United Kingdom

25 November 2015

Re J (A Child) (1996 Hague Convention: Morocco)

[2015] UKSC 70

Supreme / Highest Court

Article 11

• Article 1
• Article 3
• Article 5
• Article 7
• Article 15

Inherent jurisdiction of the High Court; Child Abduction and Custody Act 1985 (implementation of the 1996 Hague Convention)

Not provided

The case concerned a child wrongfully removed from Morocco to England. Because Morocco's accession to the 1980 Hague Child Abduction Convention had not been accepted by the European Union, the father could not seek the child's return under the 1980 Convention. The issue before the Supreme Court was whether the English courts could exercise jurisdiction under Article 11 of the 1996 Hague Child Protection Convention to order the child's summary return to Morocco. The Supreme Court held that Article 11 creates a substantive emergency jurisdiction rather than a merely ancillary power comparable to Article 20 of Brussels IIa. Lady Hale emphasised that Article 11 should be interpreted according to its own terms and rejected the Court of Appeal's view that urgency requires proof that it is impossible or impracticable for the authorities of the child's habitual residence to act. The Court recognised that a return order may constitute a "measure of protection" and observed that Article 11 may play an important role in supporting the jurisdiction retained under Article 7 following a wrongful removal. The judgment provides authoritative guidance on the concepts of urgency, necessity and the relationship between Articles 5, 7 and 11.

The Supreme Court allowed the father's appeal and held that the Court of Appeal had interpreted Article 11 too narrowly. Article 11 confers a substantive, albeit secondary, jurisdiction on the authorities of the State where the child is present. A summary return order may constitute a "necessary measure of protection", and cases of wrongful removal will frequently satisfy the urgency requirement. The matter was remitted to the High Court to determine whether Article 11 jurisdiction should be exercised on the facts.