Ruling Overturns Previous High Court And Court Of Appeal Decisions

The Supreme Court has ruled in favour of a mother looking to keep her child in the UK, overturning two previous decisions by the High Court and Court of Appeal.

The Court had been asked to consider if the Court of Appeal had been entitled to make a summary order for the child’s return to Israel under the inherent jurisdiction, and if so, had that jurisdiction been exercised correctly.

The Supreme Court found that whilst the court had jurisdiction to make the order under its inherent jurisdiction, the exercise of that jurisdiction had been flawed and upheld the mother’s appeal.

In NY (A Child), the father applied under the Hague Convention on the Civil Aspects of International Child Abduction 1980 ('the Convention') for the summary return of the child to Israel, on the basis that the mother had wrongfully retained her in England on 10 January 2019.

The mother and father were both born in Israel and were married there in 2013. The child was born in 2016 in Israel and her primary language is Hebrew. The family came to England in November 2018 in an attempt to save the failing marriage; the move was not successful and on 10 January 2019, the parents agreed to divorce.

The father wished the parties to return to Israel to deal with the end of the marriage; the mother did not agree. The father returned to Israel on 14 January 2019 and applied under the Hague Convention for the summary return of the child to Israel.

The father alleged the mother had wrongfully retained the child in the UK following their separation, while the mother’s argument rested on the child being habitually resident in England by that time, and that the father had consented to the child moving and staying there.

The High Court held that the child was not habitually resident in England by January 2019 and that the child should return to Israel for decisions concerning her welfare to be made in that jurisdiction.

The mother appealed to the Court of Appeal, which held that the High Court judge was correct in finding that there was no agreement between the parents providing for a limited or temporary stay in England.

However in its ruling, the Supreme Court identified eight factors which the Court of Appeal should have given consideration to before making its decision:

1. Whether the evidence before the court was up to date
2. Whether the court could make findings to justify the order
3. Whether there ought to have been an enquiry into the child’s welfare
4. Whether allegations of domestic abuse ought to have been considered
5. What arrangements were in place for the child on her arrival in Israel
6. Whether the court needed to hear evidence from the parties in relation to these factors
7. Whether the Children and Family Court Advisory and Support Service (CAFCASS) ought to have prepared a report
8. The approach the relevant court in Israel would adopt to the mother’s application to relocate the child to England.

Expert Opinion

“The Supreme Court’s ruling challenges the idea that courts can make an order without a full and extensive examination of all evidence before them. It is a clear indication that there should at least be consideration of an enquiry into the child’s welfare before orders of this nature are made by the court.

“It is helpful to practitioners and families who find themselves involved in these cases to have clearer guidance on the factors which the court ought to weigh in the balance when exercising the inherent jurisdiction, the Supreme Court’s decision today is to be welcomed.” Jenna Lucas - Partner