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J (A Child) [2005] UKHL 40

Court of Appeal decision overturned by the House of Lords concerning the summary return of a child to a non-Hague Convention country.

Re J (A Child) [2005] UKHL 40
House of Lords: Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood (16 June 2005)

Court of Appeal decision overturned by the House of Lords concerning the summary return of a child to a non-Hague Convention country.

These proceedings concerned a boy, born in April 2000 in the United States (for medical reasons), who had US, UK and Saudi citizenship. His mother was born in the UK to Iraqi Kurdish parents who had come here as refugees, and his father was a Saudi citizen. The mother and father were legally married in Saudi Arabia according to Shariah law in December 1998. Marital difficulties arose in 2001 and, in May 2003, the mother petitioned for divorce in London. The father applied for a specific issue order under section 8 of the Children Act 1989 for the summary return of the boy to Saudi Arabia; he accepted that the marriage was at an end and that the child should continue in his mother's care, but he wanted them both to return to live in Saudi Arabia. The mother applied for a residence order on the basis that she wanted to remain in the UK and, since she was the boy's natural carer, he should stay with her.

The principal issue for the judge at first instance was whether he should direct the summary return of the boy to Saudi Arabia: he regarded the decision as a difficult one and, on balance, had it not been for one factor, he would have found it in the boy's best interests to be returned to Saudi Arabia; however, he had heard evidence that the father had raised and then withdrawn allegations about the mother's association with another man, and he had heard expert evidence about the effect of such allegations in Saudi Arabian Shariah law. Accordingly, he declined to order the summary return of the boy to Saudi Arabia, and made a residence order in favour of the mother with reasonable contact to the father.
On appeal by the father, the Court of Appeal had held ([2004] EWCA Civ 417) that the judge's 'impeccable direction' on the applicable legal principles could not be criticised; nevertheless, they allowed the father's appeal on the basis that the judge had 'elevated this specific anxiety above a level that the evidence justified'.

The issue of principle to be decided by the House of Lords was the proper approach to applications for the summary return of children to countries which were not parties to the Hague Convention on the Civil Aspects of International Child Abduction. Furthermore, this case was another example of intervention by the Court of Appeal in the exercise of discretion by a trial judge despite the fact that he had, in the view of the appeal court, properly directed himself on the law.

Their Lordships considered competing views on the issue expressed in previous Court of Appeal decisions: on the one hand, in Re JA (Child Abduction: Non-Convention Country) [1998] 1 FLR 231, where the court expected that the foreign system of law would be broadly comparable to that in the UK; and, on the other, in Osman v Elasha [2000] Fam 62, where the court assumed that it would be in the child's best interests to return to his home country even if its system of family law was very different from that in the UK.

They examined at length the fundamental principles, and the relevant authorities, relating to this issue: (1) any court which is determining a question with respect to the upbringing of a child has a statutory duty to regard the welfare of the child as its paramount consideration; (2) the application of the welfare principle may be specifically excluded by statute, eg the Child Abduction and Custody Act 1985; and (3) the court has power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits.

Finally, they considered the human rights implications of unchallenged evidence that had been before the trial judge that the law in Saudi Arabia treated fathers and mothers differently and, in significant respects, the mother was in a less favourable position than the father. While Articles 8 and 14 of the European Convention on Human Rights had little application or effect in this case, the possible impact of Article 20 of the Hague Convention was relevant.

Held, allowing the appeal and restoring the orders made by the trial judge, that the Court of Appeal had been wrong to interfere with the exercise of the trial judge's discretion. Also, the approach adopted in Re JA [1998] 1 FLR 231 was to be preferred to that in Osman v Elasha [2000] Fam 62: it was, along with everything else, a factor to be weighed in the balance in deciding whether summary return to Saudi Arabia was in the boy's best interests.

Read the full text of the judgment here