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Supreme Court to consider 1996 Hague Convention appeal

J (A Child) (1996 Hague Convention) (Morocco) to be heard in November

The Supreme Court has granted permission to the father to appeal to that court in J (A Child) (1996 Hague Convention) (Morocco) [2015] EWCA Civ 329.  The hearing of the appeal will take place on 17 November 2015.

The appellant father is represented by Henry Setright QC of 4 Paper Buildings, with Edward Devereux of Harcourt Chambers, instructed by Dawson Cornwell.

The respondent mother is represented by James Turner QC of 1 King's Bench Walk, with Finola Moore of Four Brick Court, instructed by JD Spicer Zeb.

Reunite has applied to intervene, represented by Teertha Gupta QC, with Jacqueline Renton, both of 4 Paper Buildings, instructed by Goodman Ray, but no ruling has yet been given on that application.

The parties are Moroccan nationals, who also possess British nationality. Having lived in several countries, they resumed life in Morocco in 2011. Following the breakdown of their marriage, the Moroccan courts granted custody to the mother, and the father had significant contact with the child. When the mother moved to live with her parents the father maintained extended direct contact with the child during the holidays. In 2013, the mother moved to England. Thereafter in September 2013, as Wood J found at first instance, the mother wrongfully removed S to England.  The father sought his return to Morocco. Wood J ordered the child's return.

The mother appealed. After considering the relevant guidance, explanatory report and case law, Black LJ concluded that an order for the return of the child could be construed as a measure of protection within the meaning of Article 11(1) of the 1996 Hague Convention. To satisfy Article 11, it was necessary to further consider on the facts of the individual case, whether the case was urgent and what constituted protective measures in the circumstances.

Approximately six months had passed before the father took action in England and over a year had passed by the time of Wood J's decision. The father showed, by his prior application to the Moroccan courts, that a speedy application to the courts with jurisdiction under Article 5 was entirely possible and there has been no explanation as to why he did not apply in Morocco for a return order rather than a change of residence. The harm to the child currently was the absence of direct contact with the father. Black LJ therefore found that there was no urgency in this case such that the court did not have jurisdiction to make the return order pursuant to Article 11.

It was not necessary to consider the original grounds of appeal in light of the court's determination that Wood J did not have jurisdiction to make the return order under the 1996 Convention. Nothing that had been said had, in any event, undermined Wood J's determination that no request to the Moroccan court for transfer of jurisdiction should be made as the English Court was not better placed to determine the welfare of the child.

The mother's appeal was allowed, the original order set aside and substituted with an order dismissing the father's application.

The Court of Appeal judgment is here.