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Supreme Court judgment due as to use of inherent jurisdiction to order summary re-location

On 30 October 2019 the Supreme Court will promulgate its judgment as to whether the inherent jurisdiction can be used to order the summary re-relocation of a child where there is a statutory scheme and where the substantive and procedural characteristics of that scheme are avoided.

In NY (A Child), an appeal from the judgment of the Court of Appeal in Re NY (A Child) (1980 Hague Abduction Convention) (Inherent Jurisdiction) [2019] EWCA Civ 1065, the appellant mother and respondent father were born in Israel and were married there in 2013. NY (aged 2) was born in November 2016. In November 2018, following marital difficulties and after some discussion, the parents moved with NY to live in England.

The move to England was not successful and on 10 January 2019 the parents agreed that they would divorce. On or about 14 January 2019, the father returned to Israel and commenced proceedings in the Rabbinical Court in Israel for divorce and custody of the child.

By letter dated 6th February 2019 the Israeli Central Authority sent an application under the 1980 Hague Child Abduction Convention ('the 1980 Convention') to the English Central Authority. Proceedings were commenced in England on 26th February 2019. The father's case was that an alleged wrongful retention took place on 10th January 2019. The mother's case was that NY was habitually resident in England at that date; that the father had consented to NY's removal from Israel and subsequent retention in England; and that Article 13(b) of the 1980 Hague Child Abduction Convention was established.

The first instance judge concluded that: NY was not habitually resident in England at the relevant date; that the father had consented to NY's "removal" from Israel; that the Article 13(b) defence was not established; and that, notwithstanding the father's consent, he would exercise his discretion to order NY's summary return to Israel. The judge added that, had he been satisfied that NY was habitually resident in England, he would nonetheless have concluded that it was in her best interests for an order to be made under the inherent jurisdiction of the High Court returning her to Israel for decisions concerning her welfare to be made in that jurisdiction.

The Court of Appeal found that:

Reunite International, The International Centre for Family Law Policy & Practice and the International Academy of Family Lawyers intervened in the Supreme Court proceedings.

The appeal was heard by Lord Wilson, Lord Hodge, Lady Black, Lord Kitchin and Lord Sales on 18 July 2019.

To watch the morning session of the hearing, click here. For the afternoon session, click here. For the Court of Appeal judgment, click here.