The Supreme Court has granted a Moroccan father permission to appeal in an ongoing dispute over access to his son.
Re J (A Child) (1996 Hague Convention) (Morocco) concerned Moroccan nationals who moved to England after their marriage. Their son was born in the UK, but the parents returned to their home country not long after his birth. Their relationship soon broke down however and they divorced. A Moroccan court ruled that the boy should live with his mother.
Later the mother travelled back to England and remarried, leaving her son in the care of her parents. Then in September 2013, she brought the boy back to England.
The father launched legal proceedings for the return of his son, initially in Morocco and then in the English courts. He argued that the boy had been ‘habitually’ or legally resident’ in Morocco and his removal to Britain had therefore been unlawful.
The initial Judge ruled in his favour, ordering the boy’s return. But the mother objected, on the grounds that the Moroccan courts had ruled that the youngster should live with her. She was granted permission to appeal by Lady Justice Black, who cited the authority of the 1996 Hague Convention on Parental Responsibility and Protection of Children. Article 9 of this Convention gives jurisdiction in disputes to a child’s home country unless the authorities there have given permission for another nation to take over the case. The English authorities had not, however, contacted the Moroccan authorities regarding Re J and therefore, Her Ladyship declared, they had no jurisdiction in the case.
The father also failed to explain why he did not applied to the Moroccan courts for a return order, even though he had made taken initial legal action there. Despite the child’s loss of contact with her father, the case was not sufficiently urgent to allow the English authorities to assume jurisdiction under Article 11 of the Convention, Lady Justice Black declared. Article 11 states that:
“In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.”
The father’s appeal will be heard by the Supreme Court of the United Kingdom on November 17. The charity Reunite International has applied to participate in the case.
This is a complex case – ‘mind-bendingly tricky’ would not be too strong a phrase! Why? Because it involves the relatively unusual combination of a country which is a contracting state to the 1996 Hague Convention but which is also neither an EU member state nor in a 1980 Hague Convention relationship with this country. Where the 1980 Hague Convention on child abduction applies, its use is not affected when the affected countries are parties to both it and the 1996 Convention: see Article 50 of the 1996 Convention. The legal principles at play here may therefore turn out to be confined to a relatively small number of cases.
The Court of Appeal judgement is available here.