The Supreme Court rules on inherent jurisdiction, but what is the ‘inherent jurisdiction’?

Children|November 4th 2019

What is the ‘inherent jurisdiction’?

I suspect that ‘inherent jurisdiction’ is a term that very few non-lawyers have ever come across. And yet it is a very important concept and one that can dictate the outcome of a case.

Let us just back-track for a moment. Going right back to basics, we need to consider what exactly makes up our law. Well essentially, it comprises laws and rules passed by Parliament and precedent. By ‘laws and rules passed by Parliament’ I mean statutes and statutory instruments. And by ‘precedent’ I mean matters upon which a higher court has decided, where those decisions bind courts in future dealing with the same issue.

But what if there is some matter that is not covered by statute/statutory instrument/precedent? Does that mean that the court simply cannot deal with it?

The concept of ‘inherent jurisdiction’

Well, not necessarily. The concept of ‘inherent jurisdiction’ says that a higher court (i.e. the High Court or above) has jurisdiction to deal with almost any matter that comes before it. Inherent jurisdiction is, in effect, a ‘cover all’, entitling the court to make a decision, where there is no existing law available, and where it is clear that the decision of a court is required. As one can imagine, the use of the inherent jurisdiction can be quite controversial, so it is not unusual to see decisions which invoked it appealed.

OK, so let’s look at an example of the inherent jurisdiction in practice, in a case in which the Supreme Court ruled on just such an appeal last week.

The case Re NY (A Child

The case is Re NY (A Child). I’m not going to look at the case in detail (and I will also simplify it somewhat, for the sake of clarity), as it is rather technical, and therefore not I think of a great deal of interest to non-legal aficionados. But it does demonstrate the concept of inherent jurisdiction.

Re NY concerned the alleged wrongful retention of a child in England, rather than in her ‘home’ country of Israel.

Now, Israel is, of course, a signatory to the Hague Convention on Child Abduction, which was ratified by the Child Abduction and Custody Act 1985. Surely, then, the case should be dealt with in accordance with the Convention? Why the need to invoke the inherent jurisdiction?

The answer to that lay in the facts of the case. It concerned a three-year-old child, born of Israeli parents. The family lived in Israel but moved to London in November 2018. Shortly thereafter the parents’ marriage broke down, and the father returned to Israel. The mother, however, refused to do so, remaining in London with the child. The father applied under the Convention for an order for the child’s immediate return to Israel, claiming that when the marriage broke down in January 2019, the mother had wrongfully retained the child in England.

Convention does not apply

The High Court granted the father’s application. The mother appealed, to the Court of Appeal. The Court of Appeal ruled that the mother’s retention of the child in England had not been wrongful, as required by the Convention, as there was no agreement between the parents to return to Israel if the marriage broke down. Therefore, the Convention did not apply. However, the Court of Appeal substituted the High Court’s order with an order made under the inherent jurisdiction that the child is returned to Israel.

The mother appealed again, to the Supreme Court. The Supreme Court unanimously allowed the appeal and set aside the Court of Appeal’s order. It held that the inherent jurisdiction had been available to allow the Court of Appeal to make such an order. However, the use of the inherent jurisdiction in such a case required the court to consider whether the child’s welfare required a summary order for her return. The Court of Appeal did not make such an inquiry, as it considered that the High Court had already done so. However, the High Court had not done so, as that is not required under the Convention.

You can read the full Supreme Court judgment here.

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John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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