The Supreme Court had to consider at the end of last year the ability of the High Court to order the immediate return of a child abroad using its inherent jurisdiction as opposed to under the Hague Convention.
The case originated in the High Court where the Court had allowed an application made by the father for the child’s return to Israel. The mother appealed this decision where the Court of Appeal ruled that it had not been open to the Judge at the High Court to make an Order under the Hague Convention but used the High Court’s inherent jurisdiction to make essentially the same Order.
The mother appealed to the Supreme Court which allowed the appeal.
The appeal raised two questions:
● Is the inherent jurisdiction available to the Court of Appeal? – The Supreme Court said that it is even though the father did not seek to use the inherent jurisdiction.
● Was their use of it flawed? – The Supreme Court again answered yes, saying that the Court of Appeal did not make its own findings as to whether the child’s welfare required her return to Israel. Under the inherent jurisdiction this is something that is required as it is based on the paramountcy principle, being that the child’s welfare has to be the Court’s main concern.
The appeal was allowed and the Order from the Court of Appeal set aside. The matters considered were complex and of note was that there were a number of intervenors (essentially someone who is not a party to proceedings but has a clear interest in the outcome of a case) who were invited to comment on the issues at hand.
This difficult case shows how complex proceedings involving international matters are becoming more prevalent and also how legal advice as soon as possible is always best to obtain.