The Court of Appeal clarifies that the inherent jurisdiction is not available where the 1996 Hague Convention applies. Deirdre Fottrell QC and Eleri Jones acted for the successful appellant in Re I-L (Children) (1996 Hague Child Protection Convention: Inherent Jurisdiction)  EWCA Civ 1956.
In this case, a mother had sought summary return of two children to Russia under the 1980 Hague Convention on the basis of repudiatory retention or alternatively under the inherent jurisdiction. The judge at first instance held that there was no repudiatory retention and that at the relevant date the children remained habitually resident in Russia, so ordered the children’s return under the inherent jurisdiction.
The Court of Appeal allowed the father’s appeal and held that where the 1996 Hague Convention applies between two countries, if a 1980 Hague Convention application is made and is not successful, the applicable jurisdictional provisions are those of the 1996 Hague Convention, particularly Article 11, and the inherent jurisdiction is not available to use. This consideration was not put before the judge below. In any event the Court of Appeal held that it would not have been appropriate to make an Article 11 return order due to ongoing proceedings in Russia and a Russian order which the mother was seeking (separately) to recognise and enforce in England.
Eleri Jones considers the implications of the decision in an article for Lexis®PSL, published 21/11/2019.
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