Rachael Kelsey: Inherent jurisdiction and child law – two new cases

Rachael Kelsey

There are two new cases, both of which develop the jurisprudence on the use of the inherent jurisdiction of the courts in child law matters, and both matters in which SKO has acted.

Judgment in NY (A Child) was handed down by the Supreme Court yesterday with SKO acting pro bono for one the interveners, the International Academy of Family Lawyers.

The hearing took place less than two weeks after SKO was instructed. In that window an application to the Supreme Court was made and submissions lodged which included input from practitioners from 17 states across the world.

The case concerned the interaction between the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”) and the inherent jurisdiction of the courts. An Israeli child who was nearly three moved to London with her parents in late November 2018. Her parents separated in early January this year and the father went back to Israel whilst the mother stayed in London with the child.

The father made an application under the Convention for return of the child to Israel. He was successful at first instance. On appeal, the Court of Appeal set that order aside, finding that the mother had not wrongfully retained the child in terms of the Convention. However, the court did still require that the child be returned to Israel, relying on the inherent jurisdiction of the Court and a summary order for return was made.

The unanimous determination of the Supreme Court was to allow the appeal and set aside the Court of Appeal’s order. The court held that the inherent jurisdiction of the court was still available in principle, and the introduction into domestic law of the Convention had not extinguished the inherent jurisdiction of the courts to make orders for return of a child otherwise than by way of the Convention. However, in the circumstances of this case there had been inadequate consideration of what was in the child’s best interests to justify the exercise of that inherent jurisdiction.

Although this case will have limited application for Scottish practitioners, dealing as it does with the inherent jurisdiction of the English courts, it is interesting that it comes at a time when the Scottish courts are also grappling with the extent of the inherent jurisdiction when it comes to child matters.

Practitioners will be aware of the run of cases that started in 2016 with the Petition to the Nobile Officium by Cumbria County Council & Ors [2016] CSIH 92. In these cases, the High Court in England and Wales determined that four vulnerable children should be placed in secure accommodation. There was a shortage of suitable accommodation in England for such children, but accommodation available north of the border so the children were placed in secure accommodation in Scotland.

The problem that became apparent however was that there was no provision for the recognition in Scotland of English orders requiring that a child reside in secure accommodation, rendering the orders incapable of being enforced. The case lead to a change in the law, incorporated in the Children and Social Work Act 2017, which allowed for recognition and enforcement of an order placing a child in secure accommodation where that accommodation has been approved by the Scottish Ministers.

That has not been the end of matters, however, as highlighted in the recent decision of MacDonald LJ in May 2019 in the case of Salford City Council v NV, AM & M & Ors [2019] EWHC 1510 (Fam). In this case the child had been accommodated in Scotland in circumstances which amounted to a deprivation of her liberty for the purposes of article 5 of the European Convention on Human Rights (ECHR). The issue though was that placement was not a placement approved by the Scottish Ministers.

The English court adjourned the case to allow Petition proceedings to be brought in the Court of Session, under the Nobile Officium. Interim orders have been made by the court to recognise and enforce the orders made by the English court but no final determination has yet been made and the matter will be back before the English court imminently.

It may well be that this is a classic Nobile Officium one-off case and that we will not find ourselves in a further rash of cases, but given the resurgence of interest in the whole area of the inherent jurisdiction of the courts we should perhaps have moderate expectations (and no, I am not saying anything about the Wightman, Cherry and Vince cases. We have an extension, let’s breathe for a moment).

Rachael Kelsey is a director at SKO Family Law Specialists. She splits her time between Edinburgh and London and is and president-elect of the European Chapter of the International Academy of Family Lawyers.