Child abduction law – can you keep a child in the UK

The law on child abduction and whether you can keep your child in the UK after the breakdown of a relationship just got that much more complicated because of a Supreme Court decision dated October 2019 and referred to as ‘NY (A Child) [2019] UKSC 49’. What the cases emphasises is that if you are an international family you need to take the best legal advice before leaving the UK or deciding to stay here after a separation or divorce.

Children and child abduction solicitors

To speak to Angelique Holm or to a member of the London based OTS Solicitors children law team, please call us on 0203 959 9123 for a discussion about how OTS Solicitors can help you or contact us through our online enquiry form.

The case of NY

The case of nearly three-year-old ‘NY’  reached the Supreme Court in the UK because of arguments about whether the child should be returned to Israel under a summary family court order or not.

Whilst some of the legal arguments were new the essential human aspects are not. Nowadays so many families have international connections that cases involving allegations of parental child abduction are becoming increasingly common.

In the case of NY, her father applied to the UK court for an order for the immediate removal of his daughter from England to Israel. The child’s parents are both Israeli citizens and were married in Israel. The family came to England to live in 2018 and separated a few months later in January 2019. The father returned to Israel. The mother decided that she wanted to stay in England with her daughter.

The father said it was a case of parental child abduction and that the child should be immediately returned to Israel under The Hague Convention and Schedule 1 to the Child Abduction and Custody Act 1985. He sought a summary order for the child's speedy return to Israel because he alleged the mother had wrongfully retained the child in England.

The High Court granted the father's application. On appeal, the Court of Appeal said although the child should not be returned to Israel under the Hague Convention (because the mother’s retention of the child in the UK had not been wrongful) the child should nonetheless be returned to Israel under the court’s inherent jurisdiction. The mother appealed to the Supreme Court. The Supreme Court allowed the mother’s appeal.

The Supreme Court judgment in NY

The Supreme Court was asked two questions in the case of NY:

• Was the inherent jurisdiction available to the court to summarily order the return of the child to Israel, and if so,
• Did the court exercise its use of the inherent jurisdiction correctly?

Inherent Jurisdiction and ordering the return of children to overseas countries

The mother argued that her daughter should not be returned summarily to Israel without the English family court first making a thorough investigation of the merits of each parent’s case and then making a specific issue order under the Children Act 1989. The Supreme Court disagreed and said the court did have the power to make a summary order requiring a child to return to another country, even in cases where the Hague Convention is not applicable. What is more the court can use either inherent jurisdiction or a specific issue order to achieve its objective.

Exercise of inherent jurisdiction flawed

The Supreme Court said the exercise of the inherent jurisdiction by the Court of Appeal in the case of NY was flawed because the Court of Appeal did not inquire into whether the child's welfare required a summary order for her return to Israel. The Supreme Court said the Court of Appeal should also have considered eight questions before making its order under the inherent jurisdiction:

1. Whether the evidence before the court was sufficiently up to date to enable the court to make the summary order returning the child to Israel.
2. Whether the court could make findings sufficient to justify the summary order returning the child to Israel.
3. Whether an inquiry needed to be conducted to see if the child’s welfare required a summary return to Israel, and the extent of any welfare enquiry.
4. Whether an inquiry should be conducted into the disputed allegations made by the mother of domestic abuse and, if so, what the extent of that inquiry should be.
5. Whether it would be appropriate to conclude that the child’s welfare required her to return to Israel, whether or not she was accompanied by her mother.
6. Whether any oral evidence should have been given by the parents before making an order under the inherent jurisdiction.
7. Whether an independent court appointed CAFCASS officer should have been ordered to investigate and file a report.
8. Whether it needed to compare the abilities and powers of the Rabbinical Court in Jerusalem and the family Court in London to reach a speedy resolution over the future living arrangements for the child and to satisfy itself that the court in Jerusalem had the power to authorise the mother to relocate with the child back to England, if the Jerusalem court concluded that outcome was in the child’s best interests.

Children orders and retaining children in the UK

If nothing else, the case of NY demonstrates just how legally complex cases over the country in which a child should live can become. The same complexities can arise if:

• A parent is arguing that a child is habitually resident in the UK or not;
• A parent wants the English family court to invoke the Hague Convention;
• A parent wants the English family court to order the return of their child to a foreign country either under the Convention, the inherent jurisdiction or the making of a specific issue order,
• A parent wants permission from the English court to move overseas with their child because the other parent refuses to give their consent to the child relocating overseas.

The case of NY emphasises the importance of taking specialist legal advice before either retaining a child in the UK or trying to move overseas with a child. Speaking to a children solicitor is the best option if your family has international connections or if you want to move overseas with your child after a separation or divorce. That way you can avoid some of the legal complexities and get legal advice that helps you achieve the best outcome for you and your family.

Children solicitors

To speak to Angelique Holm or to a member of the London based OTS Solicitors children law team about any aspect of children law please call us on 0203 959 9123 for a discussion about how OTS Solicitors can help you or contact us through our online enquiry form.