J., Re, (2005) 338 N.R. 254 (HL)

• Case Date: June 16, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 338 N.R. 254 (HL)

J., Re (2005), 338 N.R. 254 (HL)

MLB headnote and full text

Temp. Cite: [2005] N.R. TBEd. AU.015

In re J. (a child) (FC)

([2005] UKHL 40)

Indexed As: J., Re

House of Lords

London, England

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

June 16, 2005.

Summary:

A woman (the mother) came from Saudi Arabia to the United Kingdom with her young son to pursue her masters degree. Her hus­band (the boy's father) remained in Saudi Arabia. The mother decided she did not wish to return to Saudi Arabia when her course was over because of marital difficulties. The mother sought a divorce and the father ap­plied under s. 8 of the Children Act for the summary return of the child to Saudi Arabia (a coun­try not party to the Hague Conven­tion on the Civil Aspects of Interna­tional Child Abduc­tion). The trial judge held that were it not for one factor, he would have found it in the child's best interests to be returned to Saudi Arabia for his future to be decided according to the norms of his own so­ciety. However, the factor tipping the bal­ance the other way was the judge's con­cern about the effect that the father's allega­tions about the mother's association with another man would have in Saudi Arabian Shariah law with respect to the child's inter­ests. The father appealed

The Court of Appeal allowed the appeal. The court held that there could be no criti­cism of the judge's impeccable direction on the applicable legal principles. Nevertheless, the court allowed the father's appeal on the ground that the judge had "elevated this spe­cific anxiety above a level that the evi­dence justified". Accordingly it should not have had such a decisive effect in what had earlier been described as "an otherwise balanced judg­ment". The mother appealed.

The House of Lords allowed the appeal and restored the trial judge's orders. The Court of Appeal erred in intervening in the exercise of discretion by a trial judge despite the fact that he had, in the view of the ap­peal court, properly directed himself on the law. Further, the court of appeal erred in its approach to the application for the sum­mary re­turn of children to a country which was not a party to the Hague Convention of the Civil Aspects of International Child Abduc­tion.

Family Law - Topic 1965

Custody and access - Child abduction legis­lation - Return order - A woman (the mother) came from Saudi Arabia to the United Kingdom with her young son to pur­sue her masters degree - Her husband (the boy's father) remained in Saudi Ara­bia - The mother decided not to return to Saudi Arabia because of marital difficulties - The mother sought a divorce and the father applied under s. 8 of the Children Act for the summary return of the child to Saudi Arabia (a country not party to the Hague Convention on the Civil Aspects of Inter­national Child Abduction) - The trial judge refused the application because of concerns about the impact on the child in Saudi Arabian Shariah law of the father's allega­tions about the mother's association with another man - The father appealed - The Court of Appeal allowed the appeal - The mother appealed - The House of Lords al­lowed the appeal and restored the trial judge's decision - The court discussed the proper approach to a summary return ap­pli­cation where the country involved was not a party to the Hague Convention on the Civil Aspects of International Child Abduction - See para­graphs 13 to 48.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - A woman (the mother) came from Saudi Arabia to the United Kingdom with her young son to pursue her masters de­gree - Her husband (the boy's father) re­mained in Saudi Arabia - The mother de­cided not to return to Saudi Arabia because of marital difficulties - The mother sought a divorce and the father applied under s. 8 of the Children Act for the summary return of the child to Saudi Arabia - The trial judge refused the appli­cation because of concerns about the impact on the child in Saudi Arabian Shariah law of the father's allegations about the mother's association with another man - The father appealed - The Court of Appeal allowed the appeal - The mother appealed - The House of Lords allowed the appeal on the ground that the Court of Appeal should not have inter­vened in the exercise of discretion by the trial judge where the judge properly set out the appli­cable law, made findings of fact which were open on the evidence and was care­ful in evaluating and weighing the rele­vant factors - See paragraphs 1 to 12.

Cases Noticed:

J., Re, [2004] E.W.C.A. Civ. 417; [2004] 2 F.L.R. 85 (C.A.), refd to. [para. 9].

Piglowski v. Piglowska, [1999] 1 W.L.R. 1360 (H.L.), refd to. [para. 10].

G. v. G. (Minors: Custody Appeal), [1985] 1 W.L.R. 647, refd to. [para. 12].

JA, Re (Child Abduction: Non-Convention Country), [1998] 1 F.L.R. 231 (United Arab Emirates), refd to. [para. 14].

Osman v. Elasha, [2000] Fam. 62 (Sudan), refd to. [para. 14].

F., Re (A Minor) (Abduction: Custody Rights), [1991] Fam. 25 (Israel), refd to. [para. 16].

Re B's Settlement; B v. B, [1940] Ch. 54, refd to. [para. 22].

McKee v. McKee, [1951] A.C. 352 (P.C.), refd to. [para. 23].

J. v. C., [1970] A.C. 668, refd to. [para. 24].

G. v. G. (Minors: Abduction), [1991] 1 F.L.R. 506 (Kenya), refd to. [para. 25].

Re, P (A Minor) (Child Abduction: Non Convention Country), [1997] Fam. 45 (C.A.), refd to. [para. 25].

Re, L (Minors) (Wardship: Jurisdiction), [1974] 1 W.L.R. 250, refd to. [para. 26].

Re, R (Minors) (Wardship: Jurisdiction) (1981), 2 F.L.R. 416, refd to. [para. 27].

Re, M., (Abduction: Non-Convention Country), [1995] 1 F.L.R. 89 (Italy), refd to. [para. 35].

Re, S. (Minors) (Abduction), [1994] 1 F.L.R. 297 (Pakistan), refd to. [para. 36].

Re, M. (Abduction: Peremptory Return Or­der), [1996] 1 F.L.R. 478 (Dubai), refd to. [para. 36].

R (Ullah) v. Special Adjudicator, [2002] E.W.C.A. Civ. 1856; [2003] 1 W.L.R. 770 (C.A.), refd to. [para. 42].

R. v. Special Adjudicator; Ex parte Ullah, [2004] N.R. Uned. 117; [2004] A.C. 323; [2004] UKHL 26, refd to. [para. 42].

Statutes Noticed:

Convention on the Civil Aspects of Inter­national Child Abduction (Hague Con­vention), Can. T.S. 1983, No. 35, gen­erally [para. 4].

Hague Convention - see Convention on the Civil Aspects of International Child Abduction.

Authors and Works Noticed:

Schuz, R., Habitual residence of children under the Hague Child Abduction Convention - theory and practice (2001), 13 C.F.L.Q. 1, generally [para. 31].

Counsel:

[not disclosed]

Agents:

[not disclosed]

This appeal was heard before Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood of the House of Lords. The decision of the House was given on June 16, 2005, when the following speeches were delivered:

Lord Nicholls of Birkenhead - see para­graph 1;

Lord Hoffmann - see paragraph 2;

Lord Walker of Gestingthorpe - see para­graph 3;

Baroness Hale of Richmond - see para­graphs 4 to 47;

Lord Brown of Eaton-under-Heywood - see paragraph 48.