B v B (Abduction)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE LEGGATT,LORD JUSTICE SCOTT |
| Judgment Date | 07 May 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0507-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 1992 |
| Docket Number | 92/0440 |
[1992] EWCA Civ J0507-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE EWBANK)
Royal Courts of Justice.
The President
(Sir Stephen Brown)
Lord Justice Leggatt
Lord Justice Scott
92/0440
LORD MESTON (instructed by Messrs. Reynolds Porter Chamberlain) appeared on behalf of the (Plaintiff) Appellant.
MR. R. WARNOCK (instructed by Messrs. Bell Lamb & Joynson of Birkenhead) appeared on behalf of the (Defendant) Respondent.
This is an appeal from a decision of Mr. Justice Ewbank of 3rd March of this year. The learned judge had before him an application by a father made under the provisions of the Hague Convention which comprise Schedule 1 to the Child Abduction and Custody Act 1985. The father of the little boy concerned, who is now approaching six and a half years of age, seeks an order of the court in this country that the defendant (the child's mother) shall return the child to the jurisdiction of the court in Ontario, which is in fact presently seized of custody applications relating to the child in the context of divorce proceedings between the father and the mother.
The relevant history of the matter may be shortly stated. The mother is English by birth and the father was born in Rhodesia. They married in England in March 1977 but moved to Ontario in Canada in 1981, and both became Canadian citizens. The little boy was born on 28th December 1985. It so happened that at that time, apparently unknown to the mother, the father had formed an association with another woman, and, as a result, had become the father of that other woman's child. That child was born only three months before the child with whom this court is concerned. The mother eventually found out about this relationship, and was outraged by her discovery. The father left the matrimonial home at the end of April 1990. He went to live with his mistress and with the child born of that association.
On 2nd May 1990 the mother and father entered into an "interim agreement" pending the institution of divorce proceedings. That provided that the mother should have the care and control of the child and that the father should have liberal access. It also provided that divorce proceedings should be instituted when all the matters in dispute were to be finally settled between the parties in the context of the court proceedings.
Subsequently, in the same year, the mother brought the child to England for a visit. She remained in England from August 1990 until November 1990. During those months the matrimonial home was sold. In November 1990 the mother returned to Ontario to live with the little boy at Kingston. The father did not immediately discover that the mother had returned to Canada, but he did so in December 1990. The mother by this time had not acted upon the terms of the "settlement", as it had been termed, by which she had undertaken to commence divorce proceedings. So the father petitioned for divorce on 2nd January 1991 in the Ontario court. In the divorce petition he claimed (inter alia) interim and permanent joint custody of, and access to, the child.
The father issued a notice of motion seeking interim orders on 18th January 1991, including an application that there should be an order preventing the child's removal from Ontario. On 22nd January 1991 an order was made by consent in the Ontario court which (inter alia) granted to the father liberal and generous access. On 17th May 1991 the mother filed a "counter-petition", seeking custody and also seeking leave to remove the child to England. On 4th June 1991 the mother applied by cross-motion, seeking custody and leave to remove the child to England. That motion was returnable on 27th June 1991. In a supporting affidavit the mother said:
"I have no intention of leaving this jurisdiction without an appropriate order of this honourable court."
On 27th June 1991 the motion came before Judge Lally in the Ontario court. He adjourned the hearing of the substantive issues, but he ordered that the child "shall not be removed from the jurisdiction in the interim." The adjournment ordered was until 2nd July 1991. On 2nd July 1991 the learned judge gave directions for the substantive hearing, which was to be dealt with by hearing oral evidence. He also ordered that the file should be transferred to Kingston and that meanwhile the wife (who was the respondent to the motion) should be granted interim custody of the child. He ordered that the petitioner husband should be granted interim access to the child, which he defined as every other weekend in Kingston from 10.00 a.m. Saturday to 5.00 p.m. Saturday and from 12 noon Sunday to 4.00 p.m. Sunday, commencing 13th July 1991. He made it a requirement that the husband should not exercise such access in the presence of his mistress or her son without further order of the court. However, the order as drawn did not in fact include a specific prohibition against the removal of the child from the jurisdiction as in the order of 27th June 1991.
The mother, notwithstanding what she had previously said about not taking the child out of the jurisdiction without an order of the court, nevertheless left Ontario for England on the very next day, 3rd July 1991. She took the child to live in Birkenhead with her parents and she has remained there ever since. On 11th July 1991 Judge Lally, on the ex parte application of the husband, ordered the return of the child. The court has been told that that order has not been formally served upon the mother, but there is no question but that she knows of its existence and its terms. It appears that, following her leaving Ontario, the lawyers who had been acting for her in Ontario were removed from the record.
The father quickly sought relief under the provisions of the Hague Convention. On 15th August 1991 his lawyers sent an application to the Attorney General of Ontario. It appears that due to delays in the Attorney General's department the matter was not processed immediately. It was not until 30th January of this year that the Attorney General of Ontario sent a formal request to the Lord Chancellor, who is the central authority in England. However, eventually the matter came before the court and the father's application was heard by Mr. Justice Ewbank on 3rd March of this year. The learned judge declined to find that the mother's removal of the child from Ontario was wrongful. On that ground he dismissed the father's application for the return of the child. Further and/or alternatively, the learned judge said that under the provisions of article 13 of the Hague Convention he considered that there was a grave risk that the return of the child would place him in an intolerable situation, and said that on that ground also he would have declined to order the return of the child.
The father now appeals to this court. Lord Meston, on his behalf, submits that the learned judge erred in declining to find that the removal of the child by the mother from Ontario was "wrongful". Article 3 of the Hague Convention provides:
"The removal or the retention of a child is to be considered wrongful where—
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."
Article 5 is also relevant. It provides inter alia:
"(a) 'rights to custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence."
The learned judge, having recited the sequence of events to which I have referred, said at page 3 of his judgment:
"On 27th June the matter came before Mr. Justice Lally in the Ontario court and he adjourned the case for a week, I believe because of shortage of time, and meanwhile ordered that Neil was not to be removed from the jurisdiction of the Ontario court in the interim. The matter came before him again on 2nd July. The order recites that an interim order had been made that the child was not to be removed from the Province of Ontario." [The court has been told that the order did not in fact contain that recitation]. "On this occasion the Court ordered that the case should be heard at the end of August 1991. The Court ordered that the mother should be granted interim custody of Neil and the Court ordered interim access to Neil to the father; that access to be alternative weekends in Kingston but not in the presence of the husband's mistress or son.
The mother, I am told, had explained to the judge that she was packed and ready to go but he said that the matter would have to be dealt with by evidence rather than on motion and the trial would have to take place in August. The mother was far from satisfied with this approach and she was cross during the course of the hearing, I am told, and evidently decided to take the law in her own hands and on 3rd July she came to England with Neil and she has been here ever since.
The father says that the removal by her of the child on 3rd July was wrongful and, accordingly, that the Hague Convention applies. The mother says that it was not a wrongful removal and that, even if it was, she has a defence under Article 13 in that there is a grave risk that the return of the child would expose him to physical or psychological harm or otherwise place him in an intolerable situation."
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