C. v C. (Abduction: Rights of Custody)
|England & Wales
|THE MASTER OF THE ROLLS,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE NEILL
|14 December 1988
|Judgment citation (vLex)
| EWCA Civ J1214-4
|Court of Appeal (Civil Division)
|14 December 1988
 EWCA Civ J1214-4
The Master of The Rolls
(Lord Donaldson of Lymington)
Lord Justice Neill
Lord Justice Butler-Sloss
1988 CA 868
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION LATEY J.
Royal Courts of Justice
MISS A. RYAN Q.C. and MISS C. HARDING (instructed by Messrs Batchelors)appeared on behalf of the Apellant (Plaintiff).
MR. M. CONNELL Q.C. and MR. E. HOLMAN (instructed by Messrs Charles Russell Williams & James) appeared on behalf of the Respondent (Defendant).
I will ask Lord Justice Butler-Sloss to deliver the first judgment.
This is an appeal from the judgment and order of Latey J. given on 14th October 1988 on an application under the Child Abduction and Custody Act 1985 in respect of a boy called Thomas, born on 27th July 1982. This Act gives statutory force to most of the Articles of the 1980 Hague Convention.
The child was removed by his mother on 3rd August 1988 from their home in Sydney, Australia, to England, where they are now living. The father before Latey J. asserted and the mother denied that under the provisions of Article 3 of the Convention the removal and retention of the child out of the jurisdiction of the Australian Family Court were wrongful. The mother further submitted that if the removal or retention was found to be wrongful, nevertheless under the provisions of Article 13 there was a grave risk that the return of the child would expose him to psychological harm. The judge dismissed the father's application under the Act and the father appeals from that order.
There are also wardship proceedings in respect of the child, the mother having issued an originating summons on 11th August. Those proceedings are not before the judge nor before this court.
Further evidence was submitted to this court which has been taken into account only so far as it sets out the current proposals of the father if the child returns and the present financial position of the mother
The short facts are as follows.
The mother is 34 and English. In 1976 she went to Australia and met the father who is 35 and Australian. They were married on 15th April 1978 in England where they remained for a year before returning to make their Home in Sydney. The one child was born in 1982. The marriage broke down in 1985 and the parents separated in July of that year. Divorce proceedings were commenced and agreement was reached over finance and the future arrangements for Thomas. On 4th November 1986 the Deputy Registrar in Sydney made a consent order including the following words:
(1) The wife to have custody of…the child of the marriage and the husband and the wife to remain joint guardians of the said child.
(2) Neither the husband nor the wife shall remove the child from Australia without the consent of the other."
During 1986 the mother, with the consent of the father, took the child for a holiday to England.
The mother and child lived together in a suburb of Sydney until 3rd August 1988, when she left for England with the child, without first informing the father and without his consent. As soon as the father learnt of the situation by a letter from the mother, he applied to the Family Court in Sydney. The mother before her departure had applied to vary the November 1986 consent order to delete the requirement for the father's consent to the removal of Thomas from the jurisdiction.
Ross-Jones J. heard the father's application on 8th and 10th August. On 10th August the judge made orders for the return of the child and transferred the custody of Thomas to the father on his return to the Australian jurisdiction. There was no provision made for access to the mother in that eventuality. There was a further hearing before the judge on 23rd August. The mother has appealed against the order transferring custody to the father. The judge declined to stay the order transferring custody pending the hearing of the appeal.
The mother has made in her affidavits various allegations against the father and has given explanations for her action in removing Thomas from Australia. They are not, in my judgment, relevant to an application under the 1985 Act, save as insofar as they may affect the approach of the Australian authorities to the mother's return. From reading the transcripts of the hearings and from the affidavits of the father, as well as the expert evidence called on behalf of the mother, she is likely to be seen to be in contempt of court in respect of the consent order of 1986 and the orders made in August of this year. That may be relevant to the considerations under Article 13. The welfare of the child as the first and paramount consideration is not, however, as Latey J. correctly pointed out, the basis of the Hague Convention and the Act incorporating it in the English law. Australia is a signatory to the Hague Convention and enacted the relevant legislation in 1987.
The preamble to the Hague Convention sets out the intention of the States which signed it:
"To protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence, as well as to secure protection for rights of access."
Article 1, which is not contained in Schedule 1 to the 1985 Act, states that the objects of the Convention are:
"(a) to secure the prompt return of children wrongfully removed to or retained in any contracting state; and
(b) to ensure that rights of custody and access under the law of one contacting state are effectively respected in the other contracting state."
As Nourse L.J. said in at page 368:
"These and other provisions of the Convention demonstrate that its primary purpose is to provide for the summary return to the country of their habitual residence of children who are wrongfully removed to or retained in another country in breach of subsisting rights of custody or access. Except in specified circumstances, the judicial and administrative authorities in the country to or in which the child is wrongfully removed or retained cannot refuse to order the return of the child, whether on grounds of choice of forum or on a consideration of what is in the best interests of the child or otherwise."
Three questions arise in this case:
(1) Was the removal of the child wrongful?
(2) Is the retention of the child wrongful?
(3) If the answer to either or both of the first two is "yes", does Article 13 apply to stop the return of the child?
By Article 3 the removal or 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.
By Article 5:
"For the purpose of this Convention—
"'rights of 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."
In respect of my first question—was the removal wrongful?—the learned judge heard argument as to the effect of the order of November 1986 and in particular the effect of joint guardianship. He had before him the written opinion and oral evidence of an Australian Queen's Counsel. The judge's attention does not appear to have been sufficiently drawn to the effect on the definition in Article 5 of the Convention of Clause 2 of the November 1986 order, that neither parent should remove the child from Australia without the consent of the other. Accordingly, the judge's attention was not drawn specifically to the question whether under Australian law Clause 2 was capable of constituting a right of custody within the Convention. In the absence of sufficient expert evidence on that point, this court must do its best to consider whether Clause 2 comes within the definition given in Article 5.
By Clause 2 the father had, in my judgment, the right to determine that the child should reside in Australia or outside the jurisdiction at the request of the mother. In 1987 he gave his consent to the child coming to England for a specified holiday. One might consider the example of a parent wishing to leave the jurisdiction with the child for a longer period, say 12 months. The other parent, with Clause 2 in the order, would have some control over not only the child leaving the jurisdiction but also as to the place to which the child was going, and not only the country; for instance, to live in London in suitable circumstances. If the child was retained under such an arrangement beyond the agreed date of return, it seems inconceivable to me that the Convention could not effect the return of the child. But if the argument so attractively advanced by Mr. Connell is right, there would be no instant redress by the justifiably aggrieved parent. The words of Article 5 must, in my view, be read into Article 3 and may in certain circumstances extend the concept of custody beyond the ordinarily understood domestic approach. Therefore in the present case there would be the general right of the mother to determine the place of residence within the Commonwealth of Australia, but a more limited right, subject to the father's consent, outside the jurisdiction of the Australian Family...
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