C v C (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Year | 1992 |
| Date | 1992 |
| Court | Family Division |
BRACEWELL, J
Child abduction – access – children wrongfully removed from State of New York – return not practicable – whether English court could make order as to access.
Child abduction – custody order of State of New York not expressly forbidding removal – case law of that State indicating removal which would frustrate access required leave of court – whether removal wrongful under the Convention on the Civil Aspects of International Child Abduction.
The parties were nationals of the USA. They were married there in 1976. The matrimonial home was in New York State. There were two children of the family, now aged 10 and 8. The parents separated in 1985. The father left the matrimonial home. The mother stayed there with the children, and from 1986 an English cohabitant lived there with her. The matrimonial home was a house which had been purchased for $160,000 subject to a mortgage of $80,000. The parents were divorced in 1989. The Supreme Court of the State of New York ordered, amongst other things, that the mother was to have custody of the children with access to the father, and that, upon the mother paying $55,000 to the father, he would convey the home into the sole name of the mother who would discharge the mortgage repayments. The mother failed to pay the $55,000 to the father. She also failed to pay the mortgage repayments. The loan bank foreclosed and at the foreclosure sale in December 1990 the father bought the house at the forced sale price of $100,000. He then caused an eviction notice to be sent requiring vacant possession by 9 February 1991. He did not give any consideration as to where the children were to live. In those circumstances, the mother, with the children and her cohabitee, left the USA on 6 February 1991 and came to England. They set up home in a property owned by the cohabitee's mother. The father issued an originating summons under the Child Abduction and Custody Act 1985 which gave effect to the Convention of the Civil Aspects of International Child Abduction. At the hearing the father did not seek the return of the children, but he applied for a declaration that they had been wrongfully removed from the jurisdiction of New York State and for an order as to access. Evidence was given as to the law of New York State.
Held – (1) The order of the Supreme Court of New York State did not expressly forbid removal of the children from the jurisdiction without leave. However, the law of that State, derived from a line of case law, was that the custodial parent was prohibited from removing the children to a distant place which would frustrate the non-custodial parent's visitation rights. Therefore, it was implicit that the law of that State required an application to the court for leave to remove the children. There was no distinction in law between an express prohibition contained in an order and one which was implied by settled case law. In this case, therefore, the
removal of the children by the mother to England was wrongful. Consequently, the father had the right to bring the matter to the court under the 1985 Act.
(2) Although the father did not seek the return of the children, he sought an order as to access. By Article 7(f) of the Convention, the court had power to make arrangements for organizing or securing the effective exercise of rights of access. The scope of the Convention did not limit the territorial jurisdiction of the court to make appropriate arrangements for access. In this case it was accepted that the children's habitual residence was not in England. The original order by the court in New York State for access was no longer relevant. Therefore, it was a proper case in which to deal with access issues. There was no bar to ordering access within or without the jurisdiction. When determining the question of access, the welfare of the children was the first and paramount consideration. In the circumstances, and in particular because the children saw the father as the person who evicted them and rejected them, access must commence with supervised access in England. Following such access, a report would be required to assist the court to determine the future pattern of access.
Michael Horowitz, QC and Mark Everall for the father.
Lionel Swift, QC and Rowena Corbett for the mother.
MRS JUSTICE BRACEWELL.In this case the originating summons before the court is under the Child Abduction and Custody Act 1985 which gives effect to the Hague Convention. The summons as issued seeks firstly an order securing the return of the children to the United States of America to the State of New York and, secondly, an order securing the effective exercise of the plaintiff's rights of access to the children.
The father no longer seeks the return of the children and he accepts that they will remain within this jurisdiction, but he seeks a declaration that they were wrongfully removed from the jurisdiction of New York State by their mother in February 1991 when they were brought to this country by her. He further raises questions of access.
The background to the case is that both parties are nationals of the United States of America. Father and mother were born and raised there and married there on 24 October 1976. The matrimonial home was in New York State. Two sons were born of the marriage, the elder on 25 November 1980 and the younger on 1 February 1983. Neither party had had any connexion whatsoever with this jurisdiction until the mother and the children left America and came to England with the mother's English cohabitee, Mr P, on 6 February 1991.
The marriage of the parties had undoubtedly been stormy, at times violent and deeply unhappy. Separation occurred in July 1985 when father left the matrimonial home where mother continued to live with the children. Negotiations for a divorce settlement were protracted. Arguments occurred between the parties, often within hearing or sight of the children.
By June 1986 Mr P had moved into the matrimonial home, although financial arrangements had not been agreed and acrimony continued between the parties. Since that time the mother has lived with Mr P in a permanent relationship.
The matrimonial home had a self-contained basement flat and in 1988 the father obtained a court order permitting him to reoccupy that part of the matrimonial home by what is termed an occupancy order. The mother has been very critical of her husband obtaining such an order which led to much aggressive confrontation between
the parties, despite the separate nature of the accommodation. Undoubtedly, that episode soured relationships and made co-operation more difficult, but the court was seized of the matter and, having heard the application, granted permission to the father, who was acting lawfully if insensitively.
The stress of the matrimonial situation undoubtedly affected the elder boy's school performance and his emotional welfare. By May 1989 the parties through their respective lawyers...
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Re P (A Child) (Abduction: Acquiescence)
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Practice Note – The Central Authority for England and Wales; Child Abduction and Custody Act 1985 – Hague Convention on the Civil Aspects of International Child Abduction; Applications for return orders by unmarried fathers
...g See below h As to the implied prohibition on removal during pending proceedings in other jurisdictions, see C v C (child abduction) [1992] 1 FCR 391, in which it was held that removal of a child from New York State was in breach of an implied prohibition on removal constituted a wrongful ......
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Re G (A Minor) (Enforcing Foreign Access Order)
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