D (A Child) (Abduction: Rights of custody); Re
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD CARSWELL,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 16 November 2006 |
| Neutral Citation | [2006] UKHL 51 |
| Date | 16 November 2006 |
| Court | House of Lords |
[2006] UKHL 51
Appellate Committee
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
James Turner QC
Richard Harrison
(Instructed by Garson & Co)
Respondents:
Henry Setright QC
Marcus Scott-Manderson
(Instructed by Russell-Cooke)
Intervener
Charles Howard QC and Teertha Gupta
(Instructed by Dawson Cornwell)
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree that, for the reasons she gives, this appeal should be allowed.
My Lords,
I have had the privilege of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with it, and for the reasons she gives I would allowthe appeal. I wish to add only a few comments of my own to what she has said. I do so in view of the importance of the matters that were raised with us in the course of the debate.
The question at the heart of this case is, and has always been, whether the father had rights of custody within the meaning of article 5 of the Hague Convention which were breached by the mother when she removed the child to England from Romania in December 2002. In that respect it is no different from all the other cases where the Convention has been invoked to protect children from the harmful effects of their wrongful removal and to ensure their prompt return to the state of their habitual residence.
But if the child were to be returned now, almost four years after his arrival in this country, his return would be anything but prompt. The delays that the procedures adopted in this case have given rise to have exceeded by far anything that the framers of the Convention appear to have contemplated. They are so extreme that it is impossible to believe that the child's best interests would be served by his return forthwith to Romania, as article 12 would require if his removal from Romania were to be held to have been wrongful. As the preamble to the Convention indicates, its purpose is to protect children from the harmful effects of their wrongful removal. The assumption on which the remedy of prompt return proceeds is that the state to which the child will be returned is the state of his habitual residence. Through no fault of his own, the child whose return is being sought in this case has now been settled for so long in this country that this assumption is scarcely tenable.
Delay does not, in itself, excuse compliance with the Convention. Courts must do the best they can to give effect to it, so long as its provisions have not become completely unworkable. The lesson of this case is that every effort must be made to avoid such delays. If there is a dispute as to whether the removal was wrongful it should be dealt with summarily. A balance must, of course, be struck between acting on too little information and the search for too much. A court cannot make a finding that the child's removal was wrongful unless it is provided with a basis for doing so. But if it is to deal with the case summarily the court must not seek perfection. It has to do the best it can on the information that has been made available, as Butler-Sloss LJ indicated in C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, 658A.
Article 15 of the Convention contemplates that the court may need to be provided with a determination from the authorities of the state of the child's habitual residence that the removal was wrongful. So a judge is not to be criticised if he decides to use this procedure because he cannot responsibly resolve the issue on the information provided by the applicant. Nevertheless if he decides on this course delay will be inevitable. Great care must therefore be taken, in the child's best interests, to keep this to the absolute minimum. The misfortunes that have beset this case show that, once the court has received the response, it should strive to treat the information which it receives as determinative.
Of course it is for the court to which the application is made, not the authorities of the requesting state, to decide whether the removal was wrongful within the meaning of article 3. The court must apply its own view of the Convention as best it can in the light of what it knows. No doubt there will be situations where the court feels that there may still be room for argument as to what the article 15 determination amounts to. But, as my noble and learned friend Lord Brown of Eaton-under-Heywood makes clear it must resist calls for further evidence. The further delay that this would cause is incompatible with the objects of the Convention. Detailed scrutiny of the child's welfare must be left for later. That is a matter for the state of his habitual residence. Speed is of the essence if the child is to be returned promptly to that state. The court must take this into account when considering whether enough information as to whether the removal was wrongful is available, and whether the information that it has is reliable.
In this case the response that was received from Romania was sufficient to show that the child's removal was not wrongful within the meaning of article 3. On 9 June 2005 the final Court of Appeal of Bucharest, upholding the court of first appeal, stated in the clearest terms that, under the law as it then stood in Romania, termination of marriage through divorce brings joint custody to an end, that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited, and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child's place of residence. It is wholly understandable that the father should feel aggrieved by what has happened in this case. The effect on his ability to exercise his rights of access is plain to see. But the phrase "rightsof custody" has been given a particular definition by the Convention. It is only if there has been a breach of rights of custody as so defined that theremoval can be described as wrongful for its purposes. The information provided by the Romanian court shows that, as the law stood at the time of the child's removal, the father had no such rights.
The absence of a right of veto is, then, decisive in this case. Hadthere been a right of veto the result might perhaps have been different, despite the delay. It has come to be appreciated in most, but not all, contracting states that for the Convention's purposes a right to grant or withhold consent to the child's removal from the state where he resides isa right of custody. Article 5 states that for the purposes of the 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. To understand what this means referencemust be made to article 3, where the words "rights of custody" are used to define the circumstances in which the removal or retentionof a child is to be considered wrongful – "wrongful" because the Convention proceeds on the assumption that welfare issues are best dealt with in the state where the child is habitually resident.
The key to what the phrase means lies in these facts. The Convention is an agreement between states. It seeks to address the problems that arise where a child is moved across international borders. It does not concern itself with disputes about the exercise of custody or access rightswithin the country of the child's habitual residence. The right to determine the child's place of residence has to be seen in that context. The word "place" in the phrase "the child's place of residence" must be taken, for Convention purposes, to include the country of the child's residence. A right to object to the child's removal to another country is as much a right of custody, for those purposes, as a rightto determine where the child is to live within the country of its residence.
The phrase "rights of access" is also defined for the purposes of the Convention by article 5. But it is important not to treatthis definition as limiting the rights that are included within the expression "rights of custody". There is no doubt that a right to determine the place of the child's residence will be helpful to the parent whowishes to exercise the right to take the child for a limited period of time to a place other than the child's habitual residence. Time and distancematter to parents who lead busy lives, and the place of the child's habitual residence may have a very real bearing on how often, or for how long, it is practicable for a right of access to be exercised. But the fact that a right to determine the place of the child's residence may be helpfulto the parent who seeks access is not a reason for treating the right to determine where the child resides as something other than a right of custody for Convention purposes. They are not mutually exclusive rights. The Convention provides different remedies where rights of custody and rightsof access have been breached. The nature and purpose of those remedieshelps to show why, when it comes to removal or retention across international borders, the right to determine the place of the child's residence is treated as a right of custody.
This was not Professor A E Anton's view. Writing shortly after the Convention was entered into, he said that the definition of "rightsof custody" in article 5 suggests that the breach of a right simplyto give or to withhold consent to changes in a child's place of residenceis not to be construed as a breach of rights of custody in the sense of article 3: "The Hague Convention on...
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