D v D (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Year | 1994 |
| Date | 1994 |
| Court | Court of Appeal (Civil Division) |
BALCOMBE, BUTLER-SLOSS AND MANN, L JJ
Child abduction – removal of children from non-convention country – matter brought before court in wardship proceedings – whether judge right to apply for Convention principles – whether return of children would be in their best interests.
The parents were married in England in 1985. The mother was English and the father was Greek. Soon after the marriage the parents went to live in Crete. They had two children, a girl now aged 7 and a boy now aged 3. In 1991 the family came to England intending to stay, but after a few months the father removed the children to Crete without the consent or knowledge of the mother. The mother returned to Crete and in June 1992 a consent order was made by a Greek court under which the mother was to have temporary care of the children upon condition that she resided in Greece and did not remove the children from Greece without the written agreement of the father. In August 1992 the mother removed the children from Crete to England.
At that time Greece had not ratified the Convention on the Civil Aspects of International Child Abduction. The matter came before the court in wardship proceedings. The Judge applied the Convention by analogy.
he found that the habitual residence of the children was Greece; that their removal by the mother was wrongful; that the father had not acquiesced in the removal; that the return of the girl to Greece would not constitute a grave risk of psychological harm to her; and that her wishes were not an inhibiting factor to prevent the return of the children to Greece. The mother indicated that if the court ordered the children's return to Greece she would go with them. The Judge ordered the children's return.
The mother appealed. She contended that the Judge was wrong to apply the principles of the Convention in a non-Convention case; and, in any event, applying the principles of the Convention, his decision was wrong. At the hearing in the Court of Appeal the mother disclosed that she was pregnant by an Englishman living in England and that she was no longer prepared to go to Crete with the Children.
Held – allowing the appeal: (1) It was appropriate to apply the principles of the Convention in a non-Convention case to the extent that it was in the interests of children that parents or others should not abduct them from one jurisdiction to another, but that any decision relating to the custody of the children was best decided in the jurisdiction
in which they had hitherto been normally resident. Nevertheless, it was important to remember that the Articles of the Convention were not to be applied literally in the wardship jurisdiction and the court retained the discretion to consider the wider aspects of the welfare of the wards. In the present case, at the time of the hearing, the Judge, applying the principles of the Convention, was right to order the return of the children.
G v G (Minors) (Abduction) [1991] FCR 12 and Re F (A Minor) (Abduction) [1991] FCR 227 followed.
(2) Since the hearing before the Judge the situation had changed as a result of the mother's pregnancy and the fact that she was not now prepared to return to Crete. In principle, this was a case which ought to be heard by a Greek court and not an English court. But, as the children had spent most of their lives in the mother's care, it would not be appropriate to order their immediate return to Crete without her and there needed to be further investigation. In the particular circumstances, the matter would be remitted to a High Court Judge to decide the case on a full hearing.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1. the Convention on the Civil Aspects of International Child Abduction, Art 8.
Family Proceedings Rules 1991, r 6.3.
Cases referred to in judgment:F (A Minor) (Abduction), Re [1991] FCR 227; [1991] Fam 25; [1990] 3 WLR 1272; [1990] 3 All ER 97.
G v G (Minors) (Abduction) [1991] FCR 12.
H; S (Minors) (Abduction: Custody Rights), Re[1992] 1 FCR 45.
AppealAppeal from Judge Bell sitting as a Judge of the High Court.
Geoffrey Tattersall, QC and Patricia Bailey for the mother.
Mary Hogg, QC and Robin Spon-Smith for the father.
LORD JUSTICE BUTLER-SLOSS.This is an appeal by a mother from the order made on 5 July 1993 by His Honour Judge Bell sitting as a High Court Judge in consolidated wardship applications relating to two children, a girl aged 7, born on 20 May 1986 and a boy aged 3, born on 26 May 1990. The Judge ordered the return of the two children to Crete on the application in the wardship proceedings by the father. At the time in question Greece had not ratified the Hague Convention, [the Convention on the Civil Aspects of International Child Abduction, set out in Sch 1 to the Child Abduction and Custody Act 1985]. although it has done so subsequently.
BackgroundThe parents were married on 5 January 1985 in Manchester. The mother is English but was born in Southern Rhodesia. The father is Greek from Agios Nicholas in Crete. Shortly after the marriage the parents returned to live in Crete and the girl was born there the following year. In November 1986 the mother and
the girl came to England with the agreement of the father for a visit. They remained here and on 30 April 1987 the mother issued an originating summons making the girl a ward of court. On 19 June 1987 she obtained an ex parte order for interim care and control. In January 1988 the father came to England and the parents were reconciled. The father returned to Crete followed in March 1988 by the mother and the girl. The mother did not seek the leave of the English court and the wardship proceedings became dormant.
The mother made visits to her family in England between 1988 and 1991 with the agreement of the father and in 1990 the boy was born in Crete. Both children are citizens of Greece but not of the United...
To continue reading
Request your trial
-
Re P. (A Minor) (Child Abduction: Non-Convention Country)
...1986, s 5. Cases referred to in judgment:C (Minors), Re [1978] Fam 105; [1977] 3 WLR 561; [1978] 2 All ER 230. D v D (Child Abduction)[1994] 1 FCR 654. F, Re [1991] FCR G v G (Minors) (Abduction) [1991] FCR 12. In the Marriage of Barrios and Sanchez [1989] FLC 92–054 (Australia). J v C [197......
-
S v S (Child Abduction: Non-Convention Country)
...on the Civil Aspects of International Child Abduction, Articles 3, 4, 12 and 13. Cases referred to in judgment:D v D (Child Abduction)[1994] 1 FCR 654. F (A Minor) (Abduction), Re [1991] FCR 227; [1991] Fam 25; [1990] 3 WLR 1272; [1990] 3 All ER G v G (Minors) (Abduction) [1991] FCR 12. L (......
-
Re M (Jurisdiction: Forum Conveniens)
...every justification for making a summary order for the children's return to Malta. Cases referred to in judgment:D v D (Child Abduction)[1994] 1 FCR 654. F (A Minor) (Abduction), Re [1991] FCR 227; [1991] Fam 25; [1990] 3 WLR 1272; [1990] 3 All ER G v G (Minors) (Abduction) [1991] FCR 12. E......