G v G (Minors: Abduction)

JurisdictionEngland & Wales
JudgeLORD JUSTICE BALCOMBE,LORD JUSTICE STOCKER
Judgment Date26 May 1989
Judgment citation (vLex)[1989] EWCA Civ J0526-6
CourtCourt of Appeal (Civil Division)
Docket Number89/0527
Date26 May 1989

[1989] EWCA Civ J0526-6

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

PRINCIPAL REGISTRY

(His Honour Judge Callman, sitting as a Judge of the High Court)

Royal Courts of Justice

Before:

Lord Justice Balcombe

and

Lord Justice Stocker

89/0527

Between:
Peter Vaughan Giraudo
Appellant (Petitioner)
and
Heather Giraudo
Respondent (Respondent)

MR. PAUL FOCKE, Q.C. and MR. PHILIP MOOR (instructed by Messrs Adlers) appeared on behalf of the Appellant/Petitioner.

MR. CHARLES ATKINS (instructed by Messrs Rapers, Chichester) appeared on behalf of the Respondent/Respondent.

LORD JUSTICE BALCOMBE
1

This is an appeal from an order of His Honour Judge Callman, sitting as a Judge of the High Court on 22nd May of this year whereby in wardship proceedings he refused to make an order as asked for by the father of the children, that he be at liberty to take the children back to Kenya and upon their return that the wardship be discharged, but directed that there be a further hearing on the merits.

2

The facts are as follows. The father was born on 8th March 1946. He has dual nationality, English and American, and we are told that he is of French/Italian extraction. Nevertheless since 1950 he has resided in Kenya.

3

The mother was born on 6th January 1955 and is now aged 34. She was born in England and has lived in Kenya since 1981 until the events of a month or so ago, to which I shall shortly refer. There is an issue as to the extent to which she had Kenyan connections before 1981; suffice it to say that on her own account she had spent some little time in Kenya and her father was living out there during the period with which this case is primarily concerned.

4

On 21st August 1982 the parties were married. There are two children of the marriage, a boy, Michael, who was born on 15th June 1983, so he is nearly six years old, and a girl, Lara, born on 26th May 1986, so she is three years old today. Unhappily the marriage broke down and in February 1988 the mother left the matrimonial home but obtained rented accommodation at 197 Milima Road, Nairobi, which is a short distance from where the father continues to live in the erstwhile matrimonial home. We have been given two distances: one is that the houses are 300 yards apart, the other is that they are half a mile apart. But it matters not. It is clear that the two homes were near enough for the children to see a good deal of both parents.

5

There is an issue as to how much each parent was concerned with the care of the children. The father says they were sharing the care. The mother's case is that she was basically looking after the children but that nevertheless the children did have regular access to their father, including staying access. I think it is sufficient to say that, while the mother remained the principal carer for these children, the father had a good deal of contact with them. There was a young girl called Nafula, who was described as a "nanny" and was responsible for some of the care of the children. She did their ironing and cooking and the mother felt able to let her look after them from time to time when she was out of the house.

6

In September 1988 the mother commenced proceedings in the High Court of Kenya at Nairobi under the Married Woman's Property Act 1882 seeking financial relief against the father. She also made a complaint before the resident Magistrate of Nairobi, returnable on 2nd December 1988, seeking custody care and control of the two children, maintenance for them and maintenance for herself.

7

Section 17 of Chapter 144 of The Guardianship of Infants Act of Kenya provides:

"Where in any proceeding before any court the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of the custody, up-bringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father."

8

That appears to apply the same test as is applied in the courts in this country in relation to the custody of children, namely that the welfare of the child is the first and paramount consideration.

9

On 2nd December 1988 the first hearing of the mother's complaint came before the magistrate. The mother gave oral evidence to support her case. She had given affidavit evidence in relation to financial matters. It appears that the custody application was dealt with on oral evidence. The matter was then stood over until 21st December and then, because of the Christmas vacation, it was again stood over until 11th January this year. Unfortunately due to a personal bereavement of the principal magistrate, he was then absent on compassionate leave and the matter was adjourned again. There was then a short period when the mother was minded to let the father have the care of these children and she wrote a letter consistent with that, but within a matter of hours she had repented of her decision and took them back. For my part I would not seek to place reliance on that incident. The hearing before the magistrate was due to take place on 27th February this year, but that did not take place because the date was inconvenient for both parties and it would appear that no one party was responsible for that adjournment. The mother then applied for interim maintenance for herself, but that application was eventually dismissed because the magistrate held that, she being in desertion, she was not entitled to make such an application in her own right.

10

The full hearing of the mother's custody application was due to be heard on 2nd May. On 27th or 28th April the mother wrote a letter to the father to tell him that she had decided to leave Kenya with the children, unbeknown to him at the time. In an affidavit she has filed in these proceedings she has given her reasons for that decision. She said that while she was living apart from the father she had obtained a part-time job, for which she required a work permit. She had with difficulty been able to get a work permit for one year only, but that that was likely to expire shortly and without that part time job she would be in financial difficulties. Further, she had support from her father, who was then still living in Kenya and helping her, but he has recently left Kenya to live in Europe and currently has a barge in Holland which can be moved to different countries. He plans to live in the barge for the foreseeable future. I infer from that that the mother expects that the financial support which she has previously received from her father will no longer be forthcoming and equally, again as a matter of inference, the emotional support which she derived from his presence in Kenya will also no longer be forthcoming. She says that what she wanted at the time was the freedom to come back to England with the children should she decide that that was what she felt was in the best interests of herself and the children. She says in her affidavit:

"On the 22nd April 1989 I was talking to a Mr. Rick Stewart who had recently separated from his wife and who, as I understood it, had an Order for joint custody with care and control of the children to his wife. This man informed me that his wife had to have a letter of authority to the High Court from him to permit her to take the children out of the country and she was not able to take them out of Kenya without such letter.

Given my very precarious position at this stage, in particular my difficult finances, the expiry of my work permit at the end of May 1989, my lack of citizenship and the imminent departure of my father, I was extremely concerned and worried at the thought that I would not be able to leave the country with the children [without the consent of the father or the Kenyan court, as the case might be]…and I had always regarded the possibility of returning to England as a sort of 'lifeline' and I felt as if my lifeline had suddenly been removed.

In these circumstances I arranged to discuss matters with the plaintiff and we met on the 24th and the 26th April 1989 to discuss our plans for the future. At these discussions I explained to the plaintiff my reasons for feeling very insecure as set out above and I asked him whether he would allow me to take the children back to England if it came to the point if I could no longer manage in Kenya. The plaintiff said that he could not give this assurance.

In the circumstances I felt very frightened of the plaintiff's powers and my lack of powers and lack of resources. I had been advised by my Kenyan lawyer and expected that a joint custody order was quite likely and I could therefore envisage a situation where I was unable to leave Kenya with the children and had insufficient money to make ends meet. I might also have difficulties with my status and be unable to obtain a work permit. For all these reasons I felt that it was in the childrens best interests for me to bring them to England which I then did."

11

She left with the father a letter to which I have already referred, in the course of which she refers to the conversation she had had with him about wanting to be able to leave if that was what she thought best, and then said:

"As a result I have decided that I have no option but to take a trip to Europe. I am willing and hoping to come back in the event that I/you between us can...

To continue reading

Request your trial
13 cases
  • D. v D. (Child Abduction; Non-Convention Country)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • Invalid date
  • Crofton v National Health Service Litigation Authority
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 8 Febrero 2007
    ...Such a challenge will only succeed if the decision has exceeded the generous ambit within which a reasonable disagreement is possible: G v G [1985] 1 WLR 647, 652. 43 He accepts that, until Mr Cross gave evidence, there was no evidence that funding would continue to be made by the Council e......
  • Re J (A Child) (Custody rights; Jurisdiction)
    • United Kingdom
    • House of Lords
    • 16 Junio 2005
    ...Convention was being implemented here, where it was held that the courts should take account of its philosophy: see, for example, G v G (Minors) (Abduction) [1991] 2 FLR 506. The Court of Appeal, in Re P (A Minor)(Child Abduction: Non Convention Country) [1997] Fam 45 has held that the Hagu......
  • Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights)
    • United Kingdom
    • House of Lords
    • Invalid date
    ...CA. F (a minor) (abduction), Re [1991] FCR 227, [1990] 3 All ER 97, [1991] Fam 25, [1990] 3 WLR 272, CA. G v G (minors) [1991] FCR 12, [1991] 2 FLR 506, G v G [1985] 2 All ER 225, [1985] 1 WLR 647; sub nom G v G (minors: custody appeal) [1985] FLR 894, HL. J v C [1969] 1 All ER 788, [1970] ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT