Hunter v Murrow
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Thorpe |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] EWCA Civ 976 |
| Docket Number | Case No: B4/2005/1045/FAFMI |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2005 |
[2005] EWCA Civ 976
Lord Justice Thorpe
Lord Justice Dyson and
Lord Justice Lloyd
Case No: B4/2005/1045/FAFMI
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
FAMILY DIVISION PRINCIPAL REGISTRY
THE HON. MR JUSTICE SINGER
FD04P92331
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr H Setright QC (instructed by Reynolds Porter Chamberlain) for the Appellant
Mr J Reddish (instructed by Dawson Cornwell) for the Respondent
This is a Hague Convention appeal against an order made by Singer J on the 26 th April 2005. The appellant's notice was sealed on the 10 th May 2005 and swiftly referred to me. On the 19 th May I directed an oral hearing without notice on the 25 th May. On the 24 th May the appellant's solicitors lodged with the court a request for the dismissal of the appellant's notice and for a detailed assessment of the publicly funded costs. That notice was referred to me. Between the 19 th May and the 24 th May I had prepared for the hearing in court and had realised that there were difficult points of general application, including questions of comity. Accordingly I directed that the appellant's notice was to stand and I granted permission to appeal. It was made plain to the appellant's solicitor that the court was in their hands and that the appellant's notice would be dismissed in due course should they decide to take no steps to further the appeal. In the event the appellant's decision was to proceed. Unfortunately the respondent had been informed of the request for dismissal and was naturally disappointed to find that the possibility of a defeat in the Court of Appeal had revived.
These unusual events prompted Mr Reddish for the respondent to apply at the opening for me to recuse. He submitted that his client could have no confidence in the tribunal since my refusal to dismiss was a declaration of my support for the appellant. We refused the application for a variety of reasons which hardly require elaboration. The issues raised by the appeal were pure points of law. The factual substratum was not in dispute. A mere grant of permission is not indicative of more than that the appellant has demonstrated reasonable prospects of success. In any event the application should have been made promptly as soon as the circumstances relied on were known to the respondent.
The principal points raised by the appeal are as follows: —
(a) Article 15: England/Wales had referred to New Zealand a determination of whether the removal was wrongful within the meaning of Article 3; was it open to England/Wales to reject a positive determination made by New Zealand?
(b) Article 3: and 5: was New Zealand's ruling that the plaintiff held rights of custody breached by the defendant's removal (a ruling founded on New Zealand's construction of Hague Convention law) consonant with our construction of Hague Convention law?
That rather cumbersome prelude brings me to the relevant history. It is conveniently summarised in a judgment of the High Court of New Zealand dated the 21 st March 2005, (a judgment to which I will come when I record the litigation chronology). I therefore set out paragraphs 3 – 6 inclusive of that judgment: —
"[3] Ms Murrow is aged 35 and Mr Hunter 30 years. They are both New Zealand citizens. Their son Xavier was conceived during the course of a relationship which ended in March 2000. He was born on 22 November 2000.
[4] The applicant visited Xavier at the hospital soon after his birth. At Ms Murrow's request, Mr Hunter was recorded as Xavier's father when the birth was registered. There was ongoing contact between father and son for the next four years and ten months until the respondent removed Xavier to London. The extent of that contact shall be further detailed shortly.
[5] On 19 September 2004 Mr Hunter became concerned when Xavier was not delivered to him for agreed access contact. His attempts to telephone Ms Murrow were unsuccessful. On or about 21 September she flew from New Zealand to England with Xavier. On or about 23 September Ms Murrow rang Mr Hunter from London and advised him of their whereabouts.
[6] The following month Ms Murrow advised Mr Hunter that she may continue living in London and that to that end she was seeking permanent employment there. On 29 October 2004 Mr Hunter filed an application for the return of Xavier to New Zealand and authorised the Central Authorities in New Zealand and England to take the necessary steps to secure such return pursuant to the Hague Convention."
The detailed contact arrangements can be recorded by adopting paragraphs 13 – 18 inclusive of the judgment of Judge Costigan given on the 21 st February 2005 in the Family Court of New Zealand. Those paragraphs are as follows: —
"[13] Both parties accept that the type of contact that the applicant enjoyed with Xavier at the time of his removal varied from the contact that was either agreed or simply took place informally subsequent to his birth in November 2000. It is now common ground that the respondent visited family members on two separate occasions in the first few months of Xavier's life. This precluded the applicant's contact with Xavier being on a daily basis, as he had initially contended. The respondent was not absent, however, for an extended period on either occasion. It appears that contact resumed on her return to Christchurch.
[14] From about July 2001, it was agreed that the applicant would have contact with Xavier on Tuesdays, Thursdays and Sunday afternoons. There were difficulties at times with this arrangement. It nonetheless continued until February 2002 when a further variation was agreed to. This was principally to accommodate work commitments of the applicant. The effect of this agreement was that a new pattern of contact was established. It took place on Wednesday evenings after the applicant had finished work and also on Sunday afternoons. This was the contact that was in place and which the applicant anticipated would continue at the time of Xavier's departure.
[15] Whilst the frequency of contact at times has been disputed, no issue has arisen in respect of the applicant's entitlement to that contact. It is relevant that the applicant was involved in a car accident in December 2002 and suffered head injuries as a consequence. This had an effect on contact arrangements. There had also been a period of time prior to this when the applicant had a number of personal issues to contend with. This had an impact on his contact with Xavier. For some time after his car accident he resided with his parents. Contact arrangements continued, however, with assistance being given by the respondent in respect of transportation. At other times, the applicant or his mother were responsible for transportation to enable contact to take place.
[16] The Court received clarification from the bar of the applicant's evidence that he had helped arrange both a christening party and a birthday party for Xavier. This was in fact a combined party held when Xavier reached two years of age in November 2002. To some extent that information is confirmed in the supporting evidence of Mr R T Keith. The applicant boarded with Mr Keith for a period of about two years.
[17] This particular evidence has relevance because it points to a gathering of members of both the maternal and paternal families and friends on what was an important occasion for the child and his parents. It also points to at least acquiescence and approval by the respondent in a guardianship decision affecting Xavier, namely his christening. This event also paints a picture somewhat at odds with the respondent's contentions that the applicant had no significant input into Xavier's life.
[18] Allegations have now been made by the respondent as to inappropriate parenting and behaviour by the applicant towards Xavier. These allegations have been refuted by the applicant. They are also clearly inconsistent with the observations of the deponent, Mr Keith, as to the nature of the relationship between the applicant and Xavier during the time contact took place at his home."
Having set out the family history I can now come to the litigation chronology. On the 15 th November 2004 an originating summons was issued in London on the father's behalf seeking a return order under the Convention. Alternatively Xavier's return was sought under the court's inherent jurisdiction. Direction orders were made on the 16 th and 23 rd November for final hearing on 16 th December. However on that day the defendant's counsel proposed, and the plaintiff's counsel and the judge agreed that: —
"the plaintiff do obtain from a court of competent jurisdiction in New Zealand
(i) a description of any rights in relation to the said child enjoyed by the father, and
(ii) a decision whether the removal of the child …was wrongful in the meaning of Articles 3: and 5: of the Hague Convention as being in breach of the plaintiff's rights of custody pursuant to Article 15 of the Hague Convention."
Although the drafting is not elegant there can be no doubt that this was a request to the plaintiff pursuant to Article 15 to obtain from the New Zealand court a determination of (i) his rights in relation to the child and (ii) whether the removal had been wrongful within the meaning of Articles 3: and 5:. In fact it is only the second question that Article 15 contemplates being referred for determination. We were informed that the addition of paragraph (i) resulted from conflicting written opinions from specialist New Zealand lawyers as to whether there had...
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...35]. G. v. B., [1995] N.Z.F.L.R. 49, refd to. [para. 35]. D. v. C., [1999] N.Z.F.L.R. 97, refd to. [para. 35]. Hunter v. Murrow, [2005] EWCA Civ. 976; [2005] 2 F.L.R. 1119, refd to. [paras. 35, 71, H., Re, [2000] 2 A.C. 291; 254 N.R. 305 (H.L.), refd to. [para. 37]. J., Re, [1990] 2 A.C. 56......
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