M and another (Children) (Abduction: Rights of Custody) Re
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD HOPE OF CRAIGHEAD,LORD RODGER OF EARLSFERRY,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD |
| Judgment Date | 05 December 2007 |
| Neutral Citation | [2007] UKHL 55 |
| Date | 05 December 2007 |
| Court | House of Lords |
and another
[2007] UKHL 55
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
Henry Setright QC
Edward Devereux
(Instructed by Dawson Cornwell)
Respondents:
Marcus Scott-Manderson QC
David Williams
(Instructed by Reynolds Porter Chamberlain LLP)
Interveners' Counsel
Teertha Gupta
(Instructed by Lawrence & Co)
My Lords,
For the reasons given by my noble and learned friend Baroness Hale of Richmond in her opinion, which I have had the advantage of reading in draft and with which I agree, I would allow this appeal and make the order which she proposes.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, I would allow the appeal. I add these brief comments simply to explain why I agree with her that, where it has been demonstrated that the child is settled in its new environment, article 12 nevertheless implies that there is a discretion to return the child within the procedures of the Convention.
I think that it is reasonably clear, as a matter of language, that article 12 can be read as implying that there is a discretion to return a settled child under the Convention. Two situations are envisaged by the article in which there is plainly no discretion. The first is where, at the date of the commencement of the proceedings, a period of less that one year has elapsed from the date of the wrongful removal or retention. In that situation the first paragraph states that the authority concerned "shall" return the child forthwith. The second is where the proceedings have commenced after the expiration of one year and it has not been demonstrated that the child is settled in its new environment. In that situation the second paragraph states that the authority "shall also" order the return the child. Then there is the coda to that paragraph, which is introduced by the word "unless". The coda does not say in terms what is to be done where it applies. But there are only three possibilities: (a) that return of the settled child must be ordered, (b) that return of the settled child must not be ordered and (c) that there is a discretion to return the child.
The coda would be pointless if (a) applied, as it would lead to exactly the same result as the main part of that paragraph. The consequence, if (b) applied, would be the complete opposite. This risks requiring the relevant authority to do something which may not be in the interests of the child. So one would have expected it to be spelled out expressly if this was nevertheless what was intended. The absence of any such words is a clear indication against this alternative. This leaves (c) as the only remaining possibility. Theabsence of a direction that the settled child "shall not" be returned, in contrast to the direction "shall" in the main part of the paragraph, indicates that in the situation to which the coda refers there is nevertheless a discretion to return the child under the Convention. At the very least, the matter is left open by the wording of the article.
The argument in favour of there being a discretion under the Convention as a mere matter of language is reinforced by the fact that this reading of article 12 is consistent with articles 13 and 20, both of which expressly confer a discretion on the relevant authority. The policy of the Convention as a whole is to ensure that full weight can be given in a variety of circumstances to the interests of the child, to which paramount importance must always be attached. The argument is reinforced too by the other factors that are referred to by Baroness Hale. In particular, in contrast to the exercise of powers outside the Convention which are referred to in article 18, it ensures that the general policy considerations of the Convention will continue to be relevant.
My Lords,
I have had the privilege of considering in draft the speech which is to be delivered by my noble and learned friend, Baroness Hale of Richmond. She sets out the arguments both for and against the construction, which she has come to prefer, of article 12 of the Convention as containing a discretion to return a settled child within the Convention procedures.
Having regard to the purpose of the Convention and to the language of articles 12 and 13, I prefer the competing view that, once a child has become settled, precisely because the purpose of the Convention to promote speedy return can no longer be achieved, the Convention ceases to play a role. Then, as article 18 envisages, the court is to have resort to its powers outside the Convention. Those powers fall to be exercised in accordance with the guidance given by the House in Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80. It would serve no useful purpose, however, for me to elaborate the point since Baroness Hale has fully rehearsed the relevant arguments, which are very largely those which appealed to Singer J in Re C (Abduction: Settlement) [2005] 1 FLR 127. Happily, for the reasons which she gives, it may not make very much difference in practice whether the discretion is exercised under or outside the Convention.
On all the other matters I agree with Baroness Hale's reasoning. I would accordingly allow the appeal and make the order which she proposes.
My Lords,
The question before us is whether two girls, now aged 13 years and 3 months and 10 years and six months, should be summarily returned to Zimbabwe under the Hague Convention on the Civil Aspects of International Child Abduction 1980, given effect in United Kingdom law by the Child Abduction and Custody Act 1985. The trial judge held that they should be returned: [2007] EWHC 1820 (Fam). The Court of Appeal upheld his decision: [2007] EWCA Civ 992. There is no dispute that the children were brought here in breach of their father's custody rights. The dispute is as to the scope and application of the exceptions to the duty to return them and in particular the proper approach to the exercise of discretion once one or more of those exceptions has been established.
The judge heard a great deal more evidence than is usual in child abduction cases and made full and careful findings of fact. We need repeat only the bare essentials. The girls were born in Zimbabwe to Zimbabwean parents and lived there with their father after their parents separated early in 2001. In March 2005, while on a visit to their mother, they were brought secretly to this country, where their mother claimed asylum. Since then they have been living in this country with their mother and her partner, who arrived here shortly after they did. From at least September 2005 the father has known where the children are. He did not notify the Zimbabwean central authority of his claim until September 2006. The English central authority did not receive notification from them until January 2007. These proceedings were not issued until May 2007, more than two years after the children had been removed. The mother's asylum claim was refused in April 2005 although she has since been advised to make a fresh one. The family remain here because of a moratorium on the return of failed asylum seekers to Zimbabwe.
The Convention and the issues
The Hague Convention on the Civil Aspects of International Child Abduction 1980 is an admirably clear and simple instrument. Its twin objects are set out in article 1: "(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States". However, as the Explanatory Report of Professor Elisa Perez- Vera (April 1981, paras 16 and 17) points out, as to rights of custody, the second object is attained only indirectly, through the first.
But it should not be thought that the Convention is principally concerned with the rights of adults. Quite the reverse. The Preamble explains that the Contracting States are "firmly convinced that the interests of children are of paramount importance in matters relating to their custody" and "desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access". These two paragraphs, as Professor Perez- Vera explains,
"reflect quite clearly the philosophy of the Convention in this regard. It can be defined as follows: the struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child." (para 24)
However,
"The Convention recognises the need for certain exceptions to the general obligations assumed by States to secure the prompt return of children who have been unlawfully removed or retained. For the most part, these exceptions are only concrete illustrations of the overly vague principle whereby the interests of the child are stated to be the guiding criterion in this area." (para 25)
Hence the Convention is designed to protect the interests of children by securing their prompt return to the country from which they have wrongly been taken,...
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