R v R (Minors) (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Year | 1996 |
| Date | 1996 |
| Court | Family Division |
STUART-WHITE, J
Child abduction – children born to English mother and Spanish father – family living in Spain until parents separated in 1992 – Spanish separation order providing for custody of children to mother and contact to children by father and for mother to notify father if children were to be taken out of jurisdiction of court – mother bringing children to England without father's consent or knowledge – mother filing divorce petition and praying in petition for residence order – father served with divorce papers and not objecting to divorce but objecting to residence application – case ordered to be listed for directions before High Court Judge as to father's claims that children had been wrongfully removed from and should be returned to Spain.
Three children were born to a Spanish father and an English mother; the parents having married in 1980. In February 1992 a Tenerife court granted a separation order which granted custody of the children to the mother and specified contact to the father. The order also provided that the mother was to inform the father of when the children were to depart from Spain.
In 1994 the mother brought the children to England without the father's consent or knowledge; and in late June 1994 the mother filed a divorce petition in which was included a prayer for a residence order in respect of the three children. The father, having been served with the petition, did not contest the divorce petition. However, the father informed the court of the Tenerife court's decision and wanted to make representations concerning the residence of the children and the fact that the children had been unlawfully removed from Tenerife without the father's consent and in breach of the court order.
At subsequent hearings before a district judge a special procedure certificate was granted, consideration was given to arrangements for the children pursuant to s 41 of the Matrimonial Causes Act 1973, and the file was ordered to be referred to the Official Solicitor. At further hearings before a circuit Judge the divorce proceedings were ordered to be transferred to the High Court, the presiding High Court Judge on circuit was invited to consider the case, and the Official Solicitor was invited to act as amicus curiae. The presiding High Court Judge directed that the case be listed before a Judge of the Family Division in London for directions as to the father's claims that the children had been wrongfully removed from and should be returned to Spain.
directions hearing was listed before Stuart-White, J
Held – (1) The clear language of the Convention enabled circumstances to arise in which a court could regard itself as having received notice of a wrongful removal or retention within the meaning of Article 16 of the Hague Convention, not withstanding that no
application under the Convention had been received from the central authority of a contracting State.
(2) A court which became aware, expressly or by necessary inference, that there had been a wrongful removal or retention of a child within the meaning of Article 3 of the Convention received notice of that wrongful removal or retention. There was nothing in the words of Article 16, nor elsewhere in the Convention, to restrict the word "notice" to notice from any particular source or in any particular form. The final words of Article 16 made it apparent that the Article contemplated that notice could be received before the lodging of an application under the Convention.
(3) The Family Proceedings Rules were silent as to the procedure to be followed on an order that was to be made where a court received notice of a wrongful removal or retention in the absence of Convention proceedings. The lack of a rule to regulate such a procedure did not absolve a court from what was a statutory duty to comply with Article 16 to give effect to its provisions. Unless a court found that no application under the Convention had been lodged within a reasonable time of the court receiving notice of the wrongful removal or retention, the court should refrain from deciding the merits of the rights of custody and should refrain from making a residence order or an interim residence order but not from making any other section 8 orders. However, it was consistent with the objectives of the Convention and the relevant legislation for the court to take all necessary steps to arrive at an appropriate result in the paramount interests of the welfare of the children. In order to do so it was incumbent on a court to avail itself of all necessary material to ensure that the court made properly informed decisions in the best interests of the children.
(4) Although it was very probable that a court would not, at the time it received notice that there had, on the basis of the facts known to the court at the time, been a wrongful removal, be in possession of sufficient information to decide whether a Convention application was likely to succeed, it did not absolve a court from its duty of endeavouring to discover whether an application was to be made and ensuring, so far as the court could, that the children's parents were aware of the rights and remedies available to them. Further, it was the duty of the court to consider taking steps to ensure that the parent in the State from where the children had been removed was able to be informed of rights under the Convention. Such steps were to be taken unless there was clear evidence to show that there had been acquiescence, in the sense of positive acceptance of wrongful removal or wrongful retention. A distinction had to be drawn between positive acceptance of a situation and inactivity. There were a variety of reasons for inactivity; however a court was to be slow to find acquiescence without taking steps to enable all available information to be made available to the court.
(5) It was for the court seised of the matter to decide whether or not a reasonable length of time had elapsed since the receipt of the notice of wrongful removal or retention. Such a decision as to what was a reasonable length of time had to be considered objectively. Because a reasonable period of eight months had passed since the receipt by the father of the notice of wrongful removal for the father to lodge a Convention application, there was no longer any bar created by Article 16 to the granting of a residence order or interim residence order.
Statutory provisions referred to:Children Abduction and Custody Act 1985, ss 1(2), 9, 27, Sch.3, paras 1, 2, 3 and 4.
Children Act 1989, ss 8 and 10(2).
Family Law Act 1986, Part I (ss 1 to 42), ss 2A(4)(b) and 5.
Family Proceedings Rules 1991 (SI 1991/1247), rr 2.39 and 6.11.
Hague Convention on the Civil Aspects of International Child Abduction, Articles 1, 2, 3, 5, 7, 12, 13, 16, 17 and 20.
Matrimonial Causes Act 1973, s 41(2).
Cases referred to in judgment:A (A Minor) (Care Proceedings), Re[1993] 1 FCR 164.
A (Minors) (Abduction: Custody Rights), Re[1992] 2 FCR 97; [1992] Fam 106; [1992] 2 WLR 536; [1992] 2 All ER 925.
A(Z) (Child Abduction), Re[1993] 1 FCR 733.
Barrowclough, in the Marriage of (1987) 11 FLR (Aus) 773.
C (A Minor) (Care Proceedings), Re[1992] 2 FCR 341.
G v G (Minors) (Abduction) [1991] FCR 12.
M (Minors) (Abduction: Non-Convention Country), Re[1995] 2 FCR 265.
Oxfordshire County Council v M[1994] 1 FCR 753; [1994] Fam 151; [1994] 2 WLR 393; [1994] 2 All ER 269.
W v W (Child Abduction)[1993] 2 FCR 644.
Peter Hunt for the mother.
Mark Everall, QC for the Official Solicitor as amicus curiae.
MR JUSTICE STUART-WHITE.This divorce suit comes before me for directions pursuant to an order of Singer, J in the following terms:
"The court of its own motion directs that this suit should be listed before a Judge of the Division in London for directions to be given, if any, and if so what steps should be taken in relation to the respondent father's assertions as to the children's wrongful removal from Spain and his contention that they should be returned to Spain."
The circumstances in which Singer, J's order was made were these. The petitioner and the respondent, whom I shall call the mother and the father, were married in 1980. The father is Spanish and lives and works in Tenerife. The mother is English. There are three children aged 11, 7 and 4, who were born and lived the whole of their lives in Tenerife within, of course, the jurisdiction of the Spanish court.
On 5 February 1992 a separation order was made by a court in Tenerife providing, among other provisions, that there should be custody to the mother and contact to the father. Clauses 2 and 5 of that order in translation read as follows:
"The children who are minors will remain in the care and control of their mother although the father may visit them as often as he thinks fit before 10 o'clock at night. Furthermore, the mother will inform the father if the children are going to be out all day. The spouses agreed that the father may take the children out for the whole day on his day off from 10 in the morning until eight in the evening giving their mother one day's notice."
Then in clause 5, bearing in mind that the mother has British nationality:
"The spouses state that the father will be informed of any departure by the children from this country and he will authorize it depending on what is best
for the children at any given time."
The mother brought the children to England. She says that it was on 21 April 1994. The father says that it was on 22 April. She brought them without the father's consent or knowledge. She says that on arrival in England she communicated to him the address at which she was staying with the children.
On 21 June 1994 the mother filed a divorce petition in the Scarborough county court, based on the behaviour of the father. That petition included a prayer for a residence order in respect of all three children. The father was served with the divorce papers and he wrote a long letter to the county court in Spanish. I have...
To continue reading
Request your trial
-
Re H (Child Abduction: Wrongful Retention)
...2 All ER 961, [1990] 2 FLR 442, HL; affg [1991] FCR 129, [1990] 2 AC 562, [1990] 2 All ER 449, CA. R v R (minors) (child abduction) [1996] 1 FCR 480; sub nom R v R (residence order: child abduction) [1995] 2 FLR T v T (child abduction: consent) [1999] 2 FCR 2, [1999] 2 FLR 912. ApplicationT......
-
Re D (Abduction: Acquiescence)
...Re[1997] 2 FCR 257, [1998] AC 72, [1997] 2 All ER 225, [1997] 2 WLR 563, HL; rvsg[1996] 3 FCR 425, CA. R v R (child abduction) [1996] 1 FCR 480; sub nom R v R (residence order: child abduction) [1995] Fam 209, [1995] 4 All ER 115, [1995] 3 WLR S (a minor) (abduction: acquiescence), Re[1998]......