Re E (Abduction: Non-Convention Country)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE THORPE,LORD JUSTICE PILL |
| Judgment Date | 24 June 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0624-6 |
| Docket Number | FMI 1999/9632/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 June 1999 |
[1999] EWCA Civ J0624-6
IN THE SUPREME COURT OF JUDICATUREFA
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE CONNELL)
Royal Courts of Justice
Strand, London W2A 2LL
Lord Justice Stuart-smith
Lord Justice Pill
Lord Justice Thorpe
FMI 1999/9632/2
MISS GERALDINE MORE O'FERRALL (instructed by Messrs Miles & Partners, London E1 7EZ) appeared on behalf of the Appellant Mother.
MR NICHOLAS CARDEN (instructed by Sally Morris, Middlesex) appeared on behalf of the Respondent Father.
I will ask Lord Justice Thorpe to give the first judgment.
Last week Mr Justice Connell ordered the peremptory return of three boys abducted by their mother from the Sudan. On Tuesday we granted her application for permission to appeal. Today we decide the appeal.
For the facts I take the words of Connell J. from a note of the judgment below agreed by counsel and approved by him.
The father was born in 1956 and is now 43. The mother was born in June 1970 and is 29. On 19 December 1986 they married in the Sudan. The father lived in this jurisdiction previously and earlier had bought a property which he still owns. Having married in the Sudan, in February 1987 the mother and father came to the United Kingdom. In England on 1 April 1989 F was born. Also in England on 3 April 1991 M was born. In 1991 the mother, father and the two boys returned to the Sudan.
There is an issue between the parents that the mother at some time after August 1991 commenced a relationship with a Mr M. On 23 April 1993 a third boy was born in the Sudan. In May 1993 the father came to the United Kingdom. In December 1993 the mother followed and brought the three boys. In April 1994 she returned to the Sudan with the children. She has not lived in this jurisdiction since that time.
In 1995 the mother and father divorced in the Sudan. For a period the children ceased to live with the mother. On 15 June 1955 the mother married Mr M in the Sudan. On 17 September 1995 the mother went to the equivalent of the Magistrates' Court in Sudan. She applied for the children to be returned to her and that the father should not interfere with the custody of the children with her. On 20 November 1995 an order was made by the court which appears in terms to be a consent order. The mother said she did not in truth consent. It was not possible to decide the issue.
An order was made for the children to remain living with the father's family. The mother, as local law indicates, was disqualified from obtaining custody by reason of her re-marriage. The children were looked after by the mother's family and in particular the maternal grandmother. However the maternal grandmother had other difficulties which prevented this. The order therefore provided that the children live with the father's mother. The order also contained provision for contact Thursday and Friday alternating. It incorporated provision for the mother to visit the children at any time.
On 2 April 1996 the mother gave birth to K. In July 1997 the father remarried in the Sudan. His wife and daughter are in the Sudan.
In April 1999 the mother was enjoying contact to the three children. On 9 May the mother together with the four children and her second husband came to the United Kingdom. Upon arrival at Heathrow she sought asylum in this jurisdiction. She did not tell the father or his family of her intention to come to the United Kingdom. The mother's reason for taking this dramatic step was that she was deprived of seeing the children as and when she wanted. She was dissatisfied with the provisions of the order of 20 November 1995 and, accordingly, decided to come here and claim asylum. In those circumstances she was accommodated in temporary accommodation. Her claim for asylum will be considered on 4 October 1999.
On 21 May the mother filed a statement in support of her application for residence and to prevent the removal of the children from England and Wales. On the same day she obtained an ex parte order from Mrs Justice Hale. On 28 May Mr Justice Bodey continued that order. On 4 June Her Honour Judge Pearlman ordered that the children remain in the interim care and control of the mother and ordered the injunctions to continue.
In relation to those facts the judge made the following additional findings. He said:
"In relation to the parents, the mother's future is uncertain. Her background is in the Sudan - only in this jurisdiction very recently, it is not known what is the basis of her asylum or the prospects of success. All that is known is that the application will not be considered until 4th October 1999. The father on the other hand has spent half his time in England and half his time in the Sudan. In his oral evidence he said in recent times he had given up his work, had bought a property in the Sudan - his intention is or was until the issue of these proceedings - to return to the Sudan and live there and live in the property - intended to put this into practice later this year or sometime next year. I heard his evidence and accept this was his plan, only interrupted as a result of these proceedings. In my view it is clear that the children had habitually resided in the Sudan until 9 May 1999. They are Sudanese children removed by the mother from familiar surroundings to the United Kingdom. They speak a very limited amount of English. The children are now living in temporary accommodation. There is much doubt as to their future and that of the mother."
Mr Justice Connell recorded the submissions of the parents thus:
"The mother says, adjourn the residential application and grant her interim residence in the meantime for further consideration of her application at a later stage when the outcome of her application for asylum is either decided upon or when more is known about it. …
The father says, these are Sudanese children, their whole background is Sudanese and the court should make a peremptory order for their return."
He directed himself as to the law by adopting a recent judgment of Mr Justice Charles in the case of Re Z (Abduction: non—Convention Country) [1999] 1 FLR 1270. In that judgment Mr Justice Charles conducted a full and scholarly review of the modern case law and distilled a number of propositions which Mr Justice Connell rightly found to be of great assistance. He said:
"In the light of that case, which is a helpful guide, it is clear that in this case and it is common ground, that the welfare of the children is the paramount consideration. Equally, as stated by Charles J., there is a presumption that the prima facie position is in favour of return of the children to the country from which they were wrongfully removed. Thirdly, the presumption can be displaced in certain circumstances. Fourthly, the application by the father was promptly made - the children have been in the country for six weeks. The question is - is the presumption displaced?"
Mr Justice Connell turned then to the expert evidence which was not in dispute. A Miss Ragab told the judge that:
"The most important fact in Sudanese personal law, mainly Muslim Sharia law, [was that] once a divorced mother has remarried … the care of the children moves to the maternal grandmother. If the maternal grandmother is unable … to care for them, care moves to the paternal grandmother in all cases."
That expert had filed a written report before giving oral evidence. In her written report she had said:
"… there is no Welfare Officer in Sudan. However, the court would have testimony of witnesses close to the families, because socially the Sudanese community is very close. The court normally take full account of the social background of the children and their families, and the economic capacity of the custodian, the health of the carer and above all what would be the best interest of the children, according to the Sudanese culture. Despite the same principles, the concept is different from the British concept."
Mr Justice Connell then recorded the submission of mother's counsel in these terms:
"Accordingly it is submitted by Miss More O'Ferrall that it is contrary to the best interests of the children to order return to Sudan as in the present circumstances the mother has no chance of any order or opportunity of changing the contact arrangements …
Miss More O'Ferrall lays considerable stress upon Re JA (A Minor) (Abduction: Non-Convention Country) [1998] 1 FLR 231 which contains a consideration of United Arab Emirates and Muslim Sharia Law."
The judge then cited at length from the judgment of Lord Justice Ward in Re JA before concluding as follows:
"It can be seen from the consideration of that passage that in different case the Court of Appeal has emphasised different aspects of matters re abduction from a non—Convention country - different emphasis on different circumstances in the cases. Hence the apparent contradiction between Re JA and Re M.
Here the evidence of the expert is that the courts in the Sudan do take account of the best interests of the children but they do so in accordance with Sudanese law and culture, which involves different concepts from British concepts. With a Sudanese Muslim family habitually resident in the Sudan this is scarcely surprising.
I cannot conclude that Ward LJ's view was that the courts in this jurisdiction would never make an order for return when Sharia law applied, particularly if the children's best interests required that solution. Each case must be decided on its own circumstances. The approach of the courts of the competing jurisdiction is an...
To continue reading
Request your trial
-
Re J (A Child) (Custody rights; Jurisdiction)
...Abduction: Non-Convention Country) [1998] 1 FLR 231, the other in the judgment of Lord Justice Thorpe in the case of Osman v Elasha [2000] Fam 62. 15 In Re JA, at pp 241-3, Lord Justice Ward (with whom Lord Woolf MR and Lord Justice Mummery agreed) accepted a submission that 'the court can......
-
Singh v Entry Clearance Officer, New Delhi
...v UK App no 16580/90 (9 February 1993, unreported), E Com HR; [1994] 2 FCR 822, ECt HR. E (child abduction: non-convention country), Re[1999] 3 FCR 497, sub nom Osman v Elasha [2000] Fam 62, [2000] 2 WLR 1036, [1999] 2 FLR 642, Gaskin v UK (1989) 12 EHRR 36, [1989] ECHR 10454/83, ECt HR. Gh......
-
Re P (a child) (mirror orders)
...left the jurisdiction as provided for by that contact order. Cases referred to in judgmentE (child abduction: non-Convention country), Re[1999] 3 FCR 497, [1999] 2 FLR 642, HB (abduction: children’s objections to return), Re[1998] 1 FCR 398, [1998] 1 FLR 422, CA. K (removal from jurisdictio......
-
J (A Child) (2004)
...country), Re[1998] 2 FCR 159, [1998] 1 FLR 231, CA. Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR. Osman v Elasha[1999] 3 FCR 497, [2000] Fam 62, [2000] 2 WLR 1036, [1999] 2 FLR 642, CA. Pellegrini v Italy App no 30882/96 (20 July 2001), ECt HR. R (on the application of Ul......
-
Child abduction and non-convention countries: a comparative analysis -England and Australia
...dispute will be determined in the country of origin according to standards and principles ofjustice broadly 53 Above text at n 33 ff. 59 [1999]2 FLR 642. 60 Above text at n 33 ff. 61 For comment on the approach of Islamic law to the relationship of parent and child see J Hussain, Islamic La......
-
Smita Aiyar, International Child Abductions Involving Non-hague Convention States: the Need for a Uniform Approach
...to the paternal grandmother. Id. 187 Id. at 646. 188 Id. at 647. 189 Id. at 649. 190 Id. at 651. 191 Id. at 652. 192 Osman v. Elasha, [2000] Fam. 62 (U.K.). The case had facts similar to those found in Re E, in that the mother removed her three children from Sudan without her ex-husband's p......
-
The Constitutional Limits of Judicial Activism: Judicial Conduct of International Relations and Child Abduction
...see U. Khaliq and J. Young, ‘CulturalDiversity, Human Rights and Inconsistency in the English Courts’ (2001) 21 LS 192, 209– 217.16 [1999] 2 FLR 642.The Modern Law Review [Vol. 66826 rThe Modern Law Review Limited exclusions. To this extent arrangements have developed since June 1997 when t......