Re AF (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Year | 1992 |
| Court | Court of Appeal (Civil Division) |
Neill, Russell and Butler-Sloss, L JJ
Child – abduction – habitual residence – parents marrying and living in England – going to Australia – issue as to whether family intended to stay or merely to visit Australia – after three months father brings child to England without consent of mother – mother immediately applies for child's return – issue of child's habitual residence – Judge finding that the facts justified rejecting father's affidavit evidence – whether decision of Judge could be upheld.
Child – abduction – evidence – application for return of child – Convention of Civil Aspects of International Child Abduction – issue of habitual residence – affidavit evidence in direct conflict – desirability of court allowing oral evidence – admission of oral evidence to be allowed sparingly.
The mother was Australian and the father was English. They married in England in 1987. They had one child, a boy born on 10 May 1990. The child was registered as an Australian citizen. The parties lived in England until 10 April 1991. In October 1990 they planned to go to Australia and the father bought three return tickets for Sydney. The mother wrote to her mother in Australia intimating that the father would seek work in that country. The family flew to Australia, spending a few days on the way in America. They arrived in Australia on 21 April 1991. Nineteen packing cases containing books, a hi-fi system, a baby's cot, and a picture among other possessions were sent for transport by sea to Brisbane. They arrived in Australia on 9 July. On arrival in Australia the family stayed first with the maternal grandfather in Sydney and then with the maternal grandmother in Cairns. The relationship between the parents deteriorated. On 20 May the father went to stay with his sister near Sydney. On 3 July the mother and the child rejoined the father. The mother informed the father that the marriage was at an end. On 8 July the father flew back to England with the child. He did not tell the mother or any of her family of his intentions but contacted the mother on his arrival in England. On 16 July the mother initiated an originating summons under the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of the child to Australia. The matter came before Johnson, J on 18 July. Both parents were present. Affidavits and other documentary evidence had been filed. The issue was whether the removal of the child contravened the Convention. Article 3 of the Convention provides:
"The removal ... of a child is to be considered wrongful where ... it is in breach of rights of custody attributed to a person ... either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal ..."
It was not in dispute that by Australian family law the removal of the child was in breach of the mother's right of joint custody and guardianship. Nor was it in dispute that the child and his parents were habitually resident in England prior to 10 April 1991. The only issue was whether the child was habitually resident in Australia immediately before his removal on 10 July 1991.
According to the mother, the intention of the family was to emigrate to Australia and to regularize the father's status after arrival. According to the father, the family was visiting for an extended holiday with the intention of considering whether or not to live in Australia for any length of time. These conflicting issues were exposed in the affidavits of the parents as to the reasons for the visit to Australia. Counsel for the mother raised the question of oral evidence for consideration by the Judge. Counsel did not ask the Judge to hear oral evidence from the mother and had no wish for him to do so. The Judge consulted counsel for the father but, without giving an answer, counsel launched into her general submissions, though she gave the impression that the disputes of fact were de minimis and that the issues were those of law and not of fact. The Judge therefore decided the matter on the documentary evidence. He found that the family had acquired habitual residence in Australia by 20 May 1991. In the alternative he found that the mother had acquired habitual residence and that the father had acquiesced in the child remaining with the mother and in the change of habitual residence of the child to that of the mother. Consequently, he found that the father had wrongfully removed the child from Australia in breach of the Convention.
The father appealed. He submitted that the Judge was wrong (i) to decide the matter of affidavit and documentary evidence alone; (ii) to decide that the habitual residence of the family was in Australia; (iii) to find that the father had acquiesced in the acquisition of the mother's habitual residence by the child.
Held – dismissing the appeal: (1) Proceedings under the Convention were summary in nature and designed to provide a speedy resolution of disputes over children and secure the prompt return of children wrongfully removed from the country of their habitual residence. The parties might file affidavit evidence but there was no right to give oral evidence although the court had a discretion to admit it: Evans v Evans [1989] FCR 153. There was a real danger that if oral evidence was generally admitted in Convention cases it would become impossible for them to be dealt with expeditiously and the purpose of the Convention might be frustrated. However, there might be cases where there was an issue as to whether the Convention applied at all. The court might have to decide questions as to the intention of the parties where the affidavit evidence was in direct conflict. It might then be more satisfactory for the court to hear oral evidence if both parties were before the court. But the admission of oral evidence in Convention cases should be allowed sparingly. In the present case the Judge was entirely justified in deciding the matter on the affidavit and documentary evidence as there was no application to call oral evidence. Where the issue had to be decided on disputed non-oral evidence, the Judge had to look to see if there was independent extraneous evidence in support of one side. That evidence had to be compelling before the Judge was entitled to reject sworn evidence of a deponent. Alternatively, the evidence in the affidavit might be in itself so inherently improbable that the Judge was entitled to reject it. If there were no grounds for rejecting the written evidence of either side, the applicant would have failed to establish his case.
(2) In this case there was an accumulation of evidence which was compelling in the absence of any credible explanation from the father. This included the dispatch of family possessions in 19 packing cases for Australia and actions taken by the father in Australia towards obtaining resident status and applying for a dealership. On the facts the Judge was eminently justified in rejecting the father's affidavit evidence. Consequently, the Judge was entitled to find that the family intended to emigrate from the United Kingdom and settle in Australia. With that settled
intention, a month could be an appreciable period of time; and by the time the father took the child from Australia to England, the child had been in Australia for nearly three months. It was important for the successful operation of the Convention that the child should where possible have a habitual residence otherwise he could not be protected from abduction by a parent from the country where he was last residing. The court should not strain to find a lack of habitual residence where on the broad canvas the child had settled in a particular country. The Judge was right. This case fell within the Convention. The father had wrongfully removed the child from Australia. The appeal would be dismissed on that ground.
(3) Where parents lived together the child was habitually resident with both. When parents separated the child's habitual residence would follow that of the principal carer with whom he resided. In the ordinary case of a married couple, it would not be possible for one parent unilaterally to terminate the habitual residence of the child by removing the child from the jurisdiction wrongfully and in breach of the other parent's rights: see per Lord Donaldson, MR in Re J (A Minor) (Abduction: Custody Rights) [1991] FCR 136F. A child's habitual residence could be changed in a number of ways. This could be by one parent changing the child's habitual residence without the consent of the other and where that other parent took no step to obtain the return of the child for a sufficient period to amount to acquiescence. In Re P (An Infant) [1965] Ch 568 Lord Denning, MR thought six months' delay would go far to show acquiescence; even three months in some cases, but not less. In the present case the period in question was from 20 May to 10 July 1991. But the need for a close examination of time limits as suggested by Lord Denning and whether they were relevant to today's peripatetic families did not arise in this case. Acquiescence was a combination of a sufficient period of time coupled with inactivity by the parent without the child to demonstrate an implied acceptance of the changed position. On the affidavit evidence this was a shortish parting of the...
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