Re AR (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Year | 1997 |
| Date | 1997 |
| Court | Court of Appeal (Civil Division) |
RUSSELL, ALDOUS AND WARD, L JJ
Child abduction – parents Swiss nationals living in Switzerland – parents divorced – mother given custody but getting into difficulties – Swiss court giving care to grandparents – mother remarrying and bringing the child to England – wrongful removal – child objecting to return to Switzerland – change of circumstances – whether court should order return under Hague Convention.
Enforcement – Swiss court ordering child to be in care of grandparents – mother bringing child to England – grandparents applying for order of Swiss court to be registered and enforced in England – factors to be taken into account.
The parents were Swiss nationals living in Switzerland. They married in 1985 and were divorced in 1991. They had one child, a girl, who was born in February 1986. On their divorce, custody of the child was given to the mother with access to the father. There were difficulties over access and conflict with the father over money. The mother had financial problems, became agitated and confused, and handed the child to third parties or left her to her own devices from time to time. As a result, on 21 November 1995, a Swiss court made an order delegating the actual care of the child to her grandparents. The mother had contact with the child on alternate weekends and school holidays.
In March 1996 the mother married an Englishman. That same month the mother and her husband came to England with the child. This removal of the child from Switzerland was wrongful within the meaning of Article 3 of the Hague Convention.
The grandparents applied under the Hague Convention for the return of the child. They also applied under the European Convention for the order of the Swiss court to be registered in England and enforced here.
Hale, J dismissed the applications. In relation to the application under the Hague Convention she held that the child genuinely objected to returning to Switzerland, that she was of an age and degree of maturity at which it was appropriate to take account of her views, and that the child's wishes should prevail over the general policy of the Hague Convention that a child who had been improperly removed should be returned as soon as possible. The child was now living with her mother who had been her primary carer throughout almost all of her life. Also she was now living in circumstances far more favourable than those which existed at the end of 1995. The Judge found that it was also relevant to have regard to the fact that this was not the usual case of a dispute between
parents. If the child returned to Switzerland it would be to live with her grandparents, a prospect which the evidence indicated would be deeply distressing for her. In the circumstances the Judge found that the balancing of the relevant factors indicated that the child's views and objections should be taken into account and that she should not be summarily returned to Switzerland without the fuller inquiry which could not take place in Hague Convention proceedings.
In relation to the European Convention Hale, J held that the circumstances which led to the order of the Swiss court no longer existed. The effect of that order was now manifestly no longer in accordance with the welfare of the child. Consequently, notwithstanding the court's deep disapproval of the way the mother had acted in removing the child from Switzerland and despite the court's deep respect for the decisions of a court of a Convention country, the court would refuse to register and, therefore, allow for the enforcement of the order in this country.
The Judge further held, per curiam, that it appeared that the grandparents were not persons who had a right to apply for registration and enforcement of the order. The expert evidence adduced was to the effect that under the Swiss order the grandparents did not have the right to enforce in the Swiss courts the order giving them the actual care of the child. Therefore, by virtue of the provisions of s 16(4)(b) of the Child Abduction and Custody Act 1985, the court could not register the order. The point was a technical one as the Swiss authorities could themselves register the order and the matter would have been adjourned to enable new plaintiffs to be joined if this had been the sole basis for deciding that the order could not be registered.
The grandparents appealed.
Held – dismissing the appeal: (1) By Article 13 of the Hague Convention the court could refuse to order the return of the child if the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of its views. The Judge had held that in the present case the child objected to returning to Switzerland and that she was of an age and maturity where it was appropriate to take her views into account. These were matters of fact for the Judge to find and there was no basis upon which it could be held that those findings were in any way wrongly reached by the Judge. In exercising her discretion whether or not to give weight to the child's wishes or to overrule them the Judge had balanced those wishes against countervailing factors. One such factor was the policy of the Hague Convention that children who had been wrongfully removed from the country where they were habitually resident should generally be returned there as soon as possible. In this case, the Judge, directing himself impeccably, had found that this was a particularly powerful factor as the child was Swiss, had lived in Switzerland all her life, both her parents were Swiss, and the Swiss courts had already assumed jurisdiction over her future. Although the Swiss court was already involved, the Judge, approaching the matter correctly, had found that the intervention of the Swiss authorities had come about in the context of conflict between the parents; the mother's financial difficulties, for which the father had acknowledged some responsibility; and the mother's difficult situation at the end of 1995. These were not concerns of a child protection nature and the Judge had found that the present position was that the child appeared to be thriving and happy. Another countervailing factor would be if the child's views had been influenced by the mother, the abducting parent, but the Judge was satisfied on the facts that the child's views were a genuine and natural reflection of her real feelings. The Judge had held that the child should not be returned to Switzerland without the fuller inquiry which could not take place in Hague Convention proceedings. That was a decision reached after balancing the factors properly put into the scale and there was nothing to lead to the view that the Judge was plainly wrong.
(2) By Article 10(1)(b) of the European Convention recognition and enforcement of
an order of another contracting State could be refused if the effects of the original decision were manifestly no longer in accordance with the welfare of the child. In this case the Judge had held that there had been a change in the circumstances since the order of the Swiss court in November 1995. The mother had remarried. Her situation was transformed. The evidence was that the child liked the step-father. He had behaved responsibly to his new family, had found a job soon after they came to England, and was obviously helping his new family. Thus, the circumstances which led to the order of the Swiss court no longer existed. There was no error in the Judge's approach. The words of Article 10(1)(b) required that a comparative exercise be undertaken. A change in the residence of the child might not be taken into account if it was the sole change that had taken place. But if it was not the sole change and there were other factors, then a change in circumstances might be coupled with those other changes. In this case the other changes were manifest and obvious: the mother had a supportive new husband, she was now afforded stability, and the restoration of her well-being had a consequential beneficial effect on her ability to give proper care to the child's welfare. There was ample evidence to justify the finding that there were sufficient changes to bring Article 10(1) into operation. The Judge had properly addressed the principles to be applied and had correctly put into the scales all the relevant matters. The Judge had concluded that it was manifest that the child's welfare demanded she stay where she was. The Judge was fully entitled to arrive at that conclusion.
Per curiam: Nothing in this case should be taken to be in any sense a dilution of the importance that the courts in this country gave to upholding the spirit both of the Hague Convention and the European Convention. Child abduction across international frontiers remained a sore which resulted in great harm to children. The courts would continue to honour fully and properly the spirit and detail of each of these Conventions.
FAMILY DIVISION
29 July 1996
Statutory provisions referred to:Child Abduction and Custody Act 1985, ss 16 and 18; Sch 1: The Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"), Articles 3 and 13; Sch 2: The European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children, Articles 1, 10 and 15.
Cases referred to in judgment:A (Foreign Access Order: Enforcement), Re[1996] 3 FCR 165.
J (A Minor) (Abduction), Re [1990] FCR 341.
M (Minors) (Child Abduction), Re[1994] 2 FCR 750.
R (Minors) (Child Abduction), Re[1995] 2 FCR 609.
S v S (Child Abduction)[1993] 1 FCR 12; sub nom Re S (Minors) (Abduction: Custody Rights) [1993] Fam 242; [1993] 2 WLR 775; [1993] 2 All ER 683.
SR (A Minor) (Abduction), Re[1992] 1 FCR 101.
Marie-Claire Sparrow for the grandparents.
The Honourable Clare Renton for the mother.
MRS JUSTICE HALE.These are applications under the Child Abduction and Custody Act 1985, under both the Hague Convention and the European Convention. They are...
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