Re B (A Minor) (Abduction)
|England & Wales
|LORD JUSTICE WAITE
|29 April 1994
|Judgment citation (vLex)
| EWCA Civ J0429-4
|Court of Appeal (Civil Division)
|No. FAFMI 94/0433/F
|29 April 1994
 EWCA Civ J0429-4
APPEAL FROM ORDER OF MR. JUSTICE CONNELL
Before: Lord Justice Staughton Lord Justice Waite and Lord Justice Peter Gibson
No. FAFMI 94/0433/F
IN THE SUPREME COURT OF JUDICATURE,
COURT OF APPEAL (CIVIL DIVISION)
MR. J. MUNBY Q.C. (instructed by Messrs. Belmont & Lowe, Henrietta House, 93 Turnmill Street, EC1M 5QU, London agents for Hugh James Jones & Jenkins, Arlbee House, Greyfriars Road, Cardiff) appeared on behalf of the Appellant.
MR. J. HOLMAN Q.C. and MISS E. RYAN (instructed by Messrs. Ralph Haring & Co., 9 Jockeys Field, Bedford Row, London WC1R 4BW) appeared on behalf of the Respondent.
F, the six and a half year old boy who is the subject of this appeal, is Australian. He was born in that country on 21st August 1987, and was ordered to be returned there, on the application of his father under the terms of the Hague Convention, by an order of Connell J of 30th March 1994. His mother appeals on the ground that the judge had no jurisdiction to make a convention order because neither the child's original removal to this country nor his retention here were, so she claims, wrongful.
F is illegitimate. He was born in Australia of an unmarried association between the mother, who emigrated to Australia with her parents at the age of 21 in 1982 and is now aged 33, and the father who is 40 and Australian born. The relationship broke down when the parents separated in August 1990. The father remained in contact with F, and when the mother wished to take F together with her mother ("the maternal grandmother") to Britain in 1990 for a short holiday he contributed A$9,000 to their expenses. Soon after their return to the home state of Western Australia in early 1991 it became apparent that the mother had become addicted to heroin. The father gave her A$38,500 to invest in a home for F and herself, but she did not apply the money for that purpose, and for the remainder of 1991 and the early part of 1992 the mother lived a chaotic existence as a result of her addiction.
Eventually in April 1992 the mother left Australia and returned to Britain. Her departure was in breach of bail conditions imposed as a result of pending charges for shoplifting. F was left to be cared for by the maternal grandmother and the father. At first he spent the week with his grandmother and week-ends with the father, but from February 1993 the roles were reversed, and F was with his father for week-days and grandmother for week-ends. From April 1992 onwards the social security payments payable to the person having the care of F were paid to the maternal grandmother, with the authority of a direction signed for that purpose by the father.
By the summer of 1993 the grandmother had made a plan to return to Britain for a long holiday and wished to take F with her. The father's response was that he would not be willing to allow F to leave Australia for anything longer than a holiday of six months, after which he would return with the grandmother. He insisted, moreover, that the arrangements for the child's return should be established with due legal formality.
Matters of guardianship and custody are regulated in Western Australia by a non-federal statute, the Family Court Act 1975 (Western Australia), to which I shall refer hereafter as "the 1975 Act". The jurisdiction which it confers on the Family Court of Western Australia ("FCWA") is co-extensive with equivalent federal law, and there are cross-vesting provisions which enable all states to make orders valid within each others' jurisdictions. The term guardianship is used in the 1975 Act to describe responsibility for the long-term welfare of the child, as distinct from custody, which is defined by S 34 (2) as follows:
"34 (2) A person who has or is granted custody of a child under this Act has -
(a) the right to have the daily care and control of the child: and
(b) the right and responsibility to make decisions concerning the daily care and control of the child."
In regard to the children of unmarried parents the 1975 Act provides:
"S 35 CUSTODY AND GUARDIANSHIP
Subject to the Adoption of Children Act 1896 and any order made pursuant to this Division [meaning that part of the Act], where the parents of a child who has not attained the age of eighteen years were not married at the time of the birth of the child or subsequently, the mother of the child has the custody and guardianship of the child.
Sections 36 and 36A enable orders with respect to custody or guardianship or access or welfare to be made in favour of a wide class of persons, including anyone who can demonstrate that his paramount interest is the welfare of the child. S 41 (1) and (2) and Sections 42 (3) to (6) provide for a system of registration of agreements, including agreements relating to custody, with the court so as to make them enforceable as rules or orders of court. S 42 provides:
"S 42 AGREEMENTS BETWEEN PARENTS
No agreement made between the parents of a child shall be held to be invalid by reason only of its providing that one of the parents shall give up the custody or guardianship of the child to the other."
On 9th June 1993 the father and maternal grandmother attended a meeting with the father's solicitor Mrs. Walter. According to Mrs. Walter's evidence, which was accepted by Connell J, the maternal grandmother emphasised that she was simply taking the child to Wales (where the mother now lives) for a holiday, after which she and the child would return to Australia. As a result of that meeting Mrs. Walter drew up a Minute of a consent order of the FCWA ("the original minute"). It was headed in the matter of family proceedings between the father and the mother and provided as follows:
"In respect of the father's application filed contemporaneously herewith, the following orders may be made by consent:-
1.The father and mother have joint guardianship and the father has sole custody of the child [F] born 21 August 1987.
2.That the [maternal grandmother] be and is hereby permitted to take the said child out of Australia for the purposes of travelling to South Wales only from 1 August 1993 up to and including 14 January 1994, by which date the said child is to have been returned to Western Australia.
3.The mother be restrained and an injunction is hereby granted restraining the mother from having possession of the children's passports at any time.
4.The mother keep the father advised at all times as to the telephone number and address at which the said child can be contacted.
5.During the time that the said child is absent from Australia pursuant to the order contained in paragraph 2 hereof, the father have weekly telephone access with the child from 4.00 pm each Sunday (Western Australia time) and the mother make the child available at that time.
6.That the mother be restrained and an injunction is hereby granted restraining the mother from removing the child from the care of the [maternal grandmother] during such time as the child is absent from Australia.
7.That if the [maternal grandmother] returns to Australia prior to 14 January 1994, the mother is to do all things necessary to ensure that the said child accompanies the [maternal grandmother]
8.For the purposes of ensuring the return of the said child to the State of Western Australia on or before 14 January 1994, the mother at least five (5) days prior to departure pay to the father the sum of $10,000 ("the bond") to be held in trust by the father on the following conditions:
(a)In the event that the child returns to Western Australia on or before 14 January the bond be refunded to the mother her nominee within 48 hours of his return.
(b)In the event that the child does not return to Western Australia on or before 14 January 1994 or when the [maternal grandmother] returns to Australia, whichever will first occur, then the bond be paid forthwith to the father to be used by him to take all necessary action to ensure the child is returned to Western Australia.
9.In the event of any contested litigation arising from the mother's failure to return the child in accordance with the orders contained in paragraph 2 hereof, and subject to any further order of this court, the forum for the determination of that dispute so far as is practical be the Family Court of Western Australia.
10.The order contained in paragraph 9 hereof shall not prevent the father obtaining in some other overseas court an immediate order for the return of the child and shall not restrict in any way any application the father might bring for any breach of the order contained in paragraph 2 hereof.
11.Within 48 hours of the return to Western Australia of the said child, the child's passport be delivered to the father.
12.Upon the child's return to Western Australia, the father and mother be restrained and an injunction is hereby granted restraining each of them from removing the said child from Western Australia without the prior written consent of the other party.
13.Upon the return of the child to Western Australia in compliance with the order contained in paragraph 2 hereof, the mother have reasonable access to the said child defined to include weekly telephone access.
14. That the fathers's application be otherwise dismissed."
Provision was made at the foot of the original minute for it to be signed both by the mother and by the father.
On 16th June 1993 the original minute was sent by Mrs. Walter to the mother at her address in Wales for signature. The mother did duly sign it and posted it back, but her letter was misdirected and as a result was never...
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