Re F (Child Abduction: Risk if Returned)

JurisdictionEngland & Wales
JudgeLORD JUSTICE MILLETT,SIR CHRISTOPHER SLADE
Judgment Date09 February 1995
Judgment citation (vLex)[1995] EWCA Civ J0209-17
CourtCourt of Appeal (Civil Division)
Docket Number94/1665/F
Date09 February 1995
F(A Minor)

[1995] EWCA Civ J0209-17

(Mr Justice Ward)

Before: Lady Justice Butler-Sloss Lord Justice Millett and Sir Christopher Slade

94/1665/F

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (FAMILY DIVISION)

ON APPEAL FROM

MR MUMBY QC (instructed by Mushcon De Reya, London WC13 5HS) appeared on behalf of the Appellant.

MISS P SCRIVEN QC and MR J ROSENBLATT (instructed by Eaton-Evans and Morris, Haverfordwest SA16 2DB)) appeared on behalf of the Respondent.

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( )

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Thursday 9th February 1995

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LADY JUSTICE BUTLER SLOSS: This is an appeal by the mother from the order of Ward J made on the 20th

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December 1994 in a Hague Convention application in

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which he ordered the return of the child to the USA. The appeal raises two difficult issues:-

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1. Whether the mother in removing the child from the State of Colorado was in breach of the father`s`rights of custody` under Article 3 of the Convention and, if she was

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2. Whether this is a case in which Article 13(b) applies and should bar the return of the child to the USA.

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The relevant facts are that the father was born in Texas and the mother in Wales. They met in the USA and married on the 11th December 1987 in Colorado. The child, the subject of the application under the Convention, is a boy C. Born on the 22nd December 1990, he is now four. The marriage was unhappy and the mother made serious allegations in three affidavits about the violent behaviour of the father towards her, towards her mother when she stayed with them and towards the child. Some of the allegations are confirmed by the maternal grandmother. The father in his one affidavit gave a general denial of violence but has not replied to the individual allegations. As a result of an incident on the 6th June 1994, the mother on the 7th June made an ex parte application to the County Court in Adams County, Colorado asking for an order somewhat similar to our ouster order and care and control of C. The court made a temporary restraining order and a temporary order for care and control to the mother with a return date fixed for the 21st June. The father was served with the order and vacated the matrimonial home. On the 21st June the orders were continued until the 14th July when a further hearing was fixed. The mother was legally represented on the 21st June, but not the father. At neither hearing was any order made prohibiting the removal of the child from the jurisdiction. There is no evidence as to whether the county court has the jurisdiction to make such an order. The mother and C left the USA and arrived in the UK on the 13th July. The father was not told of the mother`s plans although the mother`s lawyer knew and advised the mother that she had the right to leave the jurisdiction with the child. On the 14th July the mother`s lawyer attended the hearing and the proceedings were dismissed. The court was not told that the mother and child had left the USA. The father discovered later on the 14th July on his return home that the mother and child were gone.

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In Wales the mother commenced divorce and Children Act proceedings which have been served on the father. On the 31st October the father made the Convention application, and shortly thereafter he commenced divorce proceedings in the District Court of Adams County. No order relevant to this appeal has been made in the divorce proceedings.

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At the hearing before Ward J there were the three affidavits from the mother and one from her mother and one affidavit from the father which had crossed with the mother`s first affidavit. The judge also saw an affidavit as to Colorado law from the mother`s lawyer, Miss Conran, and letters from another lawyer, Mr King, also on behalf of the mother, giving expert evidence on Colorado law. There were also letters and a memorandum on Colorado law from two associates of the firm acting for the father, Mr Studiolo and Miss Eaton.

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The judge found that the mother had wrongfully removed C from the USA in breach of the father`s rights of custody under Article 3 and that the mother had not made out a case under Article 13(b). He accepted undertakings from the father and ordered the return of the child. The order was stayed pending this appeal.

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Counsel are agreed that the child was habitually resident in Colorado prior to his removal by the mother and that the issue under Article 3 is removal and not retention. The Convention has been signed by the USA which is the relevant contracting State but the court is concerned with the domestic law of Colorado not federal law. By Article 31 Colorado is a territorial unit of the contracting State. If the judge`s order stands it would be sufficient for the mother to return to the USA and not to Colorado although in reality, we are told, her circumstances would preclude her from living anywhere but in the former matrimonial home.

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The family law of Colorado. The evidence of the family law of Colorado is contained in an affidavit, letters and a memorandum and is unanimous on most points. On behalf of the mother, Miss Scriven QC accepted that the evidence of Miss Eaton who had done the research was to be preferred to that of her senior partner Mr Studiolo and did not rely on his letter. In my view the evidence of Miss Eaton set out in her carefully researched memorandum is the most useful of all the evidence provided to us. Colorado recognises the rights of parents without recourse to a court. Each parent has equal and separate rights of custody over their legitimate child absent a court order. Each parent can act independently of the other and there is no prohibition on the removal of a child from the jurisdiction by one parent even in contravention of the wishes of the other parent if it is not backed up by a court order.

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On behalf of the mother, Mr Munby QC in a careful and comprehensive argument, has submitted that the removal of C by the mother was not wrongful because the father did not possess rights of custody but, even if he did, there was no breach of the Convention. At the time of the removal by the mother in July there was only one court order which gave temporary care and control to the mother with no order in favour of the father and no order restraining removal of the child from the jurisdiction. Since the 14th July there has been no relevant order in Colorado. The mother was not in breach of any order nor had she violated any rights of the father under Colorado law. Mr Munby relied upon the advice given by the mother`s lawyer that she would not violate Colorado law if she removed the child without the knowledge or consent of the father. The father was advised according to his affidavit by his lawyers that there was no legal step he could take and was advised by the police that the mother was not violating Colorado law. If the mother was not in breach of the father`s rights under Colorado law Mr Munby argued that the mother cannot be in breach of rights of custody under Convention law.

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Miss Scriven accepted that the mother was not in breach of any order nor had violated any principle of State law but submitted that the father retained`rights of custody` despite the unilateral act of the mother. Having established the rights of the parent according to Colorado law it is for the English court to apply English law as to whether those rights are `rights of custody` within the Convention. Equally it is a matter of English and not Colorado law as to whether there is a breach of those rights. She argued that under the Convention the mother was in breach of the father`s `rights of custody`.

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Article 3 states that the removal of a child is to be considered wrongful where:—

"(a) it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal….; and

(b) at the time of removal … Those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal …"

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Article 5 defines rights of custody to include:-

"rights relating to the care of the person of the child, and, in particular, the right to determine the child`s place of residence;"

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It is the duty of the court to construe the Convention in a purposive way and to make the Convention work. It is repugnant to the philosophy of the Convention for one parent unilaterally, secretly and with full knowledge that it is against the wishes of the other parent who possesses`rights of custody`, to remove the child from the jurisdiction of the child`s habitual residence. `Rights of custody` within the Convention are broader than an order of the court and parents have rights in respect of their children without the need to have them declared by the court or defined by court order. These rights under the Convention have been liberally interpreted in English law. Waite LJ said in Re B (a Minor)(Abduction) [1994] 2 FLR 249 at page 260:-

"The purposes of the Hague Convention were, in part at least, humanitarian. The objective is to spare children already suffering the effects of breakdown in their parents` relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression`rights of custody` when used in the Convention therefore needs to be construed in the sense that will best accord with that objective. In most cases, that will involve giving the term the widest sense possible."

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In C v C (Minor: Child...

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