Re F (A Minor) (ABduction: Jurisdiction)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE NEILL,LORD JUSTICE BALCOMBE
Judgment Date30 Jul 1990
Judgment citation (vLex)[1990] EWCA Civ J0730-2
Docket Number90/0690

[1990] EWCA Civ J0730-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HASTINGS COUNTY COURT

(HER HONOUR JUDGE VINER)

Royal Courts of Justice

Before:

The Master of The Rolls

(Lord Donaldson)

Lord Justice Neill

Lord Justice Balcombe

90/0690

Re "F" (A Minor)

MR. ADRIAN SALTER (instructed by Messrs. Cartier & Co.) appeared for the Appellant (Mother).

MISS J. ROWE (instructed by Messrs. Morgan & Lamplugh, Hastings, East Sussex) appeared for the Respondent (Father).

THE MASTER OF THE ROLLS
1

This is an international child abduction case. It is not, however, one to which the Child Abduction and Custody Act 1985 applies because Israel has not yet been named in an Order in Council made under section 2, and may indeed not be a party to the Hague Convention to which that Act gives effect. Nevertheless, like all international child abduction cases, it is in a special category.

2

The facts are these. The father is English by birth, but has acquired additional Israeli nationality. The mother is Israeli by birth. They met at Kibbutz Yifat in Israel in 1975 and in 1977 the father was converted to Judaism. He returned to England and in January 1979 sent the mother a telegram announcing that he was coming to Israel and proposing marriage. His proposal was accepted and he went to Israel. However, in May 1979 he had second thoughts and broke off the engagement. In the following month the couple were in fact married, when the mother told him that she was pregnant, and the child, Ron, was born in January 1980. Ron is therefore ten and a half years old. Ben, the child with which these proceedings are primarily concerned, was born in September 1986, and is therefore just under four years old.

3

The marriage has not been a happy one and in May 1989 the parties were considering a divorce. Nothing came of this, but in September 1989 they executed an informal separation agreement and were re-housed in separate accommodation in the Kibbutz. Under the agreement both parents had "control", to use the word used in the agreement, of the children and it provided for divided care. Whatever the status of that agreement, it is clear that under sections 14 and 15 of the Israeli Capacity and Guardianship Law 1962, the parents are joint guardians of their minor children, and have joint custody and the joint right to determine their place of residence.

4

The basic disagreement between the parents is clearly concerned with where they shall live, although there are no doubt other problems. The father wants to live in England. Indeed, he left the mother and Ron, the elder child, in Israel in October 1980, and it was not until September 1982 that he and the mother were reconciled. That reconciliation was achieved when the mother and Ron joined him in England. The mother was unhappy in England, but stayed here until 1985 when the family moved back to Israel. Since then, both parties have lived in Israel, although the father paid a short visit to England last Christmas, accompanied by the younger son, Ben. Before the mother would agree to that visit, she required the father to give security for the prompt return of Ben.

5

On or about 4th April of this year the father came to England, taking Ben with him. They are now living with the paternal grandparents. He neither obtained nor even sought the consent of the mother, and left her a letter falsely promising to return Ben on 18th April. On 15th April the mother applied to the District Court of Nazareth for interim custody of both children, and on 26th April the father made a similar application to the Hastings Court in relation to Ben. The Nazareth Court made an order in favour of the mother and ordered the father to return Ben. The mother applied to the Hastings Court for an order requiring the return of Ben to Israel, but this was refused pending further enquiries in the form of a court welfare officer's report which was to include the result of enquiries in Israel. Meanwhile, the father was given interim custody and care and control, the case was transferred to the Family Division of the High Court and the mother was forbidden to remove Ben from the jurisdiction.

6

The Hastings Court orders were made by Her Honour Judge Monique Viner, and it is from those orders that the mother now appeals.

7

No-one could or would criticise the learned judge's decision to order further enquiries and to give interim care, custody and control to the father, who is, after all, the only parent present in England, provided always that it was appropriate that the English rather than the Israeli courts should decide what the welfare of Ben required. If it was more appropriate that this should be decided by the Israeli courts, as I have no doubt that it was, she should have ordered the return of Ben to Israel at the earliest possible moment.

8

If this had been a Convention case, there would have been no argument. The father's action in bringing Ben to England was a "wrongful removal" within the meaning of the Convention, having been undertaken in breach of the mother's rights of custody under the law of Ben's habitual place of residence immediately before the removal. There are no contra-indications, such as those contemplated by Article 13. But this is not a Convention case and the question inevitably arises of the extent to which Convention principles are applicable.

9

I agree with my Lord, Lord Justice Balcombe's, view expressed in ( Giraudo v. Giraudo C.A. Transcript 26th May 1989) that, in enacting the 1985 Act, Parliament was not departing from the fundamental principle that the welfare of the child is paramount. Rather it was giving effect to a belief "that in normal circumstances it is in the interests of children that parents or others shall not...

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