Re F (A Minor) (Child Abduction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE RUSSELL |
| Judgment Date | 31 July 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0731-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0830 |
| Date | 31 July 1991 |
[1991] EWCA Civ J0731-10
Lord Justice Neill
Lord Justice Russell
Lord Justice Butler-Sloss
91/0830
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE JOHNSON)
Royal Courts of Justice.
MR. COLIN ROSS-MUNRO Q.C. and MISS J. RODGERS (instructed by Messrs. Church Adams Tatham & Co., London agents for Messrs. Townsends of Swindon) appeared on behalf of the Appellant.
MR. HENRY SETRIGHT (instructed by Messrs. Ralph Haring & Co.) appeared on behalf of the Respondent.
I will ask Lord Justice Butler-Sloss to give the first judgment.
This is an appeal from the order of Mr. Justice Johnson on 19th July 1991 in proceedings commenced under the Hague Convention. The child the subject of the proceedings is a little boy, A, 14 months old, born in England on 10th May 1990 to an English father and an Australian mother. He has been registered as an Australian citizen. The parents met in Australia and married in England in 1987. The family lived in England with the father's mother until 10th April 1991. They then flew to the United States for a few days holiday, particularly to Disneyland, and arrived in Australia on 21st April. The purpose of the journey to Australia and its consequences are in dispute, but it was planned last year. The father who alone requires a visa applied for one in October 1990 and made the declaration in it:
"I and my accompanying dependent family members will NOT seek authority to settle in Australia and will leave at or before the end of the authorised visit period. I and my accompanying dependent family members will NOT undertake employment or any formal studies while in Australia."
He also declared that he would produce tickets for himself and his family on arrival in Australia. He further declared that the questions he answered were true and correct, and he signed it. He also showed he was staying with various relatives for the first part of the holiday and that this was an application for a visitor visa. The visa form filled up by the father was not available to the judge who was provided with a similar blank form, but this court gave leave for the completed form to be received as additional evidence.
The mother wrote a letter to her mother in Cairns, Queensland, on 16th October, in which she said:
"…we are definitely coming over. Our tickets are booked and paid for. Billy has his passport. Alex is registered as a citizen and we are preparing finances and also getting down to personal organisations. Billy is keen. He needs a break from here as much as I do.
…At the moment what we will do from there is undecided. Where we decide to live will depend on where Billy can get work. We want to be realistic and not just say we want to live in Cairns. I'd like to go there but it may not be practical. Billy will be coming on a visitor's visa. What process did Barbara use to get her husband in…Do you know."
The mother received around the same time in September a letter from her father which indicated that he was going to provide through her sister a collection of house prices and estate agents' particulars.
In October 1990 the father bought three return tickets for Sydney with a return date in July 1991 but valid for one year. Nineteen packing cases were dispatched via Pickfords for transport by sea to Brisbane to arrive some six weeks after the family. The packing cases, according to the affidavit of the maternal great grandmother, contained ten boxes of books, two boxes of hi-fi system, a baby's cot, and a picture among other possessions.
According to the mother the intention of the family was to emigrate to Australia and regularise the father's resident status after arrival. According to the father the family was visiting for an extended holiday, staying for the first few weeks with relatives with the intention of considering whether or not to live in Australia for any length of time and whether there might be any work available for them both.
On arrival in Australia they stayed as a family, first with the mother's father in Sydney and then moved to the mother's mother in Cairns. The relationship between the parents deteriorated and on 20th May at the mother's suggestion the father went to stay with his sister near Sydney and the mother and A remained with her mother. On 3rd July the mother and A re-joined the father near Sydney and the mother informed the father that the marriage was at an end and that she had consulted solicitors. She and A continued to stay with the father until 8th July. She went to Brisbane and left A with his father. According to the father she left no address nor telephone number and he did not know when she was returning. He decided to take A back to England and consulted solicitors and the Australian immigration authorities to see if there was any reason why he could not remove the child. He was advised that there was not and on 10th July he flew back to London with A. He did not tell the mother or any of her family of his plans before he left but on arrival in England got in touch with the mother through his sister in Sydney.
The mother moved with great speed and initiated her originating summons under the Convention procedure which came first before a judge on 16th July and before Mr. Justice Johnson on 18th July. Both the mother and the father were present at the hearing. The judge decided the case on the affidavits and other documentary evidence. The judge found that the Convention applied and directed that the child return to Australia with the mother. The parties were able to agree that despite this appeal the mother should return with A to Australia upon her undertaking that if the appeal was allowed she would return with the child for the issue of his custody to be dealt with in wardship proceedings.
The removal of A from New South Wales to England by the father was in my view entirely wrong and contrary to the welfare of this child. Any legal advice or advice from the Australian immigration authorities as to his right to remove the child does not change a unilateral and unjustified act of taking a child from one country to another without either the knowledge or consent of the other parent. That however is not the issue in this case. The question is whether the removal of A from Australia contravenes the Hague Convention. Article 3 of the Convention reads as follows:
"The removal or the retention of a child is to be considered wrongful where—
(a) it is in breach of rights of custody attributed to a person, an instituion 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 or retention; and
(b) at the time of removal or retention those rights were actually exercised either jointly or alone, or would have been so exercised but for the removal or retention."
It is common ground between the parties that by Australian family law the removal of the child was in breach of the mother's rights of joint guardianship and custody (Family Law Act 1975) and consequently was a wrongful removal under Article 3 of the Convention if the other elements of the Article apply. It is equally common ground that the child and his parents were all habitually resident in England prior to 10th April 1991. The only issue is therefore whether the child was habitually resident in Australia immediately before his removal on 10th July. A young child cannot acquire habitual residence in isolation from those who care for him. While A lived with both parents he shared their common habitual residence or lack of it. Lord Brandon in Re J(A Minor) (Abduction) [1990] 2 A.C. (H.L.) 562 said at page 578:
"The first point is that the expression 'habitually resident,' as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B."
The judge found that the child was habitually resident in Australia for two reasons.
1. He found that the family had acquired habitual residence in Australia by 20th May.
2. He found in the alternative 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 his mother.
Consequently he found that the Convention applied and that the father was in breach of it.
On the appeal Mr. Ross-Munro Q.C. for the father raised three points:
1. The judge was wrong to hold that the habitual...
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