Re G (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 27 April 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0427-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0411 |
| Date | 27 April 1989 |
[1989] EWCA Civ J0427-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE THORPE)
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Croom-Johnson
and
Lord Justice Butler-Sloss
89/0411
NO.CA179/89
MR. J.G. WILLIAMS Q.C. and MISS D. PRICE (instructed by Messrs. Duthie Hart & Duthie, Solicitors, London E13 8PS) appeared on behalf of the Defendant/Mother (Appellant).
MISS ANITA RYAN Q.C. and MISS A. PAUFFLEY (instructed by Messrs. Batchelors, Solicitors, London WC2R 1BG) appeared on behalf of the Plaintiff/Father (Respondent).
This is an appeal by Wendy Lorraine Garlick (to whom I shall refer as "the mother"), by leave of the trial judge from an order of Thorpe J. made on 17th April 1989. That order was made on the application of Ronald George Garlick ("the father"). It provided that upon certain undertakings being given by the father, to which it will be necessary subsequently to refer in more detail, a minor, the issue of the mother and father (to whom I shall refer as "James") be returned to Australia as soon as arrangements can be made for such return.
The undertakings, which are recorded in the order itself, were as follows:
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"(i) Not to enforce the order of the Court of Summary Jurisdiction at Alice Springs, Australia dated the 17th day of February 1989 pending the inter partes hearing in the Australian Family Court:
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"(ii) not to institute any contempt proceedings against the Defendant on her return to Australia:
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"(iii) to make available to the Defendant and the minor, James Ronald Peter GARLICK, the exclusive possession of the accommodation at 17 Raphael Crescent, Morphett Vale in the State of South Australia 5162, Australia:
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"(iv) to pay the rent, electricity, gas, fuel costs and house and contents insurance on the said premises:
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"(v) to provide transportation for the said minor to and from his school:
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"(vi) to pay the weekly sum of $60 Australian to the Defendant for food and household necessities:
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"(vii) to offer mirror undertakings to those herein in proceedings in South Australia:
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(viii) not to remove or attempt to remove the said minor from the care and control of the Defendant pending the determination of the issue in South Australia:
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"(ix) to take no steps to have the Defendant's passport impounded in Australia:
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"(x) to use his best endeavours to ensure that an airticket to Australia is provided for the said minor:"
On those undertakings the return of the minor to Australia was ordered, to be effected as soon as arrangements could be made for such return, and in any event within ten days, together with an undertaking by the mother to file a notice of appeal within forty-eight hours, and to apply for an expedited hearing in the Court of Appeal. On those undertakings leave to appeal was granted.
For the purposes of this judgment I can deal with the history quite shortly. James was born on 28th March 1979. He was the child of the parties to the application, who were not, however, married at that time; they subsequently married on 28th October 1983. They lived in England for about a year until October 1984 and then emigrated to Australia; James would then have been about 5 1/2 years of age. After arrival in Australia the mother, the father and James lived at various addresses, starting off in Adelaide and then later they got employment together in Alice Springs where they established their final home.
There is evidence that in the Fall of 1988 the mother came to this country on holiday. Here she met a gentleman with whom she fell in love and with whom she wishes to live when these matters are resolved. She returned to Australia; she confided in her son, then aged nine, that she was going to leave the father without telling him, so the child then became privy to a conspiracy.
According to the mother's affidavit the marriage was not a happy one while the parties were in Australia. She deposes in her affidavit to a deterioration in the relationship between James and his father; she makes critical assertions of the father's behaviour, not only towards James but also towards herself which she alleges, in a petition which she filed in this country, led to the irretrievable breakdown of the marriage. The father has not had an opportunity—nor has there been any necessity for him to do so in these proceedings—either to refute or to agree with these allegations. As Thorpe J. commented in one of his judgments, these are all matters which will have to be dealt with in a proper inter partes hearing.
The mother left, leaving a short note behind, taking James with her to the airport and, using funds which had been obtained by the gentleman to whom I have referred already, flew to this country. The note did not indicate where she was going; it merely said that after a lot of careful thought and consideration she felt that she could no longer spend the rest of her life with the father. That note must be read in the context of the events which I have related, which occurred during her visit in the Fall of the year before; but it is a note which says that she felt that there was no future, and she says:
"I am really sorry to take James away from you But I will make sure he stays in contact with you, I am also very sorry for the way I have had to do this But I really had no choise".
To the father this came as a complete shock, but he acted quickly. I am citing now from the first judgment of Thorpe J. delivered on 14th March of this year, at page 5 of the bundle. He says that the return to this country
"was effected on 15th February when the wife flew to London with James. The plaintiff's reaction seems to have been immediate, for by 17th February he had obtained an order in the Court of Summary Jurisdiction at Alice Springs, that he have the sole custody of James until further order."
He obtained that order as a result of an affidavit which he swore on that date, 17th February and which was before Thorpe J. and is before us today. He denies that there were any difficulties between James and himself, asserting that there was a close relationship between them. So those are matters which are all in issue.
Having obtained his order in the court in Alice Springs, the father sold the home there. He stayed first of all with relatives, but then acquired accommodation which is referred to in the undertakings which I have recited, in Morphett Vale in South Australia. He issued an originating summons under the Child Abduction and Custody Act 1985, which was the basis of the proceedings which came before Thorpe J. The mother opposed the application on two general grounds:
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(1) That the order should not be made because there would be a grave risk of psychological harm to James in the event of his enforced return; and she relied upon the provisions of Article 13 of the Hague Convention, which is incorporated in our law by the 1985 Act.
Both the United Kingdom and Australia are contracting parties to the Convention. The second ground was that the order should not be made if it is shown that James objected to return and has attained an age and degree of maturity at which it was appropriate to take account of his views. That is another part of Article 13.
After carefully considering the relevant features, Thorpe J. ruled against the mother on both counts. However, his decision on the first ground, Article 13(B), depended on certain undertakings being given in order to secure that James was not removed from the care of his mother in accordance with the course adopted by this court in the case of Re "C" (a Minor), reported in the Court of Appeal transcript for 14th December 1988. Mr. Williams, who has appeared for the mother, has emphasised that that case, and therefore the possibility of giving undertakings, arose during the course of argument before Thorpe J., and therefore there was of course no opportunity to take instructions from the father, who has remained in Australia throughout these proceedings. So, Thorpe J. having delivered his judgment, the matter was adjourned for the appropriate authority to be given for the undertakings to be offered to the court and for the terms of those undertakings to be worked out between the advocates representing the parties.
At this point, and before agreement could be reached, there was an intervention by the Central Authority in the form of the Attorney-General for Australia, who had, it is understood, been anxious about the course taken by this court in Re "C" and, as a result of his attitude, those acting for the father, on the father's instructions, caused the advocates in this country to inform Thorpe J. that the father was not prepared to give the necessary undertakings.
As a result of the father's decision, which was directly related to the attitude taken by the Central Authority in Australia, the matter came again before Thorpe J. on 20th March 1989, when the position was outlined to the judge. He formed the view that:—
"Were an order made without safeguards, the consequence would be that upon arrival in Australia James would have to cope with not only an immediate move from the daily care of his mother to the daily care of his father, but also adjustment to a new home in a new community approximately 2,000 km from his old home and school in Alice Springs. Contact with his mother pending further proceedings and orders might be limited or even non-existent.
"Those possible developments, in my judgment, constitute a grave risk that return would expose James to psychological harm and accordingly, without assurances properly...
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