Re H (Abduction: Retention in Non-Contracting State)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Leggatt,Lord Justice McCombe |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWCA Civ 672 |
| Date | 16 April 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2019/0588 |
[2019] EWCA Civ 672
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE MOSTYN
FD18P00796
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Moylan
and
Lord Justice Leggatt
Case No: B4/2019/0588
Mr C Hames QC & Mr M Edwards (instructed by Wilson Solicitors LLP) for the Appellant
Mr M Hosford-Tanner (instructed by Duncan Lewis Solicitors) for the Respondent
Hearing date: 11 th April 2019
Approved Judgment
Introduction
The mother appeals from the order made on 28 th February 2019 by Mostyn J under The Hague Child Abduction Convention 1980 (“the Convention”) for the return of one child to Australia.
In my view, the central issue raised by this appeal is, broadly stated, whether the Convention can apply when the act relied on as constituting the alleged wrongful retention took place in a state which is not a party to the Convention. In simple terms, the mother's case is that the judge wrongly decided that it does and his order should, therefore, be set aside. The father's case is that the judge was right to decide that it does and his order should, therefore, be upheld.
In addition, the mother contends that the judge wrongly decided that a retention can continue for the purposes of the Convention when it is well established that it is an event which occurs on a specific occasion.
The context, in summary, is that the retention in this case took place in Uganda on 23 rd January 2018 at which date the child was habitually resident in a Convention State, namely Australia. The proceedings under the Convention have, obviously, been brought in England following the family, including the child, coming here in March 2018.
It is relevant to note at the outset of this judgment that, pursuant to Article 38, the Convention is only in force between the United Kingdom and another Contracting State when the latter's accession to the Convention has been accepted by the UK or, more recently, by the EU: see the International Movement of Children, Lowe Everall Nicholls 2 nd Ed, paras. 17.60 to 17.64. I use the terms Contracting Party, Contracting State and Convention State (and the opposites) interchangeably.
The mother is represented by Mr Hames QC and Mr Edwards, neither of whom appeared below. The father is represented by Mr Hosford-Tanner.
Background
It is only necessary to set out a brief summary of the background
The mother was born in Uganda. She had lived in England since 2000 and is a British citizen. The father is Australian. They met in Australia and began living together there in 2014. Their only child, C, was born in Australia in 2016.
On 23 rd November 2017 the whole family travelled to Uganda, via Dubai, on tickets with return flights on 23 rd January 2018. When they arrived in Uganda the mother told the father that she would “never return to Australia”. In his judgment Mostyn J states: “The holiday in Uganda was, on any view, a failure and the parties effectively separated during” their stay there.
After having received advice from the Australian High Commission in Kenya, and having failed to persuade the mother to return with C to Australia, the father successfully persuaded the mother to travel with C to the United Kingdom. This was because the UK is a party to the Convention.
The family travelled to England on 16 th March 2018. They have been living here since then.
Proceedings and Judgment
The father commenced proceedings under the Convention on 29 th November 2018. They followed a conventional path, delayed by the Christmas holidays, until their determination by Mostyn J on 28 th February 2019.
In opposing the father's application, the mother contended that the Convention did not apply because the alleged wrongful retention had taken place in Uganda; that the father had acquiesced in C's retention; and that there was a grave risk that C's return to Australia would expose her to harm or otherwise place her in an intolerable situation. There was also an issue raised about habitual residence.
Mostyn J determined that, in accordance with the father's ultimate case at the hearing below, C's retention had taken place in Uganda on 23 rd January 2018 when the mother did not return to Australia with C. It was a wrongful retention because it was in breach of the father's rights of custody under the law of Australia which was where, Mostyn J determined, C was habitually resident at that date.
Mostyn J rejected the mother's case that the father had acquiesced in the retention and also rejected her case on Article 13(b). There is, rightly, no appeal from any of these elements of his decision.
He also rejected the mother's case that the Convention did not apply because the wrongful retention had taken place in Uganda. Her case had been constructed on the terms of Article 1 of the Convention and two House of Lords' decisions, In re H (Minors) (Abduction: Custody Rights), In re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476 and In re S (A Minor) (Custody: Habitual Residence) [1998] AC 750. These cases decided that, for the purposes of the Convention, both removal and retention were “events occurring on a specific occasion”, Lord Brandon at page 499 G.
Mosytn J rejected this aspect of the wife's case because in his view the fact that the retention had taken place in Uganda did not prevent it from being a “justiciable retention” in England. The judge first refers to the retention as “continuing” in [16]. However, his reasoning, in his extempore judgment, is set out in the following paragraphs:
“[17] Plainly, the fact that the retention started for the purposes of Article 12 on 23 rd January 2018 in Uganda does not mean that it did not become a justiciable retention upon arrival in this country. Mr Perkins relies strongly on the terms of Article 1 which, in fact, is not part of our law but obviously is relevant context in which to construe the Convention, which states:
“The objects of the present Convention are –
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State …”
[18] It does not follow from that object of the Convention that a retention that commenced outside (sic) a non-contracting state but which was continuing on a later date in a contracting state does not become justiciable in that contracting state. So my basic and fundamental decision is that I reject Mr Perkins's ingenious legal argument which if allowed to run in this case would lead to absurd and unjust results.” As explained below, the words on which the mother's appeal has, in part, focused are “started” and “continuing”.
Legal Framework
The Convention is, clearly, only effective in a state which has ratified or acceded to it. As Lady Hale said in In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80, at [22]: “There is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it”. This is subject also to the important caveat referred to in paragraph 5 (above).
It is also clear that the Convention is not retrospective. Article 35 expressly provides that the Convention “shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States”. As pointed out in the International Movement of Children, para 17.65, the effect of this Article is incorporated into domestic law by section 2(2) of the Child Abduction and Custody Act 1985 (“the 1985 Act”).
As referred to above, not all the provisions of the Convention have been incorporated into English law by the 1985 Act: section 1(2) and Schedule 1. These include the preamble and Article 1. However, the absence of these provisions does not mean that they cannot be referred to for the purposes of understanding “the nature and purpose of the Convention”: In re H, Lord Brandon at page 498 F/G; and In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2019] 1 AC 1, Lord Hughes at [2].
I set out a number of the provisions of the Convention below but, in the context of this appeal, it is important to note, first, that, as set out in the preamble, it is designed to “to protect children internationally from the harmful effects of their wrongful removal or retention”. This is achieved by establishing “procedures to ensure their prompt return to the State of their habitual residence”. The “two fundamental purposes of the Convention (are) to protect children from the harmful effects of international abduction and to secure that disputes about their future are determined in the state where they were habitually resident before the abduction”: Lady Hale in Re K (A Child) (Reunite International Child Abduction Centre intervening) [2014] AC 1401, at [57]. Further, as Lord Hughes said in In re C, at [3], after referring to the preamble and Article 1 (see below): “The general scheme of the Convention is to enable a left-behind parent to make this application in the state to which the child has been taken, seeking return of the child”.
Secondly, it applies to any child habitually resident in a Contracting State at the date of the alleged wrongful retention or removal (Article 4). This is the limit of its application but, equally, there is no other limitation to its application in terms of defining to whom it potentially applies.
Thirdly, the obligations to procure the return of the child to the state of his/her habitual residence are placed, although not exclusively, on the authorities (the Central Authority and the judicial or administrative authorities) “where the child is”: e.g. Articles 10 and 12.
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