Re H and Another (Minors) (Abduction: Custody Rights) (No 2)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT,LORD JUSTICE STAUGHTON,LORD JUSTICE SCOTT |
| Judgment Date | 11 May 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0511-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0451 |
| Date | 11 May 1992 |
[1992] EWCA Civ J0511-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MRS. JUSTICE BOOTH)
Royal Courts of Justice.
The President
(Sir Stephen Brown)
Lord Justice Staughton
Lord Justice Scott
92/0451
MR. NICHOLAS WALL Q.C. and MR. MARK EVERALL (instructed by Messrs. Collyer-Bristow) appeared on behalf of the (Plaintiff) Appellant.
MR. IAN KARSTEN Q.C. and LORD MESTON (instructed by Messrs. Reynolds Porter Chamberlain) appeared on behalf of the (Defendant) Respondent.
This is an appeal from a decision of Mrs. Justice Booth of 3rd April of this year. She then dismissed an originating summons under the Child Abduction and Custody Act 1985 Schedule 1 (the Hague Convention), declining to order that two children, who had been wrongfully removed from Australia to this country by their mother, should be returned to the jurisdiction of the State of Victoria in Australia. The case has a somewhat unusual history, for this is the second hearing in this court concerning this case. The two children are boys (Patrick and Luke) who were living with their parents in Australia until September of last year.
The mother was born in England, but subsequently acquired Australian citizenship. The father was born in Northern Ireland, and he also has now acquired Australian citizenship. After the parents met they eventually emigrated to Australia, and were married there in 1983. Patrick was born on 2nd September 1985 and Luke on the 28th February 1987. They are therefore now aged six years and five years respectively.
In February 1988 the mother came to England for a holiday with the children. She informed the father after she had reached England that she wished to remain in England with the children permanently. The husband came to England to seek to persuade her to return, but did not then succeed. Although she subsequently indicated that she intended to institute divorce proceedings, the mother subsequently returned to Australia after the husband had paid a second visit to England. In fact they returned together in September 1989. They then acquired a matrimonial home with a mortgage, but finally separated in July 1990. The father meanwhile commenced an association with another woman, and the mother formed the intention of leaving Australia to return to England when it should be possible.
In July 1991 the mother and father made a joint application for divorce in Australia. In her petition the mother stated that she considered Australia to be her permanent home. A decree nisi of divorce was pronounced in the Family Court of Australia in August 1991, and the decree was made absolute on 13th September 1991. By agreement between the parties the mother had the care of the boys. That was not a matter of dispute. The father exercised regular access, and on the weekend before the mother left Australia he had the normal access to the children.
On 18th September 1991 the mother wrongfully removed the children from Australia and brought them to England. It was never in dispute that her action in removing them from Australia was unlawful in the context of article 3 of the Hague Convention. On 23rd September 1991 the husband wrote a letter to the mother. In February of this year the Court of Appeal held that the terms of this letter constituted "acquiescence" by the father within the meaning of article 13 of the Hague Convention. Subsequently, and very shortly after having written that letter, the father sought legal advice in Australia and then took the steps which eventually led to the issue of this originating summons. The Attorney General's Department in Australia (the central authority of that country) submitted a request for the return of the children to the central authority of the United Kingdom, and the originating summons was duly issued on 5th December 1991. By the originating summons the father sought the immediate return of the children to Australia. Before the originating summons was served upon the mother the father had not made her aware of his intention to "go back" upon his letter of the 23rd September in which he had said that he did not intend to seek to have the children returned to Australia. In the meanwhile she took steps to settle in this country and the children were sent to school here.
The matter came before Mr. Justice Thorpe on 20th December. The father sought the return of the children to the jurisdiction of Australia under the provisions of the Hague Convention. It was conceded that their removal by the mother was wrongful within the terms of article 3 and accordingly the court had to consider the terms of article 12 which provides:
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."
The mother sought to rely upon the "exception" which is contained within article 13. Article 13 provides:
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body who opposes its return establishes that—(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."
The mother sought to establish that the father had "subsequently acquiesced" in the removal of the children by her to England and their retention in England. She relied upon the terms of his letter of the 23rd September 1991. I need not recite the terms of that letter, which is set out in full in the judgment of Lord Justice Balcombe at the previous hearing of this case in the Court of Appeal, see [1992] 2 W.L.R. 536, 539–540.
The learned judge also had to consider a submission made by the mother that the return of the children (if ordered) would expose them to a "grave risk of physical or psychological harm or place them in an intolerable situation" within the terms of paragraph (b) of article 13. Mr. Justice Thorpe decided that the mother had not established that the father had acquiesced in the removal or retention of the children. He further decided that she had not established a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation, and he ordered their return to Australia pursuant to the provisions of article 12 of the Hague Convention.
The mother appealed to the Court of Appeal, submitting that the learned judge was in error in having found that the father had not subsequently acquiesced in the removal or subsequent retention of the children within the meaning of article 13(a) of the Hague Convention. She sought also to argue that he was in error in failing to decide that she had established a grave risk that they would be exposed to physical or psychological harm or otherwise placed in an intolerable situation if their return were to be ordered.
The Court of Appeal by a majority (Lord Justice Balcombe dissenting) held that the evidence established that the father had subsequently acquiesced in the wrongful removal or retention of the children in this country by the mother, and ordered that the case should be remitted to a judge of the High Court for consideration of the exercise of the discretion which accordingly arose under article 13 as to whether he should decline to order that they be returned to the jurisdiction of the Australian court.
It was in these circumstances that the matter came before Mrs. Justice Booth on 3rd April of this year. In a reserved judgment Mrs. Justice Booth decided in the exercise of her discretion that she would decline to order the return of the children to Australia. At page 12 of the transcript of her judgment, just above letter G, she said:
"In my judgment the interests of the children are now to be taken into account and to be considered in relation to all the circumstances of the case including in relation to the general desirability that children wrongfully removed from their place of habitual residence should be returned. It is clearly for the mother in this case to establish to the court that the interests of the children lie in their remaining in England, and that their future can appropriately be determined here so that it would be proper to allow those matters to prevail over the purpose and philosophy of the Convention. But I do not accept the submission of Mr. Everall"—(who appeared for the father)—"that she should go so far as to establish that by their return they would be exposed to a grave risk of harm to bring them within the ambit of Article 13(b). Once the discretion arises it is for the court to conduct the necessary balancing exercise between what would otherwise be required by the Convention and the interests of the children, but only where it can clearly be shown that the interests of the children require it should the court refuse to order their return.
In all the circumstances of this case I have come to the conclusion that on balance the children's interests are better served by their being...
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