Re H (A Child) (Abduction: Rights of custody)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE MORRITT,LORD JUSTICE CHADWICK |
| Judgment Date | 11 November 1999 |
| Date | 11 November 1999 |
| Docket Number | FAFMI 1999/0950/2 |
| Court | Court of Appeal (Civil Division) |
[1999] EWCA Civ J1111-9
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION
(MR JUSTICE HUGHES)
Royal Courts of Justice
Strand
London WC2
Lord Justice Morritt
Lord Justice Thorpe
and
Lord Justice Chadwick
FAFMI 1999/0950/2
DAVID TYZACK QC and CATRIONA MURFITT (Instructed by Messrs Collyer-Bristow of London WC1R 4DF)) appeared on behalf of the Appellant
JAMES TURNER QC and ADRIAN LANGDALE (Instructed by Messrs Kirwans of Mersyside CH42 8PE) appeared on behalf of the Respondent
Thursday, 11th November 1999
The appellant who I will call the father is 33. The respondent, who I will call the mother is 32. They are both Irish and come from the Cork area. They never married but commenced a relationship which resulted in the birth of their daughter N on 3rd April 1992. So she is now 7. The mother and the father separated in 1995 after which the father had irregular contact by agreement. However on 14th March 1996 he commenced proceedings in the District Court of Carrigaline in respect of his daughter. An order was made on 11th April 1996. The order is headed under the Guardianship of Infants Act 1964, section 11. It is in the following terms:
"Upon application by RG …. being a guardian of N an infant for an order under section 11 of the Guardianship of Infants Act 1964 …. the court being satisfied that the notice of application …. was duly served on the respondent AH …. orders as follows: custody order in favour of mother by consent …. interim order until 10.10.96 as follows …. access every Sunday from 2.00pm to 6.00pm …. Liberty to re-enter."
The order is marked 124/96, which I take to be the record number indicating the 124th issue of process since 1st January 1996. As drawn the order was erroneous in that the father was not a guardian of N. There was no order extending or replacing the interim order, perhaps because between May 1996 and May 1997 the father served a term of imprisonment. After his release contact resumed sporadically but difficulties between the parents led to the father filing a further application in the same court dated 30th March 1998. The form was headed 'Guardianship of Infants Act 1964 —Notice of Application under Section 11(1), 11(4) for the Court's Direction'. At the foot of the form are the printed words 'For the court's direction regarding the custody of the infant and the right of access thereto of the applicant ….' The father's solicitors added the words 'To wit guardianship and access'.
On the return of the notice of application on 14th May an agreement was reached between the parents that the father should have daily access on Saturday and Sunday on alternate weekends. On that basis the notice of application was adjourned to 23rd July. There is no order from the court to this effect and it seems probable that no order was in fact drawn. However contact proceeded apparently successfully in accordance with the agreed provision until 20th June when the father found an empty house when he arrived to collect his daughter. Although he managed to see his daughter briefly at another address that weekend, his efforts on the following weekends drew blank and rumour had it that mother and child had left for England. Accordingly on 23rd July the court 'Being satisfied that the welfare of the infant requires the making of this order, hereby directs: appoint applicant guardian of child. Access to applicant from 10.00am Saturday to 6.00pm Sunday.' This order was of course made without the mother's attendance.
It was not until March 1999 that the father received definite news to the effect that mother and daughter were in Manchester and that the mother might agree some restoration of contact. At the end of May the father was given the mother's telephone number in the north-west but his endeavour to agree contact proved unsuccessful. It was in those circumstances that his summons for his daughter's return to the Republic under the Child Abduction and Custody Act 1985 was issued in the Principal Registry. On the following day a seek and locate order was made and two days later the mother was duly served and her passport taken into the charge of the tipstaff. After various interlocutory hearings the father's summons came on for hearing before Hughes J on 4th August. He had the advantage of a court welfare officer's report and also affidavits from the parties. Each also filed an opinion from a suitably qualified expert in Irish family law. The mother's expert had the last word by a further opinion put in at the hearing. The judge did not hear oral evidence. At the conclusion of submissions he delivered an extempore judgment giving his reasons for dismissing the father's summons. It is clear from his judgment that he reached that conclusion with some regret. The father's case for the return of his daughter was advanced on the alternative ground that the mother's removal had been in breach of his rights of custody alternatively rights of custody vested in the district court. In presenting the appeal Mr Tyzack QC has abandoned his client's claim to rights of custody and has relied solely on the contention that the removal was in breach of the district court's rights of custody.
To understand the somewhat unusual concept of rights of custody in the court it is necessary to turn to the Convention itself, which of course appears in our jurisdiction as Schedule 1 to the Child Abduction and Custody Act 1985. This appeal focuses upon Article 3 which provides:
"Article 3
The removal or retention of a child is to be considered wrongful where —
(a) it is in breach of rights of custody attributed to a person, an institution 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.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that state."
Rights of custody are defined and contrasted with rights of access in Article 5 in the following terms:
"Article 5
For the purposes of this Convention:
(a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.
(b) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."
The scope of Articles 3 and 5 were considered by this court in the case of C v C (Abduction: Rights of Custody) [1989] 1 WLR 654. It would be easy to cite from any one of the three powerful judgments but, as others have frequently done before me, I cite the exposition of Lord Donaldson MR:
"I give a separate judgment only because I wish to emphasise the international character of this legislation. The whole purpose of such a code is to produce a situation in which the courts of all contracting states may be expected to interpret and apply it in similar ways, save in so far as the national legislatures have decreed otherwise. Subject then to exceptions, such as are created by section 9 of the 1985 Act in relation to Article 16 and section 20(4) of the 1985 Act in relation to para (b) of Article 10(2), the definitions contained in the Convention should be applied and the words of the Convention, including the definitions, construed in the ordinary meaning of the words used and in disregard of any special meaning which might attach to them in the context of legislation not having this international character.
We are necessarily concerned with Australian law because we are bidden by Article 3 to decide whether the removal of the child was in breach of 'rights of custody' attributed to the father either jointly or alone under that law, but it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the Convention definition of 'rights of custody'. Equally, it matters not in the least whether those rights would be regarded as rights of custody under English law, if they fall within the definition.
'Custody', as a matter of non-technical English, means 'safekeeping, protection, charge, care, guardianship' (I take them from the Shorter Oxford English Dictionary); but 'rights of custody' as defined in the Convention includes a much more precise meaning which will, I apprehend, usually be decisive of most applications under the Convention. This is 'the right to determine the child's place of residence'. This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right, in so far as the child is to reside in Australia, the right being that of the mother; but, in so far as any question arises as to the child residing outside Australia, it being a joint right subject always, of course, to the overriding rights of the court. If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the Convention. I add for completeness that a 'right to determine the child's place of residence' (using the phrase in the Convention) may be specific, the right to decide that it shall live at a particular address, or it may be...
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