Re H (Minors) (Abduction: Custody Rights)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STUART-SMITH,SIR ROGER ORMROD |
| Judgment Date | 27 July 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0727-4 |
| Docket Number | 90/0688 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 1990 |
[1990] EWCA Civ J0727-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE ANTHONY LINCOLN)
Royal Courts of Justice,
The Master of The Rolls
(Lord Donaldson of Lymington)
Lord Justice Stuart-Smith
Sir Roger Ormrod
90/0688
CA 706 of 1990
MR NICHOLAS WALL Q.C. and MR H. SETRIGHT (instructed by Messrs. Ralph Haring & Co.) appeared on behalf of the Appellant.
MR PAUL FOCKE Q.C. and MR S. FITZGERALD (instructed by Messrs. Edwards Son & Noice) appeared on behalf of the Respondent.
This appeal is concerned with the construction and application of the Child Abduction and Custody Act, 1985, where the chain of events relied upon as rendering it applicable began before the Act was in force.
On 11th July 1990 Anthony Lincoln J. held that the Act had no application and the mother, with the assistance of the Lord Chancellor as the Central Authority under Section 14(1) of the Act, appealed to this Court. We dismissed that appeal on 23rd July 1990, but took time to put our reasons into writing for delivery at a later date. This we now do.
I take the facts from the learned Judge's judgment:
"This is a mother's application under the Child Abduction and Custody Act 1985 for the return of two children to the jurisdiction of Ontario under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction.
"The two children are 'T S H', who was born in Canada on 13th August 1978, and 'J S H', also born in Canada on 18th October 1979. Both children have Canadian nationality.
"The mother, Mrs B.H., was born in India and is a Canadian citizen. She currently lives in Indianapolis. She has converted to Christianity, whereas the father is a Sikh. He, too, was born in India. He migrated to England in the mid-sixties. They are an educated couple, he being an electronic engineer. They married in 1974 in Nottingham. They emigrated to Canada in 1976, where, as I have said, the two boys were subsequently born. In 1982 the father (as I shall call him) took the children away from the matrimonial home to England. This was the first of a number of removals.
"The couple resumed cohabitation, and again in 1983 the same thing happened. On this occasion, the father sent the children to India. But some five months after their removal he returned the children to Canada.
"The marriage was not a happy one at this stage in 1983, and in January 1984 the mother left home, taking the two boys with her, to a women's shelter in Toronto. There she obtained an immediate ex parte order from the Toronto court for interim custody of the children.
"On 20th September 1985 His Honour Judge Michael Bollan, sitting in the Supreme Court of Ontario, made an order under which, among other things, he gave custody of both children to the mother, with access to the father. Furthermore, he imposed an injunction upon either party restraining them from removing the two boys from the jurisdiction of the court in Ontario. That order and the date thereof is of importance in this case.
"In March 1986 the father was due to have the boys with him for the purpose of access for a week's holiday. If he had complied with the order, the father would have returned the two children to the mother on 15th March 1986, which is the second important date in this history. He failed to do so. He alleged, and continues to allege, that the children complained of attempts by the mother to convert them to Christianity. He alleged that they no longer wished to live with the mother. He expressed grave concerns about their upbringing and, above all, he stated that he felt that the Supreme Court (I do not use his words) reallylet him down by not ensuring that the children were brought up according to the tenets of the Sikh philosophy or religion. So, under what he described as tremendous pressure and in the belief that the court were unable to protect his children, he violated the order of the Supreme Court on that date. The mother contacted the police and lodged complaints. Since, prima facie, the father was guilty of the criminal offence of abduction, warrants were issued for the father's arrest. According to the father, he took the children to England and then to India to what he describes as his 'ancestral home' in the Punjab. There the children were enrolled at a public school. In the autumn of 1986, again according to the father, he applied for a divorce.
"At the end of 1986 he applied for the custody of the children to the Indian court. The mother acknowledged receipt of the application through her solicitors and forwarded a copy of the Ontario court's judgment to the Indian court, requesting the return of her children. The mother's case is that she was not subsequently informed of the actual date of the custody hearing in India.
"The father was granted a divorce in due course and remarried and now has two children by that second marriage. In July 1987 the mother received information that the father and the two boys were still in India, and she learned of the remarriage. She swore an affidavit to support the request for the father's extradition from India. On 23rd July 1987 Judge Bollan, sitting in the Supreme Court in Ontario, gave leave for the mother to obtain passports. for the children for the purpose of giving effect to her custodial rights. He also issued an order which might result in the apprehension of the children: what would here be called a seek and find order.
"On 27th July 1987 the Indian court sat in judgment and, exercising the equivalent of wardship jurisdiction there, awarded custody of the two children to the father. It would appear that the Indian court was aware of the Canadian judgment but nonetheless proceeded to make the order I have just referred to.
"Towards the end of July the mother went to India, where she learned that the father had applied for immigration papers with a view to returning with his new wife to England along with the two boys. The father states that the mother, during her stay in India, went to 'T's' school there and tried to entice him away. No doubt there is a dispute about that. He also says that the mother and he met together, and again this is disputed.
"In January 1988 the mother remarried and went to live with her new husband in Indianapolis. The father states that towards the end of 1988 he and the two children returned to England and lived with his mother and two brothers at an address in Barking, Essex. There is some quite involved dispute about the facts here not material to this application. The father obtained employment in this country.
"In June 1989 the mother, who appears to have lost touch with the children, located them through her sister at the address in Barking. She then contacted the authorities in Canada and sought legal advice. Up to this stage the Hague Convention played no part in her thinking or the thinking of her advisers. They were focusing upon the proceedings for the father's extradition. The mother said that she was unaware of the Convention and not advised about it.
"The elder boy 'T', in late 1989 sat his entrance examination for a college in Essex and the children started at new schools.
"In June 1990 the extradition proceedings were started in England. At this stage the Convention begins to play a part. On 22nd June 1990 the wife, who must by now have been advised as to her rights under the Convention, issued this application under the Act of 1985. Mr Justice Douglas Brown directed the father to hand over the children to the Tipstaff. He awarded the interim care and control of the two boys to the mother, and ordered that they were not to be removed from her without leave of the court or further order. On 26th June the children were located and passed into the physical care and control of the mother.
"On 4th July Mr Justice Johnson heard the application of the father for interim care and control to be passed back to him. Mr Justice Johnson refused that application. At the same time he ordered that the Court Welfare Officer should interview the children on the question of their attitude towards returning to Canada. It transpires that, during the course of a 20-minute interview, the Court welfare Officer has elicited that both hoys wish to go to Canada; that this is known to the father, and indeed has been referred to explicitly in these proceedings. The battle is now joined, in the sense that affidavits have been sworn. The father has enlisted the support of his family and of neighbours, who all testify that they have seen the two boys living a normal and cheerful life.
Dr. Arnold Bentovim, the well-known Child Psychiatrist, has also produced his evidence, which is solely opinion evidence—he has not seen the children and indeed is wholly unaware of their wishes. But he has stated in paragraph 4 of his affidavit:
'Although it is extremely regrettable that these children were removed from their mother's care four years ago, it seems clear from the school reports that these children have settled with their father and are making good progress, which would indicate a degree of emotional adaption to the situation with their father. It may be deleterious to their progress for any abrupt change to take place in their lives at this time from their father's care, particularly if there is a question of them living in another country. They may suffer extreme psychological trauma'.
"I would describe that affidavit as guarded in its terms and, with great respect to Dr. Bentovim, one on which it would not be wise to place too great a reliance, having regard...
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