Re J (Abduction: Wrongful Removal)
|England & Wales
|LORD JUSTICE SWINTON THOMAS,LORD JUSTICE MUMMERY
|11 November 1999
|Judgment citation (vLex)
| EWCA Civ J0922-7
|Court of Appeal (Civil Division)
|PTA + A 99/6761/2
|11 November 1999
 EWCA Civ J0922-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(Mrs Justice Hale)
Royal Courts of Justice
Lord Justice Swinton Thomas
Lord Justice Mummery
PTA + A 99/6761/2
MISS K JONES and MISS S BROADFOOT (Instructed by Messrs JD Spicer & Co, London NW6 4JD) appeared on behalf of the Appellant Mother
MISS EA GUMBEL QC and MISS A BURNETT (Instructed by Messrs David Levene & Co, London N22) appeared on behalf of the Respondent Father
Tuesday 22nd September, 1999
This is an application for permission to appeal an order made by Hale J (as she then was) on 25th June 1999. The judge declared that the mother of the child concerned in these proceedings (the defendant) had wrongfully retained the child and she ordered that the mother forthwith return the child to this country.
The relevant facts stated comparatively shortly are these. The mother and father are not married to each other. The mother was born in South Africa and is a South African national. The father is a British national of Maltese origin living in this country. The child was born here. As the father was not married to the mother, he does not have parental responsibility in respect of the child.
The mother and the father started living together in August 1995 in the father's flat in London. The child, EG, was born on 22nd October 1997. In May 1998 the mother took the child to South Africa for a holiday with her family which lasted for about five weeks. They then returned to this country and had a further holiday in South Africa in February of this year.
On 5th May 1999 the father issued an application for a first parental responsibility order and a prohibited steps order. The father said that he feared that the mother was about to remove the child from this country and go to South Africa. On that day the application came before District Judge Bassett Cross ex parte, but he refused to make the order requested on the ground that there was insufficient evidence of an imminent departure. He granted an abridged time for service of the application, but at 6.30 that evening the mother flew to South Africa together with the child.
On the morning of the following day, 6th May, the mother informed the father by telephone that she and the child were in South Africa and that she was not going to return. On receiving that information, the father immediately, on the same day, 6th May, renewed his application to District Judge Bassett Cross, who made an order directing that the mother return the child to the jurisdiction forthwith upon service of the order on her. That order was made and it is fundamental to the submissions made on behalf of the mother to this court by Miss Jones on an ex parte basis. Further procedural orders were made subsequently and, as I have already said, Hale J made her order on 25th June 1999 ordering the mother should return the child to this country forthwith.
The proceedings before Hale J were contested; the mother submitting that the court had no jurisdiction to order the mother to return the child.
At the outset of her judgment, the judge reminded herself as to the relevant law and the fact that the father had not acquired parental responsibility or a Prohibited Steps order as at the time the child was removed from this country.
The judge made her order on three bases. The first was, following authority, the court is an institution to which may be attributed rights of custody within the meaning of the Hague Convention. The judge reviewed the relevant law, including her own decision in . In that case the judge said this:
"I am greatly attracted to the proposition that, where the court is actively seized of proceedings to determine rights of custody, removal of the child from the jurisdiction without leave of the court while those proceedings remain pending is a breach of the rights of custody attributable to the court. It is even questionable whether the consent of the other party would prevent this …"
She then continued a little lower down:
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