Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights)

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date2005

Children – Specific issue order – Application by father for return of child to foreign jurisdiction – Different legal conceptions of welfare – Approach to applications for summary return of children to countries not party to Hague Convention on the Civil Aspects of International Child Abduction – Whether Court of Appeal correct to interfere with judge’s exercise of discretion.

In 1999, the parents were married in Saudi Arabia. Their child was born in 2000. The parents divorced in 2001. The child’s father was a Saudi Arabian national. The mother had dual Saudi Arabian and British nationality. The parties remarried in 2002. Later that year the mother and the child visited England with the father’s consent, initially for a holiday but he later agreed to their staying on while the mother pursued a one-year master’s degree course. The mother presented a divorce petition in the English court. The father applied for a specific issue order for the summary return of the child to Saudi Arabia. His case was that he accepted that the marriage was at an end, and that the child should continue in his mother’s care, but that they should both return to live in Saudi Arabia. The judge held that on balance, had it not been for one factor, namely that the father had raised and then withdrawn allegations about the mother’s association with another man and the effect of such allegations in Saudi Arabian Shariah law, he would have found it in the childs best interests to be returned to Saudi Arabia. Hence he declined to make the order sought. The Court of Appeal held that there could be no criticism of the judge’s impeccable direction on the applicable legal principles but allowed the father’s appeal on the ground that the judge had elevated his anxiety about the possibility that the father might make allegations of the mother’s alleged misconduct in the Shariah court above a level that the evidence justified. Accordingly it should not have had such a decisive effect on an otherwise balanced judgment. The mother appealed. The issue arose as to how, if at all, it was relevant that the laws and procedures in the country to which the child was to be returned were different from those which would apply if the child’s future were to be decided in England. The father contended that there should be a strong presumption that it was highly likely to be in the best interests of a child subject to unauthorised removal or retention to be returned to his country of habitual residence so that any issues which remained could be decided in the courts there.

Held – (1) In the instant case, the Court of Appeal was wrong to interfere with the exercise of the trial judge’s discretion. If there was a discretion in which various factors were relevant, the evaluation and balancing of those factors was a matter for the trial judge. Only if his decision was so plainly wrong that he had to have given far too much weight to a particular factor was the appellate court entitled to interfere. Too ready an interference by the appellate court, particularly if it always seemed to be in the direction of one result rather than the other, risked robbing the trial judge of the discretion entrusted to him by the law. If trial judges were led to believe that, even if they directed themselves impeccably on the law, made findings of fact which were open to them on the evidence, and were careful, as the judge in the instant case was, in their evaluation and weighing of the relevant factors, their decisions were liable to be overturned unless they reached a particular conclusion, they would come to believe that they did not in fact have any choice or discretion in the matter.

(2) The trial judge was wrong to leave out of account the absence of a jurisdiction in the home country to enable the mother to bring the child back to England without the father’s consent. It was, along with everything else, a factor to be weighed in the balance in deciding whether summary return to Saudi Arabia was in the best interests of the child. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return might be in the best interests of the individual child. There was always a choice to be made. When making that choice the trial judge’s focus had to be on the individual child in the particular circumstances of the case. The child’s welfare was paramount and the concepts of the Hague Convention were not to be applied by analogy in a non-Convention case. It would be wrong to say that the future of every child who was within the jurisdiction of the English courts should be decided according to a conception of child welfare which, exactly corresponded to that which was current in England. In a case where the choice lay between deciding the question in England or deciding it in a foreign country, differences between the legal systems could not be irrelevant, but their relevance would depend upon the facts of the individual case. In practice it would be for the party resisting return to show that there was a difference which might be detrimental to the child’s welfare. The absence of a relocation jurisdiction had to do more than give the judge pause; it might be a decisive factor. On the other hand, if it appeared that the mother would not be able to make a good case for relocation, that factor might not be decisive. There were also bound to be many cases where the connection of the child and all the family with the other country was so strong that any difference between the legal systems should carry little weight.

Accordingly, the appeal would be allowed.

Decision of Court of Appeal [2004] 2 FCR 337 reversed.

Cases referred to in opinions

B’s settlement, Re [1940] Ch 54.

E (child abduction: non-convention country), Re[1999] 3 FCR 497, sub nom Osman v Elasha [2000] Fam 62, [2000] 2 WLR 1036, [1999] 2 FLR 642, CA.

F (a minor) (abduction), Re [1991] FCR 227, [1990] 3 All ER 97, [1991] Fam 25, [1990] 3 WLR 272, CA.

G v G (minors) [1991] FCR 12, [1991] 2 FLR 506, CA.

G v G [1985] 2 All ER 225, [1985] 1 WLR 647; sub nom G v G (minors: custody appeal) [1985] FLR 894, HL.

J v C [1969] 1 All ER 788, [1970] AC 668, [1969] 2 WLR 540, HL.

JA (a minor) (child abduction: non-convention country), Re[1998] 2 FCR 159, [1998] 1 FLR 231, CA.

L (minors) (wardship: jurisdiction), Re [1974] 1 All ER 913, [1974] 1 WLR 250, CA.

M (minors) (abduction: peremptory return order), Re[1996] 1 FCR 557, [1996] 1 FLR 478, CA.

M, Re[1995] 2 FCR 265, [1995] 1 FLR 89, CA.

McKee v McKee [1951] 1 All ER 942, [1951] AC 352, PC.

P (a minor) (child abduction: non-convention country), Re[1996] 3 FCR 233, [1997] Fam 45, [1997] 2 WLR 223, [1997] 1 FLR 780, CA.

Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763, HL.

R (minors) (wardship: jurisdiction), Re (1981) 2 FLR 416.

R (on the application of Ullah) v Special Adjudicator[2002] EWCA Civ 1856, [2003] 3 All ER 1174, [2003] 1 WLR 770; affd[2004] UKHL 26, [2004] 3 All ER 785, [2004] 2 AC 323, [2004] 3 WLR 23.

S (minors) (abduction), Re[1993] 2 FCR 499, [1994] 1 FLR 297, CA.

Appeal

The mother appealed against the decision of the Court of Appeal ([2004] EWCA Civ 417 at [6], [2004] 2 FCR 337 at [6]) whereby it held that there could be no criticism of the judge’s direction on the applicable legal principles but allowed the father’s appeal on the ground that the judge had elevated his anxiety about the possibility that the father might make allegations of the mother’s alleged misconduct in the Shariah court above a level that the evidence justified. The facts are set out in the opinion of Baroness Hale of Richmond.

LORD NICHOLLS OF BIRKENHEAD.

[1] I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I would allow this appeal.

LORD HOFFMANN.

[2] My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I too would allow this appeal.

LORD WALKER OF GESTINGTHORPE.

[3] My Lords, I am in full agreement with the opinion of my noble and learned friend Baroness Hale of Richmond, which I have had the privilege of reading in draft. For all the reasons given in her opinion I too would allow this appeal.

BARONESS HALE OF RICHMOND.

[4] My Lords, the issue of principle in this case is the proper approach to applications for the summary return of children to countries which are not parties to the Hague Convention on the Civil Aspects of International Child Abduction. But it is also another example of intervention by the Court of Appeal in the exercise of discretion by a trial judge despite the fact that he had, in the view of the appeal court, properly directed himself on the law. I believe that the Court of Appeal were wrong on both points.

THE FACTUAL BACKGROUND

[5] These proceedings are about a little boy, F, who was born in the United States on 5 April 2000. He is a citizen, not only of the United States, but also of the United Kingdom and of Saudi Arabia. His mother was born in the United Kingdom in 1972 to Iraqi Kurdish parents who had come here as refugees. The family moved to Saudi Arabia when she was six and she has dual citizenship. Her father is still working there as a doctor but her mother has already returned to live in this country where they have always kept a home and both plan to retire. The mother returned here aged 16 to study for her A levels and then for a degree. In 1998 she went back to work in Saudi Arabia where she met the father, who is a Saudi citizen. They were legally married there according to Shariah law in December 1998. Their son was born in the United States for medical reasons but was soon taken to Saudi. However, marital difficulties arose in 2001, and the mother brought the child to this country...

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