Re J (A Minor) (Abduction: Custody Rights)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Ackner,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle
Judgment Date26 July 1990
Judgment citation (vLex)[1990] UKHL J0726-4
Date26 July 1990

[1990] UKHL J0726-4

House of Lords

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Ackner

Lord Oliver of Aylmerton

Lord Jauncey of Tullichettle

In Re J. (A Minor) (Abduction: Custody Rights)
Lord Bridge of Harwich

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Brandon of Oakbrook. I agree with it and for the reasons he gives I would dismiss the appeal.

Lord Brandon of Oakbrook

My Lords,

2

This appeal concerns the interpretation and application to somewhat special facts of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 ("the Convention"). Both Australia and the United Kingdom are parties to the Convention, which was given, with immaterial exceptions, the force of law in the United Kingdom by the Child Abduction and Custody Act 1985.

3

The material facts are these. Both the appellant ("the father") and the respondent ("the mother") were born in England and are citizens of the United Kingdom. The father is 38 and the mother 32. In 1969 the father and in 1978 the mother went to live and work in Australia. They met and in May 1987 began living together at a home in Western Australia. They did not marry, then or later. On 6 December 1987 the mother gave birth to a boy whom I shall call "J." Both the mother and the father were registered as J.'s parents and J. has dual Australian and British nationality.

4

The relationship between the mother and the father, following he birth of J., was not an harmonious one. In 1988 there was a short separation between them when the mother left the joint home taking J. with her. In about January 1989 there was a second and longer separation when the mother again left the joint home taking J. with her. During this second separation both the mother and the father consulted solicitors. The father was made aware that under the law of Western Australia, since he and the mother were not married, the mother was entitled to the sole custody and guardianship of J., unless he applied to a court and obtained an order to the contrary. The father at one time indicated an intention to make such an application but did not do so. In May 1989 the mother and the father were reconciled and she went back to live with him bringing J. with her.

5

In January 1990 the mother's parents, who live in Stockport, went out to Australia for a holiday. They stayed with the mother and the father at their jointly owned home in Western Australia. The mother made a decision to leave the father and return to England with J. to live there, initially at any rate at her parents' home. In February 1990 the mother's father returned to England, leaving his wife behind. At the beginning of March 1990 the mother, with financial assistance from her father, bought tickets for herself and J. to travel on the same flight to England as that on which her mother was due to return. She succeeded by various subterfuges in concealing her intention from the father and on 21 March 1990 flew with J. and her mother to England, arriving there on 22 March 1990. It was then, and has remained ever since, the settled intention of the mother not to return to Australia but to make a long-term home for herself and J. in England.

6

On or about 26 March 1990 the father applied to the Supreme Court of Western Australia for the custody of J. and other relief. His application was supported by two affidavits sworn by him. On 3 April 1990 Walsh J. ordered the application to be transferred to the Family Court of Western Australia. On 12 April 1990 Anderson J. in the Family Court heard the application on an ex parte basis and made an order giving the father sole guardianship and custody of J. He also gave directions for the service of the order on the mother in England and this was effected shortly afterwards. Finally by an amendment to his order dated 26 April 1990 he made a declaration that the removal of J. from Australia by the mother had been wrongful. It will be necessary to consider later whether this declaration was rightly made.

7

On 19 April 1990 the Australian authorities requested from the authorities in the United Kingdom the return of J. to Australia pursuant to the provisions of the Convention, and solicitors acting for the father made an application to that end in the Family Division of the High Court. On 20 April 1990 His Honour Judge Barnett Q.C., sitting as a vacation judge of the High Court, made an interim order ex parte, the terms of which are not now material. On 30 April 1990 the application was heard on an inter partes basis by Douglas Brown J. He concluded that, on the special facts of the case, the mother had not been guilty of a wrongful removal or of a wrongful detention of J. within the meaning of the Convention and dismissed the application. The father appealed and on 17 May 1990 the Court of Appeal (Lord Donaldson of Lymington M.R., Staughton L.J. and Sir Roger Ormrod) dismissed the appeal. The father now brings a further appeal to your Lordships' House with the leave of the House.

8

The crucial feature of this case is that the mother was not married to the father, either when J. was born or at any time afterwards. In that situation section 35 of the Family Court Act 1975 of Western Australia as added by the Family Court Act Amendment and Acts Repeal Act 1979, section 23, governed the rights of the parties in relation to J. That section provides:

"Subject to the Adoption of Children Act 1896 and any order made pursuant to this Division [i.e. this part of the Act], where the parents of a child who has not attained the age of 18 were not married at the time of the birth of the child, or subsequently, the mother of the child has the custody and guardianship of the child."

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