Re L (abduction: pending criminal proceedings)
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1998 |
| Court | Family Division |
Child abduction – Wrongful removal of children from Florida to Denmark by mother – Father obtaining order for return of children under Hague Convention in Danish court – Mother taking children to England to avoid implementation of that order – Criminal proceedings commenced in Florida against mother for international parental kidnapping – Mother and children traced in England after ten months whereupon father applying to English court for children’s return – Mother raising defences of grave risk of physical and psychological harm to children if returned as a result of her arrest and that children settled in England – Whether defences such as to persuade court to exercise discretion not to order return of children.
The spouses and their two young children were habitually resident in Florida. The mother wrongfully removed the children to Denmark. On the application of the father under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985, a Danish court ordered the return of the children to Florida. In order to avoid the implementation of that order the mother secretly brought the children to England and set up home under a different name. She was charged in Florida with the criminal offence of international parental kidnapping and a warrant was issued for her arrest. When, after some ten months, she was traced in England, the US Government sought her extradition and she was arrested, charged and bailed. The father applied to the English court under the Hague Convention for the return of the children to Florida submitting (a) that the court should take the order of the Danish court as conclusive evidence that the father’s case under the Convention was made out, or (b) that the removal of the children from Denmark should be regarded as wrongful as being in breach of rights of custody attributed to the Danish court, or (c) that the court should found its order on the original wrongful removal from Florida. The mother raised two defences under the Hague Convention: firstly that in light of the criminal proceedings in Florida she would be arrested and taken into custody there which meant that there was a grave risk that the children would suffer psychological harm or otherwise be placed in an intolerable situation; and secondly that the children were now settled in England.
Held – The doctrine of issue estoppel applied to a prior adjudication in any other contracting state of any issue under the Hague Convention which was truly identical. However, in the instant case the two defences raised by the mother had not been considered by the Danish court so the issue was not identical. It could not be said that the removal of the children from Denmark to England could found an order under the Convention as it could not be said that the Danish court, having ordered the return of the children to Florida, was exercising rights of custody when they were removed to England. It followed that the issue for the court was whether, the children having been wrongfully removed from Florida, the mother’s defences should be upheld. As to the criminal proceedings in Florida neither they nor the mother’s likely arrest and removal at the airport would create a grave risk that the return of the children would expose them to physical or psychological harm. There was no reason to think that the relevant authorities in Florida would fail to pay significant regard to the children’s interests. As to the children being settled in England, where the parent had no previous connection with the country and had only been present with the children for a year because it was a good hiding place, it was doubtful whether that parent could demonstrate that the children were settled. Even had the mother been able to do so in the present case, that would simply have given the court a discretion instead of an obligation to order a return. Florida was where the family had lived, where the father still lived, and where custody proceedings had been on foot for almost two years. In those circumstances an order would be made for the return of the children to Florida.
Cases referred to in judgmentA (a minor) (abduction), Re [1988] 1 FLR 365, CA.
A (minors) (abduction: custody rights), Re [1992] 2 FCR 97, [1992] Fam 106, [1992] 1 All ER 929, [1992] 2 WLR 536, CA.
N (minors) (abduction), Re [1991] FCR 765.
NB (a minor) (abduction), Re [1993] 1 FCR 271; sub nom B v B (abduction: custody rights) [1993] Fam 32, [1993] 2 All ER 144, [1992] 3 WLR 865, CA.
O (minors) (abduction), Re [1998] 1 FCR 107.
S (a minor) (abduction), Re [1991] FCR 656, CA.
ApplicationThe father of two children whose place of habitual residence was Florida and who were wrongfully removed by the mother to Denmark obtained an order from a Danish court under the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985, for the return of the children to Florida. The mother then moved with the children to England and the father applied to the English court under the Convention for their return. The case was heard and judgment
was given in chambers. The case is reported with the permission of Wilson J. The facts are set out in the judgment.
Michael Nicholls (instructed by Heald Nickinson) for the father.
Kharin Cox (instructed by Dawson Cornwell & Co) for the mother.
WILSON J.The plaintiff father, who is American, and the defendant mother, who is Danish, are married and have two children, twins of each sex, who were born on 5 October 1995, so who are three years old. The family lived together in Florida until June 1996; in July 1996 the mother removed the children from Florida to Denmark. In November 1997, on the father’s appeal from the order of a lower court, the High Court in Denmark ordered that the children be returned to Florida under the provisions of the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985. On 1 December 1997, in order to pre-empt the implementation of that order, the mother secretly removed the children from Denmark to England and set up home with them in Portsmouth under a different surname. In October 1998 the father discovered the whereabouts of the children and issued the present proceedings, which are strenuously opposed by the mother, for a summary order for the return of the children to Florida.
Mr Nicholls, on behalf of the father, alleges that there are four alternative jurisdictions which the court might invoke in making an order for a return.
(a) Jurisdiction under the Hague Convention, which has the force of law by virtue of s 1(2) of the Child Abduction and Custody Act 1985; as I will...
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