Re M (Abduction: Non-Convention Country)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE RALPH GIBSON,THE MASTER OF THE ROLLS |
| Judgment Date | 30 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0330-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 March 1994 |
[1994] EWCA Civ J0330-4
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(Mr. Justice Wilson)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Ralph Gibson and Lord Justice Waite
MISS D. EVANS (instructed by Messrs. Beckman & Beckman, London NW1) appeared on behalf of the Appellant Mother.
MR. G. MURDOCH (instructed by Messrs. Penningtons, London EC2V) appeared on behalf of the Respondent Father.
Wednesday 30th March 1994.
This is an appeal from an order of Wilson J, on 16th March 1994, directing the return to the jurisdiction of the Italian court of two young girls aged three and two. They are Italian nationals, born in Italy of an unmarried association between an Italian father and an English mother of Ghanaian origin.
Italy is not yet a ratifying signatory of the Hague Convention (we were told that it is a signatory, and ratification may be anticipated later this year). This must, therefore, be treated as a Non-Convention case.
The principles upon which the courts act in Non-Convention cases are now well settled. They can, I think, be summarised in this way. First, the underlying assumptions which the court applies prima facie to every case are those which underlie the Hague Convention itself, namely that the best interests of children are normally best secured by having their future determined in the jurisdiction of their habitual residence and sparing them the distress and disruption which they are liable to suffer if one parent abducts them from the home jurisdiction in order to secure a tactical, or a supposed juridical, advantage in a competing jurisdiction. See Re S (Abduction) [1993] 1 FCR 789 and D v D (Child Abduction: Non-Convention Country) [1994] 1 FLR 137.
Secondly, in acting by analogy with the Convention the court takes account of those matters which it would be relevant to consider under Article 13.
Thirdly, it is of the essence of the jurisdiction to grant a peremptory Return Order that the Judge should act urgently. That means that the court has no time to go into matters of detail. The case has to be viewed from the perspective of a quick appraisal of its essential features. Any risk of injustice suffered by the abducting parent of limiting the scales of the survey in the interests of speed, as a result is minimised by the adoption in the Court of Appeal of a policy which, while discouraging appeals that attempt to re-argue the merits, allows some relaxation of the rule in Ladd v Marshall. That relaxation is applied to the extent necessary to enable this court to determine whether there are any matters not dealt with at first instance which might have materially affected the Judge's decision, had he been aware of them.
Fourthly, in this area —as in many others —the principle of comity applies. It is assumed, particularly in the case of States which are fellow members of the European Union, that such facilities as rights of representation, means of collecting information through independent sources and welfare reports, and opportunities of giving evidence and of interrogating the other side, all of which are necessary to place the court in a position to determine the best interests of the child concerned, will be secured as well within one State's jurisdiction as within another.
Against that background of principle I now turn to the facts of this case. The mother and father (as I shall call them) met in this country in the summer of 1989 and started to live together. In July 1990 the father went to Italy where his family live and where he was born. The mother joined him there in September of the same year. Their elder girl, Elena, was born in Italy on 4th November 1990. In the summer of the following year, 1991, the mother, the father, and Elena moved to a farm in a village called Cacina Scocca, near Milan. Their second daughter, Federica, was born there on 26th February 1992. The mother had left behind a home in England which she sold during the summer of 1992. Unfortunately the relationship ran into serious trouble in the year 1993. There were episodes of violence. The mother left the father because of a complaint of violent treatment and sought help from the British Consulate in Milan. He referred her to an Anglican priest, whose intervention helped to secure her return to the father. Unfortunately there were further clashes, and further incidents of alleged violence. They culminated in a very serious episode occurring on 28th August 1993 which was reported to the Police. The mother had to be referred to hospital for brief treatment.
The outcome of all that was that on 1st September 1993, the mother applied to the court, the Tribunale di Miniri in Milan, for a custody order in respect of the girls. The first hearing took place in those proceedings on 6th September 1993. At that stage the mother had nowhere to live but a hotel where the accommodation was wholly inadequate for two young children and herself. In those circumstances she agreed that the children should stay for the time being —and she emphasised it was only a temporary agreement —at the farm, where they would be in the primary care of their paternal great-aunt. The father himself is a busy working farmer and would be out for most of the children's waking hours.
The mother had also sought the help of the Social Services in Milan. That led to a report being prepared by Mr. Davide Sironi, a social worker employed in Abbiategrasso, the nearest town of any size to the father's farm. He made a very detailed report to the court on 15th October 1993. I will read a part of it. He said:
"The Psychologist of the Marriage Guidance Centre is taking care of both of them in order to have as deep as possible a valuation of the couple dynamics and to locate opportunities to settle the conflict, that, at present, is characterised by the attempts by both of them to exploit meetings with the children. The mediation of the social services permitted agreement in this respect and a temporary 'modus vivendi', which allows [the mother] the opportunity to meet the children for a few hours a day, having regard to their commitments and to [the father's] availability to accompany and collect the children. Some misunderstandings upset the agreement. In the meantime [the mother] started working (she teaches English a few hours a week in a school in Vittuone and takes private students) and has rented a two-roomed flat in an outlying area of Abbiategrasso … which is equipped with the essential services … a new agreement is being attempted in order to allow [the mother] to see the children at the times and days set out above but at her own home, instead of at Elena's school or at [the farm]."
The report concludes:
"Given the above situation, we request the rapid intervention of the judicial Authority concerned in order to decide the measures necessary to protect the children and to provide, in the meantime, the administrative instruments necessary to enable the social services to better perform their function in support and supervision of the children and the adults involved."
The report is marked as duly received by the court on 19th October 1993.
The mother contends that she encountered difficulties in procuring the regular contact which the social worker had hoped for. She claims also that she had been advised by lawyers in Italy that she would have a poor chance of obtaining custody or care and control of the children in that country. So she took matters into her own hands. On 5th December 1993, without the leave of, or notice to, the father, she brought the girls to this country. She obtained ex parte from the Family Division an order giving her interim residence on 16th December 1993, with injunctions against the father to prevent him from removing the children from her care and from the jurisdiction. That was followed up on 20th December, when the mother applied for a residence order in family proceedings in this country.
At the turn of the new year the father came to England, and he was allowed contact with the girls by the mother every day from 2nd to 7th January. On his return to Italy the father, for his part, started court proceedings on 12th January in the Italian court. The order made by the Italian Judge was that custody of the girls be vested in the Town Council of Abbiategrasso, in order that the children could be placed at the father's home with an opportunity to see the mother, including a month's holiday. The direction was that the Town Council should supervise the mother's relationship with the children to ensure that she received ample allocation of contact time with them.
The mother was represented in those proceedings. Her advocate was a lawyer who had been assigned to the case under the arrangements for free representation that obtain in Italy. The mother is critical of the services rendered to her by that advocate; but neither Wilson J nor this court has had any opportunity of verifying the justification for such criticism.
The father had further contact with the children in this country at the end of January. He filed his answer in the English proceedings at that time. On 9th February 1994 he made an application in the English Family proceedings to discharge the interim residence order and sought a peremptory return order.
The first effective hearing, apart from interlocutory directions, took place before Wilson J on 18th February 1994. The Judge was impressed by the fact that these were young girls, with effectively an Italian background, who had been...
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