Re M (A Minor) (Child Abduction)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 22 November 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J1122-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 November 1993 |
[1993] EWCA Civ J1122-1
(Mr. Hugh Bennett QC and Mr. Justice Kirkwood)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Butler-Sloss and Lord Justice Simon Brown
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(FAMILY DIVISION)
MR. A. LEVY QC and MR. B. JUBB (instructed by Warner & Richardson of Winchester, Hampshire) appeared on behalf of the Appellant
MR. I. KARSTEN QC and MR. S. BELLAMY (instructed by Moore & Blatch of Lymington, Hants) appeared on behalf of the Respondent
MR. A. TIDBURY (instructed by Moore & Blatch of Lymington, Hants) appeared on behalf of the Mother
The issues in this case arise under the provisions of the Hague Convention, (the Convention) and concern two boys aged 11 and a half and nearly 10. On the 11th November 1993 we heard two appeals, having granted leave to appeal to the mother in respect of a consent order made on the 1st November. We dismissed the appeal by the children against the refusal of Mr Hugh Bennett QC sitting as a deputy High Court Judge to add them as parties to the proceedings. We allowed the appeal of the mother and directed that a court welfare officer do report to a High Court Judge at a further hearing to enable the judge to consider Article 13 of the Convention.
The background to this case is that the parents, both English in origin, each settled as a child in Australia. They married in Sydney on the 14th August 1976. Stephen was born on the 29th April 1982. Christopher was born on the 9th December 1983. The marriage broke down in 1986 and without the knowledge or permission of the father, the mother removed the boys to England. In England she formed a relationship with a Mr B. which has been sustained intermittently ever since. In 1987 their daughter Phoebe was born. In April 1987 the mother with three children and Mr B. returned to Australia. In July 1987 the mother left the two boys with their father and returned to England. In May 1988 the Family Court of Australia in Brisbane granted custody of the two boys to their father with access to their mother who had returned to Australia. For the next three years the two boys saw their mother for very brief periods. The father was living in New South Wales and the mother with her new family in Queensland.
At Christmas 1991 the children visited their mother in Cairns and remained with her. The mother said that she assumed that they were to remain with her. The father issued proceedings for contempt and on the 4th February 1992, the Family Court ordered their return to their father. During 1992 and 1993 the mother's relationship with Mr B. was volatile with partings and reconciliations. On one occasion in early 1993 the boys ran away to try to visit their mother and were recovered by the police. They went to visit their mother for Easter. She, Mr B. and the three children left Australia in April, without the knowledge or consent of the father, and travelled to Goa. They went on to England arriving in London on the 8th October.
The father invoked the Convention procedure and issued proceedings in London. The mother also issued applications. A holding order was made by Wilson J on the 13th October. After considerable negotiations between the solicitors for the parties, the mother decided that it was in the boys' best interests for them to go back to Australia. She was undecided whether to go with them or stay in England. Her relationship with Mr B. was fragile but Phoebe was living with him and his mother and she was torn between her sons and her daughter. A consent order was approved by Kirkwood J that the boys be returned to Australia forthwith. The arrangements were for them to catch a Quantas flight on the 4th November. It was not certain whether the mother would travel with them. She went with Mr B. and Phoebe and the boys to Heathrow on the 4th November and decided not to travel with them. This decision created certain administrative difficulties over travelling documents and who would meet them on arrival. The boys waited all day at Heathrow airport with their mother, Mr B. and Phoebe and eventually boarded a Quantas flight as unaccompanied minors. Both boys were very upset. Stephen created a scene and as the aircraft was taxiing for takeoff tried to open the aircraft door. The captain refused to fly with him on board and aborted the flight. The two boys were handed over to Hillingdon Social Services and detained by the police in a cell in the local police station.
Wilson J on the 5th November made further holding orders that the children return to their mother on conditions pending the expected arrival on the 10th November of the father from Australia. On the 8th November Mr Bennett QC heard the application on behalf of the children who had obtained legal aid and instructed solicitors.
The Hague Convention.
The Convention provides a summary procedure for the expeditious return to the country of their habitual residence of children who are wrongfully removed to or retained in another contracting State in order that the courts of the country of habitual residence should determine their future. It is conceded by the mother that she wrongfully removed these two children from Australia. The interests of the child in each individual case are not paramount since it is presumed under the Convention that the welfare of children who have been abducted is best met by return to their habitual residence. In the Explanatory Report by Professor Elisa Perez- Vera (1980), the interaction between the principle of return of the child and the child's interests is explored and the philosophy of the Convention explained in paragraph 23:-
"……right from the start the signatory States declare themselves to be 'firmly convinced that the interests of children are of paramount importance in matters relating to their custody'; it is precisely because of this conviction that they drew up the Convention, 'desiring to protect children internationally from the harmful effects of their wrongful removal or retention.'."
Provision is made by Article 13 for limited consideration of the welfare of the child which may be contrary to the general presumption. Article 13 (b) which refers to establishing grave risk of harm does not arise on this appeal since it is a ground to be raised by the parent and not by the child. It is however a matter which the mother may wish to raise at the next hearing.
The relevant part of Article 13 states:-
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."
Professor Perez- Vera said at paragraph 30 of his Explanatory Report:-
"In addition, the Convention also provides that the child's views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and sufficient degree of maturity sufficient for its views to be taken into account. In this way, the Convention gives children the possibility of interpreting their own interests. Of course, this provision could prove dangerous if it was applied by means of the direct questioning of young people who may admittedly have a clear grasp of the situation but who may also suffer serious psychological harm if they think they are being forced to choose between two parents. However, such a provision is absolutely necessary given the fact that the Convention applies, ratione personae, to all children under the age of 16; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will. Moreover, as regards this particular point, all efforts to agree on a minimum age at which the views of the child could be taken into account failed, since all the ages suggested seemed artificial, even arbitrary. It seemed best to leave the application of this clause to the discretion of the competent authorities."
At paragraph 113 she said of Articles 13 and 20:-
"……the very nature of these exceptions gives judges a discretion —and does not impose upon them a duty —to refuse to return a child in certain circumstances."
This part of Article 13 puts the court on inquiry if the child's views are brought to its attention. There is nothing in Article 13 or the Child Abduction and Custody Act 1985, (which enacts the Convention), which provides for automatic inquiry into the views of older children or a specified procedure either to make them parties or for a court welfare officer or other person to ascertain their views. We are indebted to the Official Solicitor for providing a decision of the Family Court of Australia sitting in Brisbane on the 27th June 1988. In the case of Turner...
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