Re M (Minors) (Abduction: Non-Convention Country)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
SIR THOMAS BINGHAM, MR, RALPH GIBSON AND WAITE, L JJ
Child abduction – non-Convention country – children removed from Italy by mother without knowledge of father – father applying for return of children – principles to be applied.
The parents met in England in 1989. The mother was English, the father was Italian. They lived together but did not marry. In 1990 the parents went to Italy and their two children were born there in 1990 and 1992. From 1991 the family lived on a farm in a village near Milan. In 1993 the relationship between the parents broke down. In September 1993 the mother applied to an Italian court for custody of children. However, at that time the mother was living in a hotel where the accommodation was wholly inadequate for the children and herself. She therefore agreed that, as a temporary arrangement, the children should stay at the farm. She claimed that her lawyers in Italy had advised her that she would have a poor chance of obtaining custody of the children in that country; so she took matters into her own hands and in December 1993, without the leave of, or notice to the father, she brought the children to England. She applied for a residence order in this country. In February 1994 the father applied for a peremptory return order. The matter came before Wilson, J on 18 February 1994. He held that in principle the children should be returned to Italy but was concerned that the father had withdrawn offers he had originally made to provide accommodation and financial support for the mother. The Judge therefore adjourned the matter to 16 March 1994. The mother sought undertakings as to funds for the cost of her return with the children, accommodation, and suitable maintenance. At the hearing in March 1994 the father gave undertakings which were, broadly speaking, on the lines sought by the mother. The mother sought a further adjournment so that she could have an opportunity of investigating the sincerity of the undertakings, their practicability, and their implications generally for the safety and welfare of the children in Italy. The Judge rejected that application and ordered that the children be returned to Italy.
The mother appealed. Both parties were given leave to introduce fresh evidence.
Held – dismissing the appeal: (1) The principles upon which the courts acted in non-Convention cases were well settled. First, the underlying assumptions which the court applied prima facie to every case were those which underlay the Hague Convention itself, namely, that the best interests of the children were normally best served by having their future decided in the jurisdiction of their habitual residence. Secondly, in acting in analogy with the Convention the court took account of those matters which would be relevant to consider under Article 13. Thirdly, the essence of the jurisdiction to grant a peremptory return order was that the Judge should act urgently. Any risk of injustice was minimized
by the adoption by the Court of Appeal of a policy which allowed some relaxation of the rule in Ladd v Marshall to the extent necessary to enable the court to determine whether there were any matters not dealt with at first instance which might have materially affected the Judge's decision had he been aware of them. Fourthly, the principle of comity applied. It was assumed, particularly in the case of States which were fellow members of the European Union, that facilities such as rights of representation, welfare reports, giving evidence, and interrogation of the other side, would be secured as well within one State's jurisdiction as within another.
(2) Applying the principles set out above to the facts of the present case, the Judge had found that it should be for an Italian court to resolve the issues referrable to these children. However, he was gravely concerned about the defects of the practical proposals at first made by the father. After the adjournment, the father had given satisfactory undertakings. The fresh evidence adduced by the mother was to the effect that the accommodation offered to her was unsuitable. Fresh evidence adduced by the father was to the effect that the accommodation could be rendered suitable within a very short time. Further, the father had given undertakings to the Italian court which had the effect of confirming the undertakings given to the Judge in England. Judges in one country were entitled, and bound, to assume that the courts and welfare services of the other country would all take the same serious view of a failure to honour undertakings given to a court of any jurisdiction. In the present case there was enough material before the Judge for him to be satisfied that a return order would accord with the best interests of the children. Further, his decision was vindicated by the fresh evidence.
Cases referred to in judgment:D v D (Child Abduction)[1994] 1 FCR 654.
Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745.
S (Minors) (Abduction), Re[1993] 1 FCR 789.
Delyth Evans for the mother.
Gordon Murdoch for the father.
LORD JUSTICE WAITE.This is an appeal from an order of Wilson, J on 16 March 1994, directing the return to the jurisdiction of the Italian court of two young girls aged 3 and 2. 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 summarized 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 judicial, advantage in a competing jurisdiction: see Re S (Minors) (Abduction)[1993] 1 FCR 789 and D v D (Child Abduction)[1994] 1 FCR 654.
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 minimized by the adoption in the Court of Appeal of a policy which, while discouraging appeals that attempt to reargue the merits, allows some relaxation of the rule in Ladd v Marshall [1954] 1 WLR 1489. That relaxation is applied to the extent necessary to enable this court to determine whether there are...
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