Re M (Minors) (Child Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Court of Appeal (Civil Division) |
Sir Thomas Bingham, MR, Butler-Sloss and Simon Brown, L JJ
Child abduction – children wrongfully removed from Australia by mother – children brought to England – father applying for return – consent order made – children objecting to return – whether children should be made parties – whether consent order should be set aside.
The parents married in Australia. They had two sons. The family lived in Australia until 1986 when, without the knowledge of the father, the mother removed the boys to England. In England the mother had an intermittent relationship with another man and had a daughter by him in 1987. Later in 1987 the mother returned to Australia with the three children and the father of her daughter. The mother left the two boys with their father. In May 1988 the Family Court in Brisbane granted custody of the two boys to the father with access to the mother. For the next three years the two boys only saw their mother for very brief periods. In 1993 the mother and the three children left Australia and came to England without the father's knowledge or consent. The father commenced proceedings for the return of the two boys to Australia. On 1 November Kirkwood, J made a consent order that the boys be returned to Australia forthwith. The mother decided not to return with them. Both boys were upset and when they embarked on the plane the elder boy created a scene of a nature which caused the pilot to refuse to fly with him on board. The two boys were returned to the mother pending her appeal against the consent order. On 8 November 1993 Mr Hugh Bennett, QC sitting as a deputy High Court Judge, refused to join the children as parties to the proceedings.
The mother appealed against the consent order that the boys be returned to Australia. The children appealed against the refusal to join them as parties.
Held – dismissing the children's appeal and allowing the mother's appeal: (1) Under the Hague Convention, the signatory states declared themselves convinced that the interests of the children were paramount. It was presumed under the Convention that the welfare of the children who had been abducted was best met by return to the habitual residence. By Article 13 of the Convention it was provided, inter alia, that the court might refuse to order the return of the child if it found that the child objected to being returned and was of an age and degree of maturity at which it was appropriate to take account of its views.
This part of Article 13 put the court on inquiry if the child's views were brought to its attention. There was nothing in the Convention, nor in the Child Abduction and Custody Act 1985 which enacted the Convention, which provided for automatic inquiry into the view of older children nor a specified procedure either to make them parties or for a court welfare officer to ascertain their views. In the present case, it was clear that the elder boy objected to being returned and both boys were of an age that the court was put on inquiry as to whether they were or either was of sufficient degree of maturity for their views to be taken into account. The obvious person to assist the court in an assessment of the maturity of each boy and to inform the court of the boys' views was a court welfare officer. This was not a case where the children needed to be separately represented and their appeal would be dismissed.
(2) According to the general principle, the mother could not appeal against the consent order unless there was a fundamental change of circumstances. In this case, the views of the boys, which were increasingly clearly expressed by the elder boy, were not communicated to the Judge. He was not asked to consider the provision in Article 13 of the Convention relating to the views of the children. The mother had expressed the concerns of the children returning to live with the father. When the elder boy had been told of the consent order he had, inter alia, threatened to kill himself. The circumstances showed that there had been a fundamental change and that it was proper to set the consent order aside and to remit the case for further consideration by a High Court Judge.
Per curiam: Article 12 of the Convention required the return of the child to the state of habitual residence and not to the person requesting the return. In many cases the abducting parent returned with the child and remained with the child until the court had made a decision as to the child's future. The problem arose when the parent decided not to return with the child. It would be artificial to dissociate the country from the carer in such a case. The wording of Article 13 of the Convention did not inhibit a court from considering the objections of a child returning to a parent.
Observations of Johnson, J in B v K (Child Abduction)[1993] 1 FCR 382 at p 386G–H disapproved.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction (the Hague Convention), Articles 12 and 13.
Family Proceedings Rules 1991, r 6.5.
United Nations Convention on the Rights of the Child, Article 12.
Cases referred to in judgment:B v K (Child Abduction)[1993] 1 FCR 382.
C (A Minor) (Abduction), Re [1989] FCR 197; [1989] 1 WLR 197.
L v L (Children: Separate Representation)[1994] 1 FCR 890.
P v P (Child Abduction)[1992] 1 FCR 468.
S v S (Child Abduction)[1993] 1 FCR 12; sub nom Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242; [1993] 2 WLR 775; [1993] 2 A11 ER 683.
SR (A Minor) (Abduction), Re[1992] 1 FCR 101.
Appeal from Kirkwood, J and from Mr Hugh Bennett, QC sitting as a deputy Judge of the High Court.
Allan Levy, QC and Brian Jubb for the children.
Ian Karsten, QC and Stephen Bellamy for the father.
Andrew Tidbury for the mother.
Judgment Lord Justice Butler-Sloss.The issues in this case arise under the provisions of the Hague Convention, (the Convention) and concern two boys aged 11½ and nearly 10. On 11 November 1993 we heard two appeals, having granted leave to appeal to the mother in respect of a consent order made on 1 November. We dismissed the appeal by the children against the refusal of Mr...
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