Re A (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL,LORD JUSTICE NOURSE |
| Judgment Date | 10 June 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0610-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0568 |
| Date | 10 June 1987 |
[1987] EWCA Civ J0610-5
Lord Justice Mustill
and
Lord Justice Nourse
87/0568
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
MR. JUSTICE EWBANK
Royal Courts of Justice
MR. ROBERT JOHNSON Q.C., and MR. P. STEWART (instructed by Messrs Dawson Cornwall & Co.) appeared on behalf of the Appellant (Defendant)
MR. P. SINGER Q.C. (instructed by Messrs. Thomson Snell & Passmore) appeared on behalf of the Respondent (Plaintiff).
I will ask Lord Justice Nourse to give the first judgment.
This appeal raises a question under the Child Abduction and Custody Act 1985, which was enacted in order to enable the United Kingdom to ratify two international conventions. The one which is in point here is the Convention on the Civil Aspects of International Child Abduction ("the Convention"), which was signed at the Hague on 25th October 1980. By section 1(2) of the 1985 Act, and subject to the provisions of Part 1 thereof, the provisions of the Convention set out in Schedule 1 thereto have the force of law in the United Kingdom. One of the other contracting states is the Province of British Columbia, as between which state and the United Kingdom the Convention came into force on 1st August 1986.
The subject of these proceedings is a small boy called G.A., who was born on 11th November 1983 and is now aged three and a half years. On 13th March 1987, on an application by his father under the 1985 Act, Ewbank J. ordered G's. mother to return him to Canada forthwith, the operation of the order being suspended by consent on terms to which I will refer in due course. Against that order the mother now appeals.
The material facts, most of which I can take verbatim from the judgment of the learned judge, are these. The mother and father were married on 22nd October 1981. The father is thirty-six and the mother is thirty. The father was born in Argentina and has lived in Canada since the age of five. The mother was born in England and she lived in Canada from 1975 onwards. They are both Canadian citizens. During the marriage they were part-time hairdressers and they shared the care of G. In September 1985 the mother came to England on a visit to her parents. It was a six weeks holiday and she brought G. with her. When she arrived in England she said she was not going to go back to Canada and she kept G. with her in England. The father started proceedings in Canada. He obtained an ex parte order from the Supreme Court of British Columbia on 16th December 1985. That order gave him interim custody of G. The father and mother had discussions on the telephone. The father came to England in February 1986 and the mother handed G. over to him in accordance with the Canadian order.
The mother returned to Canada in July 1986. Whilst she was there she made an application to the British Columbian Court to vary the custody order by making an order for joint custody instead. On 11th August 1986 she swore an affidavit in those proceedings. She said she had to return to London on the following day or she would lose her job. She said that G. had been with the father for approximately eight months by then, and that she would like the custody of G. for the next six months. In paragraph 7 she said this:
"I believe my husband is worried that if he agrees to joint custody and allows G…. to live with me in England that I would apply for full custody in an English court. I have no intention of doing so since I feel it is in G….'s best interests to see his father and maintain a close relationship with him. I know V…. loves our son as much as I do and I am applying to the Court for an order of joint custody so that I have a legal right to take my son to England".
Although the mother had stated in her affidavit that she would like her six months custody of G. to start in the following September or October and that she or her father would be willing to go to Vancouver to take him back to England, the father agreed that she should take him with her on her return to England on 12th August; and that she duly did. On 19th August the matter came back before the Supreme Court of British Columbia when, after hearing counsel for each parent, it was ordered by consent that they be granted joint custody, the mother to exercise custody in England for six months of each year commencing on 19th August and the father for the other six months of each year. Counsel who then appeared for the father has sworn an affidavit in these proceedings, stating that the learned British Columbian Judge, Judge Boyd, inquired of counsel as to whether they were satisfied that the joint custody order was in the best interests of G.
The mother's six months period of custody was due to expire on 19th February 1987. In September 1986 the father had visited her and G. in England for two and a half weeks, in order to help her to move into a new flat in South London. Before that she and G. had lived with her parents nearby. In January 1987 the mother told the father that she was going to apply to vary the consent order for joint custody. She had decided that she was not going to comply with it. The result was that the father came over to England on 13th February. By an originating summons issued on the same day the mother sought to make G. a ward of Court, with care and control being committed to her. On 25th February the father countered by issuing an originating summons under the 1985 Act.
The convenient course is to refer next to the material provisions of the Convention and the 1985 Act. The provisions of the Convention set out in Schedule 1 to the 1985 Act and thereby having the force of law in the United Kingdom do not include the preamble or Articles 1 and 2. However, it is not suggested that we cannot look at those provisions in order to construe the articles which are set out in Schedule 1. The preamble expresses the desire of the States signatory:
"…to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access".
Article 1 states that the objects of the Convention are
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(a) to secure the prompt return of children wrongfully removed to or retained in any contracting state; and
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(b) to ensure that rights of custody and access under the law of one contracting State are effectively respected in the other contracting state.
These and other provisions of the Convention demonstrate that its primary purpose is to provide for the summary return to the country of their habitual residence of children who are wrongfully removed to or retained in another country in breach of subsisting rights of custody or access. Except in certain specified circumstances, the judicial and administrative authorities in the country to or in which the child is wrongfully removed or retained cannot refuse to order the return of the child, whether on grounds of choice of forum or on a consideration of what is in the best interests of the child or otherwise.
The provisions of the Convention which are most in point in the present case are to be found in Articles 3, 12 and 13. Article 3 is in these terms:
"The removal or the retention of a child is to be considered wrongful where—
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and,
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above arise in particular by operation of law or by reason of a judicial or administrative decision or by reason of an agreement having legal effect under the law of that State".
The first two paragraphs of Article 12 are in these terms:
"Where a child has been wrongfully removed or retained in terms of Article 3 and at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment".
Article 13 so far as material is in these terms:
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—
(a)…
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
……
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence".
In the application of these provisions to the facts of the present case a number of points are clear and undisputed. First, G. has been...
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