Re E (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,MR. JUSTICE ANTHONY LINCOLN |
| Judgment Date | 20 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0720-4 |
| Date | 20 July 1988 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0630 |
[1988] EWCA Civ J0720-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE EWBANK)
Royal Courts of Justice
Lord Justice Balcombe
and
Mr. Justice Anthony Lincoln
88/0630
No. of Matter AD 1716 of 1988
In The Matter of Lei David Evans (A Minor) and
In The Matter of The Child Abduction and Custody Act 1985 and
In The Matter of The Supreme Court Act 1981
MR. ALLAN LEVY (instructed by Messrs. Bates & Partners, Solicitors, London, WC2R 3JC, agents for Messrs. Hugh Howard and Paul Tain, Solicitors, Walsall) appeared on behalf of the Defendant (Appellant)
MR. JEREMY CAREY (instructed by Messrs. Batchelors, Solicitors, London, WC) appeared on behalf of the Plaintiff (Respondent).
This is an appeal from an order made by Mr. Justice Ewbank on 24th June 1988 whereby, in proceedings under the Child Abduction and Custody Act of 1985, he directed that a child, Lei David Evans, be forthwith returned to Australia, and he made certain consequential directions pursuant to that order.
The application was made by the mother, who is currently resident in Australia; indeed, she is a native born Australian. The father, against whom the application was made, was born in this country and his parents still live here; but in November 1980 he emigrated to Australia and met the mother in January 1981. They were married in December 1982. There have been three children of the marriage, the boy Lei, whom this application concerns, who was born on 28th July 1983, and twins, now aged 2, born on 8th April 1986.
The marriage proved to be a chequered one; there was indeed a six month separation starting in July 1985, even before the twins were born. There have been further separations, from June 1986 until December 1986, from June 1987 until December 1987 and then again on 25th January 1988, when a separation was started which still continues.
On 2nd February 1988 the father, with Lei, left Australia for England, leaving behind his wife, Lei's mother, and the twins in their home in Australia. There is a conflict of evidence as to the precise arrangement which was made, if indeed an arrangement was made at all, when the father left for England with Lei. He says that it was an open-ended arrangement; he was coming to England to take Lei for a holiday to see his parents in England—Lei's grandparents—and that no specific date was given for his return, although he accepts that it was understood that he would go back with Lei to Australia at some time, certainly before the year was up. The mother, on the other hand, says that the arrangement was that Lei should go back with the father after having spent eight weeks in England; as I have said, there is a conflict on the facts as to that but, as I say again, the father concedes that it was anticipated that he would in due course return, and indeed the tickets which were purchased were return tickets.
However, not long after his arrival in England the father decided that he would stay in this country with Lei; again it does not appear whether that intention was to stay indefinitely, but certainly the decision was not to go back to Australia in the immediate future, and that decision was communicated to the mother, who thereupon started proceedings in Australia to the nature of which I must now refer.
The Child Abduction and Custody Act of 1985 was passed in order to give effect to the ratification by this country of the Hague Convention on the Civil Aspects of International Child Abduction. Section 1 (2) of that Act provides "that the provisions of that Convention as set out in Schedule 1 to this Act shall have the force of law in the United Kingdom". So one turns to Schedule 1 to the 1985 Act to see what are the provisions of the Convention. The Schedule omits the preamble, and Articles 1 and 2 of the Convention, although I am prepared to accept that that preamble and those other Articles may be of assistance, where needed, to assist in the interpretation of those Articles which are set out in the Schedule, although I do not myself consider that any such assistance is needed in this particular case.
Article 3 provides as follows:
"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,.. 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."
Pausing there, it is common ground in this case that the father and mother had, under the law of South Australia, the State where Lei was habitually resident, joint rights of custody. Thus, Lei's removal from South Australia was not, in the circumstances of this case, wrongful, but it is the mother's contention, although resisted by the father, that his retention in the United Kingdom in the circumstances to which I have already referred is a wrongful retention. Undoubtedly, if those conditions are fulfilled, the provisions of the Convention apply to Lei.
Article 7 deals with the role of central authorities. In this country the central authority is the Lord Chancellor's Department; in South Australia it appears to be the office of the Attorney-General of South Australia. The Article provides that those central authorities
"shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures"—
and then a number of those measures are set out, of which I need only mention that in paragraph (d):
"to exchange, where desirable, information relating to the social background of the child."
Article 8 deals with the procedure; the mother in this case claiming that Lei had been wrongfully retained in breach of her custody rights, applied to the central authority in South Australia and the application contained the information which Article 8 provided it should contain, including—and this is a point which is taken by Mr. Levy, counsel for the father—in paragraph (c) the grounds on which the applicant's claim for the return of the child is based.
I need not refer to Articles 9, 10 or 11; Article 12 reads:
"Where a child has been wrongfully removed or retained in terms of Article 3, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting State where the child is"—in this case the High Court in England and Wales—"a period of less than 1 year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."
Finally, I should mention Article 13:
"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 who opposes return establishes that..…
(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."
The final paragraph of Article 13 reads:
"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."
I do not need to refer to any more of the provisions of the Act or of the Hague Convention, but I should refer to some of the provisions of 0.90 of the Rules of the Supreme Court, which lay down the procedure in the courts of England and Wales for dealing with applications made under the 1985 Act. After a definition provision in 0. 19 r.32, r.33 provides:
"Except as otherwise provided by this Part, every application under the Hague Convention shall be made by originating summons"—
and the form of that originating summons is set out in Appendix A.R.34 provides as follows:
"The originating summons under which any application is made under the Hague Convention shall state"—a number of matters, including in (d) "the interest of the plaintiff in the matter and the grounds of the application."
Finally I refer to 0. 19 r.38, which deals with evidence:
"Notwithstanding 0. 28 r.1A the plaintiff, on issuing an originating summons under the Hague Convention may lodge affidavit evidence in the Principal Registry in support of the application and serve a copy of the same on the defendant with the originating summons."
Then there are provisions for the defendant to be able to lodge affidavit evidence, serving copies of that on the plaintiff; and finally 0. 90 r.41 provides:
"Notwithstanding 0. 28 r.5, the hearing of the originating summons under which an application under the Hague Convention is made may be adjourned for a period not exceeding twenty-one days at any one time."
So in my judgment, the statement made by Lord Justice Nourse in the case of re A (A Minor) (Abduction) in this court, reported in (1988) 1 Family Law Reports 365, quoting from the top of page 368, to the following effect is amply justified.
"These and other provisions of the Convention demonstrate I that its...
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