Re A (A Minor) (Abduction: Non-convention country)

JurisdictionEngland & Wales
Judgment Date11 June 1997
Date11 June 1997
CourtCourt of Appeal (Civil Division)

Court of Appeal

Before Lord Woolf, Master of the Rolls, Lord Justice Ward and Lord Justice Mummery

In re A (a Minor) (Abduction: Non-convention country)

Children - abduction - protection of child's welfare if returned abroad

Returning abducted child

Before ordering the peremptory return of an abducted child to a country which was not a party to the Hague Convention on the Civil Aspects of International Child Abduction (Cmnd 8281), an English court had to be satisfied that the child's welfare would be protected by the courts of that foreign country.

The Court of Appeal so held in a reserved judgment dismissing an appeal by the father of a child aged two against the decision of Mr Justice Singer on February 20 to refuse his application for a summary order that the child be returned to the United Arab Emirates, her country of habitual residence.

Mr Paul Focke, QC and Ms Sally Cahill for the father; Mr Michael Harrison, QC and Mr Roger Bickerdike for the mother.

LORD JUSTICE WARD said that the mother had submitted that, on an application for a peremptory return order to a non-convention country, the best interests of the child was the court's paramount consideration and therefore it was necessary that the court had regard to the way in which that issue was likely to be resolved in the competing jurisdiction.

The mother had referred to authorities since the Child Abduction and Custody Act 1985, which incorporated the convention into English law, and submitted that the thread linking them together was the common assumption that the foreign country would apply law and practice broadly comparable to ours.

The only authority which might be inconsistent with that view was In re M (Minors) (Abduction: Peremptory return order)TLRFLR (The Times November 20, 1995; [1996] 1 FLR 478) where Lord Justice Waite had said:

"Underlying the whole purpose of the peremptory order was a principle of international comity…

"Very exceptional circumstances would be needed to show that in a particular case the English court would be justified in departing from that general principle. No such grounds have been established here."

In the present case the judge, to much the same effect, had said: "The English court must act with comity towards the courts of other jurisdictions, accepting that different traditions in different cultures have their own value and that it is wrong and unacceptable for the English court to evaluate them comparatively in a way that would be...

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3 cases
  • J (A Child) (2004)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 March 2004
    ...abduction: mothers asylum), Re[2003] EWHC 1820 (Fam), [2003] 2 FLR 1105. JA (a minor) (child abduction: non-convention country), Re[1998] 2 FCR 159, [1998] 1 FLR 231, Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR. Osman v Elasha[1999] 3 FCR 497, [2000] Fam 62, [2000] 2 WLR......
  • Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights)
    • United Kingdom
    • House of Lords
    • Invalid date
    ...FLR 894, HL. J v C [1969] 1 All ER 788, [1970] AC 668, [1969] 2 WLR 540, HL. JA (a minor) (child abduction: non-convention country), Re[1998] 2 FCR 159, [1998] 1 FLR 231, CA. L (minors) (wardship: jurisdiction), Re [1974] 1 All ER 913, [1974] 1 WLR 250, CA. M (minors) (abduction: peremptory......
  • Re E (Abduction: Non-Convention Country)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 24 June 1999
    ...peremptory return order) [1996] 1 FCR 557, contrary to views expressed by Ward LJ in Re JA (a minor) (abduction: non-Convention country) [1998] 2 FCR 159, was not decided in per incuriam. Cases referred to in judgmentsChamberlain v De La Mare (1983) 4 FLR 434. F (a minor) (abduction), Re [1......

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