Re O (Minors) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Date | 1998 |
| Court | Family Division |
Child – Abduction – Family residing in California – Swedish mother and American father divorcing – Californian court approving consent order regarding residence of children and contact between children and parents – Mother removing children to Sweden without father’s prior knowledge or consent – Father applying to Swedish court for return of children to California – Swedish court refusing father’s application – Father appealing to Swedish appellate court – Prior to determination of appeal father removing children to California via Denmark and England – Police arresting and detaining father at Heathrow Airport on basis of Swedish extradition warrant – Magistrates’ court remanding father into custody pending determination of extradition proceedings – Father applying to English court for return of children to California – Mother cross-applying for return of children to Sweden – Whether English court having jurisdiction to entertain applications – Child Abduction and Custody Act 1985, Sch 1.
In 1986 the mother, a Swedish national, and the father, an American national, married. As a result of the marriage one child was born in 1988, and another one was born in 1992. Both children had dual Swedish and American nationalities. The family’s place of habitual residence was California. In May 1996 the mother filed for a divorce in California which led, in July 1996, to a consent order being approved by a Californian court which dealt, inter alia, with the issues of the children’s residence and visiting and staying contact. In September 1996, without the father’s prior knowledge or consent, the mother removed the children from California to Sweden. A week later the father commenced legal proceedings in Sweden, pursuant to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) as set out in Sch 1 to the Child Abduction and Custody Act 1985, for the return of the children to California. In December 1996 a Californian court granted legal and physical custody of the children to the father. In February 1997 the father’s application for the return of the children to California was dismissed by a Swedish lower court which decided that, although the children had been wrongfully removed from California, it was not in the children’s best interests for the children to be returned to the father and therefore to California. The father duly lodged an appeal. At the conclusion of the appeal hearing the appellate court reserved its decision on the case for four weeks. In the meantime, the day after the appeal court hearing the father removed the children from Sweden to Denmark. Two days later the father and the children landed at Heathrow Airport whereupon the father was arrested by the police
pursuant to an extradition warrant. Pursuant to a direction by the judge, the children were made wards of court and were taken into local authority care. On the day of the father’s arrest the child abduction unit, which under the convention acted as the English central authority, was notified by fax by the American central authority, acting on behalf of the father, of, inter alia, an application pursuant to art 12 of the convention for the return of the children to California. The mother cross-applied for an order pursuant to the Children Act 1989 and/or under the court’s inherent jurisdiction for the return of the children to Sweden.
Held – (1) One of the fundamental purposes of the Hague Convention and its mechanisms was to prevent, by deterring, international child abduction. The preamble to the convention, which provided that one of its objectives was to ensure the prompt return of children of the state of their habitual residence, had to be read in conjunction with the important overall objective of desiring to protect children from the harmful effect of the children’s wrongful removal or retention. The convention was designed to provide an effective mechanism for the prompt return of children through administrative and judicial procedures so that people did not resort to self-help and secondary abduction. It would therefore run counter to that objective if a parent, who had failed to procure the return of a child from one contracting state, could successfully obtain a rerun of the application by abducting the child to or via another contracting state.
(2) The machinery of the convention read as a whole essentially contemplated a summary procedure to be operated once only. In particular, art 16 prevented the judicial or administrative authorities of the state to which a child had been removed, or in which it had been retained, from deciding on the merits of the rights of custody until a decision had been made that the child was not to be returned under the convention. Consequently, where a child was abducted to England and, within proceedings under the convention, a court had decided that the child was not to be summarily returned, the force of the Convention in so far as it related to summary return was then spent. There could not be second or subsequent applications under the convention. Furthermore, that principle, and the approach to making such a decision based on that principle, applied equally where summary proceedings under the convention had taken place in another contracting state. As a result, an English court could no more sit ‘an appeal’ from the decision of the Swedish lower court in the instant case, than the court could if an earlier decision not to return the children had been made in English proceedings. The merits of the father’s application under the convention for the return of the children to California were therefore matters within the exclusive jurisdiction of the Swedish courts, and the father’s application would be dismissed.
(3) The children could not remain in England for any significant period of time as neither the children nor the parents had any significant or relevant connection with England. A choice therefore had to be made between returning the children to California to be subject to further legal proceedings or to return the children to Sweden pending a decision by the Swedish appellate
court. It was clear that, although the mother had acted very wrongfully in first removing the children from California, nevertheless the children’s welfare was better served in the short term by being returned to Sweden as the children had for the past eight months been residing in Sweden in satisfactory and relatively settled conditions, the eldest child had commenced school in Sweden, the mother had made arrangements to stay in Sweden and the former matrimonial home in California had been sold. Accordingly, the cross-application would be allowed and the children would be returned to Sweden.
ApplicationThe father applied to the High Court under Sch 1 to the Child Abduction and Custody Act 1985 for an order returning his two children to California following his abduction of the children from Sweden, where proceedings were taking place in respect of the mother’s earlier wrongful abduction of the children from California to Sweden, and subsequent arrest in England after he landed on a stop-over between Sweden and California. The mother cross-applied for an order under the Children Act 1989 and/or under the court’s inherent jurisdiction that the children be returned to Sweden. The hearing took place and judgment was given in chambers. The case is reported with the permission of Holman J. The facts are set out in the judgment.
Henry Setright (instructed by Margaret Bennett Solicitors) for the father.
Bernard Mocatta of Grundberg Mocatta for the mother.
HOLMAN J. Introduction and backgroundThis unusual case raises an issue of fundamental importance for the smooth operation...
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