Re A (Minors) (Abduction: Custody Rights) (No. 2)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Court | Court of Appeal (Civil Division) |
SIR STEPHEN BROWN, P, STAUGHTON AND SCOTT, L JJ
Child abduction – acquiescence – children wrongfully removed from Australia – father held to have acquiesced in removal but seeking return of children – court's discretion whether or not to order return of children – whether court entitled to take welfare of children into account.
The parents, who were married in 1983, lived in Australia. There were two children of the family now aged 6 and 5 respectively. On 18 September 1991 the mother brought the children to England. This was a wrongful removal of the children within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"). On 23 September 1992 the father wrote a letter to the mother stating that he did not intend to fight the mother's action and asking to be kept in touch with the children's progress by letters and photographs. Subsequently, the father commenced proceedings under the Hague Convention and they came before Thorpe, J on 20 December 1991. By Article 12 of the Convention, as the proceedings had been commenced within a year of the wrongful removal, the court was required to order the return of the children forthwith. However, by Article 13, if it was found that the parent from whose custody the children had been removed had acquiesced in their removal, the court was not bound to order their removal but had discretion whether or not to do so. At first instance, Thorpe, J held that the father could not be said to have acquiesced in the wrongful removal of the children and ordered their return to Australia. The Court of Appeal allowed the mother's appeal, held that the father had acquiesced in the removal, and remitted the case to a Judge of the Family Division for consideration of the exercise of the discretion under Article 13: see [1992] 2 FCR 97.
Article 13 provides:
"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 its return establishes that –
(a) the person ... having care of the person of the child was not actually exercising the custody rights at the time of the removal ... or had consented to or subsequently acquiesced in the removal ... or
(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."
The matter came before Booth, J on 13 April 1992. The Judge held that, in exercising its discretion under Article 13, the court had to balance its findings as to the interests of children against the fundamental purpose of the Convention which was to ensure, so far as possible, that children were returned to the country from which they were removed as soon as possible. The Judge held that it was only where it could clearly be shown that the interests of the children required it, that the court would refuse to order their return; that it was for the mother to establish that the interests of the children lay in their remaining in England; and that in the circumstances of this case the children's interests would be better served by allowing them to remain in England. The Judge dismissed the father's application and declined to order that the children should be returned to Australia.
The father appealed. It was submitted on his behalf: (i) that the Judge was wrong in law to have regard to any consideration of the welfare of the children when the court had a discretion as to the return of the children by virtue of para (a) of Article 13, in this case acquiescence; and (ii) that the welfare of the children would be a relevant factor only when the court had a discretion because, by virtue of para (b) of Article 13, there was a grave risk that the children's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation, which did not apply in this case.
Held – dismissing the appeal: Article 13 of the Convention provided that in considering the circumstances referred to in the Article, the court should take into account information relating to the child's social background. That suggested that it was appropriate for the court to consider the welfare of the child when the court exercised its discretion under Article 13 because the terms of either para (a) or para (b) of that Article were established. Where the discretion arose because, as in this case, the father was found to have acquiesced in the removal of the children, the court was not limited to considering the nature and quality of the acquiescence itself. In exercising the discretion under Article 13 it was right for the court to bear in mind that the object of the Convention, as stated in Article 1, was (a) to secure the prompt return of children wrongfully removed to or retained in any contracting State; and (b) to ensure that rights of custody and of access under the law of one contracting State were effectively respected in the other contracting States: see Re H (Minors) (Abduction: Custody Rights)[1992] 1 FCR 45 where Lord Brandon quoted Article 1 at p 49E. In the present case, the Judge had taken into account the object of the Convention. She was right to take into account the welfare of the children and to place that in the balance. Her approach to the balancing exercise could not be faulted and she came to a conclusion well within her discretion.
Statutory provisions considered:Child Abduction and Custody Act 1985, Sch 1: Hague Convention on the Civil Aspects of International Child Abduction, Articles 1, 3, 12 and 13.
Cases referred to in judgment:A (Minors) (Abduction: Custody Rights), Re[1992] 2 FCR 97; [1992] Fam 106; [1992] 2 WLR 536; [1992] 1 All ER 929.
H (Minors) (Abduction: Custody Rights), Re[1992] 1 FCR 45; [1991] AC 476; [1991] 3 WLR 68; [1991] 3 All ER 230.
Cases also cited:CT (A Minor) (Abduction), Re[1992] 2 FCR 92.
F (A Minor) (Abduction), Re [1991] FCR 227; [1991] Fam 25; [1990] 3 All ER 97.
Graziano v Daniels 14 Fam LR 697.
N (Minors) (Abduction), Re [1991] FCR 765.
S (A Minor) (Abduction), Re [1991] FCR 656.
W v W (Child Abduction: Acquiescence)[1992] 2 FCR 502.
AppealAppeal from Booth, J.
Nicholas Wall, QC and Mark Everall for the father.
Ian Karsten, QC and Lord Meston for the mother.
SIR STEPHEN BROWN, P.This is an appeal from a decision of Booth, J of 3 April 1992. She then dismissed an originating summons under the Child Abduction and Custody Act 1985, Sch 1 (the Hague Convention), declining to order that two children, who had been wrongfully removed from Australia to this country by their mother, should be returned to the jurisdiction of the State of Victoria in Australia. The case has a somewhat unusual history, for this is the second hearing in this court concerning this case. The two children boys who were living with their parents in Australia until September 1991.
The mother was born in England, but subsequently acquired Australian citizenship. The father was born in Northern Ireland, and he also has now acquired Australian citizenship. After the parents met they eventually emigrated to Australia, and were married there in 1983. The elder child was born on 2 September 1985 and the younger on 28 February 1987. They are, therefor, now aged 6 years and 5 years respectively.
In February 1988 the mother came to England for a holiday with the children. She informed the father after she had reached England that she wished to remain in England with the children permanently. The father came to England to seek to persuade her to return, but did not then succeed. Although she subsequently indicated that she intended to institute divorce proceedings, the mother subsequently returned to Australia after the husband had paid a second visit...
To continue reading
Request your trial
-
Re O (Abduction: Consent and Acquiescence)
...rights), Re[1992] 2 FCR 97, [1992] Fam 106, [1992] 1 All ER 929, [1992] 2 WLR 536, CA. A (minors) (abduction: custody rights) (No 2), Re[1993] 1 FCR 293, [1993] Fam 1, [1993] 1 All ER 272, [1992] 3 WLR 538, CA. A (Z) (child abduction), Re[1993] 1 FCR 733, Fam D and CA. B (a minor) (abductio......
-
Re S (Abduction: Acquiescence)
...rights), Re[1992] 2 FCR 97, [1992] Fam 106, [1992] 1 All ER 929, [1992] 2 WLR 536, CA. A (minors) (abduction: custody rights) (No 2), Re[1993] 1 FCR 293, [1993] Fam 1, [1993] 1 All ER 272, [1992] 3 WLR 538, AF (a minor) (abduction), Re[1992] 1 FCR 269, CA. A(Z) (child abduction), Re[1993] 1......
-
W v W (Child Abduction)
...Rights), Re[1992] 2 FCR 97; [1992] Fam 106; [1992] 2 WLR 536; [1992] 1 All ER 929. A (Minors) (Abduction: Custody Rights) (No 2), Re[1993] 1 FCR 293; [1993] Fam 1; [1992] 3 WLR 538; [1993] 1 All ER A (Z) (Child Abduction), Re[1993] 1 FCR 733. Michael Hosford-Tanner for the father. Sheron Be......