Re NB (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Court | Court of Appeal (Civil Division) |
SIR STEPHEN BROWN, P, LEGGATT AND SCOTT, L JJ
Child abduction – custody rights – parents and child living in Canada – divorce proceedings commenced – interim custody given to mother – mother's application for leave to remove child from Canada adjourned – mother bringing child to England – whether breach of custody rights of court.
Child abduction – discretion not to order return – submission that there was grave risk return would place child in intolerable situation – whether evidence justified finding of potential intolerable situation.
The parents married in England in 1977. They moved to Canada in 1981 and became Canadian citizens. There was one child of the family, a boy born in 1985. The parents separated in 1990, the mother and child remaining in the matrimonial home. The mother and child came to England for a visit from August to November 1990. During those months the matrimonial home was sold. Divorce proceedings were begun in Ontario. The father sought joint custody of, and access to, the child. In January 1991 a consent order was made granting the father access. The mother applied for leave to remove the child to England. That application came before an Ontario court in June 1991. The Judge adjourned the substantive issues until 2 July 1991, gave interim custody of the child to the mother, but ordered that the child should not be removed from the jurisdiction in the interim. On 2 July the Judge gave directions for the substantive hearing in August 1991. He ordered that the father should have access, which he defined. The order did not include a specific prohibition against the removal of the child from the jurisdiction.
On 3 July 1991 the mother brought the child to England. The father sought relief under the Hague Convention. The matter came before Ewbank, J in March 1992. The Judge declined to hold that the mother's removal of the child from Ontario was wrongful. He held that he was not satisfied that the removal was in breach of custody rights because neither the father nor the Ontario court had rights of custody as the court had given custody to the mother. He distinguished Re KH (A Minor) (Abduction) [1990] FCR 990 on the basis that in that case at the time of removal there was an order of the court that the child should not be removed from the jurisdiction. Further, the Judge held that the child should not be returned because, under the provisions of Article 13 of the Convention, there was a grave risk that the return of the child would place him in an intolerable situation. He accepted that the mother would have to give up her job in England and return to Canada
with no work and no money and would have to live on charity and food banks. He, therefore, dismissed the father's application for the return of the child.
The father appealed.
Held – allowing the appeal: (1) A removal was considered unlawful under Article 3 of the Convention if it was in breach of rights of custody attributed to any person, institution or other body. Article 3 had to be read with Article 5 which provided that "rights of custody" included rights relating to the care of the child and, in particular, the right to determine the child's place of residence: see Re C (Minors) (Abduction) [1989] FCR 197. In this case the Ontario court was an "institution or other body" within the terms of the Convention and itself had a right of custody in that it had the right to determine the child's place of residence. The Judge had therefore erred in deciding that the removal of the child from Ontario was not unlawful.
(2) The court was not bound to order the return of a child if it found, under Article 13(b), that there was a grave risk that his return would place the child in an intolerable situation. A very high degree of intolerability had to be established in order to bring Article 13(b) into operation: see Re A (Minors) (Abduction: Custody Rights)[1992] 2 FCR 97. In this case the intolerable situation which the Judge had found largely depended upon the financial circumstances in which the mother and child would be placed if they returned to Canada. The Judge had received evidence in the form of an affidavit from an advocate of the relevant regional municipality of Ontario pursuant to Article 8(f) of the Convention. That evidence showed that the mother would be eligible for state benefits and assistance with housing or accommodation. The Judge had not referred to that evidence in his judgment. It was very important evidence. The evidence in the case did not entitle the Judge to come to the conclusion that there was a grave risk that the child would be placed in an intolerable situation if the court were to order his return to Canada. Therefore, an order would be made that the child should be returned forthwith to the jurisdiction of the court in Ontario.
AppealAppeal from Ewbank, J.
Statutory provisions considered:Child Abduction and Custody Act 1985, Sch 1: Hague Convention on the Civil Aspects of International Child Abduction, Articles 1, 3, 5, 8, 12 and 13.
Cases referred to:A (Minors) (Abduction: Custody Rights), Re[1992] 2 FCR 97; [1992] Fam 106; [1992] 2 WLR 536; [1992] 1 All ER 929.
C (A Minor) (Abduction), Re [1989] FCR 197; sub nom C v C [1989] 1 WLR 197; [1989] 2 All ER 465.
KH (A Minor) (Abduction), Re [1990] FCR 990.
Lord Meston for the father.
Robert Warnock for the mother.
SIR STEPHEN BROWN, P.This is an appeal from a decision of Ewbank, J of 3 March 1992. The Judge had before him an application by a father made under
the provisions of the Hague Convention which comprise Sch 1 to the Child Abduction and Custody Act 1985. The father of the little boy concerned, who is now approaching 6½ years of age, seeks an order of the court in this country that the defendant (the child's mother) shall return the child to the jurisdiction of the court in Ontario, which is in fact presently seised of custody applications relating to the child in the context of divorce proceedings between the father and the mother.
The relevant history of the matter may be shortly stated. The mother is English by birth and the father was born in Rhodesia. They married in England in March 1977 but moved to Ontario in Canada in 1981, and both became Canadian citizens. The little boy was born on 28 December 1985. It so happened that at that time, apparently unknown to the mother, the father had formed an association with another woman, and, as a result, had become the father of that other woman's child. That child was born only three months before the child with whom this court is concerned. The mother eventually found out about this relationship, and was outraged by her discovery. The father left the matrimonial home at the end of April 1990. He went to live with his mistress and with the child born of that association.
On 2 May 1990 the mother and father entered into an "interim agreement" pending the institution of divorce proceedings. That provided that the mother should have the care and control of the child and that the father should have liberal access. It also provided that divorce proceedings should be instituted when all the matters in dispute were to be finally settled between the parties in the context of the court proceedings.
Subsequently, in the same year, the mother brought the child to England for a visit. She remained in England from August 1990 until November 1990. During those months the matrimonial home was sold. In November 1990 the mother returned to Ontario to live with the little boy at Kingston. The father did not immediately discover that the mother had returned to Canada, but he did so in December 1990. The mother by this time had not acted upon the terms of the "settlement", as it had been termed, by which...
To continue reading
Request your trial
-
Re W (Minors) (Child abduction: Unmarried father) ; Re B (A Minor) (Child abduction: Unmarried father)
...rights of custody), Re[1998] 2 FCR 212, CA. BM (a minor) (wardship: jurisdiction), Re[1993] 2 FCR 388. NB (a minor) (abduction), Re[1993] 1 FCR 271; sub nom B v B (child abduction: custody rights) [1993] Fam 32, CA. Barnardo v McHugh [1891] AC 388, [1891–4] All ER Rep 825, HL. C (a minor) (......
-
Re H. (A Minor) (Abduction: Rights of Custody)
...492; sub nom C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961, HL; affg [1991] FCR 129, CA. NB (a minor) (abduction), Re[1993] 1 FCR 271; sub nom B v B (abduction: custody rights) [1993] Fam 32, [1993] 2 All ER 144, [1992] 3 WLR 865, O (a minor) (abduction: custody rights), ......
-
Re C (Child Abduction) (Unmarried Father)
...Re F (a minor) (abduction: custody rights abroad) [1995] Fam 224, [1995] 3 All ER 641, [1995] 3 WLR 339, CA. NB (a minor) (abduction), Re[1993] 1 FCR 271; sub nom B v B (abduction: custody rights) [1993] Fam 32, [1993] 2 All ER 144, [1992] 3 WLR 865, W, Re; Re B (a minor) (unmarried father)......
-
Practice Note – The Central Authority for England and Wales; Child Abduction and Custody Act 1985 – Hague Convention on the Civil Aspects of International Child Abduction; Applications for return orders by unmarried fathers
...1 FCR 379, 385, 391, [1996] Fam 224 at 231, 238, [1995] 3 All ER 641 at 646, 653 ___________________ In Re NB (a minor) (abduction) [1993] 1 FCR 271, 267-277, 282; sub nom B v B (abduction: custody rights) [1993] Fam 32 at 38, 42, the Court of Appeal held that a foreign court seised of an a......