Re P (A Child) (Abduction: Custody Rights)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward |
| Judgment Date | 28 July 2004 |
| Neutral Citation | [2004] EWCA Civ 971 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2004 |
| Docket Number | Case No: B1/2004/0659 |
[2004] EWCA Civ 971
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION PRINCIPAL REGISTRY
Mr Justice Johnson
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Rt. Hon. Lord Justice Ward
The Rt. Hon. Lord Justice Scott Baker and
The Hon. Mr Justice Lawrence Collins
Case No: B1/2004/0659
Mr Andrew McFarlane Q.C. and Mr James Roberts (instructed by Messrs Lyons Davidson) for the Appellant Father
Mr Michael Nicholls (instructed by Messrs Hartnell Chanot & Partners) for the Respondent Mother
On 11 th March 2004 Johnson J. ordered that the father's application for the return of his 10 year old daughter to the United States of America pursuant to the provisions of Article 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction be dismissed. He also dismissed his application for her return under the inherent jurisdiction of the High Court. The father sought permission to appeal which Thorpe L.J. directed be heard on notice to the respondent with the appeal to follow if permission were granted. We give that permission. This is the judgment of the court on the appeal to which each member of the court has contributed.
The factual background.
The parents of this child are citizens of the United States. They met in 1988 or 1989 and began to live together a year later. They never married. Their daughter was born on 7 th December 1993.
Their relationship broke down in 1999. In the summer of 1999 the mother removed herself from the home they shared and travelled to Tennessee to meet a man with whom she had become acquainted through the internet. Whilst she was away the father obtained an order in the Family Court of the State of New York held in and for the County of Yates on 6 th August 1999 that the temporary placement of the child should be with the father, the mother to have visitation rights. That was later amended by consent on 18 th October 1999 when the mother was granted sole and exclusive custody, the father granted visitation and an order was made that the child might not be removed from the State of New York without prior court order or written agreement of the parties, except for temporary vacations. The parties finally separated in November 1999. There were some difficulties over contact and the matter returned to the court on 19 th January 2001 when the court confirmed the order that the child be in the mother's custody, that the father had visitation rights and the court again ordered:-
"That neither party shall remove the child from the State of New York except for temporary vacations without the prior written consent of the other party or prior court order."
Soon thereafter the mother met and married an Englishman temporarily working in the United States of America. He suffers from a thyroid condition which necessitated his returning to Devon where his parents live for treatment on the National Health Service, the cost of that treatment in America being beyond his means. He later returned to the United States. In July 2002 it was necessary for him to come back to England to undergo an operation here.
It seems to be common ground that the mother and child visited England over the Christmas period of 2002 and returned to the United States in January 2003. She made that visit with the father's consent which was given in writing. It is an odd feature of the case that that document has not been produced by the mother.
Her case is that she wished to return to Exeter to support her husband in trying times. Again there is some common ground. It is agreed that initially the mother made arrangements with the father that he would look after the child whilst she was in England. It must have been contemplated that she would be away for some considerable time because arrangements were also made that the child would visit the mother in England during her summer and Christmas vacation. The mother's case is that as the time drew nearer for her departure, the child began to show more and more signs of distress at her going and she felt she had no option but to approach the father and ask if he would agree to the child accompanying her to England. She says his principal concern was with the length of her stay which she made clear to him would be for a minimum of eighteen months if not somewhere between two and three years. She had booked her own flights on 29 th January. She reserved a flight for the child on 11 th February 2003, the father by then, she avers, having consented to her departure for England. They were to fly on 17 th February 2003. In her witness statement she says that being aware of the court's requirement that removal for anything a temporary vacation had to be agreed in writing, she asked the father to come and see her in order to sign the necessary written consent. She says he visited on the afternoon of 16 th February and signed a note written in her hand in these terms:-
I, (A.P., the father), am aware that (A.H., the mother) is taking our daughter. I also agree with this visit and give my permission.
The father asked for it to be dated and she wrote the date, "2/12/03", on it. He then signed it in her presence. She explained:-
"Because I had confirmed with him that we were likely to spend a minimum of eighteen months in England and that I could not be more specific as to the duration of our stay, and because it was not a holiday, I termed this trip a "visit" in the note. So when I wrote the note I knew that the father understood that, because I had been explicit in my instructions with him, the proposed visit would be for a minimum of eighteen months and possibly for as long as two or three years. I therefore believe that he consented to (the child) staying for that period of time."
His account is different. He says that shortly after the mother's return from England in January she telephoned to say she wanted to go back to England for about nine months as her husband was undergoing more treatment for his thyroid condition. She asked if the child could go with her but he refused. After several other discussions to the same effect where he made it clear he was not prepared to give her permission to remove the child from New York, the mother agreed their daughter should live with him and his new wife and stepchildren during school terms but travel to England during school holidays at a cost to be shared between them. He was to collect the child on 19 th February, the day before the mother had said she was flying to England.
On 19 th February he went to the mother's home but found it empty. He made various attempts to find the mother but without success. He returned the following day but the house was still empty. It was the home in which they had lived together. He was able to gain access and found that "it had been trashed", but he did discover her address in England.
He immediately telephoned the City Sheriff's Department at Rochester Airport and their enquiries revealed that the mother and child had left the jurisdiction on 18 th February. He then contacted his lawyer. On telephoning the mother in England, she told him that she would not return the child to him.
On the advice of his lawyers he took proceedings in the New York courts and on 12 th November 2003 obtained an order that he be granted the sole legal and physical custody of the child who was to be returned to the United States. Sadly it was only then that he sought return under the Hague Convention.
The Hague Convention on the Civil Aspects of International Child Abduction.
In the light of the interesting submissions advanced on the mother's behalf by Mr Michael Nicholls, it is necessary to set out a number of provisions in the Convention, some less well known than others.
"Article 1.
The objects of the present Convention are:-
(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 are effectively respected in the other Contracting States.
Article 3.
The removal or retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, 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.
The rights of custody mentioned in sub-para. (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision …
Article 5.
For the purposes of this Convention:
(a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
(b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
Article 7.
Central Authorities shall co-operate with each other … In particular, either directly or through any intermediary, they shall take all appropriate measures:
…
(e) to provide information of a general character as to the law of their State in connection with the application of the Convention.
Article 8.
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence … for assistance in securing the return of the child.
…
The...
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