Re P (A Child) (Abduction: Acquiescence)
| Jurisdiction | England & Wales |
| Judgment Date | 2004 |
| Date | 2004 |
| Court | Court of Appeal (Civil Division) |
Children – Child abduction and custody – Wrongful removal – Consent or acquiescence – Principles to be applied – Whether judge in error – Hague Convention on the Civil Aspects of International Child Abduction, arts 3, 13.
The parents were citizens of the United States. Following the breakdown of their relationship, an order was made in the state of New York granting the mother sole and exclusive custody of the child of the relationship, and granting the father visitation. A further order was made that the child was not to be removed from that state without prior court order or written agreement of the parties (the ne exeat clause). Thereafter, the mother and the child travelled to England and a dispute arose as to whether the father’s consent had been obtained. The mother’s case was that the father had signed a note written in her hand giving permission for the visit, which she had explained would be for an 18-month duration. The father’s case was that he had refused permission to remove the child from the state, that it had been agreed that the child would live with him during school terms and travel to England during the school holidays, but that she had none the less left the jurisdiction with the child. In due course, he was granted sole custody of the child, who was to be returned to the United States, and then sought the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction. The issues before the judge were whether the father had consented to the removal of the child and whether or not he had a right of custody. The judge had evidence before him from handwriting experts on behalf of both parties as to the genuineness of the signature of the father on the purported note, and he concluded that the evidence adduced by the mother was to be preferred. He further found having considered arts 3 and 13 of the Convention that the father had no rights of custody. On the father’s appeal, issues arose as to whether: (i) the judge had erred in finding that the father had consented to the child’s removal from the United States; (ii) if the father had given permission, that consent led to the conclusion that the mother’s removal was not wrongful because it could not properly be said to have been in breach of the father’s rights of custody, or whether his consent operated only under art 13 of the Convention to give a court a discretion not to order an immediate return of the child; and (iii) whether the presence of a right of custody was to be judged as a matter of English or New York law.
Held—(1) Consent did not fall to be considered for the purpose of establishing the wrongfulness of the removal or a breach of rights of custody pursuant to art 3, but only for the purpose of invoking an exercise of the court’s discretion pursuant to art 13. A claimant had to establish that he or she had rights of custody and that there had been a prima facie breach. The burden then shifted to the defendant to establish consent. In the instant case, it had been inappropriate for the court to have allowed each party to file a report from a handwriting expert and the judge’s reasons as to why he had preferred the expert evidence for the mother had been inadequate. Further, there had been nothing in the evidence that suggested that the account of one parent had been more convincing than the account of the other. It followed that the mother had failed to establish that the father had consented to removal of the child.
(2) Article 3 governed the whole Convention and art 13 was to take its place as the exception to the general duty to secure the return of the child. If the giving of consent prior to the removal had the effect that the removal could never be classified as wrongful or in breach of the right of custody, then there would be no need for art 13 at all. Where clear and unequivocal and informed consent was given to the removal of a child, there was no reason why a court should not exercise the discretion conferred by art 13 to permit the child to remain in the country to which it was agreed he or she should go. However, if a child was removed in prima facie breach of a right to custody, then it made better sense to require the removing party to justify the removal and to establish that the removal had been with consent rather than to require the claimant, asserting the wrongfulness of the removal, to prove that he or she did not consent. Further, where there was an order in force that a child should not be removed from New York without the father’s consent, he had the right to determine that that child should not reside outside New York unless the court ordered otherwise. Such a right was included within, and was part of, the rights relating to ‘the care of the person of the child’ within the meaning of art 13(a), which had a wide meaning in order that the purpose of the Convention to protect rights of custody be fulfilled.
(3) The ne exeat clause in the New York Order conferred rights on the father which were rights of custody for Convention purposes, whether or not New York state or federal law so regarded them either for domestic purposes or Convention purposes. Courts were required by the Convention to give the expression ‘rights of custody’ an autonomous interpretation and in that regard the court was entitled and bound to give a purposive interpretation. The reference in art 3 to ‘rights of custody attributed to a person under the law’ of the child’s habitual residence was not a choice of law of that state in the sense that, if the domestic law did not characterise the right as a right of custody, then it was not such a right for Convention purposes. Therefore, the task of the court was to establish the rights of the parents under the law of that state and then to consider whether those rights were rights of custody for Convention purposes. In the instant case, the father had rights of custody, the mother’s removal had been wrongful and in breach of those rights, and she had failed to establish that
the father had consented to that removal. It followed that the court would order the immediate return of the child to New York.
Cases referred to in judgmentsAF (a minor) (child: abduction), Re[1992] 1 FCR 269, [1992] 1 FLR 548, CA.
B (a minor) (abduction), Re[1995] 2 FCR 505, [1994] 2 FLR 249, CA.
B v D (child abduction) [1998] 1 IR 219, Ir SC.
C (abduction: consent), Re[1996] 3 FCR 222, [1996] 1 FLR 414.
C v C (child abduction) [1992] 1 FCR 391, [1992] 1 FLR 163.
C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER 465, [1989] 1 WLR 654, CA.
Croll v Croll (2000) 229 F 3d 133, US Ct of Apps.
DS v VW [1996] 2 SCR 108, Can Sup Ct.
E (a minor) (abduction), Re [1989] 1 FLR 135, CA.
Eckersley v Binnie (1987) 18 ConLR 1, QBD and CA.
English v Emery Reimbold & Strick Ltd[2002] EWCA Civ 605, [2002] 3 All ER 385, [2002] 1 WLR 249.
F (a minor) (abduction: risk if returned), Re[1996] 1 FCR 379; sub nom Re F (a minor) (abduction: custody rights abroad) [1995] 3 All ER 641, [1995] Fam 224, [1995] 3 WLR 339, [1995] 2 FLR 31, CA.
Fawcett v McRoberts (2003) 326 F 3d 191, US Ct of Apps.
Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373, [2000] 1 WLR 377, CA.
Furnes v Reeves (2004) 362 F 3d 702, US Ct of Apps.
Gonzalez v Gutierrez (2002) 311 F 3d 942, US Ct of Apps.
H (child abduction: rights of custody), Re[2000] 1 FCR 225, [2000] 2 AC 291, [2000] 2 All ER 1, [2000] 2 WLR 337, [2000] 1 FLR 374, HL.
H (minors) (abduction: acquiescence), Re[1997] 2 FCR 257, [1997] 2 All ER 225, [1998] AC 72 [1997] 2 WLR 563, [1997] 1 FLR 872, HL.
J (a minor) (abduction: custody right), Re [1991] FCR 129, [1990] 2 AC 562, [1990] 3 WLR 492, sub nom C v S (orse J) (minor: abduction: illegitimate child) [1990] 2 All ER 961, sub nom C v S (a minor) (abduction) [1990] 2 FLR 442, HL; affg [1991] FCR 129, [1990] 2 All ER 449, [1990] 2 AC 562, [1990] 3 WLR 492, [1990] 2 FLR 442, CA.
O (abduction: consent and acquiescence), Re[1998] 2 FCR 61, [1997] 1 FLR 924.
Sonderup v Tondelli 2001 (1) SA 1171 (CC), SA CC.
T v T (child abduction: consent) [1999] 2 FCR 2, [1999] 2 FLR 912.
Thomson v Thomson (1994) 119 DLR (4th) 253, Can SC.
V-B (minors) (abduction: rights of custody), Re[1999] 2 FCR 371, [1999] 2 FLR 192, CA.
W, Re; Re B (a minor) (unmarried father) [1998] 2 FCR 549; sub nom Re W (minors) (abduction: father’s rights) [1999] Fam 1, [1999] 3 WLR 1372, [1998] 2 FLR 146.
AppealThe father appealed from the decision of Johnson J, dated 11 March 2004, whereby he dismissed the father’s application for the return of his child to the United States of America pursuant to art 12 of the Hague Convention as scheduled to the Child Abduction and Custody Act 1985. The facts are set out in the judgment of Ward LJ.
Andrew McFarlane QC and James Roberts (instructed by Lyons Davidson) for the father.
Michael Nicholls (instructed by Hartnell Chanot & Partners) for the mother.
WARD LJ.[1] On 11 March 2004 Johnson J ordered that the father’s application for the return of his ten-year old daughter to the United States of America pursuant to the provisions of art 12 of the Hague Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) 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 LJ 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[2] 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 December 1993.
[3] Their relationship broke down in 1999. In the summer of 1999 the mother removed herself from the home they shared and travelled to...
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