Re R (Child Abduction: Acquiescence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MILLETT,LORD JUSTICE BALCOMBE,SIR RALPH GIBSON |
| Judgment Date | 17 November 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1117-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No FAFMI 94/1422/F |
| Date | 17 November 1994 |
[1994] EWCA Civ J1117-7
Appeal of Appellant from order of Mr Justice Ewbank
Before: Lord Justice Balcombe Lord Justice Millett Sir Ralph Gibson
No FAFMI 94/1422/F
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CIVIL DIVISION
MISS PATRICIA SCOTLAND QC and MISS INDIRA RAMSOHOYE (Instructed by Messrs Belmont and Lowe, London Agents for Hugh, James, Jones and Jenkins, Cardiff) appeared on behalf of the Appellant.
MR JEREMY POSNANSKY QC (Instructed by Messrs Batchelors, London) appeared on behalf of the Respondent.
(As Approved)
On 14th October 1984 Ewbank J made two orders: the first was in proceedings by the father of two boys aged 7 1/2 and 6 under the Child Abduction and Custody Act 1985: he refused to order the return of boys to Illinois under the Hague Convention. He also directed that the appropriate court to deal with any further issues was the Illinois court. It is not clear to me what further issues could arise in those proceedings. The second order was in wardship proceedings by the mother concerning the same two boys. In that order he directed that they remain in the interim care and control of the mother pending any further order of the Illinois Court. From these orders both parties appeal. The mother seeks an order that the wardship should continue in the High Court. The father seeks an order for the return of the children under the Hague Convention.
The mother is a British citizen born on 28th January 1961, now aged 33 years. She comes from Wales. The father is a citizen of the United States of America. He was born on 9th July 1957 and so is now aged 37 years. The parties married in the United Kingdom on 29th March 1986. Soon afterwards, the father was posted to Germany by the Defence Department of the United States. On 22nd January 1987 the first child of the marriage, Michael, was born. The second child, Matthew, was born on 12th August 1988. Differences arose between the parents and, on 30th March 1989, they were divorced in Germany. They became reconciled and, on 22nd December 1989, they married again, also in Germany. In 1990 the father was posted back to the United States and the family as a whole moved to Fulton, Illinois. On 28th February 1994 they were again divorced, this time in Illinois. The mother was legally represented by a lawyer, for whom, as I understand it, the father paid. The father was not so represented.
The order made by the Illinois court expressly approved and incorporated an agreement called the Joint Parenting Agreement. It awarded care, custody and control of both children to the father in accordance with the terms of the Joint Parenting Agreement, to which I shall refer in a moment, and reserved jurisdiction over the parties for the purposes of enforcing the terms of the order.
The Joint Parenting Agreement, which clearly bears evidence of having been drafted by a lawyer, is dated 17th February 1994. It is made between the mother and the father and provides in paragraph A:
"Both the FATHER and the MOTHER are fit and proper persons to be awarded the care, custody and control of [the two boys] ….."
It gives joint custody of Michael and Matthew to the father and the mother, with a proviso that the father should be designated as custodial parent and the mother designated the non-custodial parent, and the father should have the situs of the custody of the children.
There are then specific provisions dealing with education, medical and health care. Under paragraph D there is a heading " VISITATION:
"It is contemplated by the FATHER and the MOTHER that the MOTHER will resume residence in her native country, England,"
(I interpolate, Wales)
"and that the traditional or customary visitation pattern is impractical under these circumstances. Therefore, it is agreed that commencing with the summer of 1995, the children shall spend their summer school recess with the MOTHER in England with the vacation visitation to begin three days after school classes have dismissed for the summer and shall continue until the week prior to the commencement of the fall school term. The FATHER shall prepay round trip air fare for each of the children facilitating this visitation. For the school summer vacation, the children shall be entitled to one month summer vacation visitation with their MOTHER and the FATHER shall prepary the air fare for the children to facilitate this visitation."
There are provisions dealing with the Christmas vacations. There is an express provision that:
"The parties shall adhere to the following rules with respect to the custody of and visitation with the minor children:"
of which paragraph 4 is, in particular, relevant and provides:
"….. The NON-CUSTODIAL PARENT [the mother] shall not threaten to prevent or delay the return of the children to the CUSTODIAL PARENT after a period of visitation."
I mention paragraph E of the Joint Parenting Agreement headed MODIFICATION OF CUSTODY:
"It is stipulated and agreed by and between the FATHER and the MOTHER that the MOTHER shall be entitled to be the CUSTODIAL PARENT of the minor children in the event of the death or physical incapacity of the FATHER; in the event the FATHER is assigned or transferred for employemnt outside the continental United States or when either child articulates a desire to reside with his MOTHER."
Finally, I mention paragraph G which deals with Mediation of Conflicts which provides for attempted negotiation or settlement and ultimate mediation by a court of competent jurisdiction.
The Marital Settlement Agreement is primarily concerned with financial matters, but did incorporate the substance of the Joint Parenting Agreement.
On 22nd March 1994 the mother left the United States and went to live in Wales, initially with her parents. The father and the two boys continued living in the family home at Fulton, Illinois. Both boys continued to attend school there. As early as 17th May 1994 the mother had apparently instructed solicitors to write to the father asking him to let them have suggestions for dates for the one-month summer holiday staying contact. It is not clear to me why the employment of solicitors was necessary at such an early stage. On 25th May 1994 the father bought return air tickets for both children to travel from Chicago to Heathrow in 7th July 1994, returning from Heathrow to Chicago on 25th August 1994. The children flew from Chicago to Heathrow for staying contact with their mother and arrived on 7th July 1994. Very quickly they were entered by the mother and started attending local primary school in Wales for the residue of what was then the summer term. Between July and August there were occasional telephone calls between the father and the children, approximately weekly until mid-August, at which time the father only met an answerphone when he telephoned.
The mother's evidence is, and I shall be having to refer to this later, that immediately on their arrival the children had expressed a marked aversion to returning to their father in the United States. By 3rd August she had made a statement to her solicitors. Very soon after, on the advice of counsel, instructions were given by the mother's solicitors to Dr Gay, a child psychiatrist, in order that he might interview the two boys which he did on 23rd August 1994, and I shall be referring later in this judgment to his report.
On 24th August 1994 the mother issued her Originating Summons in wardship in the High Court. A letter was sent airmail to the father by the mother's solicitors, notifying him of the mother's actions and decision. In the normal course of events it was unlikely the letter written on 24th August could have reached him by 25th August, the date the children were due to return. It is not surprising that the father, unaware of what was happening, travelled to O' Hare Airport, Chicago to collect the children and was extremely disturbed when he found they were not on the plane on which he expected them. He made enquiries of the police in Wales and discovered that the children had not come, as he feared, to any harm. He thought they might have been involved in some sort of accident.
On 26th August 1994 he contacted a lawyer in the United States who was not experienced in this field and said that there was not much he could do. He then contacted the office of his local Senator and, on their advice, contacted the United States' State Department in Washington DC who, thereupon, sent him their publication dealing with international parental child abduction and the appropriate forms. On 27th August 1994, two days after the children should have been returned, the father made a telephone call and spoke to the maternal grandfather of the children. In his evidence the grandfather describes that call in the following terms:
"On Saturday, 27th August at approximately 11.30 a.m. I received a telephone call from the Plaintiff who was in an aggressive mood and alleged that my wife and I were part of a plot to abduct his children, and that we would be arrested on sight in the United States. He was in such a rage that I terminated the conversation."
On the following day there was another telephone call by the father to the grandfather with which the grandfather deals in these terms:
"On 28th August having first telephoned my son-in-law in Kent the Plaintiff rang again to speak to me and apologised for his behaviour of the day before. He indicated that he had no intention of doing anything to get the children out from which I assumed he meant that he did not intend to seek an order for their return. He asked me to assist in him persuading Siân [that...
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