Re R (Minors) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
BALCOMBE AND MILLETT, L JJ, AND SIR RALPH GIBSON
Child abduction – acquiescence – children living with parents in America – divorce – father granted custody of children – mother returns to her original home in Wales – children visit mother who fails to return them for father – father says he would not do anything to remove children but applies under Hague Convention for their return – whether father acquiesced in removal.
Child abduction – children objecting to return – weight to be given to children's views – discretion of court.
The father and mother married in 1986. They had two children, both boys, who were born in 1987 and 1988 and aged 7½ and 6 at the time of the hearing. The father was an American citizen serving in the American army and the mother was a British citizen who came from Wales. At the time of the marriage the parties were living in the United Kingdom but soon after the father was posted to Germany. Whilst in Germany the parents were divorced in March 1989 but remarried in December 1989. In 1990 the father was posted to Illinois, USA and the family went to live there. In 1994 the parents were again divorced. The order made by the Illinois court approved and incorporated a joint parenting agreement under which, inter alia, the parents were given joint custody of the two boys, the father being designated as the custodial parent and the mother as the non-custodial parent; but that the mother should be the custodial parent when either child articulated a desire to reside with her. The Illinois court reserved jurisdiction over the parties for the purposes of enforcing the order.
After the divorce the children resided with the father in Illinois. The mother returned to live in Wales. The joint parenting agreement provided that the mother was to have contact by way of the children travelling to Wales and spending holiday periods with her. During the summer of 1994 the children came and visited their mother. Upon their arrival in Wales the children were enrolled in a local school. The visit was due to end on 25 August but the mother failed to send the children back to America. She commenced wardship proceedings on the basis that the children objected to being returned to the father in Illinois.
When the children did not arrive back in America as expected on 25 August the father telephoned and wrote to the mother over the following few days indicating that he would not do anything to remove the children and effectively seeking a reconciliation. On 2 September 1994 the father commenced proceedings under the Hague Convention seeking the return of the children to America.
In October 1994 the matter came before Ewbank, J who held that the father had acquiesced in the retention of the child by the mother. The Judge also held that as the
children objected to being returned this triggered the provision in the joint parenting agreement that custody should change from father to mother so that, if the mother applied to the Illinois court, that court would transfer custody to her. In those circumstances the Judge refused to order the return of the children but directed that the appropriate court to deal with the question of custody was the Illinois court.
The mother appealed seeking an order that the wardship should continue in the High Court. The father cross-appealed seeking an order for the return of the children under the Hague Convention.
Held – dismissing the appeal and allowing the cross-appeal: (1) On the facts in this case there were no clear and unequivocal words or conduct which could properly be interpreted as acquiescence on the part of the father. His formal application under the Hague Convention which was made within a matter of days made the suggestion that he had acquiesced in what the mother had done untenable.
(2) As to the children's objections to being returned to Illinois, there was evidence from two child psychiatrists that the children had said that they wished to stay with the mother and not return to the father. Although, under the Convention, the objection must be to being returned to the country of the child's habitual residence and not to living with a particular parent, there could be cases, of which this appeared to be one, where the two factors were so inevitably and inextricably linked that they could not be separated. In the light of the psychiatric evidence it was difficult to say that it would be inappropriate to take the children's objections to returning to their father in Illinois into account. However, the consequence of doing so was that the court might refuse to return them, not that it must refuse to do so. In exercising that discretion, the policy of the Convention was a very weighty factor whereas the weight to be attached to the objections of children would clearly vary with their age and maturity. In the present case, to allow the mother's action, in reliance on the children's objections, to be upheld, would be to approbate just that sort of conduct which the Convention was intended to prevent.
(3) The Judge had held that the effect of the joint parenting agreement was that the Illinois court was bound to award custody of the children to the mother. This was not so. Under the provisions of the Illinois statute and to case-law, that court was not bound to give effect to the agreement but had to look at what the children's interests required.
In all the circumstances the Convention would be applied and an order made for the children's return to Illinois.
AppealAppeal from Ewbank, J.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction, Articles 3, 12, 13(a) and (b) and 18.
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.
A (Z) (Child Abduction), Re[1993] 1 FCR 733.
B v K (Child Abduction)[1993] 1 FCR 382.
M (Minors) (Child Abduction), Re[1994] 2 FCR 750.
S (Minors) (Abduction: Acquiescence), Re [1994] 2 FCR 985.
S (Minors) (Independent Representation), Re[1993] 2 FCR 1; [1993] Fam 263; [1993] 2 WLR 801; [1993] 3 All ER 36.
Patricia Scotland, QC and Indira Ramsohoye for the mother.
Jeremy Posnansky, QC and Heather Pope for the father.
LORD JUSTICE BALCOMBE.On 14 October 1994 Ewbank, J made two orders: the first was in proceedings by the father of two boys aged 7½ 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 28 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 9 July 1957 and so is now aged 37 years. The parties married in the United Kingdom on 29 March 1986. Soon afterwards, the father was posted to Germany by the Defence Department of the United States. On 22 January 1987 the first child of the marriage, ML, was born. The second child, MW, was born on 12 August 1988. Differences arose between the parents and, on 30 March 1989, they were divorced in Germany. They became reconciled and, on 22 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 28 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 17 February 1994. It is made between the mother and the father and provides in para 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 the two boys 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 para 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 1994, 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 pre-pay 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...
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