Re S (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE LEGGATT |
| Judgment Date | 18 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0518-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0475 |
| Date | 18 May 1990 |
[1990] EWCA Civ J0518-3
Lord Justice Purchas
Lord Justice Butler-Sloss
(in her Absence)
and
Lord Justice Leggatt
90/0475
C.A. 146 Of 1990
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
THE PRESIDENT
Royal Courts of Justice
MR. IAN KARSTEN Q.C. and MISS TACEY CRONIN (instructed by Messrs Reynolds Porter Chamberlain, London Agents for Porter Bartlett & Mayo) appeared on behalf of the Appellant (Respondent).
MISS PATRICIA SCOTLAND (instructed by Messrs Ralph Haring & Co.) appeared on behalf of the Respondent (Plaintiff).
I am authorised by Butler-Sloss L.J. to announce that she agrees with the judgment that I am about to deliver.
This is an appeal from an order of Sir Stephen Brown P. dated 10th May 1990 and a judgment delivered which ordered the return of a minor aged 12 1/2 years, to whom I shall refer as "Katharine", to the jurisdiction of the court in the State of Minnesota in the United States of America. By successive orders of the President and of this court that order has been stayed until the determination of this appeal. The order was made upon the application on behalf of Katharine's father by the Lord Chancellor. The respondent to the application, and the appellant in this appeal, is Katharine's mother. The appeal has some unusual features which have raised issues not frequently considered at an appellate level under the provisions of the Child Abduction and Custody Act 1985 and the Convention on the Civil Aspects of International Child Abduct which was signed at the Hague on 25th October 1980, to which I shall refer hereafter as "the Convention".
Before coming to the Convention I wish to refer to one matter which arose during the submissions of Mr. Karsten, who appeared for the appellant mother, to which he returned in his reply, namely that, "owing to the listing difficulties the President may not have had sufficient time properly to consider the matter". The point is not taken formally in the notice of appeal and, as I read Mr. Karsten's submissions, it was probably more as background than as a specific complaint about the conduct of the trial by the President. Mr. Karsten, of course, was not present during the hearing of the application at first instance. As Miss Scotland pointed out to the court, that the President had in fact made the following day, 11th May, available if required. It was not required, mainly because the President had spent a considerable time the night before in reading the main affidavits and the welfare report, and in considering the legal and treaty aspects of the case, a fact to which the learned President adverted in court at the commencement of the hearing. It would be deplorable if a custom at the Bar were to arise under which counsel came to confuse expedition with a lack of attention to the problem on the part of the trial judge, basing this upon the actual time spent in court. Suffice it to say that there is no ground for disquiet of any kind on the ground that the matter was not fully considered and appreciated by the learned President.
I now turn to the 1985 Act. The preamble reads:
"An Act to enable the United Kingdom to ratify two international Conventions relating respectively to the civil aspects of international child abduction and to the recognition and enforcement of custody decisions".
Section 1 in Part one is headed
"International Child Abduction:
(1) In this Part of this Act 'the Convention' means the Convention of Civil Aspects of International Child Abduction"—
to which I have already referred.
"(2): Subject to the provisions of this Part of this Act, the provisions of that Convention set out in Schedule 1 to this Act shall have the force of law in the United Kingdom".
The particular articles in Schedule 1, to which I shall shortly refer, start with Article 3. Before doing so, I will mention section 3 of the Act by which the Lord Chancellor is nominated as the central authority under the Convention for cases involving England, Wales and Northern Ireland for the purposes of being both the requested state and the requesting state. The only other section to which I wish at this stage to refer is section 7, which provides that authenticated copies of decisions of foreign courts will be receivable and copies purporting to be such receivable unless it is shown to the contrary that they are not true copies.
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(3) For the purposes of Articles 14 and 30 of the Convention any such document as is mentioned in Article 8 of the Convention, or certified copy…shall be sufficient evidence of anything stated in it".
Part 2 of the Act deals with the recognition and enforcement of custody decisions. Schedule 2 imports the European Convention on Recognition and Enforcement of Decisions concerning custody of children and on the restoration of custody of children signed in Luxembourg on 20th May 1980. Schedule 2 contains the relevant articles of that convention. It is not necessary for the purposes of this appeal to deal any further either with Part 2 or Schedule 2 of the Act.
I propose at this stage to read Schedule 1, which contains Articles 3, 4 and 5, which are relevant to this appeal.
"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-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 4.
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights…
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".
I shall later be referring to other articles, namely, 12. 13, 14 and 16. But for the purposes of this part of my judgment I can leave the recital of the Convention to those three articles.
I now turn to sketch in some of the facts which are relevant to this appeal. The father is a Canadian citizen born in British Columbia, aged 44. The mother who was born in the state of Wisconsin in the United States of America, has citizenship both in America and Canada, and is aged 40. They were married in 1967 in the state of Wisconsin. After the marriage they moved immediately to Canada. Their first child, Paul, was born on 22nd February 1969. Katharine, with whom this court is concerned, was born on 3rd November 1977. Paul has kept in touch with his mother and the family. He is, of course, now an adult and, I believe, serving in the armed forces of the United States.
In August 1981 the family moved to Minnesota from Canada. In January 1982 the mother and the children left the father, returning to Wisconsin to live with her parents. On 8th October 1982 proceedings took place in the District Court, Family Division, in the County of Washington, in the State of Minnesota. These were for the dissolution of the marriage in which the father was the petitioner, and I turn to the document which would appear to be a copy of the formal court document, it is with the papers and it refers in its introductory paragraphs to this:
"…the parties hereto entered into an oral marital termination agreement which was dictated into the record, allowing the petitioner [the father] to proceed ex-parte".
By Article IX of the court document it is recorded:
"That the [father] and the [mother] desire joint custody of their two minor children [Paul and Katharine] with actual physical custody being with the[the mother], subject to the right of reasonable liberal visitation by the [the father]".
Provisions were made for financial support of the minor children by the father. The bonds of matrimony were dissolved. It is necessary only to record the final paragraph:
"That [the father] shall have visitation with the two minor children of the parties every other weekend and shall be entitled to eight weeks visitation during the summer of 1983 with the minor child, Paul Donald Smith and four weeks during the summer of 1983 with the minor child, Katharine until the year 1984, at which time the[the mother] shall be entitled to eight weeks visitation with each minor child,…"
I do not propose to read the rest of that detailed provision, except to say there is a provision that the mother shall pay one half of the cost of transportation so as to facilitate the visitation by the father:
"In the event [the father] moves to Canada, the [mother] agrees to pay one-half of the cost of the transportation for each child one time per year".
That was the position in and around the dissolution of the marriage and it will be necessary later in this judgment to record the views of the legal effect of that agreement being read into the court record in 1982. It is important, however, at this stage to note that the agreement in the court record provided for joint custody with physical custody to the...
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