Re S (Minors) (Abduction: Acquiescence)

JurisdictionEngland & Wales
JudgeLord Justice Waite,LORD JUSTICE HOFFMANN,LORD JUSTICE NEILL
Judgment Date03 February 1994
Judgment citation (vLex)[1994] EWCA Civ J0203-1
CourtCourt of Appeal (Civil Division)
Docket NumberFAFMF 94/0010/F
Date03 February 1994
Regina
and
S (Minors)

[1994] EWCA Civ J0203-1

Before:

Lord Justice Neill

Lord Justice Hoffmann

and

Lord Justice Waite

FAFMF 94/0010/F

In the Supreme Court of Judicature

Court of Appeal (Civil Division)

On Appeal from: Family Division

From: Mr. Justice Singer

MR. J. MUNBY QC and MR. D. PEARS (instructed by Letcher & Son, 24 Market Place, Ringwood, Herts) appeared on behalf of teh Appellant.

MR. H. SETRIGHT (instructed by Kingsley Napley, London WC2) appeared on behalf of the Respondent.

1

(Handed Down)

Lord Justice Waite
2

Lord Justice Waite: This appeal concerns three boys aged 9, 8 and 4. Their parents are British born immigrants to Australia. Following the breakdown of the marriage, the mother brought the children to England (where their maternal grandmother still lives) without the permission of the father. That is conceded to have been a wrongful removal within the meaning of Article 3 of the Hague Convention. Eight months after the date of removal the father started proceedings under the Convention for a summary return order under Article 12. The mother sought to establish jurisdiction in the English court to refuse the order on the ground that the father had by his delay in bringing the proceedings acquiesced in the removal for the purposes of Article 13 (b); and also, in the case of the eldest boy alone, on the ground that he was objecting to a return to Australia and had reached an age and degree of maturity at which (for the purposes of the same Article) it is appropriate to take account of his views. Both contentions failed. The judge held that he had no jurisdiction to refuse a return order, from which finding the mother now appeals to this court.

3

The objects of the Convention are well known. They are to spare children already suffering from the breakdown of their parents’ marriage the disruption which inevitably follows when one parent attempts to secure for himself or herself an advantage in future issues of care, residence or forum conveniens by an arbitrary move to (or retention in) another jurisdiction.

4

The governing Articles for the purposes of this appeal are 12 and 13 which read as follows:

5

Article 12

6

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

7

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

8

Where the judicial or administrative authority in the requested state has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

9

Article 13

10

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-

11

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

12

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

13

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

14

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

15

The father is 36 and the mother 29. They were both born in England and were married in this country on 5 November 1983. They emigrated to Western Australia in May 1986, by which date the two eldest boys, N and C, had been born on 20 December 1984 and 16 December 1985 respectively. Their son P was born there on 23 June 1989. It is not disputed that they were settled in Australia, and that by virtue of S 63 (f) (1) of the Australian Family Law Act 1975 both of the parents were guardians of the children and had their joint custody.

16

The marriage had run into difficulties by the beginning of 1993. On 17 March 1993 the mother, without warning to the father, removed the children by air to England, where she went with them to live near Ringwood and entered the older boys at a local primary school. Plans were made for P to follow them there in January 1994.

17

Very shortly after the removal the father on 23 March 1993 wrote a letter to the mother at her own mother's address in England, saying that he felt shocked and pained by what had happened, and adding:

18

“Yesterday I saw a solicitor and was advised that you have broken some international convention by removing children from this country without both parents’ consent. I was advised to seek legal aid to [bring] you back. He also told me to seek counselling as I was weeping and shaking uncontrollably. He told me that no Court would favour what you've done and the longer you take to talk with me, the worse [it] is going to look.

19

I still love you dearly and I shall never stop loving my dear sons. After nearly ten years, I deserve better than this hell that both you and your mother are forcing me through.

20

Please phone me or arrange that I can phone you immediately. This is extremely urgent. For the kids’ [sake] I don't want to start trouble. I would also love to talk to the kids but at this time I don't know if I [could] hold myself together at the sound of their voices. I would like to try. I have the right surely.

21

If I don't hear from you very soon, verbally and satisfactorily, then action would have to begin, one way or another.”

22

That letter crossed with one written to the father by the mother explaining her reasons for leaving him. The father was later to depose in an affidavit sworn in these proceedings that he had followed his first letter up with two or three subsequent letters, all asking the mother to return, but he received no reply to them. It is not suggested that they contained any further threats of summary court action.

23

On 30 March 1993 the mother's English solicitors wrote to the father with service of divorce proceedings, and giving him notice that they would be applying in England for a residence order in respect of the boys. They stated that the mother was quite happy to allow him contact with the children in England, subject to his confirming that they would not be removed from the jurisdiction of the English court.

24

The father consulted solicitors in Australia on 01 04 93. In his affidavit in the child abduction proceedings he has summarised the advice he then received in these terms:

25

“I was advised by Young and Young that I had some rights under Australian law to have the children returned to my care but they told me at my first meeting that it would be extremely expensive to take such proceedings and they would require the sum of A$ 5,000 on account before they could even obtain legal aid on my behalf. They suggested that I try and come to some arrangement or agreement with the Defendant and I was deterred by the amount of money that they wanted from me before they could act. As I have already said, although I had managed to substantially reduce the debt on my business, it had been a struggle and I would have had to sell up in order to realise my debt and raise the sum of A$ 5,000. I am advised by my present solicitor that the advice I received from Young and Young with regard to the very high cost of applying is wholly incorrect as legal aid is available in these proceedings in England without any form of means or merits test. I was certainly not told that all that had to happen was for a request to be made to the Central Authorities in Australia who in turn, would contact the Central Authorities in England to enable proceedings to be issued on my behalf.”

26

The father's solicitors wrote to the mother's English solicitors in reply to their letter on 2 April 1993 acknowledging service of the divorce proceedings, and adding

27

“To say the least, our client is astounded at your client's conduct in taking the children out of the jurisdiction without his consent. Be that as it may, our client is giving considerations to all options at this stage presently open to him and we propose to communicate with you once we have his further instructions.”

28

The father's subsequent dealings with solicitors in Australia were described in his affidavit evidence as follows:

29

“By the end of June 1993 I had written countless letters to the Defendant and tried every means possible to contact her without success. By the beginning of July I had considered my position at great length and had come to the conclusion that the marriage had irretrievably broken down but that I wished to be divorced in Australia and not in England. I wanted a clean break between the Defendant and myself and if this could be achieved, was even prepared to consider not applying for the immediate return of the children. I was in a very distressed and unhappy state which in turn was proving...

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