Re S (Minors) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Court of Appeal (Civil Division) |
SIR DONALD NICHOLLS, V-C, BUTLER-SLOSS, LJ AND SIR MICHAEL KERR
Appeal – additional evidence – evidence available at trial – welfare of children requiring admission of evidence.
Child abduction – removal of children from country of habitual residence by one parent without consent of other parent – non-Convention case – spirit of Convention applied – presumption that summary return of children was in their best interests in absence of contra-indications.
The mother was English and the father was Italian. They married in 1981 and lived in Italy. They had two minor children. In 1989 the mother brought the children to England and decided not to return to Italy. In wardship proceedings the Judge ordered the summary return of the children to Italy upon the father giving undertakings not to assault or molest the mother and to vacate the matrimonial home. The mother and children returned to Italy. In December 1991 the mother brought the children to England for a visit and again decided to retain them in England without the consent of the father. In March 1992, on the application of the father in wardship proceedings, the Judge ordered the summary return of the children to Italy without investigation of the merits.
The mother appealed.
Held – (1) In a case falling within the Hague Convention, upon proof of wrongful removal or retention under Article 3, if the child had been in this country for less than 12 months, the court would order a summary return under Article 12 subject to the qualifications in Article 13. There was a presumption that the welfare of the child was best served by a return to his country of habitual residence in order that the courts of that country should deal with the matters in issue. In a non-Convention case the spirit of the Convention was applied, though it might be appropriate for the court to consider whether the court of habitual residence was likely to adopt a similar approach to the child as an English court. However, it was reasonable for the court to assume, in the absence of strong contra-indications, that the courts of a member of the European Community would be likely to adopt a similar approach to English courts. In the present case, the evidence before the Judge did not disclose sufficiently serious matters, analogous to Article 13 of the Convention, to justify an adjournment for further investigation. On the basis of the evidence
before the Judge it would have been difficult to show that he had erred in principle.
(2) However, additional evidence had been admitted on the appeal. Technically this was evidence available to be presented to the Judge. But the mother and her legal advisers had only three days to prepare the evidence. This was a difficult case dealing with the welfare of two children and in appropriate cases the ruling in Ladd v Marshall [1954] 1 WLR 1489 was relaxed where the welfare of the children required the court to see the additional evidence.
(3) The effect of the additional evidence was to present a new case to the court. It raised issues which, if this had been a Convention case, would have required some investigation under Article 13. The mother alleged that, notwithstanding the undertakings he had given to the Judge in 1989, the father had treated her with violence and had returned to and stayed at the matrimonial home without her consent. The father's behaviour had had an extremely adverse effect upon the children, they were frightened of him, and they were anxious to live in England. The additional evidence raised serious questions about the welfare of the children in Italy. It raised sufficient contra-indications to require some investigation. The appeal would be allowed and the case remitted to the Family Division for a rehearing of the father's application for the summary return of the children to Italy.
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 and 13.
Cases referred to:F (A Minor) (Abduction), Re [1991] FCR 227; [1991] Fam 25; [1990] 3 All ER 97.
G v G (Minors) (Abduction) [1991] FCR 12.
Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745.
E James Holman, QC and Deborah Bangay for the mother.
Peter Singer, QC and David Tyzack for the father.
SIR DONALD NICHOLLS, V-C.I will ask Butler-Sloss, LJ to give the first judgment.
LORD JUSTICE BUTLER-SLOSS.This is an appeal from the decision of Thorpe, J given on 19 March 1992 in Exeter in wardship proceedings initiated by the father of two boys, the elder born on 31 July 1982, who is now nearly 10 years old and the younger born on 5 June 1984, just 8 years old. The father, who is Italian, applied for the summary return of the boys to Italy. The mother, who is English, opposed the application and appeals to this court against the order of the Judge that they should return to Naples. Italy has not ratified the Hague...
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