Re S (Minors) (Convention on the Civil Aspects of International Child Abduction: Wrongful Retention)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Court | Court of Appeal (Civil Division) |
BALCOMBE AND NOLAN, L JJ
Child abduction – non-Convention case – wrongful removal – application for return – principles to be applied.
Both parents were born in Pakistan and were Muslims. The mother had lived in England since 1964. The father came to England as a student. They married in 1977 in England. The same year they went to live in Pakistan. They had three children. From 1985 onwards the eldest child lived with his grandparents in Pakistan. In November 1991 the mother left Pakistan and came to England without the father's knowledge. The mother commenced proceedings under the Children Act 1989 for interim residence and prohibited steps orders in a county court. The proceedings were transferred to the High Court and the father sought the return of the children to Pakistan. As Pakistan was not a signatory to the Hague Convention, this was a non-Convention case. The Judge found that the Pakistan courts would decide questions relating to the children's future guided by what, consistently with the law to which they were subject, appeared in the circumstances to be for their welfare. This, he held, approximated to the test that the children's welfare was paramount as stated in s 1(1) of the Children Act 1989. He, therefore, made a summary order that the children should be returned to Pakistan forthwith.
The mother appealed.
Held – dismissing the appeal: In normal circumstances it was in the interests of a child that a parent should not abduct him from one jurisdiction to another. Any decision relating to the custody of a child was best decided in the jurisdiction in which he had been normally resident. The best interests of the child would usually be met by his prompt return to his own country. If a summary order for return was not made, the damage to the child's interests was alienation from background, schools, friends, relations and, ultimately, from his country and its society and culture. These factors had to be weighed against the risk to the child of possible, perhaps probable, separation from the mother and being entrusted to the care of a father whose capabilities to act as a single parent might be in doubt, and to be subjected to a regime of law under which the protection of the child's interests might
be open to question. In non-Convention cases, prima facie the court to decide what the child's interests required was that of the State where the child was habitually resident before his removal and the court would order a return if the courts of that State would apply principles which were acceptable to English courts as appropriate. In the present case, the children had been brought up in Pakistan, their religion was Muslim, and they had been wrenched away from all they knew to this country. The Pakistan courts would give effect to the children's welfare from the Muslim point of view. That did not lead to the conclusion that it would not be appropriate for the Pakistan courts to exercise their jurisdiction as the children were of Muslim parents and part of a Muslim family.
Statutory provisions referred to:Children Act 1989, s 1(1).
Guardians and Wards Act 1890 [of Pakistan], s 17.
Cases referred to in judgment:F (A Minor) (Abduction), Re [1991] FCR 227; [1991] Fam 25; [1990] 3 WLR 1272; [1990] 3 All ER 97.
G v G (Minors) (Abduction) [1991] FCR 12.
L (Minors) (Wardship: Jurisdiction), Re [1974] 1 WLR 250; [1974] 1 All ER 913.
Mohammad Bashir v Ghulam Fatima [1953] PLD Lah 73.
R (Minors) (Wardship: Jurisdiction), Re (1981) 2 FLR 416.
Nicholas Wall, QC and Janet Bazley for the mother.
Judith Parker, QC and Caroline Reid for the father.
LORD JUSTICE BALCOMBE.This is an appeal by the mother of two children from an order made by Sir Gervase Sheldon sitting as a Deputy Judge of the High Court on 8 December 1992, whereby he directed that the children concerned should be returned immediately to Pakistan whence the mother had brought them to England some few weeks previously.
The circumstances of the family are these. The father was born in Pakistan and is now aged 35. The mother was born in Pakistan and is now aged 33. In 1964, when she was only 5 years old, she and her family came and settled in the United Kingdom and she subsequently acquired British citizenship. She met the father in 1977 when he was in this country studying, and they married in a register office in this country on 24 August 1977. Both the father and mother are Muslims.
In Sepember 1977 the parties, ie the mother and the father, went to Pakistan and they lived initially in the home of the father's parents in Lahore. It is right here that I should say that the father's family is of some material substance. They have a good business in Pakistan and the parties have been able to live in circumstances of some comfort whilst in Pakistan – they enjoyed good accommodation, they had the use of servants and so on.
The first child of the marriage, a son, was born on 27 July 1978, so he is now
aged 14. He is not the subject of these proceedings. The second child was born on 24 February 1985; she is a daughter now aged 7 and she is one of the two children with whom this case is concerned.
In May 1985 the parties visited England with the elder son, and the daughter. There was apparently a move by the mother at that time to leave the father but she subsequently agreed to return to Pakistan. They returned to Pakistan to live separately from the father's parents in Karachi – that, of course, is some considerable distance from Lahore. It has always been the mother's case that the difficulties in the marriage arise largely from what she considers the interference by the husband's parents.
When the parties moved to Karachi, however, the elder son did not accompany them. Different explanations have been given for this but the fact is he remained living with his grandparents but seeing the parties reasonably frequently. In 1987 the father, the mother and the daughter moved to Rawalpindi, again some distance from Lahore, and on 6 November 1989 their...
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