Re v-B (Minors) (Abduction: Rights of Custody)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Date | 1999 |
| Court | Court of Appeal (Civil Division) |
Child abduction – Family habitually resident in The Netherlands – Parents divorced – Mother given sole custody of children – Father given access and having right under Dutch law to be informed and consulted about important aspects of care and upbringing of children – Mother taking children to Wales – Whether father had rights of custody – Whether children removed in breach of those rights – Child Abduction and Custody Act 1985, Sch 1, art 5.
The parents married in 1989 and their two children were habitually resident in The Netherlands. The parents were divorced in Amsterdam in 1997 and it was ordered that the mother should have sole custody of the children and that the father should have defined access. Further, by virtue of the Dutch Civil Code the mother was under a duty to inform and consult the father about any important decisions relating to the care and upbringing of the children. In 1998 the mother and the children left The Netherlands and went to live in Wales. The father applied for the return of the children under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985. The mother acknowledged that she removed the children without the father’s consent or the leave of the Dutch court. However, she contended that the removal should not be considered wrongful within the meaning of art 3 of the Convention as it was not in breach of the father’s right of custody. The judge upheld that submission and dismissed the father’s application. The father appealed.
Held – Under art 5 of the Hague Convention ‘rights of custody’ included rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence; and ‘rights of access’ included the right to take the child for a limited period of time to a place other than the child’s habitual residence. Where both parents had rights of custody they both had the right to determine the child’s place of residence and each had the right to object to and veto a removal from the place of residence. A sharp distinction was drawn between rights of custody and rights of access in that rights of custody were protected under art 12 by the remedy of speedy return to the country where the children were habitually resident whereas rights of access were protected under art 21 by remedies to organise and secure their effective exercise in the country where the children were now living. In the present case, the proper approach to the consideration of whether the father’s rights amounted to rights of custody was to view the expression broadly but preserving the
essential distinction between those rights and rights of access. As a matter of Dutch law the mother had sole custody of the children. The father merely had the right to be informed and consulted about any important decisions relating to the children and that did not amount to a right relating to the care of the person of the child under art 5 and, in particular, did not give him a right of veto in relation to the child’s removal. The attempt to elevate the right of consultation to a right of custody was to eradicate the crucial distinction between custody and access and the broad purpose of the Hague Convention was to maintain that distinction. As the father had no rights of custody, no breach of the Convention arose and the appeal would be dismissed.
Cases referred to in judgmentsB (a minor) (abduction), Re[1995] 2 FCR 505, CA.
C (a minor) (abduction), Re [1989] FCR 197; sub nom C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER 465, [1989] 1 WLR 654, CA.
DS v VW [1996] 2 SCR 108, Can Sup Ct.
Dipper v Dipper [1981] Fam 31, [1980] 2 All ER 722, [1980] 3 WLR 626, CA.
F (a minor) (abduction: risk if returned), Re[1996] 1 FCR 379; sub nom Re F (minor: abduction: custody rights abroad), Re [1995] Fam 224, [1995] 3 All ER 641, [1995] 3 WLR 339, CA.
H (minors) (abduction: acquiescence), Re[1997] 2 FCR 257, [1998] AC 72, [1997] 2 All ER 225, HL; rvsg[1996] 3 FCR 425, CA.
S (a minor) (abduction: access rights), Re[1997] 3 FCR 450; sub nom S v H (abduction: access rights) [1998] Fam 49, [1997] 3 WLR 1086.
W (a minor) (unmarried father), Re, Re B (a minor) (unmarried father) [1998] 2 FCR 549.
Thomson v Thomson (1994) 119 DLR (4th) 253, Can Sup Ct.
AppealThe father of two children, who had been taken by their mother to Wales from The Netherlands which was their country of habitual residence, appealed from the decision of Sumner J dismissing the father’s application for the return of the children on the ground that he had no rights of custody and therefore the removal was not in breach of the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985. The facts are set out in the judgment of Ward LJ.
Allan Levy QC and David Burles (instructed by Sinclairs, Vale of Glamorgan) for the father.
Pamela Scriven QC and John Reddish (instructed by Hugh James, Cardiff) for the mother.
Cur adv vult
17 March 1999. The following judgments were delivered.
WARD LJ(giving the first judgment at the invitation of Beldam LJ). On 21 August 1998 the mother of M, now aged eight, and A, not yet four years old, left The Netherlands where the children had been habitually resident and established themselves in a new home in Wales whence the mother hails. The father is a Dutchman. He applied for the return of the children under the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention), which was given the force of law pursuant to the Child Abduction and Custody Act 1985. The mother had to acknowledge that she removed the children from Amsterdam without the father’s consent or the leave of the Dutch court but she has contended that the removal should not be considered wrongful within the meaning of art 3 of the Convention because it was not in breach of the father’s rights of custody. On 21 January 1999 Sumner J upheld that submission and dismissed the father’s application. The father has appealed to us with our leave. The sole issue in the appeal is whether or not there has been a breach of his rights of custody, and, more particularly, does he have any such rights.
The factual backgroundThe mother and father married in Cardiff in 1989. They made their matrimonial home in Amsterdam. It was an unhappy marriage. On 1 July 1997 they entered into a divorce agreement which included the following terms with reference to the children:
‘4.1 The parties deem it in the interests of their minor children that the wife shall exercise parental responsibility over them. They shall request the Court to rule accordingly.
4.2 (The) parties shall set the visiting rights between the husband and the children as follows: every other (weekend) . . .
4.3 The wife shall inform the husband of any matters of importance relating to the children. The parties shall consider the following to be important matters: any decisions which have to be made
* about the choice of school and vocational training;
* about medical treatment and operations;
* about residence abroad for a period of longer than one month.’
The agreement also set out the arrangements for the division of their property and for the payment of maintenance by the husband to the wife for herself and the children.
On 30 July 1997 the District Court in Amsterdam pronounced their divorce and, in the translation of the order before us:
‘. . . charges—insofar this is not excluded through an earlier legal decision—the wife with exercising the authority of the minor children of the parties . . . decides on the scope of the visiting rights (every alternate
weekend) . . . decides that the agreed arrangement as stated in the covenant attached to the original of this decision, shall form part of this decision.’
The effect of that agreement and the order both as a matter of the domestic law of The Netherlands and within the meaning of the Convention will require detailed consideration in a moment. To continue, however, with the chronology, I can pass over the detail of the several disputes which arose after the divorce. It is sufficient to recount simply that the mother complained that the father was failing to pay the ordered maintenance for herself and the children regularly or at all. His case was that he was making other payments in lieu thereof. On 24 April 1998 the mother wrote to her lawyers, who forwarded the letter to the father, saying:
‘I will stay with my children in The Netherlands, in Amsterdam, so long as my husband keeps on paying alimony . . . Everyone in his full senses will understand that, without any further financial elbow-room, in a foreign country I am forced to move abroad.’ (Her emphasis.)
In their covering letter to the father, her lawyers wrote: ‘[Our] client will stay with the children in The Netherlands. She will only be...
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