Re W (A Minor) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 1996 |
| Date | 1996 |
| Year | 1996 |
| Court | Family Division |
WALL, J
Child abduction – child habitually resident in Republic of Ireland – parents never married – under Irish law mother having sole custody rights – at time of removal father claiming that child residing with him by agreement – whether mother still exercising custody rights.
Child abduction – father claiming consent of mother to removal of child – quality of evidence necessary to establish consent.
Practice – need for bundles – need for short statement of respondent's defence in Hague Convention cases.
The mother and father had never been married. The mother was an Irish citizen living in the Republic of Ireland. The father was also an Irish citizen, living, at the time of the hearing, in Wales. The child was a little over 2 years old. Under Irish law the mother alone was the guardian of the child. The child had been born in the Republic of Ireland. He had lived there until August 1994 when he had been brought to Holyhead by the paternal grandparents and handed over to the father. The child had been habitually resident in Ireland.
The mother submitted that the child's removal had been unlawful within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"). The father claimed firstly that the removal was not wrongful as at the time the mother had not in fact been exercising her rights of custody over the child. He argued, secondly, that the court had a discretion under Article 13(a) of the Convention not to return the child because the mother had consented to the removal.
The father claimed that the mother had asked him to look after the child for a year whilst she went on a course in England. Thereafter, he said that the mother had agreed to him "having residence" of the child. The father then decided to move to Wales with his new cohabitee. He claimed that the mother had agreed to him taking the child, and pursuant to that agreement his parents had collected the child and brought him to Wales. The father produced a note from the mother which agreed to the father claiming child benefit for the child as he was now living with him.
The mother's case was that it had been agreed that the child would stay with the father for a short period of time. She stated that there was never any agreement that the child would live permanently with the father. She was wholly unaware of the father's intention to remove the child permanently from Ireland. When the paternal grandparents collected the child she thought that they were taking him to Dublin for a holiday. In respect of the note she said that she had signed it for the sole purpose of enabling the father to claim
the allowance whilst he was looking after the child.
The Judge heard oral evidence.
Held – (1) In this case, on the facts of the documentation, each side had put forward a credible case. In a case where there was irreconcilable affidavit evidence, it might be more satisfactory for the court to hear oral evidence, if such were available. In this case it was. Dealing with the case on the documentation alone was not wholly satisfactory when the welfare of a child was in question, even in the context of peremptory orders under the Hague Convention. From the oral evidence the reluctance of the father and his family to disclose the whereabouts of the child had been striking. In particular, the paternal grandfather was an unconvincing witness. Further, it transpired that the father had been to see a solicitor, and had been made aware of what he would need to do to obtain legal rights over the child. It was also clear that there was a great deal of mutual hostility between the parties. The court had to be careful to make as few findings of fact as were consistent with its duty to dispose properly of the application.
(2) For the removal of the child to be wrongful it had to be in breach of a right of custody which was being exercised at the time of removal: Article 3 of the Hague Convention. Under Irish law where the mother of the child was not married to the father, the mother alone was the guardian of the child. The father could apply to the court to be appointed guardian of the child. Thereafter, the court had power to make directions as to residence or contact. The argument that the mother in this case was not exercising her rights of custody was untenable, even if the factual basis was established – namely an agreement that the child live with his father. It could not be the law that an agreement between the parents that a child should live with one of them entitled that parent to unilaterally remove the child from the country of his habitual residence. Where two parents had equal rights of custody the exercise by one of them of the right to determine that child's place of residence did not permit that parent unilaterally to remove the child from the State of his habitual residence. A fortiori it must follow that where one parent had no rights of custody but was caring for the child by agreement the same must apply. If it were not so then any parent with whom it had been agreed that a child was to reside, could, with impunity, unilaterally remove that child to another country, on the ground that the other parent was not actually exercising parental rights over the child. Such an argument would drive a coach and horses through the Convention. The father's argument under Article 3 must fail.
(3) Removal of children across international frontiers was a matter of great importance and was not to be undertaken lightly or capriciously. Therefore, when a parent sought to argue the Article 13(a) "consent" defence under the Hague Convention, the evidence of establishing consent needed to be clear, compelling and positive. In most cases such consent would need to be in writing, or at least evidenced by documentary material. Moreover, it was difficult to imagine circumstances in which consent could be passive. Whilst on the papers, the father made out a credible prima facie case for consent, after hearing the oral evidence, the court was not satisfied on the balance of probabilities that the case under Article 13(a) was made out. The importance to children of a change in their country of habitual residence could not be overstressed. Cogent evidence was disputed. The evidence in this case lacked the necessary cogency. The defence failed.
The child had been wrongfully removed under Article 3 and had to be returned under Article 12.
Per curiam: (1) The absence of a bundle in such cases was highly unsatisfactory. Reading an ordered bundle took substantially less time than reading the court file or loose affidavits. Time was saved both in and out of court. Similarly, reference to documentation in court was simplified. Most Judges liked to highlight important passages and annotate or cross-reference documents. If all the Judge had was the court file and the original statements,
it was inappropriate for him or her to mark them in this way. Preparing a bundle for use in court was not difficult, nor should it substantially add to the costs of the case. The court saw no reason why solicitors should not keep a running file of court documents indexed, paginated, and in chronological order. Both solicitors and counsel had a duty to apply their minds to the documentation needed in each case, and to ensure that proper bundles were produced. In a case where sloppy presentation of the documents or the absence of a bundle had an adverse effect on the timing of a case, that failure would incur costs penalties.
(2) In cases under the Hague Convention, partly due to the speed with which they were prepared, and partly because the rules did not provide for pleadings, the statements or affidavits filed, frequently ranged over a spectrum of factual issues. The Judge had the task of gleaning the issues of the case from a mass of irrelevant information. It was the court's view that there should be a requirement in all Hague and European Convention cases that the respondent should file a short statement setting out simply and concisely the nature of the defence under the Convention, and the Article or Articles relied upon. It would be helpful to concentrate the minds of the Judge and the parties in the relevant issues in the case.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on Civil Aspects of International Child Abduction 1980, Articles 3, 5(a), 12 and 13(a).
Family Proceedings Rules 1991, r 6.3(d).
Guardianship of Infants Act 1964, ss 6(4), 6A and 11 (Republic of Ireland).
Practice Direction (Civil Litigation: Case Management) [1995] 1 WLR 262.
Practice Direction (Family Proceedings: Case Management)[1995] 2 FCR 340.
Status of Children Act 1987, s 11 (Republic of Ireland).
Cases referred to in judgment:AF (A Minor) (Abduction), Re[1992] 1 FCR 269.
B (Child Abduction: Habitual Residence), Re[1995] 1 FCR 273.
B v B (Practice Judgment)[1994] 1 FCR 805.
H (Minors) (Abduction: Custody Rights), Re[1991] 1 FCR 45.
W v W (Child Abduction)[1993] 2 FCR 644.
Jonathan Cole for the mother.
JRC Altham for the father.
MR JUSTICE WALL.This case raises points of interest under Articles 3 and 13 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Hague Convention) as incorporated into the law of England by the Child Abduction and Custody Act 1985. It also raises two points of practice.
The child in question was born in September 1992, and so is now a little over 2¼ years old. His mother is an Irish citizen living in the Republic of Ireland. His father is also an Irish citizen, but currently living in Wales. I propose, henceforth, to refer to the child's parents as "the mother" and "the father" respectively.
The mother and the father were never married: thus in Irish Law under s 6(4) of the Guardianship of Infants Act 1964 as amended and substituted by s 11 of the Status of Children Act 1987 (which I will recite later in this judgment)...
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