Re Z (A Minor) (abduction: non-Convention country)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Date | 1999 |
| Court | Family Division |
Child abduction – Non-Convention country – Parents and child habitually resident in Malta – Mother wrongfully removing child and bringing her to England – Parents remaining in contact and negotiating their future and that of child for several months – Father then applying for summary return of child to Malta – Factors to be taken into account – Principles to be applied.
The parents lived together in Malta. The mother was English and the father was Maltese. They had a child, a girl, who was born in September 1994. They married in June 1996 and continued to live in Malta. In October 1997 the mother brought the child to England without the knowledge or approval of the father. At that time the child was habitually resident in Malta. Between October 1997 and March 1998 the parents were in contact by telephone, the father visited England and the mother visited Malta for short periods, but the contents of their conversations and understandings were in dispute. In particular the mother alleged that the father had agreed that the child could live with her in England, which the father denied. In February 1998 the mother applied in England for a residence order. When the father learned of that he applied for a stay of the mother’s application and for the summary return of the child to Malta. At that hearing, a stay of the mother’s application was granted and the mother alleged that the father had acquiesced in the child’s retention in England whereas the father stated that all that was agreed was that he and the mother should try and sort out the future by agreement and without recourse to the courts. The mother further argued that even if it was found that the father did not acquiesce in the child’s retention in England, her welfare would best be promoted by her remaining here and her medium to long-term future being determined by the English courts. It was common ground that the Maltese courts would proceed on the basis that the child’s welfare was the paramount consideration, that both parents had parental responsibility for the child, and that neither of them could unilaterally change the habitual residence of the child by removing the child wrongfully and in breach of the other parent’s rights.
Held – Where a child was abducted by one parent from a foreign country which was not a signatory to the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), in determining an application by the other parent for the return of the child, the child’s welfare was the court’s paramount consideration and there was a general presumption that it was in the best interests of the child for issues as to his or her residence to be decided by the
court of his or her habitual residence. In a case such as the present where the courts of the foreign country would apply the same principles as the English courts to the issues of the care and residence of the child there was an expectation that any dispute about the custody of the child would be satisfactorily resolved in the foreign courts, the main focus of attention in determining what would best promote the welfare of the child was on the interim period between return and the determination of the medium to long-term interests of the child by the foreign courts. However, in determining what should happen in the interim period the English court was not precluded from having regard to the medium to long-term future of the child and thus to the possible outcome of proceedings in either of the jurisdictions which applied the same, or equivalent, principles particularly if the likely outcome, or aspects of it was clear. In the present case, throughout the period from October 1997, when the mother wrongfully removed the child from Malta, to March 1998, when the father commenced proceedings for the return of the child, the parties were in a state of negotiation as to their future and that of the child and the father did not acquiesce in the child’s retention in England. Further, it could not be said that the child’s welfare would best be promoted by her remaining here and her medium and long-term future being determined by the English courts even having regard to the factors advanced by the mother that the child had settled well in England and had been here for a length of time and the real possibility that the central point in any determination of the child’s medium to long-term future was likely to be whether the mother could take her to, or keep her in, England. Those factors did not outweigh the general principle that an order that the child be returned to Malta would best promote her welfare because the courts in Malta would be in a better position to resolve the dispute that had to be determined in deciding the child’s medium to long-term future; and that it would benefit the child to have that decision determined without the mother having been able successfully to change the jurisdiction in which such decisions were made by her wrongful removal of the child from Malta. Therefore an order would be made for the peremptory return of the child to Malta.
Cases referred to in judgmentF (a minor) (abduction), Re [1991] FCR 227, [1991] Fam 25, [1990] 3 All ER 97, [1990] 3 WLR 1272, CA
H (minors) (abduction: acquiescence), Re[1996] 3 FCR 425, CA; rvsg[1997] 2 FCR 257, [1997] 2 WLR 563, HL.
K (abduction: consent), Re[1998] 1 FCR 311.
KM (abduction: habitual residence), Re[1996] 2 FCR 333, CA.
JA (a minor) (abduction: non-covention country), Re[1998] 2 FCR 159, CA.
L (minors) (wardship: jurisdiction), Re [1974] 1 All ER 913, [1974] 1 WLR 250, CA.
M (jurisdiction: forum conveniens), Re[1996] 1 FCR 40, CA.
M (minors) (abduction: non-convention country), Re[1995] 2 FCR 265, CA.
M (minors) (residence), Re[1993] 1 FCR 718, CA.
P (a minor) (abduction), Re[1996] 3 FCR 233, [1997] 2 WLR 223, CA.
P (a minor) (care order: designated local authority), Re[1998] 1 FCR 653.
W v W (child abduction) [1993] 2 FCR 644.
ApplicationThe father of a young child applied for an order that the child be returned to Malta, which was the country of the child’s habitual residence, following the mother’s removal of the child from that country without the prior knowledge or approval of the father. The case was heard and judgment was given in chambers. The case is reported with the permission of Charles J. The facts are set out in the judgment.
Margaret Hickland (instructed by Houghton Pigot & Co, Wigan) for the mother.
John Allen Elvidge (instructed by Sebastian Coleman & Co) for the father.
Cur adv vult
21 May 1998. The following judgment was delivered.
CHARLES J.This case concerns a child, K, who is now three and a half.
The application before me is an application by the father for an order that K be returned to Malta.
Common groundThe mother is English. The father is Maltese. They met about seven years ago when the mother was 17 and the father was 29. They met when the mother was on holiday in Malta. The mother is now 24 and the father is now 36.
After the holiday during which they met the mother returned to Malta and thereafter the mother and father lived together on and off for three to four years in Malta. K was conceived in Malta. The mother returned to England for K’s birth in September 1994 and returned to Malta with K when she was about five weeks’ old.
The mother and the father were unmarried at the time of K’s birth but they married later in June 1996. Following the marriage, the mother, the father and K continued to live together as a family in Malta.
On 7 October 1997 K became a pupil at St Paul’s Bay Primary School in Malta.
K at present has dual nationality. She is British by virtue of the fact that her mother is British and she was born here. She is included on the mother’s passport. She is also a citizen of Malta. This is confirmed by a letter from the office of the Prime Minister of Malta dated 30 August 1996 that was provided to me. This letter was written shortly after the marriage. It confirms that K is a citizen of Malta by virtue of s 25(2) of the Maltese Constitution and that she may remain in Malta until her twenty-first birthday. However, it points out that if K should eventually return to retain her Maltese citizenship she will be required to renounce any other citizenship held by her after she reaches her eighteenth birthday and before attaining her nineteenth birthday. If she makes that renouncement she can remain in Malta for life.
That letter also points out that the mother may remain and work in Malta. As I understand it that had not been the case prior to the marriage and one of the reasons why the mother returned to England on a reasonably regular basis was that she needed to do this to comply with Maltese law as to her ability to stay and work in the country. Following the marriage the mother continued to visit England on a fairly regular basis for holidays. Generally these visits were for about a fortnight.
The removal of K from MaltaOn 24 October 1997 the mother travelled to England with K without the prior knowledge or approval of the father. On his return from work that day the father discovered that the mother and K were not at home. He spoke to the mother’s father in England on the telephone who told him that he did not know where the mother was. The father contacted the police on Malta and reported the mother and K missing. However at about nine o’clock that evening the mother telephoned the father and told him that she was in England and was going to live with her father in Wigan.
It is common ground that the mother left Malta with K without the prior knowledge or approval of the father and that at that time K was habitually resident in Malta.
The mother told me that before she left she had been to see the British High Commission who had told her that it would be easy for the father to prevent her from leaving Malta with K and this is why she left without telling him.
It is also common ground that during the conversation between the mother and...
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