S v S (Child Abduction: Non-Convention Country)
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 1994 |
| Court | Family Division |
HOLLIS, J
Child abduction – non-Convention country – mother removing child from South Africa which was the child's country of habitual residence – removal not in breach of custody rights – father applying for return in wardship proceedings – whether order for return would be in child's best interests.
The father was a British national and a South African citizen. The mother was British. The family's family spent about half the year in South Africa and half the year in the Isle of Man. The mother's family lived in the isle of Man. The parents were married in 1989 in the Isle of Man. They had a child, a boy, who was born in 1990. In 1993 the parents, with the child, went to live in South Africa. They purchased a house in their joint names and registered the child for entry into a preparatory school. The family became habitually resident in South Africa. In 1993 the father left the mother and child and commenced divorce proceedings seeking custody of the child. The mother also applied for custody of the child and in November 1993 an order was made granting custody to the mother pendente lite with access to the father. During 1994 the mother brought the child to England.
South Africa was not a party to the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"). Consequently, the father applied in wardship for the return of the child to South Africa.
Held – granting the father's application: It was appropriate to apply the principles of the Hague Convention to a non-convention case to the extent that it was in the interests of children that parents or others should not abduct them from one jurisdiction to another, but that any decision relating to the custody of children was best decided in the jurisdiction in which they had hitherto been ordinarily resident. However, it had always to be borne in mind that in the wardship jurisdiction the court retained the discretion to consider the wider aspects of the welfare of wards. Article 12 of the Convention was a mandatory provision requiring the return of a child wrongfully removed in breach of custody rights. But, had this been a Convention case, Article 12 would not have applied as there was no breach of custody rights. Nevertheless, in this case it was relevant to have regard to the facts that the child's natural historical home was the Isle of Man and not England; that the parents had chosen South Africa as the child's home for the foreseeable future; and that divorce, custody and ancillary proceedings were pending in South Africa. In these circumstances it would be in the child's best interests to order his return.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction, Articles 3, 4, 12 and 13.
Cases referred to in judgment:D v D (Child Abduction)[1994] 1 FCR 654.
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: Abduction), Re [1974] 1 WLR 250; [1974] 1 All ER 913.
R (Minors) (Wardship: Jurisdiction), Re (1981) 2 FLR 416.
S (Minors) (Abduction), Re[1993] 2 FCR 499.
Lewis Marks for the father.
Timothy Bishop for the mother.
MR JUSTICE HOLLIS.In this case the father, as I shall call him, seeks the return to South Africa of his son, a boy, who is just on 4 years of age, the mother having brought the child to England on about 3 February 1994. This is not a case within the Child Abduction Custody Act 1985, as South Africa is not a party to the Convention, so the father makes his application for similar relief in wardship.
The father is a British national and a South African citizen; the mother is British. The father's father apparently is British but his mother is South African. The father's family apparently spend about the half year in their home in the Isle of Man and the other half of the year in South Africa. Indeed the father himself lived in South Africa as a child from an age of a few months until about 7 years of age. The mother's family also live in the Isle of Man. The parties were married on 25 November 1989 in the Isle of Man and they lived there in the house which the father owned. The child was born on 13 March 1990.
I think it probably that the parties did not get on particularly well from time to time. At any rate, at the end of 1992 they decided to go and live in South Africa. The father went first to obtain a job. Eventually, in February 1993, they left for South Africa and, by agreement, the father's house in the Isle of Man (which was the family home) was put on the market for sale. After they arrived in South Africa they went to Cape Province and eventually purchased a house in the Cape in their joint names although the...
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