T v R (Abduction: Forum Conveniens)
| Jurisdiction | England & Wales |
| Judgment Date | 2002 |
| Year | 2002 |
| Date | 2002 |
| Court | High Court |
Child abduction – Rights of custody abroad – Mother removing child from Sweden without consent of father – Mother and child living in England – Father being granted legal custody of child by Swedish courts – Father applying to English courts for return of child – Whether appropriate forum England or Sweden – Whether immediate enforcement of order in accordance with child’s welfare – Child Abduction and Custody Act 1985, Sch 2, art 10(1)(a) and (b).
The father and the mother married in 1990 and the child was born in 1993. The mother and father separated in 1995 and subsequently divorced in Sweden. By a consent order of August 1995, made in Sweden, joint custody of the child was awarded to both parents and a direction was made that the child was to reside permanently with the mother. The mother subsequently made an application to vary the order and, by consent order, the Swedish courts awarded sole custody to her with fairly extensive contact to the father. In 1997, the mother removed the child from Sweden without the knowledge or consent of the father and later that year the father issued an application for custody of the child in Sweden. After a number of proceedings, during which the mother had made several allegations, including, inter alia, that the child had reacted in a negative fashion to the access that she had had with the father, the Swedish courts ordered, in November 2000, that the father should have legal custody of the child. At the time the father had no knowledge of the whereabouts of the mother and the child and had not seen them since they had left Sweden. In 2001, the mother applied to the Swedish Embassy for a passport and, as a result, the father discovered her address in England. He applied to the English courts for, inter alia, an order that the child be returned forthwith to his custody in Sweden. The court was faced with rival primary contentions from the parties, with the father wanting the future of the child to be decided by the Swedish courts and thus the courts of the country that had already made decisions in the case, whereas the mother wanted that future to be decided by the English courts where she and the child were settled.
Held – (1) The Swedish code relating to the importance of contact and a conclusion that residence should be changed when a custodial parent opposed and refused contact with the other parent for a reason that did not reasonably warrant it was not incompatible with the approach to residence and contact in England, having regard to the Children Act 1989 and authority. In the present case, the November 2000 Swedish order was within the range of orders that would have been open to an English court in the difficult circumstances that faced the Swedish courts following the mother’s removal
of the child from Sweden and her failure to take a full part in the preparation of the case report, and thus the Swedish proceedings. It followed that art 10(1)(a) of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (given effect to in English law by s 12(2) of and Sch 2 to the Child Abduction and Custody Act 1985) did not apply.
(2) ‘The effects of the original decision’ for the purposes of art 10(1)(a) and (b) of the European Convention referred to the effects of the enforcement of the decision without delay, review or alteration, and not to the effects of either (a) taking steps towards its enforcement including a hearing before enforcement at which enforcement could be stayed and/or the original order reviewed, or (b) a return of the child to the state of origin to enable it to enforce the original order if appropriate. It followed that what had to be considered under art 10(1)(b) was whether by reason of a change in circumstances immediate enforcement of the November 2000 Swedish order by the court, and thus an immediate transfer of custody to the father, would manifestly no longer be in accordance with the child’s welfare. In the present case, whilst this could not be said in relation to the welfare of the child in the medium to long term, an immediate move of the child without the opportunity for review, including a proper assessment and determination of the existing disputes, would, in all the circumstances, manifestly not accord with the short term welfare of the child, even if such a move was made after further hearings in which the mother had participated, and thus provided the appropriate court with full and proper information to enable it to decide the relevant disputes of fact and what would best promote the medium to long term welfare of the child. The discovery of the whereabouts of the mother and the child, and thus the higher prospect that the mother would take a full and proper part in Swedish proceedings, together with the change in circumstances in that the child’s roots had become more firmly rooted in England, constituted a change in the circumstances which had the effect referred to in art 10(1)(b). Accordingly, pursuant to s 16(4)(a) of the 1985 Act, registration of the November 2000 Swedish order would be refused.
(3) When a court considered the tests to be applied in respect of a stay of English proceedings and enjoining continuation of foreign proceedings, it should do so from the perspective of the test to be applied in those proceedings, in the instant case that the welfare of the child was paramount. In those circumstances, the Swedish jurisdiction was clearly or distinctly the more appropriate forum for determining the welfare of the child and thus the disputes that existed as to residence and contact. The primary disputes of facts arose in Sweden and that was where third party witnesses were based. However, the court would not order a return of the child to Sweden until a Swedish court had had the opportunity to consider the case further on an inter partes basis and determine or indicate its views on, for example, the enforcement of the November 2000 Swedish order or a return of the child to Sweden, on an interim or longer basis, as, having regard to the underlying nature of the disputes between the parents, there was no compelling reason why the child should be returned to Sweden for those purposes. Accordingly,
in the exercise of its inherent jurisdiction, and upon an undertaking by the father, the court would order the return of the child to Sweden, but stayed for the above purposes; Re K (abduction: forum conveniens) [1995] 3 FCR 697 considered.
Cases referred to in judgmentBritish Airways Board v Laker Airways Ltd [1984] QB 142, [1983] 3 All ER 375, [1983] 3 WLR 544, CA; rvsd in part [1985] AC 58, [1984] 3 All ER 39, [1984] 3 WLR 413, HL.
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; sub nom Re C (a minor) (abduction) [1989] 1 FLR 403, CA.
C v K (ouster order: non-parent) [1996] 3 FCR 488; sub nom C v K (inherent powers: exclusion order) [1996] 2 FLR 506.
E (child abduction: non-Convention country) Re[1999] 3 FCR 497, [1999] 2 FLR 642, CA.
Harrison v Tew [1990] 2 AC 523, [1990] 1 All ER 321, [1990] 2 WLR 210, HL.
K (abduction: forum conveniens), Re[1995] 3 FCR 697, [1995] 2 FLR 211, CA.
R v Secretary of State for the Home Dept, ex p Fire Brigades Union [1995] 2 AC 513, [1995] 2 All ER 244, [1995] 2 WLR 464, HL.
Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871, [1987] 3 All ER 510, [1987] 3 WLR 59, PC.
W v W (financial relief: appropriate forum) [1997] 2 FCR 659, [1997] 1 FLR 257.
Z (a minor) (abduction: non-convention country), Re[1999] 1 FCR 251, [1999] 1 FLR 1270.
ApplicationThe father applied, inter alia, for an order registering the order of the Court of Appeal for Scania and Blekinge, Sweden, dated 1 November 2000, granting him sole custody of the child, and that the mother return the child to Sweden. The facts are set out in the judgment.
Cur adv vult
2 November 2001. The following judgment was delivered.
CHARLES J.[1] This case concerns an eight-year-old girl. Her mother calls her [S]. In the Swedish courts, who have made orders concerning the child, she has been called [I], and I understand that that is what her father calls her. I shall refer to her as the child.
[2] The child’s mother and father were married in 1990. The child was born in May 1993. Her parents separated in early 1995 and they were divorced in Sweden in 1995.
[3] The plaintiff in the proceedings before me is the child’s father. The defendant is her mother.
[4] The mother and the child have Swedish passports.
THE HISTORY OF THESE PROCEEDINGS[5] The trigger to these proceedings was that in April of this year the mother applied to the Swedish Embassy for a passport. Because of this the father discovered her address in England.
[6] On 27 April 2001 the Swedish Central Authority made a request to the Lord Chancellor’s Department and on 2 May 2001 the originating summons was issued. By that summons the father sought an order that the order of the Court of Appeal for Scania and Blekinge, Sweden dated 1 November 2000 (the November 2000 Swedish Order) be recognised registered and enforced by this court. The father also sought an order that the child be returned forthwith to his custody in Sweden.
[7] On 2 May 2001 Connell J made interlocutory orders. There were directions hearings on 9 May 2001, and 6 June 2001.
[8] On 15 May 2001 it was ordered that—
‘the matter be restored before a Judge at the Royal Courts of Justice at 10.30 am on 6 June 2001 for directions—time estimate of one hour. The Plaintiff to indicate prior to that directions hearing whether the summons under the Hague Convention is continuing.’
I add that although the first paragraph of the originating summons seeks enforcement of the November 2000 Swedish Order the grounds referred to therein refer to both the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October...
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