House of Lords
Session 1997-98
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Judgments - In Re S (A Minor) (1997)


  Lord Goff of Chieveley   Lord Slynn of Hadley   Lord Nolan
  Lord Nicholls of Birkenhead   Lord Hutton


IN RE S (A MINOR) (1997)

ON 24 JULY 1997


My Lords,

     I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons he has given, I would dismiss this appeal.


My Lords,

     This appeal raises three principal questions:

     First, whether the English High Court had jurisdiction on 13 March 1996 to make an order giving interim care and control to the father of an infant E. and subsequently to order that E. remain a ward of court;

     Second, whether taking E. on 11 March 1996 from England to Ireland and subsequently keeping him there constituted the wrongful removal or retention of a child within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention") as given the force of law in the United Kingdom by section 1(2) of and Schedule 1 to the Child Abduction and Custody Act 1985;

     Third, whether such taking and keeping of E. constituted an unlawful removal of E. within the meaning of Article 12 of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children ("the European Convention") (as given the force of law in the United Kingdom by section 12(2) of and Schedule 2 to the Act of 1985) and of section 23 of that Act.

The First Question

     E. was born on 21 January 1995. His mother was an Irish national, his father Moroccan. They were not then, or subsequently, married and it is common ground that as an unmarried father, under English law prior to orders of the English court in his favour, the father had no parental rights in respect of E. It is also common ground that prior to her death E.'s habitual residence was that of his mother so that the question is what was the mother's habitual residence at the relevant times.

     She had lived in England with the father from 1990 to July 1995 when she obtained from the Willesden County Court an ex parte interim order for the residence of E. and an interim prohibited steps order. From 3 to 16 August 1995, when she returned to England, E. and his mother stayed with her mother (the first appellant in this case) on holiday in Ireland. Thereafter she stayed in England until the 4 September when she returned to Ireland intending to come back to England in January 1996. In fact she went to England alone from 2 to 7 November 1995 when she returned to Ireland; she went to England again with E. on 16 January 1996 and remained there until she was admitted to hospital in London on 4 March and died there from a brain haemorrhage on 10 March 1997.

     E.'s father had looked after him for part of the time whilst the mother was in hospital but on 5 March and 6 March the grandmother and another daughter (the second appellant) respectively came to London and helped to look after E.

     On 11 March the two appellants took E. to Ireland where he has lived since. It is at this stage that the maternal family and the father resorted to the courts, they in Ireland, he in England. On the same day, 13 March 1996, the Dublin Circuit Court made an order granting guardianship and care and control of E. to the second appellant, his aunt, and an hour or so later the English High Court made an order granting interim care and control of E. to the father, ordering that the grandmother return E. to the jurisdiction of the English Court. To this end an originating summons to make E. a ward of court, dated 12 March 1996, was issued on 14 March 1996. On 17 April the aunt was joined as a second defendant to the proceedings brought by the father and the wardship was continued.

     The High Court's jurisdiction in respect of children so far as relevant is to be found in the Family Law Act 1986. Section 1 of that Act specifies the orders to which Part I applies and includes:

     "(d) An order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children --

      (i) So far as it gives care of a child to any person or provides for contact with, or the education of, a child . . . "
    By section 2(3):

     "A court in England and Wales shall not have jurisdiction to make a section 1(1)(d) order unless --

      (a) the condition in section 3 of this Act is satisfied, or

      (b) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection."

     The condition in section 3 of the Act is that on the relevant date the child concerned --

     "(a) is habitually resident in England and Wales or,

     (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom."

     Since E. was not present in England and Wales at the time that the order was made by the English High Court the question is whether E. was habitually resident in England and Wales on the relevant date, which, by virtue of section 7 of the Act, is the date when an application is made for an order.

     The trial judge, Mr. Lionel Swift Q.C., after a hearing lasting eight days and a careful consideration of the authorities as to what constituted "habitual residence" recorded that there was no dispute that the mother was habitually resident in England until 3 September 1995. He then examined extensive evidence as to the movements of, and the relationship between, the parents in the subsequent period and said:

     "I am prepared to accept that during the period between September and December [1995] were it necessary to find it, the mother might have been described as habitually resident in Ireland. She was there as part of her regular order of life for the time being, though whether her stay there was for a settled purpose other than to stay there is debatable. But I am concerned with the position at her death. I conclude that when she returned to England in January she became habitually resident here. If I am wrong about that then certainly by the time she died that was the position. In so finding I bear in mind that it takes time in general to establish a new habitual residence. But when she returned here she was returning to her own home, and was intending as I find to make her home here."

     Again after examining in detail the evidence as to the period between January and 10 March 1996 he concluded that at the date of her death the mother was habitually resident in England.

     In the Court of Appeal and before your Lordships' House the appellants, though contending that E. and his mother were habitually resident in Ireland between 4 September 1995 and 16 January 1996, accepted, so that it is now common ground, that at the date of her death the mother, and therefore E., were habitually resident in England. It is accordingly unnecessary to examine in detail the evidence upon which this finding of the judge was based.

     The critical question is thus whether, since he had left England on 11 March, E. was still habitually resident in England on 13 March when Wall J. made his order in the High Court. Had he become habitually resident in Ireland, or at any rate lost his habitual residence here even if he had not acquired an habitual residence in Ireland?

     The learned trial judge found that the appellants intended to take E. to Ireland without the father's knowledge and that they did in fact take E. without the father's consent or knowledge. Indeed it is said that the father was ignored or brushed aside by the mother's family after her death. The judge was prepared to accept that "there may be circumstances in which physical possession or care may determine a child's habitual residence," which is a question of fact, and that where a parent takes a child away a new habitual residence may be acquired very quickly. But he continued:

     "I am not prepared to accept that a person with no juristic power over a person of this age can change his habitual residence within a day or two. It is not necessary to consider the position of a child kept by such a person over a significant period of time."

     In the Court of Appeal Butler-Sloss L.J., with whom the other members of the court agreed, took the same view as the trial judge. In considering the appellants' contention that E. lost his habitual residence in England either when the appellants took over his de facto care on 10 March or when they took him to Ireland on 11 March she said:

     "The death of the mother, the sole carer, would not immediately strip the child of his habitual residence acquired from her, at least, while he remained in the same jurisdiction. Once the child has been removed to another jurisdiction, the issue whether the child has obtained a new habitual residence whilst in the care of those who have not obtained an order or the agreement of others will depend upon the facts. But a clandestine removal of the child on the present facts would not immediately clothe the child with the habitual residence of those removing him to that jurisdiction, although the longer the actual residence of the child in the new jurisdiction without challenge, the more likely the child would acquire the habitual residence of those who have continued to care for the child without opposition. Since, in the present case, the English court was seised of the case within two days of the removal of the child, it is premature to say that the child lost his habitual residence on leaving England or had acquired a new habitual residence from his de facto carers on arrival in Ireland."

     She rejected two further contentions of the appellants--first that a person having care of, but not having parental responsibility for, a child who did what was reasonable for the purpose of safeguarding or promoting the child's welfare pursuant to section 3(5) of the Children Act 1989 was enabled to change the child's habitual residence; and second that, because the Dublin Circuit Court had made an order on an ex parte application giving the custody of E. to his aunt who was made guardian, and prohibiting the father from moving E. from Ireland, first in time, the English court could not make the order which it did make in respect of E.

     There were thus concurrent findings of fact by the trial judge and by the Court of Appeal that E. was habitually resident in England at the time of the court order on 13 March. By the fact of being taken out of England by his grandmother and his aunt, who had no parental rights over him, he had not lost his habitual residence in England or acquired an habitual residence in Ireland. It is only in exceptional circumstances that your Lordships' House will reject concurrent findings of fact, particularly where the finding of the trial judge is based on a substantial amount of oral evidence and where the judge's assessment of the truthfulness of the witnesses is crucial to his findings of fact. In the present case I can see no justification for rejecting the concurrent findings of fact even if I had thought that they might possibly be wrong. I consider however that the judge not only came to a conclusion to which he was entitled to come but that he came to the right conclusion, on his primary findings on fact as to the events over the relevant period, that E.'s habitual residence remained in England.

     Although it seems to me that the appellants were wrong to take E. away clandestinely without the consent of the father, even without telling the father, and without the consent of the court (as Budd J. put it in the Irish proceedings on the Convention the rule should be "apply, don't fly"), it is fully understandable that, in the distressing circumstances of the mother's death, the grandmother should wish to have with her the baby who had spent several months at her house in Ireland in the latter part of 1995. This desire, however, and the need for someone to look after the child cannot, in my view, mean that by merely taking E. out of the jurisdiction during a period of two days they had ipso facto brought about a change in his habitual residence. Neither appellant had parental rights over the child, who was too young to form any intention as to his own future residence, and two days with the appellants in Ireland is not sufficient of itself to result in his existing habitual residence being lost and a new one gained. The position is quite different in the case of a mother, with parental rights and on whose habitual residence the child's habitual residence depends. If she leaves one country to go to another with the established intention of settling there permanently her habitual residence and that of the child may change very quickly. Such is not the present case where no parental rights were involved and where E.'s habitual residence did not depend on and automatically change with those of the appellants.

     I agree with Butler-Sloss L.J. that the powers conferred by section 3(5) of the Children Act 1989 on a person, who has care of a child but without parental responsibility, to do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child's welfare do not include the power to change the child's habitual residence merely by taking him out of the jurisdiction. Whether it was reasonable in all the circumstances of the case to take E. out of the jurisdiction for the purpose of safeguarding or promoting his welfare, quite apart from any question of a change in his habitual residence, does not fall to be decided on the present appeal.

     I also agree with Butler-Sloss L.J. that the English court's order was not made without jurisdiction just because a little earlier on the same day the Dublin Circuit Court had given the aunt custody of E. and made her his guardian. Whether or not it is right to regard both orders as taking effect at the beginning of the day upon which they were made, it is clear that, at the time the interim order of care and control was made by the English court, E. was in fact still habitually resident in England. The ex parte orders giving custody to the aunt did not change E.'s habitual residence so as to deprive the English court of jurisdiction.

     The appellants contended before the Court of Appeal and before your Lordships that it was in any event inappropriate for Wall J. to have made an order in relation to an alien child who was at the time living in the country of his nationality. In In re P. (G.E.) (An Infant) [1975] Ch. 568 a child was taken by his father away from the mother in England to Israel. The Court of Appeal held that the parens patriae jurisdiction of the English court could be exercised in respect of the child who was ordinarily resident within the jurisdiction, although not present there, when the proceedings were begun. Lord Denning M.R. said, at p. 584:

     "The Crown protects every child who has his home here and will protect him in respect of his home. It will not permit anyone to kidnap the child and spirit it out of the realm. Not even its father or mother can be allowed to do so without the consent of the other. The kidnapper cannot escape the jurisdiction of the court by such a stratagem."

     In that case, however, the child was stateless whereas here E. was an Irish national. It is submitted by the appellants that that is a crucial distinction and that since allegiance was owed to the Irish Republic and not to the Crown the parens patriae powers could or should not be exercised by the Crown. In In re B.-M. (Wardship: Jurisdiction) [1993] 1 F.L.R. 979 Eastham J. had to consider the case of a child who was a German national. He was taken by his mother out of England where they had been living and where the judge found that they had their habitual residence. The mother was sole custodian of the child. On the application of the father the child was made a ward of court and the father applied for a declaration under the Hague Convention that the retention by the mother was wrongful. Eastham J. said, at p. 984:

     "I have come to the conclusion that the English wardship court does have jurisdiction over an alien child provided England or England and Wales is the habitual residence of the child."

He approved the statement in Lowe and White "Wards of Court" 2nd ed. p. 24 (1986), para. 2-11, that although it was arguable that the decision in In re P. (G.E.) (An Infant) only applies if the minor is stateless:

     "It is submitted that the decision is wider than that and extends to any alien minor who can be said to be ordinarily resident in England. Admittedly the court referred to the fact that both father and son held travel documents entitling them to return to England, issued pursuant to the Final Act and Convention relating to the Status of Stateless Persons 1954, but this plus the fact that the parties had only obtained a temporary tourist visa to visit Israel pointed to their being resident in England so that the decision would appear not to be confined to Stateless minors."

     But Miss Scotland Q.C. has submitted that Eastham J.'s decision was erroneous.

     Whilst it is correct that in In re P. (G.E.) (An Infant) the child in question was stateless, I do not read the statements of principle as to the court's jurisdiction by the three members of the Court of Appeal as being based on, or limited to, that fact. In particular the statement of Lord Denning M.R., at p. 584, already quoted is in general terms. I can see no reason why as a matter of principle the court's jurisdiction should not be available to protect any child who is habitually resident here or within the jurisdiction from being "kidnapped" and "spirited" out of the realm. Whether it is appropriate for that jurisdiction to be exercised will depend on the facts of the case, but in my opinion Eastham J. in In re B.-M. (Wardship: Jurisdiction) was right to hold that the jurisdiction was not limited to stateless children and to approve the view expressed in Lowe and White that this jurisdiction goes beyond the protection of stateless children but "extends to any alien minor who can be said to be ordinarily [habitually] resident in England." I agree with Butler-Sloss L.J. that it is habitual residence and not allegiance or citizenship which is determinative of the court's jurisdiction.

     Accordingly, in my opinion, on the findings of the learned trial judge and the Court of Appeal that E. was habitually resident in England at the date of his order, Wall J. had jurisdiction to make the order which he made on 13 March 1996.

The Second Question

     As to the second question the trial judge rejected, but the Court of Appeal accepted, that on the facts of the case there had been a breach of Article 3 of the Hague Convention.

     By that Article:

     "The removal or the retention of a child is to be considered wrongful where--

      (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

      (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."

     The rights of custody referred to may arise, inter alia, by operation of law or by reason of a judicial decision, and, by Article 4, the Convention is to apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. "Rights of custody" are by Article 5 to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence."

     A person claiming that a child has been removed or retained in breach of custody rights may apply to the Central Authority of the child's habitual residence, or of any other Contracting State, for assistance in securing the return of the child. Where a child has been wrongfully removed or retained in terms of Article 3 the judicial or administering authority of the Contracting State where the child is shall order the return of the child if, at the date of the commencement of the proceedings before such authority, a period of less than one year has elapsed from the date of the wrongful removal or retention (Article 12). Exceptions to the obligation of the requested State in that Article are contained in Article 13. They are not relevant to this case.

     A child must, thus, be returned pursuant to Article 12 if there has been either a wrongful removal or a wrongful retention within the meaning of Article 3. These are separate events occurring on specific occasions and were said in In re H. (Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476 to be mutually exclusive concepts. Lord Brandon of Oakbrook said, at p. 500B:

     "For the purposes of the Convention, removal occurs when a child, which has previously been in the State of its habitual residence, is taken away across the frontier of that State; whereas retention occurs where a child, which has previously been for a limited period of time outside the State of its habitual residence, is not returned to that State on the expiry of such limited period."

     In In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562 at p. 578 Lord Brandon gave guidance as to a number of preliminary points relevant to the application of Article 3.

     "The first point is that the expression 'habitually resident,' as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J.'s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers."