Judgment - In Re S (A Minor) (1997)  continued

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     The preamble to and Article 1 of the Hague Convention are not set out in the Schedule to the Act but it is useful to recall them. The preamble expresses the desire of the States signing the Convention:

     "To protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access."

The objects of the Convention are stated in Article 1 to be:

     "(a) To secure the prompt return of children wrongfully removed to or retained in any contracting State; and

     (b) To ensure that rights of custody and access under the law of one contracting State are effectively respected in the other contracting State."

     Your Lordships have been referred to a valuable Explanatory Report on the Hague Convention by Professor Elisa Pérez-Vera, Reporter to the First Commission of the Hague Conference. It is not possible to set out long extracts from that Report, helpful though they are, but I draw attention to a number of points which are made in it. First, the situations envisaged by the Convention are "those which derive from the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child." (Paragraph 11) Resorting to this expedient "an individual can change the applicable law and obtain a judicial decision favourable to him." (Paragraph 15)

     The route adopted by the Convention "will tend in most cases to allow a final decision on custody to be taken by the authorities of the child's habitual residence prior to its removal." (Paragraph 16) In Paragraph 19 it is said:

     ". . . the Convention rests implicitly upon the principle that any debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal: this applies as much to a removal which occurred prior to any decision on custody being taken--in which case the violated custody rights were exercised ex lege--as to a removal in breach of a pre-existing custody decision."

     The Convention is not concerned with the law applicable to the custody of children and reference is made to the law of the State of the child's habitual residence "only so as to establish the wrongful nature of the removal." (Paragraph 36)

     " . . . the rules of the Convention rest largely upon the underlying idea that there exists a type of jurisdiction which by its nature belongs to the courts of a child's habitual residence in cases involving its custody." (Paragraph 66)

In paragraph 71 it is said:

      "Leaving aside a consideration of those persons who can hold rights of custody . . . it should be stressed now that the intention is to protect all the ways in which custody of children can be exercised."

     and:

     "The Convention's true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties."

     The father does not contend, and has not contended, that there was here a wrongful removal when the child was taken out of the jurisdiction on 11 March. In this he was right. It is plain that when the appellants removed E. from London to Ireland the father had no rights of custody over E. by operation or law or by reason of any judicial or administrative decision or by any binding agreement. There was therefore no wrongful removal within the meaning of Article 3.

     The appellants say that this in fact was a removal case and not a retention case and if the removal was lawful that is the end of the matter, but alternatively that, if this is to be treated also as a retention case, the retention was equally lawful.

     I do not agree that this case is to be treated only as a "removal" case. Even though the two are separate and mutually exclusive both can occur on the facts in relation to the same child at different times. It must, however, be necessary to point specifically to the event which constitutes the removal or the retention. This is necessarily so because of the provision of Article 12 that for an order for the return of the child to be made at the date of commencement of the proceedings, a period of less than one year has elapsed "from the date" of the wrongful removal or retention.

     The appellants contend that E. was retained in Dublin on his arrival there from England. That was on 11 March and they say that this was the only relevant date since his continuing retention there is not relevant for the purpose of calculating the period of one year. It follows that since the father had no rights of custody on 11 or 12 March the retention following the removal was no more unlawful than was the removal.

     This argument ignores the possibility that the nature of the retention may change and may change with effect from a specific date so as to permit the calculation of one year to be made. That this can happen is in my view plain. Thus a parent or parents having rights of custody may agree that a child shall go on 1 January to stay with a friend abroad for a period of six months. The friend takes the child abroad. That is clearly not a wrongful removal. The friend keeps the child abroad until 30 June: that is clearly not a wrongful retention. On 1 July the friend keeps the child and refuses to return him. The parent's consent has gone and the retention becomes wrongful. The time runs from that date. The flaw in the appellants' argument is that it looks only at the date of retention whereas what has to be considered is the date of wrongful retention: see In re H. (Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476, 499.

     This example is only one way in which a lawful retention may become a wrongful retention. The same in my opinion can happen where a parent had no parental rights when a child was removed and initially retained in a way which was not unlawful. If subsequently he acquires such rights and demands the return of the child then the retention may become wrongful.

     That in my opinion happened in the present case. On the basis of the finding of the trial judge that on 13 March E. was habitually resident, even if not actually present, in England, when Wall J. made his order giving interim care and control of E. to the father and ordering that E. be returned to the care and control of the father in the jurisdiction of the High Court, the father acquired rights of custody within the meaning of Articles 3 and 5 of the Convention. The retention of E. contrary to that order and to the father's wishes thereupon became wrongful. Since no question of the limitation provision in Article 12 arises it is unnecessary to decide whether the relevant date is the making of that order (13 March) or its service on the appellants (apparently 16 March). It was on any view wrongful within the meaning of the Convention by the later date and was not prevented from being so by virtue of the order of the Dublin Circuit Court on the same day. Such a result is not in any way inconsistent (as the appellants argue it is) with the decision of your Lordships' House in In re H. (Minors) (Abduction: Custody Rights) (supra) that removal and retention are single events occurring on a specific occasion and mutually exclusive concepts.

     The appellants contend, however, that on the basis of the decision of your Lordships' House in In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562 the retention of E. was not wrongful. In that case a mother and child were habitually resident in Western Australia, the mother having sole parental rights over the child. They left Western Australia on 21 March 1990 and arrived in England on 22 March 1990 when it was found that retention of the child began. On 12 April 1990 the court of Western Australia granted sole guardianship and custody of the child to the father and declared that the removal from Australia was wrongful. In your Lordships' House it was held that the removal of the child was not in breach of any custody rights of the father nor was the retention in England during the three weeks before the Western Australia court's order in itself wrongful. The essential difference between that case and the present was, however, that the mother had left Western Australia, as Lord Brandon said, at p. 579:

     "With a settled intention that neither she nor J. should continue to be habitually resident there. It follows that immediately before 22 March 1990, when the retention of J. in England began, both she and J. had ceased to be habitually resident in Western Australia. A fortiori they had ceased to be habitually resident there by 12 April 1990, the date of the order of Anderson J. The consequence is that the continued retention of J. in England by the mother was never at any time a wrongful retention within the meaning of Article 3 of the Convention."

     The critical difference between In re J. (A Minor) (Abduction: Custody Rights) and the present case is that E. was habitually resident in England at the time of Wall J.'s order. The same difference arose in In re B.-M. (Wardship: Jurisdiction) [1993] 1 F.L.R. 979 where an unmarried mother took her child to Germany on or about 3 September and on 4 September the father obtained a wardship order which was served on the mother on 11 September. It was held by Eastham J. that even if the removal was not unlawful because there was no court order in existence yet the retention was wrongful with effect from 11 September when the mother kept the child out of the jurisdiction and failed to return her in accordance with the orders of the English court, the child having been habitually resident in England at the time the wardship proceedings began.

     Because the child's habitual residence at the date of the court's order in the present case remained England I do not consider that the result indicated in the present case is inconsistent with the decision of your Lordships' House in In re J. (A Minor) (Abduction: Custody Rights) (supra); it is consistent with the judgment of Eastham J. in In re B.-M. (Wardship: Jurisdiction) which on this point also was rightly decided.

     I consider therefore that the Court of Appeal was right to hold that the retention by the second appellant was wrongful within the meaning of the Hague Convention.

The Third Question

     As to the third question the trial judge held that there had not, the Court of Appeal held that there had, been an unlawful removal of E. from the jurisdiction contrary to Article 12 of the European Convention.

     The purpose and structure of the European Convention is different from that of the Hague Convention and it does not follow, though it may be, that what constitutes, or does not constitute, an "unlawful removal" for the Hague Convention, is, or conversely is not, an "unlawful removal" for the European Convention.

     As to the purpose, the Member States of the Council of Europe recited that

     "the making of arrangements to ensure that decisions concerning the custody of a child can be more widely recognised and enforced will provide greater protection of the welfare of children . . ."

     As to the structure, by Article 7 of the Convention:

     "A decision relating to custody given in a Contracting State shall be recognised, and, where it is enforceable in the State of origin, made enforceable in every other Contracting State."

     The procedure of applying through the central authority of a Contracting State is prescribed by Articles 4 and 5 of the Convention and expanded in sections 14-22 of the Act of 1985. Recognition and enforcement may be refused in the circumstances specified in Articles 9 and 10 of the Convention including that in Article 10(1)(d):

      "If the decision is incompatible with a decision given in the State addressed or enforceable in that State after being given in a third State, pursuant to proceedings begun before the submission of the request for recognition or enforcement, and if the refusal is in accordance with the welfare of the child."

     By Article 1:

     "(c) 'decision relating to custody' means a decision of an authority in so far as it relates to the care of the person of the child, including the right to decide on the place of his residence, or to the right of access to him.

     (d) 'improper removal' means the removal of a child across an international frontier in breach of a decision relating to his custody which has been given in a Contracting State and which is enforceable in such a State; 'improper removal' also includes:

      (i) the failure to return a child across an international frontier at the end of a period of the exercise of the right of access to this child or at the end of any other temporary stay in a territory other than that where the custody is exercised:

      (ii) a removal which is subsequently declared unlawful within the meaning of Article 12."

By Article 12:

     "Where, at the time of the removal of a child across an international frontier, there is no enforceable decision given in a Contracting State relating to his custody, the provisions of this Convention shall apply to any subsequent decision, relating to the custody of that child and declaring the removal to be unlawful, given in a Contracting State at the request of any interested person."

     By Section 23(2) of the Act:

     "Where in any custody proceedings a court in the United Kingdom makes a decision relating to a child who has been removed from the United Kingdom, the court may also, on an application made by any person for the purposes of Article 12 of the Convention, declare the removal to have been unlawful if it is satisfied that the applicant has an interest in the matter and that the child has been taken from or sent or kept out of the United Kingdom without the consent of the person (or, if more than one, all the persons) having the right to determine the child's place of residence under the law of the part of the United Kingdom in which the child was habitually resident."

     The appellants accept that where a child is removed from the jurisdiction with the consent of the person having the right to determine the child's place of residence and subsequently to that removal the child is "kept out" of the jurisdiction in contravention of any provision for the child's return the removal will be deemed to have been unlawful. They contend, however, that in section 23 the only person who can make an application or whose consent was relevant was that of E.'s mother and that Article 12 cannot create rights for the person seeking the declaration which were not in being prior to the removal. The father could only be entitled to a declaration under section 12 if he had the right on 11 March 1996 to determine E.'s place of residence and the court had no right to determine (with retrospective effect so as to confer rights on the father) E.'s place of residence prior to the removal.

     The trial judge accepted this approach. He said:

     "I conclude that for a declaration to be made the child must have been taken out from or sent out or kept out of the United Kingdom without the consent of the person who then had the right to determine the child's place of residence. In my view the removal and retention thereafter is not unlawful within the meaning of Article 12 or Section 23(2) unless at the time it was without the consent of the person having the right to determine the child's place of residence (see F. v. S. (Wardship: Jurisdiction) [1991] 2 F.L.R. 349; not reversed on this point in the Court of Appeal [1993] 2 F.L.R. 686 (C.A))."

     The definition in Article 1(d) of the Convention is of "improper removal," a phrase which occurs only in Article 10 whereas in Article 12 the reference is to a declaration of "the removal to be unlawful". The definition, however, includes in (ii) a removal which "is subsequently declared unlawful" and it is clear that an improper removal includes an unlawful removal. By virtue of Article 1(d) a removal is improper in two different situations--first if it is in breach of a decision relating to the child's custody "which has been given." This I understand to mean that the removal of the child across an international frontier was improper at the time it was effected in that it was in breach of an existing decision. Secondly it may also be an "improper removal" if there is a failure to return the child at the end of the period during which the child had been properly or lawfully outside the jurisdiction. This is not described in the Convention as an unlawful or improper "retention" but for the purposes of the Convention it makes retrospectively "the removal" unlawful.

     For the purposes of Article 12 there must have been at the time of the child's removal across an international frontier no enforceable decision given in a Contracting State relating to his custody. That was satisfied here as at 11 March 1996. For the Convention to apply to any subsequent decision it must be one "relating to the custody of that child and declaring the removal to be unlawful, given in a Contracting State at the request of any interested person." The decision of Wall J. on the 13 March was a subsequent decision given in a Contracting State relating to the custody of the child. The father was plainly an interested person. But was the decision one "declaring the removal to be unlawful."? On the face of it, that decision does not declare, and for the purposes of its jurisdiction in making the order of care and control and for E.'s return it did not need to declare, that the initial taking of E. to Ireland in itself was unlawful.

     The respondent contends that the removal was unlawful since removal of a child out of the jurisdiction is unlawful if there is no consent to the child's removal, even if there is no one who has the right to consent other than the court. I am not satisfied that this is right in the broad terms in which it is put or that the initial taking to her home of E. by a near relative was necessarily unlawful, even if it was unwise without the consent of the court and even if the lawfulness of E.'s retention in Ireland could be ended by an order giving care and control to the father.

     It seems to me, however, that after the making (or at the latest the service) of Wall J.'s order giving care and control to the father the retention of E. in Ireland and the failure to return him to England became unlawful and improper and for the purposes of the Convention constituted an improper removal within the meaning of Article 1(d).

     This result is reflected in section 23(2) of the Act of 1985 which I have already quoted. In the present case it is clear that these were custody proceedings relating to a child who had been removed from the United Kingdom and in respect of whom, before the judge, an order was sought pursuant to the European Convention that his removal was improper and unlawful within the meaning of Articles 1 and 12 of the Convention. The court is, by section 23(2), empowered to declare the removal to have been unlawful if it is satisfied that the applicant has an interest in the matter and that

     "the child has been . . . kept out of the United Kingdom without the consent of the person . . . having the right to determine the child's place of residence under the law of the part of the United Kingdom in which the child was habitually resident."

     The father had such an interest; E. was habitually resident in England before, at and from 13 March 1996; the father from 13 March had the right to determine E.'s place of residence under English law; E. was kept out of the United Kingdom without his father's consent from that date, if not earlier.

     It follows in my opinion that section 23(2) is satisfied and that the court is empowered to declare for the purposes of the Convention that E.'s removal was unlawful.

     I would, accordingly, uphold the decision of the Court of Appeal that E. was at the relevant time habitually resident in England and declare that E. had been wrongfully retained out of the jurisdiction contrary to Article 3 of the Hague Convention and further declare, for the purposes of section 23(2) of and Articles 1 and 12 of Schedule 2 to the Child Abduction and Custody Act 1985, the removal of E. from the jurisdiction to have been unlawful.



LORD NOLAN


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 too would dismiss this appeal.



LORD NICHOLLS OF BIRKENHEAD


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 too would dismiss this appeal.



LORD HUTTON


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 too would dismiss this appeal.



 
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Prepared 24 July 1997