UK – 1988

Court: High Court of Justice, Family Division, United Kingdom
Number: CA 1223/87

Applicant: Father


Respondent: Mother

Date: 13 Jan 1988


Royal Courts of Justice

Wednesday, 13th January. l988

Before: Mr. Justice Ewbank

RE ARTHUR (a minor)

(Transcribed from the official court tape recording by Harry
Counsell G Co., 61, Carey Street. London. WC2A 2JG.)

MISS P.J. SCOTLAND (instructed by Messrs. Malkin, Cullis G
Sumption) appeared on behalf of the Plaintiff.

MR. M.J. POINTER (instructed by Messrs. Akerman & Co. of
Worthing) appeared on behalf of the Defendant.

As approved

MR. JUSTICE EWBANK: Simon is 2 3/4 and he is an Australian
boy. He was brought here to England by his mother in March, 1987.
The father now applies under The Hague Convention for the return
of the child to Australia.

The father and mother were married in January, 1984, and
Simon was born on the 17th April, 1985. The father is 28 and he is
a teacher. He was born in Australia and has lived all his life
there. The mother is 24. She went to Australia with her family
when they emigrated there in 1974. Her mother died in 1980. Until
that time she and her two brothers and her sister lived as a
family in Australia. Her father and her brothers and sister still
live there. The father has a three-bedroom house which was the
family home. After her mother died there were difficulties in the
home. She was about 16 and because of the difficulties she went to
live with a foster-mother, Miss Doneta Medway. The foster-mother
had other children living there. The mother did not get on with
those children, in particular did not get on with Sue Owen. who
still lives with her foster-mother in Australia.

After the marriage the mother and father bought a house on
mortgage and lived together in a suburb of Sydney in New South
Wales. The marriage was unhappy, and in November or December of
1985 the father left. He says that the mother had told him to go.
Simon was seven months old at that time, and since then has
remained in the sole care of the mother, although the father had
contact with Simon. There have been no divorce proceedings as yet
between the father and the mother.

The mother and the child lived in the matrimonial home after
the father left, and the father paid the mortgage for the first
few months, but he asserts that he was having financial
difficulties, and in May of 1986 he stopped paying the mortgage.
This made the bank to whom the money was owed restive. Access was
not entirely satisfactory and the father applied for access to the
local court at Camden in New South Wales, and a consent order was
made on the 6th June, 1986 under the Family Law Act, 1975. The
consent order provided that the mother should have custody of
Simon and provided for access to the father every Sunday.

The father earned at that time something under $30,000 per
year. and he offered the mother $30 per week maintenance for
Simon. This is equivalent to about 12 pounds per week. The mother
regarded that as insufficient and refused to accept that figure.
The father accordingly paid this amount into a bank account for

In November of 1986 the bank called in the loan secured on
the house, and at about the same time the father made an
application, on the 5th November, in the Family Court of Australia
at Parramatta probably for the sale of the house, although the
application that he made is not before the Court.

On the 22nd December, 1986 the bank issued a notice of
foreclosure in relation to the mortgage. Meanwhile, on the l9th
December the mother had issued a cross-application in the Family
Court of Australia for variation of the father’s access. The two
applications came before the Court on the 27th January, 1987, and
on the same day an application appears to have been filed with the
Court by the father, asking that Simon should not be removed from
New South Wales by his mother. He filed an affidavit saying that
he had learnt that the mother might be coming to England.

On the hearing on the 27th January various directions were
given by the Judge. There was an order for the sale of the house
by consent, and the case was stood over for a date to be fixed. By
this time the account which the father had opened for Simon was in
credit in the sum of about $900. and the mother accepted that
figure and took the money. As far as the home was concerned the
mother was contending that when the house was sold she should have
80 per cent of the proceeds of sale and the father should have 20
per cent. The father was suggesting a 50 per cent split. That was
one of the issues which was going to be decided at the next

The mother filed an affidavit on the 9th February, 1987
dealing with the father’s suggestion that she might be going to
England, and asserting that it would be for Simon’s benefit for
him to go with her to England, so it must have been clear to both
the mother and the father that the issue whether Simon should go
to England was an issue which was going to be before the Court.
The mother, however, decided not to wait for any Court decision
and she decided on unilateral action. Using the $900 which she had
taken out of Simon’s account and some other funds she bought air
tickets and on the l7th March, 1987 she left Australia and came to
England and went to live with Simon at her grandmother’s in
Worthing. She decided to buy a return ticket for herself, but this
was not, she told me, because she thought she might go back, it
was merely that it is cheaper, she says, to buy a return ticket
and then cash in the other half later. So she still has the other
half of the return ticket and is still available to be used. She
has not cashed it. When she left she did not tell the father and
she left a letter to be posted to him. The letter is dated 5th
March, 1987 and is said to have been received on the 1st April,
1987. She starts off by saying that she is sorry for those things
which she did wrong during the marriage, and she points out some
of the defects of the father, and she says, “I hope that you
understand why Simon and I are going away for a while. You have
forced us in an unloving manner into this situation and given us
little or no – other choice.” The fact that the mother took a
return ticket and in this letter talks about going away for a
short while gave the impression that she might have been thinking
of returning to Australia, but she assures me that that impression
is quite wrong, she never intended to come back, and when she
wrote that she was going away for a while this was eyewash to
deceive the father.

The mother explains her leaving Australia in this way. She
says that she had asked her solicitor in the summer of 1986
whether she could go to England. This was at a time before there
had been proceedings in the Family Court of Australia, and that he
had said yes, it would be all right. And then she says that in
1987 she applied for a passport and it was issued to her and she
took this to indicate that she could leave the country with Simon.
She did not check with her solicitor who had been acting for her
in the Family Court, and she says she telephoned the solicitor’s
secretary to let her know of her departure on the day of
departure. I have considerable doubt whether the mother is being
honest in saying that she did not realise that she should not have
taken this unilateral action.

The father took the case back to the Family Court and it came
before Mr. Justice Purdie on the 9th April, 1987. The father asked
for an order for custody in his favour, having regard to the
mother’s departure with the boy, but the Judge refused that
application and adjourned it for further consideration. But he
ordered a sale of the house in accordance with the contributions
of the parties in the proportions of 80 per cent to the father and
20 per cent to the mother. The father said he spent the next
months trying to negotiate with the mother and trying to persuade
her to return with Simon from England. The mother, however, had
clearly decided that she was not going to return to Australia, and
the indications are that she had decided at a fairly early stage
that she wished to cut the father and his family off from contact
with Simon. I have a number of letters which were written in 1987.
On the 21st June, 1987 the mother wrote to the father, ending her
letter by saying, “Any further correspondence from you will either
be ignored, returned or destroyed”. On the 31st August, 1987 the
mother wrote to the father’s parents who are in Australia saying.
“I suggest you do not bother to send any further gifts, letters,
cards. etc. to Simon or me”, and in the body of the letter she
says. “Rather than worry when or if you will see Simon again you
should divert your attention towards your sons and correcting the
many mistakes and shortcomings in relation to them. Simon’s
welfare is my concern and my responsibility. so I feel that to
send photos of and letters from Simon would be out of the
question. since maintenance has not been forthcoming.” And then an
ugly letter of the 24th September, 1987 was sent to the father’s
mother by the grandmother with whom Simon now lives, saying, “I
have spelt out to Michael” – that is the father – “that he will
not be welcome here at any time, but I know an address or two on
the Phillips side where we can muster up a few burly fellows who
can’t wait to meet him. Think on it.” The father’s hope of
achieving a negotiated arrangement was hopeless, and in those
circumstances he issued an originating summons under The Hague
Convention on the 18th December, 1987, asking for the return of
the child. The summons is on the face of it a summons asserting a
breach of his access rights, but I have given leave to amend the
summons to allege breach of custody rights, and in due course
before the case finishes I hope that amendment will be available.

The mother’s present position is that she lives in Worthing
with the grandmother in what appears to be a satisfactory home.
Surprisingly she still receives social security from Australia,
and she receives about 90 pounds a fortnight. If she goes back to
Australia she will still continue to receive the social security
there. If the Court decides that Simon has to go back to Australia
then the mother says that she will go with him, and of course she
has a custody order, at any rate at present, in the Australian

The house in Australia has been sold. There is some 1,000
pounds representing her 20 per cent interest in the house
available for her in an account. There is some question as to
whether the legal aid authorities in Australia may have a lien
over that in the same way as the legal aid authorities would in
England. The mother certainly thinks that they have such a lien.
The mother accordingly would have difficulties about accommodation
because the house she left is no longer there. Possibilities put
forward by the father are that she should go back to live with her
father. One brother and one sister are still in the former family
home. Another alternative suggested by the father is that she
should go to live with the foster-mother. She herself does not put
forward any suggestions as to how she would manage. She says it
would be extremely difficult.

The father has been on a sabbatical year from his school
mastering, and returns to work at the beginning of next term, –
which starts on the 1st February. He shares a house and he says he
would be in a position to care for Simon, or at any rate for his
parents to care for Simon. That is not a matter for this Court to
decide, of course. It has to be said in thinking about the
possibility of the father caring for Simon that on the l3th March,
1987, just before the mother left and not knowing that she was
about to leave, the father wrote a letter saying, “I continue to
see Simon every Sunday afternoon and he is thriving. I think the
mother is an exceptional mother in her caring for his needs and
making sure of his stimulation and development.” So it is likely
that if the mother and child return to Australia that the mother
will continue to have custody of the child. He now says that if
the mother were to return to Australia he would pay maintenance at
the rate of about $100 per week.

The application by the father is under The Hague Convention,
which has been given the force of law in England under the Child
Abduction and Custody Act of 1985. The mother takes the point that
when the originating summons was issued certain documents which
should have accompanied it were not provided and still have not
been provided. Article 8 of The Hague Convention provides that the
application to the central authority should contain various items
of information, and it goes on to say that the application may be
accompanied by a series of documents which are specified. The
Hague Convention is given force of law under Section 1 (2) of the
Act. Under Section 10 of the Act rules of court are authorised.
The appropriate rule of court is Order 90, Rule 34, and this rule
provides that the originating summons shall be accompanied by all
the relevant documents, including but not limited to documents
specified in Article 8 of The Hague Convention.

One of the documents which is referred to in The Hague
Convention is a certificate or affidavit emanating from a central
authority or other competent authority of the state of the child’s
habitual residence or from a qualified person concerning the
relevant law of the state, and it is said that such a document has
not been provided and therefore that the application is defective.
Article 8, as I have pointed out, says that the application may be
accompanied by these documents. The order says that the documents
which are to be provided are–to be all the relevant documents and
include the documents in Article 8. In my judgment the fact that
there is a discretion under Article 8 to include the various
documents mentioned in that article governs the rule of court, and
the discretion passes from The Hague Convention into that rule of
court. And the fact that one document which might have accompanied
the application under The Hague Convention is not accompanying the
originating summons is not fatal to the application. The fact that
such a document could be provided draws attention to the need for
the relevant law of Australia to be carefully considered in this
case. But the fact that the consideration does not arise from an
affidavit in my judgment is not vital.

As I said earlier the originating summons as issued refers to
a breach of the rights of access. This would not give rise to an
order of this Court returning the child to Australia. The
amendment of the originating summons will refer to a breach of the
rights of custody, and it is such a breach that gives rise under
The Hague Convention to an order for the return of a child. The
operative order of the Australian Court in this case is the order
of the 6th June, 1986 by the local court in Camden. This was a
consent order giving custody to the mother, and on the face of it
there would not appear to be a breach of the father’s custody
rights in bringing the child to England. But the law of Australia
appears to be different from the law of England as far as custody
is concerned. It might have been more helpful to have had the
evidence of an Australian lawyer specifically on this point, but
the material I have is in my judgment sufficient for me to come to
a proper conclusion as to the law of Australia on the question as
I am entitled to do under Article 14.

The law of Australia is set out in the Family Law Act of 1975
as amended, and distinguishes between guardianship and custody.
Section 60A (1) provides that a guardian of a child has
responsibility for the long-term welfare of the child and has all
the other powers, rights and duties that are apart from the Act
vested by law or custom in the guardian of a child other than a
right to possession of the child and the responsibility of the
daily care and control of the child; whereas under sub section (2)
the person who has custody of the child has the right to
possession of the child and the responsibility for the custody in
the local court of Camden is closer in English law to an order for
care and control than an order for custody, and it is apparent
from reading Section 60A that with a mother and father who are
married and not divorced an order for custody will give care and
control to one party, but both parties will continue to have all
the rights of a guardian, which would be equivalent to an order
for joint custody in an English Court.

If there was any doubt about this aspect of the case it is
resolved by a declaration which has been made in the Australian
Court. Under Article 15 of The Hague Convention the authorities
may request a decision from the state of the habitual residence of
the child that the removal of the child is wrongful within the
meaning of Article 3 of The Hague Convention. Article 3 of The
Hague Convention provides that the removal of a child is to be
considered wrongful if it is in breach of a right of custody of a
person. An application was made under Article 15 to the Court in
Australia for such a declaration, and a declaration has been
provided dated 18th December, 1987. It is a declaration of a
Family Court of Australia at Parramatta duly signed by the Deputy
Registrar of the Court, and it reads, “Upon an application to the
Court this day it is ordered ex parte (1) that it be declared that
the removal to the United Kingdom on or about the l7th March, 1987
of Simon David Arthur. the child of the marriage, was wrongful
within the meaning of Article 3 of The Hague Convention. (2) That
the wife as soon as reasonably practicable return the child to the
jurisdiction of the Court.”

Under Article 16 of The Hague Convention after receiving a
notice of a wrongful removal of a child in the sense of Article 3
the judicial authorities of the contracting state to which the
child has been removed shall not decide on the merits of the
rights of custody until it has been determined that the child is
not to be returned under this Convention. So that my duty is not
to decide what is in the best interests of the child, unless I
decide that the child ought not to be returned.

The grounds on which I may decide the child should not be
returned to Australia are contained in Articles 12 and 13 of the
Convention. Article 12 says that where a child has been wrongfully
removed in terms of Article 3 and a period of less than a year has
elapsed from the date of the wrongful removal the authority
concerned shall order the return of the child forthwith, and the
exceptions are contained in Article 13, which says that
notwithstanding the provisions of Article 12 the judicial
authority is not bound to order the return of the child if the
person who opposes the return establishes one of two things. It is
not suggested that Article 13(a) applies. It is suggested that
Article 13(b) applies. Article 13(b) provides that the child
should not be returned if the mother in this case establishes that
there is a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise place the
child in an intolerable position. It is not suggested in this case
that the child would be exposed to a grave risk of psychological
harm. That is because the mother says that she would return to
Australia if she had to with the child and because of the decision
of the Court of Appeal in the case of Re A, transcript dated 10th
June. 1987. What is said in this case is that the child would be
placed in an intolerable situation if the Court ordered him to be
returned to Australia.

Enquiries were made during the course of the proceedings on
behalf of the Lord Chancellor in Australia and this morning an
application was made after the close of the mother’s case that I
should see a note written by an official of the Lord Chancellor’s
department concerning the enquiries which were made yesterday in
Australia. This application was opposed. but I decided to see the
note. The note says that on behalf of the Lord Chancellor Miss
Thornbey telephoned Miss Doneta Medway, who was a senior officer
in the Department of Youth and Community Services in New South
Wales, and she is also the former foster mother of the mother.
Miss Medway has said that the mother will be entitled to social
security in Australia at what appears to be about the rate of the
social security she is getting from Australia at the moment. And
she has also said that there is a system for housing homeless
people, but suggested that as an interim measure the mother and
Simon could go back to live with her, although for only a short
period. The mother would not he prepared to go to live with the
foster mother, having regard to the difficulties which I mentioned
earlier on.

The difficulties that the mother would have in Australia are
probably substantial, in the first instance in getting housing,
but so far as I can assess them they could not be said to be
insuperable, and taking the mother’s situation and her assessment
I could not say that the situation that Simon would find himself
in if the mother were to return him to Australia could be said to
be intolerable or that in some way the situation could not be
endured. The mother has her return ticket. She is a naturalised
Australian. The father is Australian by birth and the child Simon
is Australian. Australia is clearly the former home of the family.
There is some money available. There is an offer of some money
from the father for maintenance, and having considered carefully
the mother’s evidence I am not in any way satisfied that she has
established that there would be a grave risk that the child would
be placed in an intolerable situation if the child returned to
Australia. In those circumstances, under Article 16 and Article
12. I order the child to be returned to Australia.

MR. POINTER: In your Lordship’s judgment in Re A your
Lordship having come to the same decision made an order for return
of the child forthwith, which is the wording used in Article 12,
and included a provision which can be found at page 10 of the
judgment of the Court of Appeal. postponing the operation of that
order provided that the mother there as it was returned to
Canada with the child within six weeks. I would ask your Lordship
to make a similar provision here. In relation to the actual period
I do not think my client has the ticket here but she believes that
her ticket has on it a return date of 11th March or thereabouts.
that is actually eight weeks and two days. My instructing
solicitor and I believe that she would probably be able to change
the date on the ticket. but obviously that is something she will
have to make enquiries about. and she would also have to acquire a
ticket for Simon. Therefore if your Lordship thinks it a
reasonably appropriate period I am not going to seek to extend
that, but I mention it …

MR. JUSTICE EWBANK: You say the l2th March is the date?

MR. POINTER: 11th March, my Lord.

MR. JUSTICE EWBANK: I will say on or before the 11th March.

MR. POINTER: If your Lordship were to say that and then if
there were some slight query about the date no doubt that can be
dealt with without any difficulty.

MR. JUSTICE EWBANK: I am quite prepared to do that. Miss
Scotland, on or before 11th March?

MISS SCOTLAND: If your Lordship would say the mother should
return with Simon as soon as practicable and in any event before
because it may be that she could change the date.

MR. JUSTICE EWBANK: I do not think it adds anything really to
say that. I say forthwith suspended provided she returns the child
on or before 11th March.

MR. POINTER: If it turns out that the ticket actually says
the 13th or l4th March and my client has misremembered obviously
we will notify my learned friend’s instructing solicitors and I do
not imagine there will be any problem.

MR. JUSTICE EWBANK: You can adjust the order.

MR. POINTER: One other matter. I do not know what my client’s
instructions afterwards will be, but it may be that she will seek
to test your Lordship’s judgment.

MR. JUSTICE EWBANK: I do not think you need leave to appeal.

MR. POINTER: I was not going to ask for that, my Lord. What I
was going to ask for was a stay of execution. I do not imagine it
will cause any problems because of the timescale your Lordship has

MR. JUSTICE EWBANK: If you want any further stay you will
have to go to the Court of Appeal, that is the best was to deal
with it.

MR. POINTER: I imagine, my Lord, within that time anyway that
any appeal will be heard

MR. JUSTICE EWBANK: Certainly, and the Registrar at the
Court of Appeal would sort that out for you.

MR. POINTER: So that I know precisely where I stand. my Lord,
do I take it that your Lordship is saying no stay.

MR. JUSTICE EWBANK: I do not give you a stay. Any stay you
require you will get from the Court of Appeal. I do not think you
will need one, because the whole essence of The Hague Convention
is speed.

MR. POINTER: I appreciate that, my Lord, but I just wish to
cover every possibility. My Lord, I have been asked about what is
to happen during the intervening period. I do not know what date
the father will now go back to Australia, but a question arises as
to what access should take place in the interim. I am a bit
doubtful as to your Lordship’s jurisdiction to deal with that at
all. I do not know whether your Lordship had the order of Mr.
Justice Reeve of the 21st December, which is the order which
provides for interim access. It has only been referred to in
passing. As I understand it it provides for access from ten to
three on Wednesdays and ten to six on Saturdays, and that has been
taking place in the way that your Lordship has heard. My client is
content for that to continue subject to this, that she prefers the
Saturdays also to be from ten to three because she has found ten
to six is rather too long a period for Simon.

MR. JUSTICE EWBANK: When is the father going back?

MISS SCOTLAND: The father is going back on the 24th January.

MR. JUSTICE EWBANK: So it is only ten days.

MR. POINTER: In those circumstances it is difficult for me to
press that point.

MISS SCOTLAND: I wonder whether your Lord Ship would say
substitute for this day Thursday, that is tomorrow.

MR. JUSTICE EWBANK: Is there any objection to that? He is
only here for another ten days.

MR. POINTER: Equally my client has not seen him for two days
because she has been here.

MR. JUSTICE EWBANK: The order is suspended on terms that the
father has access twice a week as arranged.

MISS SCOTLAND: There is only one other matter. By virtue of
Mr. Justice Reeve’s orders I understand that the solicitor
instructed by the mother has retained the passports. I wonder
whether your Lordship would say that that order should continue
until such time as she should leave. and that her passport be not
released to her before the date of her departure to Australia.
The father is very anxious.

MR. JUSTICE EWBANK: What does he fear?

MISS SCOTLAND: That she will take the child and go somewhere


MISS SCOTLAND: Well, my Lord.

MR. JUSTICE EWBANK: She has nowhere to go. Suppose the
solicitor gives her the passport and she goes off to London
Airport and jumps on a plane to Egypt or gets off the plane in
Egypt she would have nowhere to go, so she is not going to do
that. She would not be here if she was going to skip out of the
country. Has she family anywhere else?

MISS SCOTLAND: My Lord, no. But certainly the behaviour has
been such that it has led to the father genuinely fearing that she
might make some effort to leave the jurisdiction.

MR. JUSTICE EWBANK: There is no particular reason why she
should have her passport I suppose, it will not matter to her one
way or the other. I do not really think it is necessary but let us
leave it with the solicitor to hand it over at the appropriate

MR. POINTER: I expect he will do that, my Lord. I do not
imagine it would be the day of departure but a few days before for
convenience. I have no doubt that both my client and my
instructing solicitor are agreeable to that arrangement.

MR. JUSTICE EWBANK: She doesn’t want to go anywhere else.
does she?

MR. POINTER: I have not asked her. my Lord, but I am sure the
answer is no. In relation to her travel back my learned friend
said in the course of her cross-examination this morning that the
husband would assist in the passage of Simon back to Australia.
and I have no doubt that an application to him for that purpose
will be made by the mother. I do not think that is anything which
your Lordship is going to be concerned with, unless your Lordship
wished to make that a condition of your Lordship’s order.

MR. JUSTICE EWBANK: You cannot get it out of the Lord
Chancellor’s department.

MR. POINTER: I do not think I can, my Lord.

MISS SCOTLAND: I am pleased to say that in fact in Australia
there is a fund specifically for the purpose of funding the return
of children who have been wrongfully removed under the Convention.
So that fund can be called upon.

MR. POINTER: As long as we are pointed in the right
direction I am sure that can all be dealt with.

MR. JUSTICE EWBANK: If there is a problem you can come back
and I will deal with it. The father has offered, and if funds are
not available then the father will have to pay. And if he does not
pay I will have to make an order that the order be continued to be
suspended until the father pays. It is not necessary at this

MR. POINTER: I do not think it is, no.

MR. JUSTICE EWBANK: The father knows that I will continue to
suspend the order if the funds are not available. Then he will
know what he has to do.

MISS SCOTLAND: My Lord. it is right to say that the Lord
Chancellor can make efforts to obtain the money from the
appropriate authority. The only other matter is in relation to
efforts in Australia, because as I understand the matter from the
officer from the Lord Chancellor’s department it will take
hopefully a very short time for the mother to be rehoused, but if
she were to take steps now to get that process into being very
quickly it is thought by the youth worker that provision will be
made for her when she returns, if something can be organised.

MR. JUSTICE EWBANK: She has heard that. Do you know what she
has to do?

MISS SCOTLAND: Certainly the father on behalf of the mother
if he had her authority would be willing to make the arrangements
in respect of the welfare services from the homeless unit. I
understand from the officer of the Lord Chancellor’s department
that there is a priority listing.

MR. JUSTICE EWBANK: Can you discuss this outside and provided
you come to an agreement you need not come back. If you need
further help come back at two o’clock.

MR. POINTER: I do not see how the mother can be required to
take any step of this kind.

MR. JUSTICE EWBANK: She is just asking if she would agree to
it, if she wishes to.

MR. POINTER: Yes. and obviously all the information that has
been provided will be passed on to her and then she must make

MR. JUSTICE EWBANK: This is the time to do it when everybody
is here.

MR. POINTER: I am not resisting that. It is just the way that
my learned friend threw it in at the end of her comments. that the
mother should be giving undertaking to this Court.

MR. JUSTICE EWBANK: There will be no undertaking.

MISS SCOTLAND: The last matter is legal aid. Although the
Lord Chancellor acts on behalf of —

MR. JUSTICE EWBANK: Do you want legal aid taxation?

MISS SCOTLAND: I do, my Lord.

MR. JUSTICE EWBANK: There will be legal aid taxation.

MR. POINTER: Ditto, my Lord.