B v B (Abduction: Custody Rights) (C.A.)[1993] Fam. 32
Court of Appeal (Civil Division)
Sir Stephen Brown, President; Leggatt and Scott L.JJ.
136 SJ LB 156, 7 May 1992
Lord Meston for the Appellant
R Warnock for the Respondent
Solicitors:
Reynolds Porter Chamberlain
Bell Lamb & Johnson, Birkenhead
SIR STEPHEN BROWN: This is an appeal from a decision of Mr Justice
Ewbank of 3rd March of this year. The learned judge had before him
an application by a father made under the provisions of the Hague
Convention which comprise Schedule 1 to the Child Abduction and
Custody Act 1985. The father of the little boy concerned, who is
now approaching six and a half years of age, seeks an order of the
court in this country that the defendant (the child’s mother)
shall return the child to the jurisdiction of the court in
Ontario, which is in fact presently seized of custody applications
relating to the child in the context of divorce proceedings
between the father and the mother.
The relevant history of the matter may be shortly stated. The
mother is English by birth and the father was born in Rhodesia.
They married in England in March 1977 but moved to Ontario in
Canada in 1981, and both became Canadian citizens. The little boy
was born on 28th December 1985. It so happened that at that time,
apparently unknown to the mother, the father had formed an
association with another woman, and, as a result, had become the
father of that other woman’s child. That child was born only three
months before the child with whom this court is concerned. The
mother eventually found out about this relationship, and was
outraged by her discovery. The father left the matrimonial home at
the end of April 1990. He went to live with his mistress and with
the child born of that association.
On 2nd May 1990 the mother and father entered into a “interim
agreement” pending the institution of divorce proceedings. That
provided that the mother should have the care and control of the
child and that the father should have liberal access. It also
provided that divorce proceedings should be instituted when all
the matters in dispute were to be finally settled between the
parties in the context of the court proceedings.
Subsequently, in the same year, the mother brought the child to
England for a visit. She remained in England from August 1990
until November 1990. During those months the matrimonial home was
sold. In November 1990 the mother returned to Ontario to live with
the little boy at Kingston. The father did not immediately
discover that the mother had returned to Canada but he did so in
December 1990. The mother by this time had not acted upon the
terms of the “settlement”, as it had been termed, by which she had
undertaken to commence divorce proceedings. So the father
petitioned for divorce on 2nd January 1991 in the Ontario court.
In the divorce petition he claimed (inter alia) interim and
permanent joint custody of, and access to, the child.
The father issued a notice of motion seeking interim orders on
18th January 1991, including an application that there should be
an order preventing the child’s removal from Ontario. On 22nd
January 1991 an order was made by consent in the Ontario court
which (inter alia) granted to the father liberal and generous
access. On l7th May 1991 the mother filed a “counter-petition”,
seeking custody and also seeking leave to remove the child to
England. On 4th June 1991 the mother applied by cross-motion,
seeking custody and leave to remove the child to England. That
motion was returnable on 27th June 1991. In a supporting affidavit
the mother said:
“I have no intention of leaving this jurisdiction
without an appropriate order of this honourable court.”
On 27th June 1991 the motion came before Judge Lally in the
Ontario court. He adjourned the hearing of the substantive issues,
but he ordered that the child “shall not be removed from the
jurisdiction in the interim.” The adjournment ordered was until
2nd July 1991. On 2nd July 1991 the learned judge gave directions
for the substantive hearing, which was to be dealt with by hearing
oral evidence. He also ordered that the file should be transferred
to Kingston and that meanwhile the wife (who was the respondent to
the motion) should be granted interim custody of the child. He
ordered that the petitioner husband should be granted interim
access to the child, which he defined as every other weekend in
Kingston from 10.00 am Saturday to 5.00 pm Saturday and from 12
noon Sunday to 4.00 pm Sunday, commencing l3th July 1991. He made
it a requirement that the husband should not exercise such access
in the presence of his mistress or her son without further order
of the court. However, the order as drawn did not in fact include
a specific prohibition against the removal of the child from the
jurisdiction as in the order of 27th June 1991.
The mother, notwithstanding what she had previously said about not
taking the child out of the jurisdiction without an order of the
court, nevertheless left Ontario for England on the very next day,
3rd July 1991. She took the child to live in Birkenhead with her
parents and she has remained there ever since. On 11th July 1991
Judge Lally, on the ex parte application of the husband, ordered
the return of the child. The court has been told that that order
has not been formally served upon the mother, but there is no
question but that she knows of its existence and its terms. It
appears that, following her leaving Ontario, the lawyers who had
been acting for her in Ontario were removed from the record.
The father quickly sought relief under the provisions of the Hague
Convention. On 15th August 1991 his lawyers sent an application to
the Attorney General of Ontario. It appears that due to delays in
the Attorney General’s department the matter was not processed
immediately. It was not until 30th January of this year that the
Attorney General of Ontario sent a formal request to the Lord
Chancellor, who is the central authority in England. However,
eventually the matter came before the court and the father’s
application was heard by Mr Justice Ewbank on 3rd March of this
year. The learned judge declined to find that the mother’s removal
of the child from Ontario was wrongful. On that ground he
dismissed the father’s application for the return of the child.
Further and/or alternatively, the learned judge said that under
the provisions of article 13 of the Hague Convention he considered
that there was a grave risk that the return of the child would
place him in an intolerable situation, and said that on that
ground also he would have declined to order the return of the
child.
The father now appeals to this court. Lord Meston, on his behalf,
submits that the learned judge erred in declining to find that the
removal of the child by the mother from Ontario was “wrongful”.
article 3 of the Hague Convention provides:
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.
Article 5 is also relevant. It provides inter alia:
(a) ‘rights to custody’ shall 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.
The learned judge, having recited the sequence of events to which
I have referred, said at page 3 of his judgment:
On 27th June the matter came before Mr Justice Lally in
the Ontario court and he adjourned the case for a week,
I believe because of shortage of time, and meanwhile
ordered that Neil was not to be removed from the
jurisdiction of the Ontario court in the interim. The
matter came before him again on 2nd July. The order
recites that an interim order had been made that the
child was not to be removed from the Province of
Ontario. [The court has been told that the order did
not in fact contain that recitation]. On this occasion
the Court ordered that the case should be heard at the
end of August 1991. The Court ordered that the mother
should be granted interim custody of Neil and the Court
ordered interim access to Neil to the father; that
access to be alternative weekends in Kingston but not
in the presence of the husband’s mistress or son.
The mother, I am told, had explained to the judge that
she was packed and ready to go but he said that the
matter would have to be dealt with by evidence rather
than on motion and the trial would have to take place
in August. The mother was far from satisfied with this
approach and she was cross during the course of the
hearing, I am told, and evidently decided to take the
law in her own hands and on 3rd July she came to
England with Neil and she has been here ever since.
The father says that the removal by her of the child on
3rd July was wrongful and, accordingly, that the Hague
Convention applies. The mother says that it was not a
wrongful removal and that even if it was, she has a
defence under Article 13 in that there is a grave risk
that the return of the child would expose him to
physical or psychological harm of otherwise place him
in an intolerable situation.
The learned judge referred to a previous decision of his, Re H
[1992] FLR 493, but he said that that was to be distinguished
because in that case there was in existence at the time of the
removal an order of the court that the child should not be removed
from the jurisdiction. Referring to the instant case, the learned
judge then said:
I am not satisfied, accordingly, despite the affidavit
of Miss Heal [a barrister in the Crown Office of the
Attorney General in Ontario] that the removal of this
child was in breach of the rights of custody attributed
to the father — because, in my judgment, he had no
right of custody — or in the court, because, in my
judgment the court had given custody to the mother. Nor
do I think that either the father or the court were
exercising any rights of custody at the time of the
removal. WMHFN1
Lord Meston submits that the judge was wrong in this
interpretation of the effect of article 3 of the Convention which
must be considered in the context of article 5. He says that in
this case the father clearly had substantial rights of “access”
which could only be exercised in Kingston. Indeed, the learned
judge’s order of 2nd July had specifically provided for the access
being exercised in Kingston on alternate weekends. In addition,
Lord Meston submits the court also had “rights of custody” in the
context of the Convention, because it had made orders in the
course of the cross-motions before it which indicated that it was
seized of the matter and that it had not determined either the
father’s or the mother’s substantive applications and had
adjourned the hearing of the mother’s substantive application for
custody and for leave to remove the child from the jurisdiction
until a date in August. So, submits Lord Meston, in the case
there was, firstly on the part of the father, a “right of custody”
in the context of the extended rights which were referred to by
Lord Justice Butler-Sloss in her judgment in C v C [1989] 2 All ER
465, [1989] 1 WLR 654. In that case the learned Lord Justice
referred to the necessity of reading together with article 3 the
terms of article 5 of the Convention. She said the right of
custody in the context of the Convention was a wider concept than
that which would normally be considered in the domestic context.
In this case Lord Meston submits that it was implicit in the order
of Judge Lally of 2nd July that the father had a joint interest in
and a “right of custody” of the child, inasmuch as he had a right
to be consulted and to have his views considered in relation to
the determination of the child’s place of residence. Lord Meston
submits that article 5 supports that interpretation. However, he
further submits that the Ontario court was “an institution or
other body” within the terms of the Convention which had a right
to determine the child’s place of residence and that it was in the
process of exercising that right by adjouring the matter to a date
in August and by giving directions as to how the matter should be
dealt with – that is to say, by hearing oral evidence.
Accordingly, Lord Meston submits that the mother’s removal of the
child on 3rd July 1991 was quite plainly unlawful within the
meaning of article 3 of the Convention. WMHFN2
In support of the judge’s finding that the removal was not
unlawful, Mr Wamock for the mother submits that the court should
apply a strict and restricted interpretation of the term “rights
of custody”. Since the court had ordered interim custody in favour
of the mother (subject to access by the father pending the
substantive hearing) there could be no right of custody in any
person or body other than the mother. Therefore, he says, she was
not in breach of any right vested in the husband, or, indeed, in
the court when she removed the child on 3rd July 1991.
I find that submission unacceptable. In my view this was the
plainest example of an unlawful removal. The mother herself
appears to have thought so, for she later stated that she
regretted having taken that step at that time. It is suggested
that she did not appreciate the legal position, although she was
in receipt of legal advice at the time. It seems to me that the
court itself had a right of custody at this time in the sense that
it had the right to determine the child’s place of residence, and
it was in breach of that right that the mother removed the child
from its place of habitual residence. I should say that there has
never been any issue as to the fact that the child’s habitual
residence was at all material time in Ontario. Accordingly I am of
the view that the learned judge was in error when he decided that
the removal of the child was not unlawful.
Once an unlawful removal has been established within the meaning
of article 3 of the Convention, then the provisions of article 12
come into operation. Article 12 provides:
Where a child has been wrongfully removed or retained
in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial or
administrative authority of the Contracting State where
the child is, a period of less than one year has
elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the
return of the child forthwith.
In this case the proceedings were commenced in less than one year
after the wrongful removal. Accordingly article 12 comes into
operation and renders it mandatory for the court to order the
return of the child forthwith. However, this is subject to the
“proviso” provided in article 13:
Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return of
the child if the person, institution or other body
which opposes its return establishes that —
(a) . . .
(b) 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 situation.
The judicial or administrative authority may also
refuse to order the return of the child if it finds
that the child objects to being returned and has
attained the age and degree of maturity at which it is
appropriate to take account of its views.
In this case the mother submitted to the learned judge that to
order the removal of the child from the United Kingdom back to
Canada would expose him to a ave risk of being placed in an
intolerable situation. The grounds upon which that submission was
was based were recited by the learned judge in his judgment. The
are, briefly, that before the mother left Ontario she was
difficult circumstances–she would say intolerable circumstances.
She had no money from the father; she had to rent a home because
the matrimonial home had been sold. She received no support from
the father for the child, and had to rely upon charity and from
what is called “the food bank” because she did not receive enough
money from the welfare services to feed the child.
There was evidence in the form of a letter from a friend or
neighbour and of another witness, a Miss Lobo, who spoke of the
mother’s difficulties at this stage. It was submitted to the
learned judge, and accepted by him, that, if the mother were to be
ordered to return the child to Canada, “it would be an intolerable
situation for Neil.” He said at page 8A of the judgment:
If it was necessary to come to a decision on this
aspect, I would have to say that, in my judgment, to go
from the grandmother’s house where she is at the moment
and leaving the job she has in Birkenhead with the
Social Services Department, to Canada with no work and
no money and living on charity and Food Banks, would be
an intolerable situation for Neil. Accordingly, I would
refuse the application on that ground also.
So this application under the Hague Convention is
dismissed.
The judge was told that the father had given undertakings (which
the learned judge recited in the course of his judgment) that, if
the court ordered the child to be returned to Canada, he would not
attempt to remove him from the care of the mother without an order
of the Canadian court; that he would not support or initiate any
contempt of court or criminal proceedings arising from the
mother’s removal of the child, and would co-operate in having an
early hearing of the proceedings in Ontario. He also offered to
pay the costs of the return of Neil and pay the mother $200 a
month towards his support.
The submission made by Lord Meston is that there was no factual
basis for a finding that the child would be placed in an
intolerable situation if returned to Canada. He submitted that the
words of article 13 must be accorded full meaning and effect.
Sub-paragraph (b) commences with the words “there is a grave risk
that his or her return would place the child . . . in an
intolerable situation.” This submission was supported by reference
to various decisions of the court to the effect that it is a
strict test. Further, he cited the recent decision of In re A
(Abduction: Custody Rights) [1992] 2 WLR 536, in which the Master
of the Rolls considered the context in which the return of a child
to the country from which he had been unlawfully removed should be
approached.
Lord Donaldson MR said at page 550F:
In considering the first issue, the court of country B
should approach the matter by giving the fullest force
to the policy which clearly underlies the Convention
and the Act, namely that wrongful removal or retention
shall not confer any benefit or advantage on the person
(usually a parent) who has committed the wrongful act.
It is only if the interests of the child render it
appropriate that the courts of country B rather than
country A shall determine its future that there can be
any exception to an order for its return. This is
something quite different from a consideration of
whether the best interests of the child will be served
by its living in country B rather than country A. That
is not the issue unless paragraph (b) of article 13
applies. The issue is whether decisions in the best
interests of the child shall be taken by one court
rather than another. If, as usually should be the case,
the courts of country B decide to return the child to
the jurisdiction of the courts of country A, the latter
courts will be in no way inhibited from giving
permission for the child to return to country B or
indeed becoming settled there and so subject to the
jurisdiction of the courts of that country. But that
will be a matter for the courts of Country A.
In the case of C v C [1989] 2 All ER 465, [1989] 1 WLR 654 the
Master of the Rolls considered the application of article 13.
Towards the end of his judgment at page 664 he said:
We have also had to consider article 13, with its
reference to ‘psychological harm.’ I would only add
that in a situation in which it is necessary to
consider operating the machinery of the Convention,
some psychological harm to the child is inherent,
whether the child is or is not returned. This is, I
think, recognised by the words ‘or otherwise place the
child in an intolerable situation’ which cast
considerable light on the severe degree of
psychological harm which the Convention has in mind. It
will be the concern of the court of the state to which
the child is to be returned to minimise or eliminate
this harm and in the absence of compelling evidence to
the contrary or evidence that it is beyond the powers
of those court in the circumstances of the case, the
courts of this country should assume that this will be
done. Save in an exceptional case, our concern, ie, the
concern of these courts, should be limited to giving
the child the maximum possible protection until the
courts of the other country — Australia in this case
— can resume their normal role in relation to the
child.
Further, Lord Justice Balcombe in I re A (Abduction: Custody
Rights) [1992] 2 WLR 536, considered the degree of intolerability
which had to be established in order to bring into operation the
provisions of article 13(b). At page 564H Lord Justice Balcombe
said:
The judge also rejected a submission on behalf of the
mother that there was a grave risk that to return the
boys to Australia would place them in an intolerable
situation. If the judge had accepted that submission
that would have unlocked the door to the exercise of
his discretion under article 13(b). The argument relied
on to support that submission is set out in the
judgment in the following passage:
The argument there is that on their arrival there is no
home and there is no financial support forthcoming from
the plaintiff who himself lives on state benefits. That
is in contrast to the security that the mother has
achieved since her arrival in this jurisdiction. Here
she has the support of her parents. She is in a
position to sign a lease immediately for the rent of a
suitable home. There is a letter from the school
showing that the children have apparently settled in
well to a Church of England primary school. Therefore
it is said that the situation on their return would be
intolerable and pointless.
The judge rejected this argument:
I have reached the clear conclusion that the mother has
not established a sufficiently grave risk of a
sufficiently substantial intolerable situation. The
fact is that between July and September of this year
the whole family was dependent on state benefits. In
this jurisdiction equally the mother and children are
dependent on state benefits. On their return they would
again be entirely dependent on Australian state
benefits, but that can hardly be said in itself to
constitute an intolerable situation.
This submission was revived before us. Nevertheless I
am quite clear in my mind that the matters (largely
financial) upon which the mother seeks to rely as
constituting an intolerable situation in Australia come
nowhere near to establishing what the Hague Convention
requires by that phrase. In my judgment the judge was
entirely right on this point. WMHFN3
The other members of the Court of Appeal agreed with Lord Justice
Balcombe on that issue.
Lord Meston submits that the relevant facts of that case are
remarkably comparable to the facts of this case, for the mother’s
assertion that there would be a grave risk of a intolerable
situation for the child largely depends upon the financial
circumstances in which she and the child would be placed if they
were to be returned to Canada.
In this case Mr Justice Ewbank had before him evidence from Susan
Kathryn Heal, a barrister and solicitor of the relevant Regional
Municipality in the Province of Ontario, who is employed as a
Crown Officer in the Crown Office of the Attorney General for the
Province of Ontario. Her affidavit is to be found at page 194 of
the bundle before this court. In her affidavit Miss Heal set out,
pursuant to the provisions of article 8(f) of the Hague
Convention, the circumstances which she said would obtain so far
as the mother is concerned if she and the child were to be
returned to Ontario. First she said that her department
is in a position to take steps under a programme
arranged between the Canadian government and both
Canadian national airlines for the provision of return
air transportation to Canada for both the child and an
accompanying adult. I will be happy to activate this
system if called upon to do so.
Then at page 200(iii) she said:
With regard to the provision of State benefits, I am
advised and do verily believe that Mrs [B] would be
eligible for financial assistance under either the
Ontario General Welfare Assistance Act (administered by
local municipalities) or the Family Benefits Act
(administered provincially by the maintenance branch of
the Ministry of Community and Social Services).
She then set out details of the assistance which she said would be
available. This would include the opportunity of subsidized
housing and, if this were not to be made available immediately,
then additional general welfare or family benefits would be made
available to pay for accommodation as necessary. At page 201 she
said:
All the above sources of financial assistance are of
course in addition to the support obligations provided
for in Part III of Ontario’s Family Law Act.
The learned judge did not refer to that evidence in the course of
his judgment. However, it seems to me that it was very important
evidence. I consider that the judge did not have the material
before him on which to find that there was a grave risk that the
child would be placed in an intolerable situation if the court
were to order his return to Canada. I stress what Lord Justice
Balcombe said in Re A, that a very high degree of intolerability
must be established in order to bring into operation article
13(b). It seems to me that the facts of this case do not come
anywhere near to the level of intolerability which is required
when considering the provisions of article 13. It must also be
borne in mind that article 13 does not oblige the court to decline
to order the return of the child even if grave risk of an
intolerable situation is established. It provides a discretion to
the judge to consider whether the return is an appropriate order
to make in all the circumstances.
In the light of the conclusion to which I have come, I do not need
to explore further the question of the exercise of the judge’s
discretion. I am satisfied that the evidence in this case did not
entitle the judge to come to the conclusion that there was in fact
a grave risk of an intolerable situation for the boy if his return
were to be ordered. I wish to say further that it is important
when considering applications under the Hague Convention that it
should be borne in mind that these are matters which affect the
comity of nations. It is a Convention on the civil aspects of
international child abduction. Its purpose, as the preamble and
article 1 indicate, is to deal summarily with the mischief of
taking children from the appropriate jurisdiction in a manner
which is considered to be unlawful. In my judgment there is
clearly such a case. There is no doubt that the removal of the
child by this mother was done precipitately at the very time when
the child’s future care was already under consideration by the
Ontario court. Directions had been given in order to enable a
speedy hearing of the merits of the substantive applications.
Although it may be distressing to the mother to find that she has
now to take the child back nevertheless there is no escape in my
judgment from the conclusion that the child’s return should be
ordered in this case.
For these reasons I would allow the appeal and order that the
child be returned forthwith to the jurisdiction of the court in
Ontario so that that court may continue its consideration of the
applications which are currently before it.
LEGGATT LJ: Having made what is no more than an interim custody
order, the Ontario court, in my judgment, retained what article
5(a) of the Hague Convention call “the right to determine the
child’s place of residence.” Mr Justice Ewbank therefore erred in
concluding that Neil’s removal from the jurisdiction was not
wrongful within the meaning of article 3. Although upon return to
Canada for what might prove to be no more than a temporary visit
the mother’s situation might be unsatisfactory and she might
suffer discomfort or perhaps even hardship, there is no evidence
that there is a risk, let alone a great one, that the child’s
return would place him in a situation which is intolerable. The
judge’s conclusion that there is such a risk was plainly wrong.
This is an example of just such an abduction as the Convention was
designed to combat. In those circumstances we have no alternative
but to adopt the course dictated by the Convention and order
Neil’s return to Canada forthwith so that the Ontario court may
proceed with its consideration of what is best for his welfare.
I therefore agree that the appeal should be allowed and that,
subject to the undertakings that the husband has offered, an order
should go such as the President has proposed.
SCOTT LJ: I also agree. I agree with both the judgments that have
been given and with the reasons given in those judgments for
allowing this appeal.
Appeal allowed; no order for costs save legal aid taxation.
——————–
1. This finding by the judge of the court of first instance
appears to be contra to the express terms of The Convention,
Article 15. It would appear from this article that a
decision of a court (or similar institution) of the child’s
habitual residence that a child was wronfully removed/retained
would be determinative and binding on the court’s of the
requested state.
2. See also Costa v Costa, 21 Aug 1991, CA5128/91, The High
Court of Justice, Family Division. On Hilton House BBS as
COSTA.UK. Here the court held that the decisional law and
custom of New York created a “right of custody” in a parent
who had mere “visitation rights”.
This case is of interest as it seems to indicate/imply that
the mere fact that a matter is pending before a court is
sufficient to establish a “right of custody” in the court
that the matter is before.
3. This is in keeping with the analysis of The Convention. The
issue of finances was discuseed in the Perez-Vera Report at
116. See also Legal Analysis of the Hague Convention on
Civil Aspects of International Child Abduction 51 Fed.Reg
(1986) 10,503, 10,510.