Court: High Court of Justice, Family Division
Number: [1988] 1 All ER 652; 1 W.L.R. 526 (1988)
Applicant: Mr. Bouzan
and
Respondent: Mrs. Bouzan
Date: 7, 8, 23 Oct 1987
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The Weekly law Report 22 April 1988
IN THE HIGH COURT OF JUSTICE, FAMILY DIVISION
Royal Courts of Justice, Friday 23rd Oct 1987.
B. v. B. (Minors; Enforcement of Access Abroad)
1 W.L.R. 526 (1988); 1987 Oct. 7, 8, 23
Mr. Roger Gray, Q.C. and Miss Caroline Harry-Thomas (instructed by
Messrs. Gepp & Sons, Chelmsford, Essex) appeared for the
Plaintiff/Mother.
Mr. Allan Levy (instructed by Messrs. Richard White & Michael
Sherwin, Croydon) appeared for the Defendant/Father.
Minor–Custody-Access-Children removed by mother from jurisdiction
of State of Ontario-Father granted reasonable access by Canadian
court-Father seeking return of children to Canada for periods of
access-Whether enforcement of rights of access legislation
retrospective-Child Abduction and Custody Act of 1985 (c.60), Sch.
I, art. 21 [Note 1: Child abduction and Custody Act 1985, art 21:
see post, p. 529C-E)
In 1983 the mother, an English woman married to a Canadian and
living in Canada, brought divorce proceedings in the Supreme Court
of Ontario as a result of which her marriage to the father was
dissolved. The court granted custody, care and control of the
three children of the marriage to the mother, with reasonable
access to the father. In October 1985, the mother returned to the
United Kingdom to live, bringing the three children with her and,
in December, the children were made wards of court. In January
1986, on the father’s application, the Supreme Court of Ontario
made orders enforcing and defining the father’s access to the
children in Canada.
On 1 August 1986 the provisions of the Child Abduction and Custody
Act 1985 came into force giving the force of law to the articles
of the Convention on the Civil Aspects of International Child
Abduction set out in Schedule 1 to the Act. By Order in Council,
the Convention as set out in the Schedule applied between the
United Kingdom and the State of Ontario from 1 August.
On the father’s application under the Act of 1985 to secure the
effective exercise of his rights of access under the orders made
in the Supreme Court of Ontario: —
Held: dismissing the father’s application, that the children had
been removed from the territory of Ontario and had ceased to be
resident there before the Act came into force in respect to that
state, by which time the children were wards of the English Court;
and that since the Act of 1985 had no retrospective effect the
court had no jurisdiction to consider a breach of access rights
which had occurred in October 1985; that, however, under the
wardship jurisdiction the court was bound to consider the
interests of the minors as the first and paramount consideration
and the best interests of the children required that the father
should have continuing access; and that, accordingly, there should
be an order that the children spend a period each summer in Canada
with the father (post, p. 533A-C, D-G).
Per curiam. The reference in article 4 to habitual residence in a
contracting state immediately before any breach of access rights
occurred must be interpreted as meaning habitual residence in a
contracting state in which the access rights relied upon then
existed, because (1) it is those rights upon which the application
is intended to be based; and (2) the rationale of co-operation in
enforcement of the right is that habitual residence in the
contracting state in which they existed was a sufficient
foundation for that state’s jurisdiction without further argument
or inquiry (post, p. 532G-H).
The following cases are referred to in the judgment:
Buchanan (James) & Co. Ltd. v Babco Forwarding & Shipping (U.K.)
Ltd. [1977] 3 All E.R. 1048; [1978] AC 141; [1977] 3 WLR 907; HL.
Carter v Bradbeer [1975] 1 All ER 158; [1975] 1 WLR 1204; HL.
Landry v Landry [1985] 45 R.F.L.2d 235
Stag Line Ltd v Foscolo Mango & Co. Ltd. [1932] AC 328; [1931] All
ER Rep 666; HL.
Wright v Wright (1973) 1 OR(2d) 337, Ont CA
Summons
The English mother of three children, born in Canada between
August 1978 and March 1982, returned to England with the children
and, on 3 Dec 1985, made them wards of court and the wardship was
confirmed on 30 Dec 1985. By a summons dated 12 Jun 1987 the
Canadian father of the children sought an order under article 21
of Schedule 1 to the Child Abduction and Custody Act 1985 to
secure the effective exercise of the father’s rights of access
under orders made in the Supreme Court of Ontario on 10 Jun 1985,
3 Dec 1985 and 22 Jan 1986. The hearing of the summons was in
chambers. Judgment was delivered in open court. The facts are
stated in the Judgment.
21 October. Waterhouse. In this case I have to consider an
application by a Canadian father under article 21 of Schedule 1 to
the Child Abduction and Custody Act, 1985. Following the wording
of the article, the originating summons prays for an order
“securing the effective exercise of the father’s rights of access
under orders dated 10th June 1985, 3rd December 1985 and 22nd
January 1986 made in the Supreme Court of Ontario” to his three
children, who now reside with their mother in Essex.
The background to this application is that the father and the
mother were married in Toronto on 30th April 1977, the mother
being English and having been brought up in this country. The
marriage lasted effectively for seven-and-a-half years, until the
parties separated in October 1984; and there were three children
born during the period of co-habitation, namely, “E” born on 9th
August 1978, “L” born on 25th April 1980 and “T” born on 3rd March
1982. After the separation the children remained in the care of
their mother but the father enjoyed regular access to them for
about a year, until the end of September 1985. On the mother’s
petition, a decree nisi was pronounced in the Supreme Court of
Ontario on 10th June 1985 and, by a court order made that day, the
care, custody and control of the children were committed to the
mother with reasonable access to the father. It was ordered also
that the mother was to have exclusive possession of the former
matrimonial home and of the contents, which were vested in her.
The decree was made absolute on 12th September 1985 and shortly
afterwards, that is, early in October 1985, the mother moved with
the children to the United Kingdom, where they have remained ever
since.
The mother said that she obtained legal advice before leaving
Ontario, which was to the effect that there was no general bar nor
any specific inJunction prohibiting her from doing so. On learning
of her departure with the children the father applied to the
Supreme Court of Ontario, inter alia, for an order permitting
apprehension of the children for the purpose of access. The mother
was represented at the hearing on 3rd December 1985 by an advocate
who was without instructions, and the court ordered that the
father might apprehend the children and return them to Canada for
the purpose of exercising his rights of access. Provision was also
made for assistance by a sheriff or the police and for the father
to pay the costs of transportation. Finally, the court ordered
defined access by him for a Fortnight over the Christmas season of
1985 in a period that would not interfere with the children’s
schooling in England.
The remaining applications of the father were adjourned, and on
22nd January 1986, when no one appeared for the mother although
there was an affidavit by her before the judge, the order for
reasonable access made on 10th June 1985 was varied to provide for
six weeks access by the father annually; two weeks during the
English Easter school holiday, and four weeks in the summer
holiday, on the footing that the father might remove the children
to Canada during the periods of access.
Meanwhile, in England the mother had made the three children wards
of court by taking out an originating summons on 3rd December
1985. The wardship was confirmed on 30th December 1985 and since
then there have been hearings, principally in relation to access
in this country, to which it is not necessary for me to refer at
this stage.
The present application of the father under the Act of 1965, by a
summons dated 12th June 1987, was preceded by a request by the
Attorney General of Ontario to the Lord Chancellor’s Department
for the return of the children to canada for the purpose of
enabling the father to implement or enforce his rights of access
there.
By section 3(1)(a) of the Act the functions of a central authority
under the Convention on the Civil Aspects of International Child
Abduction signed at The Hague on 21st October 1980 (hereinafter
called the ‘Convention’) are to be discharged in England and Wales
by the Lord Chancellor. By article 8 of the Convention, which is
Schedule I to the act, “any person claiming that a child has been
removed or retained in breach of custody rights may apply either
to the central authority of the child’s habitual residence or to
the central authority of any other contracting state for
assistance in securing the return of the child.” By article 10,
“The central authority of the state where the child is shall take
or cause to be taken, all appropriate measures in order to secure
the return of the child.” Moreover, subsequent articles of the
Convention prescribe the manner in which the judicial or
administrative authority of the contracting state shall act in
response to such a request and the matters relevant to their
decision.
Rights of access are dealt with separately in article 21 (chapter
4) of the Convention but, before reading that article, it is
necessary to refer to the material part of article 7, dealing with
the functions of central authorities, which provides: “Central
authorities shall co-operate with each other and promote
co-operation amongst the competent authorities in their respective
states to secure the prompt return of children and to achieve the
other objects of this Convention. In particular, either directly
or through any intermediary, they shall take all appropriate
measures …… (b) to initiate or facilitate the institution of
judicial or administrative proceedings with a view to obtaining
the return of the child and, in a proper case, to make
arrangements for organizing or securing the effective exercise of
rights of access.
Article 21 provides: “An application to make arrangements for
organising or securing the effective exercise of rights of access
may be presented to the central authorities of the contracting
states in the same way as an application for the return of the
child. The central authorities are bound by the obligations of
cooperation which are set forth in Article 7 to promote the
peaceful enjoyment of access rights and the fulfillment of any
condition to which the exercise of those rights may be subject.
The central authorities shall take steps to remove as far as is
possible all obstacles to the exercise of such rights. The central
authorities either directly or through intermediaries may initiate
or assist in the institution of proceedings with a view to
organising or protecting these rights and securing respect for the
conditions to which the exercise of these rights may be subject.”
In response to the father’s application, it is submitted on behalf
of the mother that the provisions of the Act of 1985, including
those of the Convention enacted in Schedule I, are inapplicable to
the present case for three reasons, namely: (1) that the Act was
not brought into force in respect of Ontario until 1st August
1986, by virtue of the provisions of the Child Abduction and
Custody (Parties to Convention)-Order 1986 (S.I. 1986 No. 1159);
(2) in any event, there was never any wrongful removal or
retention of the children by the mother within the meaning of
articles 3 and 5 of Schedule I; (3) the children were not
habitually resident in a relevant contracting state immediately
before any breach of custody or access rights within the meaning
of Article 4 of Schedule I.
It is, of course, common ground that the Act of 1985 was not
brought into force in respect of Ontario until 1st August 1986,
and section 2(1) and (2) provide as follows: “(1) For the purposes
of the Convention as it has effect under this part of this Act the
Contracting States other than the United Kingdom shall be those
for the time being specified by an Order in Council under this
section. (2) An Order in Council under this section shall specify
the date of the coming into force of the Convention as between the
United Kingdom and any State specified in the Order, and except
where the order otherwise provides, the Convention shall apply
between the United Kingdom and that State only in relation to
wrongful removals or retentions occurring on or after that date.”
The 1986 Order does not contain any relevant exceptions, and
wrongful removal or retention is defined in Article 3 of Schedule
I to the Act on terms of a breach of rights of custody which, by
article 5(a), is defined as including “rights relating to the care
of the person of the child and, in particular, the right to
determine the child’s place of residence”.
On the basis of these provisions, Counsel for the mother relies
upon the fact that the removal in this case occurred in October
1985, over nine months before the Act came into force. Mr. Gray
points out also that, at the time when the mother moved to
England, she had been correctly advised that there was no
provision of Ontario law nor any order of the Ontario Court
restraining her from doing so (see for example Wright v. Wright
(1970) 1 0.R.2d 337,and Landry v. Landry (1985) R.F.L.2d 235. The
removal was not wrongful therefore and there has not been any
wrongful retention of the children subsequently within the narrow
definition of that term in Article 3, read with Article 5(a), of
Schedule I to the Act.
At first sight this argument appears to he compelling in the light
of the express limiting words, in particular of section 2(2) of
the Act. On further reflection, however, this interpretation would
render ineffective and inoperative those provisions of the
Convention that are designed to secure co-operation in the
enforcement of rights of access to a non-custodial parent. Thus,
for example, is an if an order English custodial parent were now
to take a child to Ontario in breach pursuant to Rule 94(2) of the
Matrimonial Causes Rules, 1977, that would be a wrongful removal
of the child within the ordinary meaning of the words but not
within the definition in the Convention. If the Ontario
legislation is in the same terms as the Act of 1985, therefore,
and Mr. Gray’s argument is correct, the noncustodial parent in
England could not invoke the Convention in order to enforce his or
her rights of access, despite the fact that both the United
Kingdom and Ontario is a typical situation in which a
non-custodial parent would expect to be able to rely upon the
Convention, but it would be of no assistance; and it is difficult
to envisage any circumstances in which a mere breach of rights of
access on the removal of a child abroad by a custodial parent
could be remedied or dealt with under the Convention.
Helpful guidance on the interpretation of international
conventions when enacted in an English statute was given by Lord
Wilberforce in his speech in James Buchanan and Company Ltd. v.
Babco Forwarding and Shipping (U.K.) Ltd., (978) A.C, 141. In that
case the convention considered was the Convention on the Contract
For the International Carriage of Goods by Road, 1956 enacted in
the Schedule to the Carriage of Goods by Road Act, 1965. Lord
Wilberforce said at p. 152C: ” The Convention of 1956 was in two
languages, English and French, each text being equally authentic.
The English text alone appears in the Schedule to the Act of 1965
and is by that Act (section 1) given the force of law. Moreover,
the contract of carriage seems to have incorporated contractually
this English text. It might therefore be arguable (though this was
not in fact argued) – by distinction from a case where the
authentic text is (for example) French and the enacted text an
English translation – that only the English text ought to be
looked at. In my opinion this would be too narrow a view to take
given the expressed objective of the Convention, to produce
uniformity in all contracting states. I think that the correct
approach is to interpret the English text, which after all is
likely to be used by many other than British businessmen in a
normal manner, appropriate for the interpretation of an
international convention unconstrained by technical rules of
English law or by English precedent but on broad principles of
general acceptation: Stag Line Ltd. v. Foscolo Mango and Company
Ltd (1932) A.C. 328 per Lord MacMillan at p. 350. Moreover, it
is perfectly legitimate in my opinion to look for assistance, if
assistance is needed, to the French text. This is often put in the
form that resort may be made to the foreign text if (and only if)
the English text is ambiguous, but I think this states the rule
too technically. As Lord Diplock recently said in this House, the
inherent inflexibility of the English, and one may add, any
language, may make it necessary for the interpreter to have
recourse to a variety of aids (Carter v. Bradbeer (1975) 1 WLR
1204, 1206). There is no need to impose a preliminary test of
ambiguity.”
Adopting what I hope is a similar approach, it is permissible in
my judgment to look at the objects of the convention with which I
am concerned as an aid to the interpretation of section 2(2) of
the Act of 1985. They are set out succinctly in article I of the
Convention, which is not included in Schedule I to the Act, as
follows: “(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 of access under the law of one
contracting state are effectively respected in the other
contracting state.” When that article is considered together with
articles 7(f) and 21 in Schedule I, which I have already quoted,
it follows in my judgment that section 2(2) of the Act of 1985
should not be read as limiting the application of the Act, and
thus the Convention, to cases where there has been a wrongful
removal or retention of a child, as submitted on behalf of the
mother in the present case. Breaches of rights of access are
dealt with separately in the Schedule to the Act and the
limitation on the operation of the Act set out in section 2(2)
must relate only to cases in which the foundation of the
application is the wrongful removal or retention of a child in
breach of rights of custody in contrast to a breach of rights of
access.
This conclusion leads conveniently to the third wing of the
argument on behalf of the mother based on Article 4 of the
Schedule, the material part of which reads: “The Convention shall
apply to any child who is habitually resident in a Contracting
State immediately before any breach of custody or access rights.
It is submitted for the mother that any relevant breach of the
father’s access rights must have occurred in October 1985 on the
removal of the children to the United Kingdom. Immediately before
that breach, it there was a breach, the children were habitually
resident in Ontario but that state was not then a contracting
state because no Order in Council had been made here (see section
2(1) of the Act). By 1st August 1986 the children were habitually
resident in England and were wards of court, subject to the
jurisdiction of this court. Moreover, there was no subsequent
breach of the father’s rights of access on which he can properly
rely.
The first point taken on behalf of the father in response to this
argument is that the relevant effect of the Order in Council in
1986 was merely to identify Ontario and the United Kingdom as
contracting states without limiting the operation of the Act of
1985 to breaches of access rights that occurred after 1st August
1986. It is submitted, therefore, that it is sufficient for the
purposes of enforcement now for the father to show that the
children were habitually resident in Ontario before the first
breach of his rights of access occurred, when the mother, in
effect, denied him reasonable access to the children, as ordered
by the Ontario court and agreed between the parents, by removing
the children to England.
An alternative submission for the father is that Article 4 is in
wide terms and does not require him to establish that the children
were habitually resident in Ontario immediately before a breach of
his rights of access occurred. It is common ground that from 1st
August 1986 the children were habitually resident in a contracting
state, namely, the United Kingdom. Counsel for the father argues
that that is sufficient to make the Convention operative, provided
that a breach of access rights after 1st August 1986 can be shown.
Finally, it is said that such a breach did occur in the instant
case because the order of the Supreme Court of Ontario made on
22nd January 1986 remains operative, despite the English wardship
proceedings, and the father was denied four weeks’ access in the
summer school holiday in 1988 and two weeks’ access at Easter
1987, after the Act had become operative and before the
application now before this court was made. In support of this
last argument, Mr. Levy points to other provisions of the
Convention enacted in Schedule I to the Act. In particular, he
says that the effect of Articles 8 and 21 is that an application
to make arrangements for organising or securing the effective
exercise of rights of access may be made by any person,
institution or other body claiming that there has been a breach of
such rights and that it may be made to the central authority of
the child’s habitual residence, or to the central authority of any
other contracting state.
This is an attractive alternative line of argument but, in my
view, it imputes too broad a scope to the Act of 1985. I am
driven back to consideration of object (b) defined in article 1 of
the Convention, which I have already recited. In light of that
object, the reference in article 4 to habitual residence in a
contracting state immediately before any breach of access rights
occurred must be interpreted as meaning habitual residence in a
contracting state in which the access rights relied upon then
existed, because: (1) it is those rights upon which the
application is intended to be based; and (2) the rationale of
cooperation in enforcement of the rights is that habitual
residence in the contracting state in which they existed was a
sufficient foundation for that state’s Jurisdiction without
further argument or enquiry. The alternative wider interpretation
relied upon by the father is, in my view, unacceptable because it
would give almost limitless operation to legislation enacted for
specific limited purposes, It would also lead to arguments about
the respective jurisdictions of the courts in Ontario and England
in 198 to make binding orders in respect of the children in order
to determine what right of access, if any, had been breached,
whereas an object of the Convention is to avoid or at Least to
minimise the scope for such arguments.
In my judgment also, the first argument of the father in relation
to Article 4 is equally unacceptable. I can find nothing in the
Act or in the Convention to justify giving it retrospective effect
by founding jurisdiction on a breach of access rights that
occurred in October 1985. The children were not, in my view,
habitually resident in a contracting state immediately before that
because no Order in Council in relation to Ontario had then been
made. If one were to interpret Article 4 in the sense urged on
behalf of the father, there would be no time limit to the possible
retrospective effect of the Act in relation to rights of access
and considerable confusion could ensue, particularly in cases such
as that before me in which the minors had been made wards of the
English courts before the Act came into operation.
In the light of these conclusions it has been necessary for me,
with some regret, to dismiss the father’s application. Instead, I
have had to consider the question of access by the father in the
wardship proceedings, in which it is clear that the first and
paramount consideration is the welfare of the minors. I am glad to
say, however, that the mother and the authors of various Canadian
and English reports before me accept that it is in the best
interests of the minors that there should be continuing access by
the father, subject to appropriate safeguards; and the only
disputes have been about the quantum and organisation of such
access. In the event therefore the father has not been
significantly preJudiced by his failure to invoke the provisions
of the Convention successfully. The children are still
comparatively young so that there has to be some limitation on
their travels at this stage, but it is clear that there should be
a period of staying access in Canada each summer. Moreover, the
father is prepared to seek a variation by consent of the Ontario
court order so that the orders in relation to care and control and
access both here and there are likely to be in similar terms.
In those circumstances, on the basis of additional suitable
undertakings by the father, I have ordered that there shall be one
week’s staying access by the father in England during the Easter
holiday 1988 and three weeks’ staying access in Ontario in the
following summer holiday. It is envisaged that the access will
follow a similar pattern in succeeding years, subJect to
favourable reports. These provisions conform broadly with the
spirit or intention of the orders made by the Supreme Court of
Ontario on 22nd January 1986, but the periods are shorter having
regard to the ages of the children and the father’s present
limited holiday entitlement in employment that began after the
Ontario orders were made.
In view of my conclusions, I am reluctant to comment further on
the scope and operation of the Convention in relation to rights of
access, but I have been asked give what guidance I can. The
difficulty about the provisions is that they do not impose
directly any specific duties upon the judicial authority of a
contracting state in relation to access and there is no express
definition or limitation of the principles upon which a court
should exercise its discretion. In contrast, where the application
is for the return of a child who has been wrongfully removed or
retained, the judicial authority is required to observe or act in
the light of the provisions of articles 11 to 19 of the
Convention. In relation to access, the Lord Chancellor, as the
central authority for England and Wales, has duly made
arrangements for the reception of applications giving assistance
to applicants who are noncustodial parents, who may now make
application to this court pursuant to the provisions of Order 90,
Rules 32 to 47, of the Rules of the Supreme Court 1965 (see
section 10 of the Act of 1985), whether or not the child is
already a ward of court or otherwise subject to the court’s
jurisdiction. The obligations imposed by articles 7 and 21,
however, are imposed upon the central authority exclusively and
even the provisions of article 7(f) contain the limiting words “in
a proper case”. In the absence of any express reference to the
Judicial discretion in cases in which there has been a breach of
access rights only, I am not persuaded that the general rule laid
down in section 1 of the Guardianship of Minors Act, 197l, which
applies to any proceedings in any court, has been displaced or
that the Convention was intended to secure the enforcement of
rights of access in the same way as rights of custody. This court
will always, of course, respect rights of access prescribed by an
order of another contracting state in a proper case and seek to
give practical effect to such rights, often in a necessarily
modified form, if it accords with the minor’s welfare to do so;
but the Act of 1985 does not provide new criteria for the exercise
of a judge’s discretion in the matter.
(After discussion by Counsel): I will direct that the order should
be amended to include a provision committing care and control of
all three minors to the Plaintiff in the wardship proceedings and
I confirm the wardship.