UK – COSTA – 1991

THE HIGH COURT OF JUSTICE CA518/91FAMILY DIVISION

Royal Courts of Justice,
The Strand, London WC2.

Wednesday, 21st August 1991

Before:

MRS JUSTICE BRACEWELL

ROY PETER COSTA

Plaintiff

v.

DEBRA JEAN COSTA

Defendant

MR M HOROWITZ QC and MR M EVERALL (instructed by Messrs Richard
White & Michael Sherwin, Croydon) appeared on behalf of the
Plaintiff.

MR L SWIFT QC and MISS R CORBETT (instructed by Messrs Charles
Lucas & Marshall, Hungerford) appeared on behalf of the Defendant.

Transcript of the Official Court Tape Recording by Harry Counsell
& Co., 61 Carey Street, London WC2A 2JG
Telephone: 071-242 9346

JUDGMENT
(As Approved)

MRS JUSTICE BRACEWELL:

In this case the originating summons before the court is
under the Child Abduction and Custody Act 1985 which gives effect
to the Hague Convention (Convention). FN1 The summons as issued
seeks firstly an order securing the return of the children to the
United States of America to the State of New York and, secondly,
an order securing the effective exercise of the plaintiff`s rights
of access to the children.

The father no longer seeks the return of the children and he
accepts that they will remain within this jurisdiction, but he
seeks a declaration that they were wrongfully removed FN2 from
the jurisdiction of New York State by their mother in February
1991 when they were brought to this country by her. He further
raises questions of access.

The background to the case is that both parties are nationals
of the United States of America, Father and mother were born and
raised there and married there on 24th October 1976. The
matrimonial home was in New York State. Two sons were born of the
marriage, Jeremy on 25th November 1980 and Justin on 1st February
1983. Neither party had had any connection whatsoever with this
jurisdiction until Mrs Costa and the children left America and
came to England with Mrs Costa’s English co-habitee, Mr Priest, on
6th February 1991.

The marriage of Mr and Mrs Costa had undoubtedly been stormy,
at times violent and deeply unhappy. Separation occurred in July
1985 when father left the matrimonial home where mother continued
to live with the children. Negotiations for a divorce settlement
were protracted. {Page 2} Arguments occurred between the parents,
often within hearing or sight of the children.

By June 1986 Mr Priest had moved into the matrimonial home,
although financial arrangements had not been agreed and acrimony
continued between the parties. Since that time Mrs Costa has lived
with Mr Priest in a permanent relationship.

The matrimonial home had a self-contained basement flat and
in 1988 Mr Costa obtained a court order permitting him to
re-occupy that part of the matrimonial home by what is termed an
Occupancy Order. FN3 The mother has been very critical of her
husband obtaining such an order which led to much aggressive
confrontation between the parties, despite the separate nature of
the accommodation. Undoubtedly that episode soured relationships
and made co-operation more difficult, but the court was seized of
the matter and, having heard the application, granted permission
to Mr Costa, who was acting lawfully if insensitively.

The stress of the matrimonial situation undoubtedly affected
Jeremy’s school performance and his emotional welfare. By May 1989
Mr and Mrs Costa through their respective lawyers reached
agreement and on 3Oth May on dissolution of the marriage the
Supreme Court of the State of New York granted custody to the
mother and made stipulations about father’s entitlement to
information and to participate in matters affecting the health and
education of the children. Detailed arrangements were made for
defined access, child support was determined and consent orders
were made concerning the home and ancillary {Page 3} relief to
which I will refer later in more detail. I have seen the order,
the judgment and the colloquy. Mother complains that the
transcript and the order are not accurate and that she did not
agree to the stipulations as set out nor to details about
Christmas access, and she refused to sign the order. I am
satisfied that mother’s recollection is not reliable about that.
All the terms were put to her at the hearing, her consent is
recorded and in the stress of the occasion it may well be that she
was not listening too carefully or did not absorb the proceedings
in every detail and maybe regretted her agreement later. In the
event she made an application to modify the custody terms, but the
application was listed for hearing after she and the children had
left the jurisdiction.

The last contact father had with the children was at the end
of January 1991. He had been seeing the children regularly and had
taken them on holidays, but the divorce does not appear to have
improved relationships between the parents. There were scenes at
access collection and return and father refused to allow mother to
contact him.

On 6th February 1991 mother and children without any advance
warning to father left the country with Mr Priest, who broke a
contract of employment to accompany them, and the family has now
set up home near Hungerford in a property owned by Mr Priest’s
mother. By April 1991 father was taking proceedings under the
Convention and the originating summons dated 3Oth May was served
on the mother on 6th June. On l4th June the case came before Ward
J and, upon mother undertaking not to remove the children from
{Page 4} this jurisdiction, leave was granted for her to obtain
psychiatric evidence regarding the children and the case was
adjourned.

It has been suggested by father in his fax that mother had
been planning to leave America with the children since the middle
of 1990. Having heard mother, I reject that suggestion. I am
satisfied that her decision was formed when she knew that she was
faced with foreclosure of the mortgage on her home in
circumstances to which I now turn.

Father has not given evidence in the case and has not
appeared save by counsel. Mother has given evidence and has been
cross-examined at length.

The history leading to the eviction of mother, Mr Priest and
the children is that upon the divorce mother was anxious to
continue to live at the former matrimonial home. It was in the
joint names of husband and wife. It had been purchased for some
$160,000, with a mortgage to the Dime Savings Bank of $80,000. It
had the advantage of some separate self-contained accommodation
which could be let and was large enough to have capacity for other
tenants to produce income.

The agreement upon divorce was that father would vacate the
basement flat within seven days and that mother would pay $55,000
to father within 30 days, upon receipt of which he would convey
the house into the sole name of mother who would discharge
mortgage repayments. Child maintenance was agreed and there was no
support for mother who was cohabiting with Mr Priest. Mother said
in evidence that she was to raise the $55,000 from a policy to
which Mr Priest was entitled. In the event the money was never
{Page 5} forthcoming. I do not know why. It may be that mother was
eager to divorce and did not make serious inquiries to the
Availability of the fund. It may be that she was prepared to make
promises that she doubted she would keep. It may be that she was
so weary of the matrimonial wrangles that she was prepared to
promise anything to stay in the home. It may well be that paying
Mr Costa was low on her list of priorities. Whatever the reason,
she has given no convincing explanation as to why she failed to
keep her part of the bargain. I do not blame father for obtaining
a judgment which with interest amounted to $65,000. He was
entitled to the money, his lawyers advised against him
agreeing to the sale of the house and it is not appropriate
for me to question their advice.

The evidence from mother is very vague as to her finances
thereafter. She ceased to pay the mortgage installments of $800
per month in January 1990. She was informed of some arrears which
had accrued through an error in the escrow account and she
borrowed $5,700 from her mother for the purpose of paying it to
the loan bank in February 1990. Thereafter she paid nothing,
although the repayments had increased to $1,300 per month. She had
previously sold her hairdressing business which had in the past
produced an income and she had been left with some $12,000 after
payment of debts. Mr Priest was working and there was rent from
the tenants. However, for a period of one year until foreclosure
she paid nothing and neither did Mr Priest.

On 8th June 1990 by letter she was informed of the threat of
foreclosure by reason of what was said to be the {Page 6}
delinquent mortgage accounts. Although the letter invited her to
come to an arrangement to prevent foreclosure, she paid nothing,
she came to no agreement and concentrated on attempting to
remortgage through Mr Priest’s contacts with Hanover Manufacturing
Trust. That came to nought and it is not surprising that
foreclosure came ever nearer. Mother denies knowledge of the
foreclosure sale in December 1990. Her denials were less than
convincing. She said that she would have gone to bid had she known
of the event. I question how by this time she would have raised
any sufficient money when Mr Priest’s efforts had come to nothing.
I am not satisfied that she had no knowledge of the event. She was
burying her head in the sand and she said that she was receiving
papers in the post every day. On the totality of the evidence, I
conclude that she let things drift because she had no prospect of
retrieving the situation. Whoever bought the property on the
foreclosure sale would require vacant possession in normal
circumstances. Although I do not blame the father for purchasing
the property for the highest bid, which was indeed a bargain on
the forced sale at $100,000, nevertheless I do blame him for what
happened thereafter. Although mother had by her inaction come
perilously close to making herself and the children intentionally
homeless, she was entitled to think that her former husband would
not evict his children. The father had all the cards in his hand
and, although he had some justification for displeasure with the
mother, he was in my view behaving disgracefully when he caused
the eviction notice to be sent on 29th January 1991 requiring
vacant possession by 9th {Page 7} February and further when he
told the boys on an access visit a version that was wholly
favourable to him of what was in truth happening. Nevertheless, he
exploded a bomb shell as far as the children were concerned. Any
father concerned about the welfare of his children would have
stayed his hand pending alternative accommodation being found and
would have acted so as to cause minimum, disruption to the
children. Father made no proposals to care for the children
himself, he made no inquiry of their fate and he behaved in a
callous manner, which on any view could only lead to disturbance
and trauma in the children and alienation of feelings towards him.

Mrs Costa thereupon decided to move out of the jurisdiction
with the children without informing Mr Costa. She and Mr Priest
had sufficient funds to arrange and to pay for the move and the
flight tickets and they pre-arranged accommodation near
Hungerford.

I turn now to consider the law. The pre-amble to the Hague
Convention sets out the intention of the signatories, namely to
protect children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to
ensure prompt return to the state of their habitual residence when
appropriate, as well as to secure protection for rights of access.
FN4 It has been argued by the mother in the present case that
since return to the state of habitual residence is no longer a
live issue, it is not appropriate to determine whether the removal
was wrongful. I do not agree with that argument since in my
judgment the issue of wrongful removal has a bearing on the
jurisdiction to determine matters of access under the {Page 8}
Convention and has a relevance to the merits. It is agreed in this
case that the Convention as enacted in the Child Abduction and
Custody Act 1985 has the force of law in both relevant states.

The first question to be answered is was the removal of the
children wrongful? By article 3 the removal 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 and (b) at the time of
removal those rights were actually exercised either jointly or
alone or would have been so exercised but for the removal. By
article 5 rights of 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.

Courts have considered the meaning and effect of article 3
when read in conjunction with article 5 in two authorities which
have been referred to in this case. In Re H [1990] 2 FLR 439
Ewbank J decided that in a case where the custody order in favour
of mother expressly prohibited removal of the child from Ontario
without the leave of the court, the subsequent removal of the
child without such leave was a breach of the rights of custody
attributed to her under the law of Ontario. The learned judge
found that there was nothing in the Convention that the breach of
the rights of custody had to be a breach of the rights belonging
to any other person or institution. In C v C [1989] 1 WLR 654, the
Court of Appeal decided the effect of article 5 and concluded that
the definition of “custody” {Page 9} had a wider meaning than the
domestic concept. In that case the father and mother had a
consent order in the Sydney Court whereby mother was granted
custody and by clause 2 “neither the father nor the mother shall
remove the child from Australia without the consent of the other”.
When the mother removed the child to England without such consent,
it was held that the father’s right amounted to a right of custody
within article 5, enabling him to decide whether at the request of
mother the child should live inside or outside Australia. This
decision demonstrates the wide extent of the meaning of “rights of
custody”. Neill LJ at page 662 at D referred to custody and said:

“The term ‘custody’ in relation to a child is a term which is
used in many systems of law. The meaning of the term may vary
in different jurisdictions and in different contexts in the
same jurisdiction. The phrase “rights of custody” may also
have varying meanings. For the purposes of the Convention
however the phrase “rights of custody” is given a particular
definition.”

He then quotes the definition and continues.

“The right to determine the child’s place of residence is
therefore included among the rights of custody to which
article 3 applies. Moreover, it appears from article 3 itself
that this right may be attributed to a person, either jointly
or alone, it may arise by reason of, inter alia, a judicial
decision or by reason of an agreement having legal effect
under the law of the state in which the child was habitually
resident immediately before the removal.”

He then went on to say that in relation to the facts of that
particular case father was given the right to determine the
child’s place of residence. He said:

“I am satisfied that this right to give or withhold consent
to any removal of the child from Australia, coupled with the
implicit right to impose conditions, is a right to determine
the child’s place of residence and thus a right of custody
within the meaning of articles 3 and 5 of the Convention.”
{Page 10}

Lord Donaldson MR said at page 663:

“If anyone, be it an individual or the court, or other
institution or a body has a right to object and either is not
consulted or refuses consent, the removal will be wrongful
within the meaning of the Convention. I add for completeness
that a right to determine the child’s place of residence may
be specific, the right to decide it shall live at a
particular address, or it may be general, for example within
the Commonwealth of Australia.”

The present case goes one stage further than either of the
two authorities from which I have quoted. The relevant law in
determining if removal was wrongful is the law of New York State,
that is the country of habitual residence of the children. There
is no declaration from the Court of New York State in this case
and, therefore, I have been provided with affidavit evidence from
three people familiar with the law of New York State, two of whom
are experienced practitioners in the State. The affidavits are
from Mr James Brown, Mr William Beslow and Mr Norman Scheresky.

Article 14 of the Convention sets out that in ascertaining
whether there has been wrongful removal within the meaning of
article 3 this court may take notice judicial or administrative
directly of the law and of decisions formally recognised or not in
the state of habitual residence without recourse to the specific
procedures for proof of that law or for the recognition of foreign
decisions which would otherwise be applicable. The three experts
do not all consider the same authorities, but each of them
concludes that in relation to the access order the custodial
parent is not entitled in law to frustrate the visitation rights
by removing the child to a distant locality. Various authorities
are quoted by Mr Brown, in particular Sioos v Sioos, which is
authority for the {Page 11} proposition that the award of access
rights or visitation rights creates an implied prohibition running
against the custodial parent removing the child to a distant place
which would frustrate regular visitation and render the
non-custodial parent’s rights nugatory. This proposition derives
not from statute but from a line of case law, including the cases
of Prieby, Daqhir and Kelly, which have received Court of Appeal
approval in New York State. Mr Beslow expressly approves Mr
Brown’s analysis of the law and refers in addition to another
authority, Schwartz, as well as other decided cases. Mr
Scheresky’s affidavit deals mainly with other matters not now
relied upon by the father, but he concludes by stating that he is
not in general disagreement with what Mr Beslow states about
visitation rights, but goes on to say that, if the mother and
children were rendered homeless by the father and/or she was put
in the position of having to remove to England, it is quite likely
that she would have been granted permission for removal of the
children to this country and that the New York Court might grant
permission even now should she apply. The plain inference of that
opinion is that Mr Beslow has correctly stated the law, that
mother needs permission of the court to remove the children
lawfully, and that the merits might be on her side so as to enable
her to succeed. In fact, no such application has been made by
mother. FN5

On consideration of the authorities before me, it is in my
view implicit that the law of the State of New York requires such
an application before permission can be granted. Mr Scheresky
deposes as to the merits which in no {Page 12} way affect the
principle of requiring leave. The case of Cataldi v Shaw is not
inconsistent with that proposition and the case of Hemphill, which
is the latest authority, follows the same tradition.

I am satisfied that, although the orders of the New York
State Court do not expressly forbid removal from the jurisdiction
without leave, the law is such that there is an implicit
prohibition and that mother was not entitled unilaterally to
remove the children without such leave. Whether or not she
completely understood the legal position is in dispute, but in my
judgment it matters not for the purpose of interpreting articles 3
and 5. In Re H the mother was said to be unsure of the legal
position, but it made no difference. On the evidence in this case
I am satisfied that mother did know the implications because it
was spelt out in considerable detail about how access was to be
effected and she knew that she had not to frustrate those
arrangements. All of the arrangements were made on the basis of
the children remaining in that jurisdiction. However, it would
make no difference to my findings whether mother knew or not of
the prohibition on the removal of the children and in my judgment
paragraph 22 of mother’s affidavit does not affect the legal
position one way or the other. I am satisfied that the prohibition
derives from case law, was implied into the order by settled legal
precedent, which is sufficient to satisfy the requirements of
articles 3 and 5, and conforms to the principles set out in C v C.

Although there is no decided authority in this jurisdiction
to which I have been referred, I find that {Page 13} there is no
distinction in law between an express prohibition contained in an
order and one that is implied by settled case law. Both have the
force of law in the jurisdiction concerned and can be enforced by
the courts there. The only distinction is that the implied
principle will require more detailed proof than the express order.
I therefore find that the removal of the two children by mother to
England was wrongful. Such a breach gives father the right to
bring the matter to this court under the 1985 Act. Subject to
certain exceptions, he has the right to secure the return of the
children so that the New York State Court has jurisdiction. Father
having considered the evidence filed decided not to seek to
enforce those rights, as he recognises that the children are
settled here, have no home to return to in America and he does not
offer them a home under his roof. He does however seek orders for
access to the children within these proceedings, both within the
United Kingdom and outside the jurisdiction.

Mr Swift on behalf of mother has urged me to adjudicate on
whether mother would have been granted leave to bring the children
to England in the circumstances of this case had she so applied. I
do not however consider it appropriate for me to speculate as to
how a court in New York State might determine such an issue then
or now. The finding that mother is in breach of the Convention is
a matter of jurisdiction. Merits and welfare do not affect that
decision, which is merely a determination as to which is the
appropriate forum to try matters affecting those children’s
removal from America. Allegations against father and explanations
for mother’s actions are not {Page 14} relevant to an application
under the 1985 Act, save in so far as they might affect the New
York State Court in their approach to any return by mother and any
penalties to be imposed upon her. The welfare of children as the
first and paramount consideration is not the basis of the
Convention nor the Act. In my judgment welfare issues only become
relevant in this case in relation to issues of access.

Mr Swift has invited me to invoke the wardship jurisdiction
in order to determine future access to father. I agree that I do
have that jurisdiction, if I find it appropriate to exercise it,
in the light of article 16 and the fact that the children are not
now to be returned. However, having considered all the
circumstances, I can find no advantage in invoking wardship in the
present case. I am satisfied that I have the necessary
jurisdiction under the 1985 Act to make appropriate orders.
Wardship places custody with the court, which does not appear
necessary or appropriate in this case, and delay might well be
caused in that the current legal aid certificates which were
granted under the Convention procedure would not cover wardship
and assessment of means would be required as in all non-Convention
cases. Delay might be occasioned and I can see no advantage to the
children.

Mr Swift has argued that I do not have the jurisdiction to
modify or order or withhold access either in this jurisdiction or
the State of New York under article 21. With all respect to his
very eloquent argument, I do not agree. There is no decided
authority on the point except for the obiter dicta of Waterhouse J
in B v B [1988] 2 FLR, plus those examples of orders produced by
the Lord {Page 15} Chancellor’s Department, which have been made
by consent in various cases. The fact that the orders for access
were made by consent and not contested does not of course alter
the principle that the court can only act within its lawful
jurisdiction.

I am satisfied that article 7(f) enables this court to make
arrangements for organising or securing the effective exercise of
rights of access. Article 5(b) defines “rights of access” as
including the right to take the child for a limited period of time
to a place other than the child’s habitual residence. On the facts
of this case, as conceded by both parties, the children’s habitual
residence is now England and I find that the scope of the
Convention does not limit the territorial jurisdiction of this
court to make appropriate arrangements for access. If this court
did not have such a power, then this father would have prejudiced
himself by conceding that the children can remain within the
jurisdiction. He would be prevented from seeking access here under
the Convention and would be forced to apply in New York State
where he would have the difficulty of enforcing any order in
respect of the children living in England. The original order for
access is no longer relevant now that the children are to remain
in this jurisdiction. It would in my view not only be unjust but
would be a misinterpretation of the Convention to hold that it
restricts the ability of a father whose children had been
wrongfully removed to seek access by accepting the realities of
the children’s new environment. I am satisfied that this is a
proper case in which to deal with access issues and that in
principle there is no bar to {Page 16} ordering access within or
without the jurisdiction. I am also satisfied that the welfare of
the minors is the first and paramount consideration when
determining questions of access and that nothing in the Convention
displaces that principle.

I have concluded upon the evidence that past events have had
a profound effect upon the children in respect of their
relationship with father. It is true that Dr Wilkins, an
experienced consultant psychiatrist, did not have the opportunity
of considering father’s evidence. The father has only himself to
blame for not appraising Dr Wilkins of his version of events. It
is also true that the doctor was considering the defence to the
return of the children afforded by article 13. However, I find his
conclusions are significant regarding access. Some of the bases
for Dr Wilkins’ strongly held views are not completely supported
by my findings of fact, but in the end I find it matters not
precisely how and why the children have formed such an
unfavourable and fearful view of father or why they are so
protective of mother. Whatever the precise details of father
informing the children of the forthcoming eviction and whether he
gave out the news through callousness or insensitivity seems to me
to matter little. The effect on the children was for them to view
father with some justification as the person who evicted them and
rejected them and the emotional consequences have been great. I
accept the doctor’s account that the traumas of the children have
not been the result of brain-washing by mother but rather by the
children’s perception of events and their absorption of mother’s
distress and insecurity. {Page 17} Many fences need to be mended
and much trust needs to be regained and that in my view can only
be done at the children’s pace and with sensitive consideration by
father. I agree with the doctor that access outside England cannot
be contemplated at present. Relationships need to be rebuilt
carefully stage by stage and must commence with some supervised
access in England by father, hopefully during the autumn half
term. Father would in my view be well advised to seek some
counseling before that access because any attempt by him to deal
with or to explain the past could be extremely damaging to future
relationships between him and the children. Dr Wilkins has offered
to counsel the children and I welcome that. I do not agree with Mr
Horowitz that access in England is a formula for no access at all.
I consider it to be one step in a continuing process. The onus
will be on father initially to demonstrate that it can work and
lead eventually to access in America. Matters must proceed
cautiously and carefully for the welfare of the children. I
consider the appropriate person to supervise initial access is the
court welfare officer and that he or she should have discretion in
consultation with Dr Wilkins to determine the extent of
supervision or, indeed, whether any supervision is required after
the initial contact meeting and to determine how frequently access
should take place and for how long during the half term. I
envisage several relatively short meetings during the half-term
period but no overnight staying access. Following such access, if
it can take place, I will require a report to assist me to
determine the future pattern and whether or not it is appropriate
to {Page 18} order access in America, with or without mother
accompanying the children, for a holiday and subject to
satisfactory financial arrangements. In this respect mother must
be prepared to contribute according to her capacity, if overseas
access is appropriate. It would be wholly wrong in my view for
mother to refuse to pay any part on principle, when she is
responsible for the children being wrongfully brought here in the
first place.

Having regard to my judgment, I would now welcome assistance
from counsel as to how access can be effectively arranged.

MR SWIFT: My lady, I have drafted out some terms and I wonder if
the right course in the light of your judgment is for us to have a
short period of time and then come back.

MRS JUSTICE BRACEWELL: Yes, indeed.

SWIFT: As I say, I have drafted out a series of terms which I
could just alter to correspond with what you have said. We should
be able to come back very shortly.

MRS JUSTICE BRACEWELL: It may be necessary to consult the court
welfare officer as to how matters can proceed. Would it be
convenient for me to deal with my other short case and then for
you to see where you are?

MR SWIFT: Certainly, my lady.

——————–
1. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980. WMH Note 30 Sep
1991.

2. Convention Art. 3 WMH Note 30 Sep 1991.

3. See the film: “War of the Roses” WMH Note 30 Sep 1991.

4. Convention Art. 21 WMH Note 30 Sep 1991.

5. See, for example, California Civil Code 4600 and In re Marriage of
Carlson (Cal.Ap. 5 Dist. 1991) 229 Cal.App.3d 1330, —- [280
Cal.Rptr. 840, 844-845]. WMH Note 30 Sep 1991.