UK – CVC – 1988 (1988) (Return ordered on appeal)(Undertakings) ENGLISH MOTHER v Australian father. mother takes child to England. English Judge refused to return child to Australia. Father appealed. Appeal allowed with Undertakings.
C v C (Abduction; Rights of Custody)Court of Appeal (Civil Division)
Hearing Date: 14 Dec 1988
[1989] 1 FLR 403
[1989] 1 WLR 654
Minor — Custody — Enforcement — English mother and Australian
father — Order of Australian court giving custody to mother —
Child not to be removed from Australia by either party without
consent of other — Removal by mother without father’s consent —
Refusal to return with child to Australia — Whether removal
breach of father’s “rights of custody” — Whether return of child
without mother exposing child to “grave risk of psychological
harm” — Child Abduction and Custody Act 1985 (c. 60), Sch. 1,
arts. 3, 5, 131
T., who was born in 1982 in Australia, was the child of an
English mother and an Australian father. In 1985 the marriage
broke down and divorce proceedings were commenced. In November
1986 the deputy registrar of the Family Court in Sydney made a
consent order giving the mother custody of T., clause 2 of which
provided that neither party should remove the child from Australia
without the consent of the other. In 1988 the mother left
Australia with T. and brought him to live England without
obtaining the father’s consent. The father applied on 10 Aug 1988
to the Family Court in Sydney and obtained an order for T.’s
return, giving him custody on such return. The father then
applied to the High Court i England under the Child Abduction and
Custody Act 1985, which gave effect to the 1980 Hague Convention
on the Civil Aspects of International Child Abduction for an order
for T.’s return to him. On 14 October Latey J. refused to order
T.’s return, holding that his removal and retention was no
wrongful within the meaning of article 3 of the Convention, that
it did not constitute a breach of the father’s rights of custody
as defined in article 5, and that, in view of evidence from the
mother that she would not go back to Australia, to return the
child without her would expose him to grave risk of psychological
harm within the meaning of article 13.
On appeal by the father: —
Held, allowing the appeal, that the definition of custody in
article 5 of the Convention had to be read into article 3, and was
capable of a wider meaning than the ordinarily understood,
domestic concept of custody; that although the father’s right
under clause 2 of the November 1986 order to ensure that T.
remained in Australia, or lived outside Australia only with his
approval was general and was not an exclusive right, it amounted
to a right of custody within article 5; and that, therefore, the
removal of T. from Australia without his father’s consent in
breach of the November 1986 order was a wrongful removal within
the meaning of article 3 of the Convention; that since any risk of
psychological harm to the child arose, not from the child’s
return, but from his mother’s refusal to accompany him, it had not
been shown that there was a grave risk that an order for his
return would expose T. to psychological harm or otherwise place
him in an intolerable situation; and that, accordingly, on
suitable undertakings by the father, there was no reason to
prevent the child’s return to him (post, pp. 658C-F, 660F, 661B-C,
——————–
1.
Child Abduction and Custody Act 1985, Sch. 1, art. 3; see
post. p. 675E-F, Art. 5: see post, p. 657G. Art 13: see
post, p. 658G-H
662G-663C, H–664A.
Decision of Latey J. reversed
The following cases are referred to in the judgments:
A. (A minor) (Abduction), In re [1988] 1 F.L.R. 365, C.A.
E. (A minor) (Abduction), In re [1989] 1 F.L.R. 135, C.A.
The following additional case was cited in argument:
B. v B. (Minors: Enforcement of Access Abroad) [1988] 1
W.L.R. 526; [1988] 1 All E.R. 652
Appeal from Latey J.
On 14 October 1988 Latey J. dismissed the application of the
father under the Child Abduction and Custody Act 1985 for the
return of his son, T., to his custody. The father appealed by
notice of appeal dated 17 Nov 1988 on the grounds, inter alia,
that (1) the removal of the child was wrongful within the meaning
of article 3 of Schedule 1 to the Act of 1985; (2) the judge ought
to have held that an order of the Australian Family Court on 4
November 1986 conferred on the father the “right to determine the
child’s place of residence” within the meaning of article 5(a) of
Schedule 1 to the Act of 1985; and (3) the judge erred when he
held that the evidence established the existence of a grave risk
that the return of the child would expose him to psychological
harm.
The mother sought, by a respondent’s notice date 5 December
1988, to contend that the judge’s decision should be affirmed on
the additional grounds (1) that the judge had correctly held that
the father had not established that the mother had wrongfully
retained the child out of Australia within the meaning of the
Child Abduction and Custody Act 1985; (2) the retention of the
child out of Australia by his mother was not wrongful because at
the date of his removal the removal was not wrongful; and (3) the
relevant date for founding an allegation of wrongful removal or
wrongful retention was the date of removal.
The facts are stated in the judgment of Butler-Sloss L.J.
Anita Ryan, QC and Cherry Harding for the Appellant father;
Michael Connell QC and E. James Holman for the Respondent
mother.
Panel: Lord Donaldson MR, Neill, Butler-Sloss LJJ
Judgment by: Butler-Sloss LJ
BUTLER-SLOSS LJ: This is an appeal from the judgment of an
order of Latey J given on 14th October 1988 on an application
under the Child Abduction and Custody Act 1985 in respect of a boy
called Thomas, born on 27th July 10, 1982. This Act gives
statutory force to most of the Articles of the 1980 Hague
Convention.
The child was removed by his mother on 3rd August 1988 from
their home in Sydney, Australia, to England, where they are now
living. The father before Latey J asserted and the mother denied
that under the provisions of Article 3 of the Convention the
removal was and retention of the child out of the jurisdiction of
the Australian Family Court were wrongful. The mother further
submitted that if the removal or retention was found to be
wrongful, nevertheless under the provisions of Article 13 there
was a grave risk that the return of the child would expose him to
psychological harm. The judge dismissed the father’s application
under the Act and the father appeals from that order.
There are also wardship proceedings in respect of the child,
the mother having issued an originating summons on 11th August.
Those proceedings are not before the judge nor before this court.
Further evidence was submitted to this court which has been
taken into account only so far as it sets out the current
proposals of the father if the child returns and the present
financial position of the mother.
The short facts are as follows:
The mother is 34 and English. In 1976 she went to Australia
and met the father who is 35 and Australian. They were married on
15th April 1978 in England where they remained for a year before
returning to make their Home in Sydney. The one child was born in
1982. The marriage broke down in 1985 and the parents separated
in July of that year. Divorce proceedings were commenced and
agreement was reached over finance and the future arrangements for
Thomas. On 4th November 1986 the Deputy Registrar in Sydney made
a consent order including the following words:
(1) The wife was to have custody of . . . the child of the
marriage and the husband and the wife to remain joint guardians of
the said child.
(2) Neither the husband nor the wife shall remove the child
from Australia without the consent of the other.
During 1986 the mother, with the consent of the father, took the
child for a holiday to England.
The mother and child lived together in a suburb of Sydney
until 3rd Aug 1988, when she left for England with the child,
without first informing the father and without his consent. As
soon as the father learnt of the situation by a letter from the
mother, he applied to the Family Court in Sydney. The mother
before her departure had applied to vary the November 1986 consent
order to delete the requirement for father’s consent to the
removal of Thomas from the jurisdiction.
Ross-Jones J heard the father’s application on 8th and 10th
August. On 10th August the judge made orders for the return of
the child and transferred the custody of Thomas to the father on
his return to Australian jurisdiction. There was no provision
made for access to the mother in that eventuality. There was a
further hearing before the judge on 23 August. The mother has
appealed against the order transferring custody to the father.
The judge declined to stay the order transferring custody pending
the hearing of the appeal.
The mother has made in her affidavits various allegations
against the father and has given explanations for her action in
removing Thomas from Australia. They are not, in my judgment,
relevant to an application under the 1985 Act, save as insofar as
they may affect the approach of the Australian authorities to the
mother’s return. From reading the transcripts of the hearings and
from the affidavits of the father, as well as the expert evidence
called on behalf of the mother, she is likely to be seen to be in
contempt of court in respect of the consent order of 1986 and the
orders made in August of this year. That may be relevant to the
consideration under Article 13. The welfare of the child as the
and paramount consideration is not, however, as Latey J correctly
pointed out, the basis of the Hague Convention and the Act
incorporating it in the English law. Australia is a signatory to
the Hague Convention and enacted the relevant legislation in 1987.
The preamble to the Hague Convention sets out the intention
of the States which signed it:
“[Desiring] to protect children internationally from the
harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the
State of their habitual residence, as well as to secure
protection for rights of access.”
Article 1, which is not contained in Schedule 1 to the 1985
Act, states that the objects of the Convention are:
“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 States.”
As Nourse LJ said in Re A (a minor) (abduction) [1988] 1 FLR
365, [1988] Fam Law 54 at page 368 of the former report:
“These and other provisions of the Convention demonstrate
that its primary purpose is to provide for the summary return
to the country of their habitual residence of children who
are wrongfully removed to or retained in another country in
breach of subsisting rights of custody or access. Except in
specified circumstances, the judicial and administrative
authorities in the country to or in which the child is
wrongfully removed or retained cannot refuse to order the
return of the child, whether on grounds of choice of forum or
on a consideration of what is in the best interests of the
child or otherwise.”
Three questions arise in this case:
(1) Was the removal of the child wrongful?
(2) Is the retention of the child wrongful?
(3) If the answer to either or both of the first two is
“yes”, does Article 13 apply to stop the return of the child?
By Article 3 the removal or 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.
By Article 5:
“For the purpose of this Convention —
‘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;”
In respect of my first question — was the removal wrongful?
— the learned judge heard argument as to the effect of the order
of November 1986 and in particular the effect of joint
guardianship. He had before him the written opinion and oral
evidence of an Australian Queen’s Counsel. The judge’s attention
does not appear to have been sufficiently drawn to the effect on
the definition in Article 5 of the Convention of Clause 2 of the
November 1986 order, that neither parent should remove the child
from Australia without the consent of the other. Accordingly, the
judge’s attention was not draw specifically to the question
whether under Australian law Clause 2 was capable of constituting
a right of custody within the Convention. In the absence of
sufficient expert evidence on that point, this court must do its
best to consider whether Clause 2 comes within the definition
given in Article 5.
By Clause 2 the father had, in my judgment, the right to
determine that the child should reside in Australia or outside the
jurisdiction at the request of the mother. In 1987 he gave his
consent to the child coming to England for a specified holiday.
One might consider the example of a parent wishing to leave the
jurisdiction with the child for a longer period, say 12 months.
The other parent, with Clause 2 in the order, would have some
control over not only the child leaving the jurisdiction but also
as to the place to which the child was going, and not only the
country; for instance, to live in London in suitable
circumstances. If the child was retained under such an
arrangement beyond the agreed date of return, it seems
inconceivable to me that the Convention could not effect the
return of the child. But if the argument so attractively advanced
by Mr. Connell is right, there would be no instant redress by the
justifiably aggrieved parent. The words of Article 5 must, in my
view, be read into Article 3 and may in certain circumstances
extend the concept of custody beyond the ordinary understood
domestic approach. Therefore in the present case there would be
the general right of the mother to determine the place of
residence within the Commonwealth of Australia, but a more limited
right, subject to the father’s consent, outside the jurisdiction
of the australian Family Court. The father does not have the
right to determine the child’s place of residence within Australia
but has the right to ensure that the child remains in Australia or
lives anywhere outside Australia only with his approval. Such
limited rights and joint rights are by no means unknown in English
family law and no doubt to Australian family law. Indeed, in
Article 3 rights of custody are specifically recognised as held
jointly or alone. The Convention must be interpreted to that
within its scope it is to be effective. For my part I consider
that the child was wrongfully removed from the jurisdiction in
breach of Clause 2 of the order of 4th November 1986.
It is not, therefore, necessary to look at the various
Australian statutes or recent decisions nor the expert opinion
evidence proffered as additional evidence by the father.
The difficult question whether the retention of the child was
to be considered wrongful does not now arise and I do not propose
to embark upon a consideration of the effect of the orders made in
Sydney in August.
I turn, therefore, to the third question as to whether
Article 13 applies. It states that:
“[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– . . .
(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.”
In Re A (supra), Nourse LJ considered the effect of Article 13(b)
and said at [1988] 1 FLR page 372:
“The intendment of Article 13(b) cannot be that the judicial
or administrative authority of the requested state is to be
blinkered against a sight of the practical consequences of
the child’s return.”
The judge considered with great care the situation if the
child was to return to Sydney and we are rightly reminded, by Mr.
Connell for the mother, that the judge heard the mother give
evidence and was impressed with her and the evidence which she
gave. At page 12 of the judgment he was satisfied that there was
a grave risk of psychological harm to Thomas. He pointed out
that:
“. . . the mother has been the sole carer of Thomas. She has
devoted herself to him and his care. Other than what she did
in August there is no criticism of her. On the contrary Mr.
Nathan paid a handsome tribute to her as an excellent mother.
For his lifetime of six years she has been the centre of
Thomas’s life. His emotional tie, bonding with her is the
closet possible.”
He also said at page 14:
“I am satisfied that to remove Thomas back to Australia
without his mother would create the gravest risk of very
serious psychological harm, and that it would be wholly wrong
to make an order which had that effect. Unless she had a
home, financial support and the care of Thomas pending any
further full investigation and decision, the risk of
psychological harm would be little less even if the mother
went with him.”
At that time the mother was in some danger of being dealt
with under the contempt of court. At that time there were no
offers by the father to house her and the boy or indeed any offer
for the boy to remain with her pending proceedings or anything of
the sort which now has been presented to this court. But now
matters have moved on, and we have evidence that was not before
the judge. The effect of that evidence is considerably to
ameliorate the rigours of the return of the child and his mother
to Sydney.
The father’s position is now that, in order to facilitate the
return of the child, he will give certain undertakings to this
court and to the Australian Family court.
These undertakings are crucial to the welfare of the child
who has been sufficiently disrupted in his removal from his home
and his country and needs as a priority an easy and secure return
home. The mother has been the primary caretaker throughout his
short life, and since the parting of the parents when he was three
for all but access periods his sole caretaker. If possible, she
should for his sake and not for hers be with him and help him to
readjust to his return. The father should not be instrumental in
putting obstacles in the way of that easy return, nor make
difficulties once the child is back. It is essential that the
judge hearing the future issues of custody and access or indeed
the Australian Family Court of Appeal should have the opportunity
to consider the welfare of the child as paramount without
emergency applications relating to the manner of the return of the
child.
The father has offered a number of undertakings. Those, as
far as they go, are very valuable — and, if I may say so, for my
part, show the good intent that he has for the welfare of his
child and to return him to the jurisdiction of the Australian
court. In my view, those undertakings should go somewhat further,
and the undertakings that I for my part think should be required
by this father, as a prerequisite of the return of the child, and
without which I consider the child should not be expected to
return, are as follows:
(1) He will not seek to enforce against the mother the order
for guardianship and custody dated 10th August 1988, and will not
seek to remove Thomas from the care and control of the mother
until the full adjudication by the Family Court in Sydney,
Australia, on the merits upon the contested issues of
guardianship, custody and care and control of Thomas.
(2) He will provide for the use of the mother a suitable
motor car at his expense from the date of arrival for two months
or until the adjudication, whichever may be the later.
(3) He will obtain unfurnished accommodation within
convenient distance of the school Thomas will attend, at a rental
of not less than A$220 per week; and the mother shall pay the rent
up to a limit of A$250 per week. The father will provide suitable
and sufficient furniture.
(4) He will use his best endeavors to secure for Thomas a
place at Mosman Preparatory School, and will pay for all fees,
clothing and incidental expenses in relation to Thomas’s education
at that school.
(5) He will provide air tickets and book seats for the
mother and Thomas from London to Sydney, to travel on a day not
before 1st January 1989, and will provide the sum of L50 to cover
additional expenses of travel.
(6) He will not institute nor voluntarily support any
proceedings for the punishment or committal of the mother in
respect of any contempt of the Australian court that she may have
committed prior to the date hereof.
(7) Once Thomas’s name has been removed from the mother’s
passport, he will not seek to have the mother’s passport
impounded.
(8) He will pay maintenance for the mother and Thomas from
the date of their arrival in Australia until adjudication, at the
rate of A$650 per week, payable in advance. If the mother obtains
employment, the sum of A$650 to be reduced by 50% of the salary
that the mother receives. The first four weeks payment to be made
on arrival in Australia and, thereafter, the fifth and subsequent
payments to be made weekly in advance.
(9) He will pay for any medical expenses reasonably incurred
by the mother in respect of Thomas in Australia.
These undertakings cover, as far as I can see, all the
entirely justifiable concerns of the judge. It will be a matter
for the Australian Family court as to with which parent in the
future the child shall make his home, and nothing that I say in
this judgment should be taken as in any way prejudging or
affecting the decision that the Australian court may feel it
necessary to make.
Counsel for the mother accepts hat he cannot suggest other
than that the Australian court will try the case in accordance
with their approach to child cases which appears to accord very
closely to the approach of the courts of this country.
Nevertheless, the mother has said, for what appear to be
emotional reasons, that she cannot go back. I am not sure that
she is now saying that. But if she does, what is to be done? The
judge found, and I agree with him, that the mother is very
important to the child. At the time of the hearing the mother was
found by the judge to have reasonable grounds for refusing to
return, and I would not disagree with him. Those grounds have now
been removed by the undertakings which I expect will be given to
this court, without which the child will not return, and through
this court will be given to the Australian Family court.
The mother has to rely on the Australian court for a decision
as to the future home of the child. In the circumstances of this
case, that is undoubtedly the right court to make that decision.
She also has no family in Australia, a broken marriage and now,
through her own actions and costly litigation, no assets.
She is responsible for the loss of her home, the spending of
the proceeds of sale, the lack of job, car and money. None of
these, in the light of the undertakings of the father, can be
reasons to block the return of the child. The mother argues that
if she does not return and the child is to return without her,
there is a grave risk of psychological ham to the child.
The grave risk of harm arises not from the return of the
child, but the refusal of the mother to accompany him. The
Convention does not require the court in this country to consider
the welfare of the child as paramount, but only to be satisfied as
to the grave risk of harm. I am not satisfied that the child
would be placed in an intolerable situation, if the mother refused
to go back. In weighing up the various factors, I must place in
the balance and as of the greatest importance the effect of the
court refusing the application under the Convention because of the
refusal of the mother to return for her own reason, not for the
sake of the child. Is a parent to create the psychological
situation, and then rely upon it? If the grave risk of
psychological harm to a child is to be inflicted by the conduct of
the parent who abducted him, then it would be relied upon by every
mother of a young child who removed him out of the jurisdiction
and refused to return. It would drive a coach and four through
the Convention, at least in respect of applications relating to
young children. I, for my part, cannot believe that this is in the
interests of international relations. Nor should the mother, by
her own actions, succeed in preventing the return of a child who
should be living in his own country and deny his contact with his
other parent. As Balcombe LJ said in Evans v Evans [20th Jul 1988
unreported] at page 13 of his judgment:
“The whole purpose of this Convention is . . . to ensure that
parties do not gain advantitious advantage by either removing
a child wrongfully from the country of its usual residence,
or having taken the child with the agreement of any other
party who has custodial rights to another jurisdiction, then
wrongfully to retain that child.”
If this mother will not accompany the child, despite the
knowledge that his rightful place is in New South Wales, then, on
the facts before this court, I am not satisfied that Article 13(b)
applies and, in my judgment, the child should return to his
father.
When the undertakings which I have set out are given on
behalf of the father to this Court and, through this Court, given
to the Australian Family Court, I , for my part, would allow this
appeal, and order that Thomas do return to Sydney on the flight
booked by the father.
NEILL LJ: I agree. I also agree with the orders proposed by
Butler-Sloss LJ, provided that the undertakings that she has set
out in her judgment are given by the father both to this court and
to the Family Court in Australia.
I propose, however, to give a short judgment of my own on one
aspect of the matter.
This case comes before the court in accordance with the Hague
Convention of 1980, on the Civil Aspects of International Child
Abduction. The articles of the Convention, which are set out in
Schedule 1 of the Child Abduction and Custody Act 1985, have the
force of law in the United Kingdom: see Section 1(2) of the Act
of 1985.
In the present case we are concerned in the first place with
the question whether the removal of the child by the mother from
Australia was wrongful within the meaning of Article 3 of the
Convention. That Article, so far as it is material, provides as
follows:
The removal . . . of a child is to be considered wrongful
where–
(a) it is in breach of rights of custody attributed to a
person, . . . 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 . . .
The rights of custody mentioned in sub-paragraph (a) above,
may arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State.”
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.
This definition is contained in Article 5 which, so far is
material, provides:
“For the purposes of this Convention–
(a) ‘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; . . .”
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, and
it may arise by reason of, inter alia, a judicial decision or by
reasons of an agreement having legal effect under the law of the
state in which the child was habitually resident immediately
before the removal.
With this introduction, I turn to the order dated 4th
November 1986, made in Sydney, in the Family Court of Australia.
It was a consent order. By paragraph 1 of the order it was
provided that the mother should have custody of the child and that
the father and the mother should remain as joint guardians.
Paragraph 2 was in these terms:
“Neither the Husband nor the Wife shall remove the child from
Australia without the consent of the other.”
The question for decision is whether paragraph 2 gives the
father the right to determine the child’s place of residence.
Plainly it is not an exclusive right. The mother has custody of
the child and can decide where in Australia they are to live. But
the father’s consent is required before the child is removed by
the mother from Australia. It seems clear that this consent could
be limited both as to the period of absence and as to the place to
which the child could be taken. Thus, to take an example, the
father could consent to the child residing with the mother for a
period of a year or so in England or some other agreed country or
even at some particular address.
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. I am satisfied that this
conclusion is in accordance with the objects of the Convention and
of the Act of 1985. Until last August this child was habitually
resident in Australia. In 1986 the family court of Australia made
orders relating to his custody, which included an agreed provision
that he should not be removed from Australia without the father’s
consent. In my judgment, the enforcement of that provision falls
plainly within the objects which the Convention and the Act of
1985 were seeking to achieve.
LORD DONALDSON MR: I agree that, for the reasons given by my
Lords, the removal of this child from the Commonwealth of
Australia was wrongful within the meaning of the Hague Convention
which is set out in Schedules to the Child Abduction and Custody
Act 1985. I also agree with the terms of the order proposed by
Butler-Sloss LJ.
I give a separate judgment only because I wish to emphasise
the international character of this legislation. The whole
purpose of such a code is to produce a situation in which the
courts of all contracting states may be expected to interpret and
apply in similar ways, save insofar as the national legislatures
have decreed otherwise. Subject then to exceptions, such as are
created by section 9 of the Act in relation to Article 16 and
section 20(4) of the Act in relation to paragraph (b) of Article
10(2), the definitions contained in the Convention should be
applied and the words of the Convention, including the
definitions, construed in the ordinary meaning of the words used
and in disregard of any special meaning which might attach to them
in the context of legislation not having this international
character.
We are necessarily concerned with Australian law because we
are bidden by Article 3 to decide whether the removal of the child
was in breach of “rights of custody” attributed to the father
either jointly or alone under that law, but it matters not in the
least how those rights are described in Australian law. What
matters is whether those rights fall within the Convention
definition of “rights of custody”. Equally, it matters not in the
least whether those rights would be regarded as rights of custody
under English law, if they fall within the definition.
“Custody”, as a matter of non-technical English, means
“safekeeping, protection, charge, care, guardianship” (I take that
from the Shorter Oxford English Dictionary); but “rights of
custody” as defined in the Convention includes a much more precise
meaning which will, I apprehend, usually be decisive of most
applications under the Convention. This is “the right to
determine the child’s place of residence”. This right may be in
the court, the mother, the father, some caretaking institution,
such as a local authority, or it may, as in this case, be a
divided right — insofar as the child is to reside in Australia,
the right being that of the mother; but, insofar as any question
arises as to the child residing outside Australia, it being a
joint right subject always, of course, to the overriding rights of
the court. 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 the Convention. [Editor’s note: There
appears to be text missing at this point.] I add for completeness
that a “right to determine the child’s place of residence” (using
the phrase in the Convention) may be specific — the right to
decide that it shall live at a particular address or it may be
general, eg, “within the Commonwealth of Australia”.
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 courts in the circumstances of the
case, the exception case, our concern, is the concern of these
courts, would be limited to giving the child maximum possible
protection until the courts of the other country — Australia in
this case — can resume their normal role in relation to the
child.
DISPOSITION:
Appeal allowed when undertakings have been given on behalf of
the father; order that the child do return to Sydney on flight
booked by father; wardship to continue till child leaves
jurisdiction; legal aid taxation of Respondent’s (Defendant’s)
costs; Legal Aid Fund to make representations if it so wishes.
Leave to appeal to House of Lords refused; legal aid taxation of
Appellant’s costs of appeal.