UK – EVANS – 1988 (1988) (Return ordered on appeal)EVANS v EVANS. Father took one of his children to England. Lower court ordered the child returned to Australia. Father appealed. The Supreme Court of Judicature ordered the appeal dismissed.
Court: Supreme Court of Judicature, Court of Appeal (Civil)
Number: AD 1716 of 1988, [1989] 1 FLR 135
Applicant: Alison Kym Evans
and
Respondent: David Michael Evans
Date: 20 Jul 1988
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IN THE SUPREME COURT OF JUDICATURE No of Matter AD 1716 of 1988
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION Royal Courts of Justice
(MR. JUSTICE EWBANK) Wednesday 20th July 1988
Before:
LORD JUSTICE BALCOMBE
and
MR. JUSTICE ANTHONY LINCOLN
IN THE MATTER OF LEI DAVID EVANS (A MINOR) AND
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT
1985 AND
IN THE MATTER OF THE SUPREME COURT ACT 1981
BETWEEN:
ALISON KYM EVANS Plaintiff
(Respondent)
and
DAVID MICHAEL EVANS Defendant
(Appellant)
———–
(Transcript of the Shorthand Notes of the Association of Official
Shorthandwriters Ltd., Room 392 Royal Courts of Justice and 2 New
Square, Lincoln’s Inn, London WC2A 3RU. Tel: 01 405 9884/5
———–
MR. ALLAN LEVY (instructed by Messers. Bates & Partners,
Solicitors, London, WC2R 3JC, agents for Messers Hugh Howard and
Paul Tain, Solicitors, Walsall) appeared on behalf of the
Defendant (Appellant)
MR. JEREMY CAREY (instructed by Messrs. Batchelors, Solicitors,
London, WC) appeared on behalf of the Plaintiff (Respondent)
JUDGMENT
(Revised)
LORD JUSTICE BALCOMBE: This is an appeal from an order made
by Mr. Justice Ewbank on 24th June 1988 whereby, in proceedings
under the Child Abduction and Custody Act of 1981, he directed
that a child, Lei David Evans, be forthwith returned to Australia,
and he made certain consequential directions pursuant to that
order.
The application was made by the mother, who is currently
resident in Australia; indeed, she is a native born Australian.
The father, against whom the application was made, was born in
this country and his parents still live here; but in November 1980
he emigrated to Australia and met the mother in January 1981. They
were married in December 1982. There have been three children of
the marriage, the boy Lei, whom this application concerns, who was
born on 28th July 1983, and twins, now aged 2, born on 8th April
1986.
The marriage proved to be a chequered one; there was indeed a
six month separation starting in July 1985, even before the twins
were born. There have been further separations, from June 1986
until December 1986, from June 1987 until December 1987 and then
again on 25th January 1988, when a separation was started which
still continues.
On 2nd February 1988 the father, with Lei, left Australia for
England, leaving behind his wife, Lei’s mother, and the twins in
their home in Australia. There is a conflict of evidence as to the
precise arrangement which was made, if indeed an arrangement was
made at all, when the father left for England with Lei. He says
that it was an open-ended arrangement; he was coming to England
to take Lei for a holiday to see his parents in England – Lei’s
grandparents – and that no specific date was given for his return,
although he accepts that it was understood that he would go back
with Lei to Australia at some time, certainly before the year was
up. The mother, on the other hand, says that the arrangement was
that Lei should go back with the father after having spent eight
weeks in England; as I have said, there is a conflict on the facts
as to that but, as I say again, the father concedes that it was
anticipated that he would in due course return, and indeed the
tickets which were purchased were return tickets.
However, not long after his arrival in England the father
decided that he would stay in this country with Lei; again it does
not appear whether that intention was to stay indefinitely, but
certainly the decision was not to go back to Australia in the
immediate future, and that decision was communicated to the mother
who thereupon started proceedings in Australia to the nature of
which I must now refer.
The Child Abduction and Custody Act of 1985 was passed in
order to give effect to the ratification by this country of the
Hague Convention on the Civil Aspects of International Child
Abduction. Section 1(2) of that Act provides “that the provisions
of that Convention as set out in Schedule 1 to this Act shall have
the force of law in the United Kingdom”. So one turns to Schedule
1 to the 1985 Act to see what are the provisions of the
Convention. The Schedule omits the preamble, and Articles 1 and 2
of the Convention, although I am prepared to accept that that
preamble and those other Articles may be of assistance, where
needed, to assist in the interpretation of those Articles which
are set out in the Schedule, although I do not myself consider
that any such assistance is needed in this particular case.
Article 3 provides as follows:
“The removal or the retention of a child is to be considered
wrongful where
(a) it is in breach of rights of custody attributed to a
person,.. 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.”
Pausing there, it is common ground in this case that the
father and mother had, under the law of South Australia, the State
where Lei was habitually resident, joint rights of custody. Thus,
Lei’s removal from South Australia was not, in the circumstances
of this case, wrongful, but it is the mother’s contention,
although resisted by the father, that his retention in the United
Kingdom in the circumstances to which I have already referred is a
wrongful retention. Undoubtedly, if those conditions are
fulfilled, the provisions of the Convention apply to Lei.
Article 7 deals with the role of central authorities. In
this country the central authority is the Lord Chancellor’s
Department; in South Australia it appears to be the office of the
Attorney-General of South Australia. The Article provides that
those 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” –
and then a number of those measures are set out, of which I need
only mention that in paragraph (d):
“to exchange, where desirable,information relating to the
social background of the child.”
Article 8 deals with the procedure; the mother in this case
claiming that Lei had been wrongfully retained in breach of her
custody rights, applied to the central authority in South
Australia and the application contained the information which
Article 8 provided it should contain, including – and this is a
point which is taken by Mr. Levy, counsel for the father – in
paragraph (c) the grounds on which the applicant’s claim for the
return of the child is based.
I need not refer to Articles 9, 10 or 11; Article 12 reads:
“Where a child has been wrongfully removed or retained in
terms of Article 3, at the date of the commencement of the
proceedings before the judicial or administrative authority
of the contracting State where the child is” – in this case
the High Court in England and Wales – “a period of less than
1 year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of
the child forthwith.”
Finally, I should mention Article 13:
“Notwithstanding the provisions of the preceding Article the
judicial or administrative authority of the requested State
is not bound to order the return of the child if the person
who opposes 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.”
The final paragraph of Article 13 reads:
“In considering the circumstances referred to in this Article
the judicial and administrative authorities shall take into
account the information relating to the social background of
the child provided by the Central authority or other
competent authority of the child’s habitual residence.”
I do not need to refer to any more of the provisions of the
Act or of the Hague Convention, but I should refer to some of the
provisions of 0,90 of the Rules of the Supreme Court, which lay
down the procedure in the courts of England and Wales for dealing
with applications made under the 1985 Act. After a definition
provision in 0.19 r.32, r.33 provides:
“Except as otherwise provided by this part, every application
under the Hague Convention shall be made by originating
summons” –
and the form of that originating summons is set out in Appendix A.
R.34 provides as follows:
“The originating summons under which any application is made
under the Hague Convention shall state” – a number of
matters, including in (d) “the interest of the plaintiff in
the matter and the grounds of the application.”
Finally I refer to 0.19 r.38, which deals with evidence:
“Notwithstanding 0.28 r.lA the plaintiff, on issuing an
originating summons under the Hague Convention may lodge
affidavit evidence in the Principal Registry in support of
the application and serve a copy of the same on the defendant
with the originating summons.”
Then there are provisions for the defendant to be able to lodge
affidavit evidence, serving copies of that on the plaintiff; and
finally 0.90 r.41 provides:
“Notwithstanding 0.28 r.5, the hearing of the originating
summons under which an application under the Hague Convention
is made may be adjourned for a period not exceeding
twenty-one days at any one time.”
So in my judgment, the statement made by Lord Justice Nourse
in the case of re A (A Minor) (Abduction) in this court, reported
in (1988) 1 Family Law Reports 365, quoting from the top of page
368, to the following effect is amply justified.
“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
certain 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.”
Those comments are amply justified by the provisions of the
Convention to which I have referred, and indeed of the rules made
in this jurisdiction for giving effect to that Convention.
What happened in this case was as follows. The mother, when
she realised that the father was intending to retain Lei
indefinitely in this country, made an application in the Family
Court in Australia at Adelaide. In due course, an application was
made by the Attorney-General’s Department of the State of South
Australia, which is set out in our bundle at pages 22 to 26, by
which time the mother had had a custody order made in her favour
by the Court of South Australia. It sets out various matters, but
the one matter on which the father relies in this court, as he did
before Mr. Justice Ewbank, is that in referring to the departure
of the father of the child, Lei, for England in January 1988, she
says:
“That the father indicated that he would remain in England
for a period not exceeding eight weeks.”
Then, going on to deal with the factual legal ground
justifying the request, she says:
“(the mother) has been the primary care giver of the said
child and save as to a period of three weeks in the month of
July 1987 has had the full time care and control of the child
since birth. (The mother) by agreement with (the father) was
to have the full time care and control of the said child
following the separation on the 25th day of January 1988 and
the said child…..is now only in the presence of (the
father) as a result of (the father) failing to adhere to an
arrangement made with (the mother).”
Two affidavits were sworn by the mother, one on 10th May 1988,
really in support of her application before the Family Court in
Australia, and another on l9th May supporting her application for
an order made under the Hague Convention, namely, the Child
Abduction Act of 1985 in this country. In those affidavits she
does not, of course, deal with certain allegations to which I
shall have to refer shortly, which were made by the father and
witnesses on his behalf against her, because at that time no such
allegations had been raised.
The matter came before the court in this country very swiftly
and various directions were given. The matter came on for hearing
before Mr. Justice Ewbank on 24th June. Some two or three days
before that hearing the father swore a lengthy affidavit, and
obtained from Australia certain supporting affidavits, into which
I do not propose to go in any detail, save to say that they raise
quite serious charges against the mother of promiscuity,
drug-taking and other matters which suggest, to put it no higher,
that the mother is not fit to have charge of the child, Lei; and
the father relies on those matters to support a claim by him,
under Article 13 of the Convention, that there is a grave risk
that Lei’s return to Australia would place him in an intolerable
situation. The Article also refers to exposing the child to
physical or psychological harm. Mr. Levy candidly accepted that
there was no evidence to support any suggestion of the possibility
of physical harm; the most that could be suggested by way of
inference is psychological harm, but for my part I cannot see that
that adds anything to the suggestion which is firmly made, namely
that there is a grave risk that his return to Australia would
place Lei in an intolerable situation because of these allegations
of promiscuity drug-taking and the rest made against the mother.
The learned judge, in the course of a not very lengthy
judgment, but a judgment which covered adequately all the points,
rejected the father’s case. He said that he was not satisfied
that Article 13 was made out by the father and that in those
circumstances he was obliged to order that the child be returned
to Australia forthwith, and he did so order.
From that order the father, with the leave of a single Lord
Justice, appeals, and Mt. Levy relies on four main matters. He
first takes what he admits is really a technical pleading point.
He says that the only case raised by the mother, both in her
application to the South Australian court and indeed to this court
by her originating summons here, was that the arrangement was that
the father should bring Lei to England for a period of eight weeks
and no more, and that he has been retained in breach of that
arrangement. ”
I refer briefly to the originating summons, on page 18 of our
bundle:
Paragraph (e) on that page says:
“The grounds of this Application are that: – ..
(2) The (parents) separated in January 1988. The said
child then lived with the Plaintiff until 2nd February
1988 when he was brought to England with the
Plaintiff’s agreement for a period of eight weeks in
order to meet his English relatives; but with the
intent that at the expiry of the eight weeks the said
child would be returned to the Plaintiff in
Australia.”
It is the father’s case that there was no firm agreement
relating to eight weeks although, as I have already said, he
accepted that when he left Australia there was this understanding
that in due course he would return with Lei. Mr. Levy’s point
which he accepts is a technical one, is that since the Convention
itself states that the application shall contain the grounds of
the application and that 0.90 r.34 also states that the
originating summons shall include the grounds of the application,
by tying herself to this specific period of eight weeks and not,
as she might have done, including a more general allegation that
the child was to come to England for an indefinite period, but
that it was agreed that he should in any event be returned to
Australia and that the father has now evinced an intention not to
return the child to Australia, there is a defect in the
proceedings.
Like all technical points, this is unattractive, and in any
event it seems to me to be wholly without substance. The purpose
of the grounds of the application being included is clearly to
enable the father to know what is the complaint that he has to
meet. There is no complaint that he ever removed the child
wrongfully; the complaint is that he retained the child
wrongfully. It certainly makes no difference to the way in which
he defends his application whether he has retained the child
beyond an eight week period, beyond a twenty week period or beyond
some other period. So far as the originating summons itself is
concerned, it seems to me that the provisions of 0.2 r,l of the
Rules of the Supreme Court more than adequately meet any point
that could be raised on the inadequacy of the originating summons,
and as far as the wording of the Convention itself is concerned –
which, like all international Conventions, is to be construed with
a purposive construction – it seems to me that there is no
possible substance in the point that by tying herself to an
eight-week period as the arrangement for the length of the
holiday, the mother has thereby in some way disentitled herself to
say that, whether it was eight weeks or not, the father has now
manifested an intention to retain the child, wrongfully,
indefinitely in this country, and that this is a case which is
properly brought under the 1985 Act. So I reject that ground of
appeal.
The next point which Mr. Levy raises has, at first blush,
perhaps slightly more substance to it. I have already given the
relevant dates of the proceedings. When the matter came before
Mr. Justice Ewbank the father and his father, Lei’s paternal
grandfather, were present in court and Mr. Levy invited the judge
to allow them to give oral evidence to supplement the already full
affidavit evidence which had been given on behalf of the father.
The judge refused that application. This ground of appeal asserts
that it was wrong for the judge to refuse that application or, as
it is otherwise put, “he could not properly make any finding not
having heard the oral evidence and having before him the
conflicting affidavit evidence.” It seems to me clear that on an
application which is made y originating summons, as this was,
there is no right on behalf of the plaintiff to call oral evidence
to supplement the affidavit evidence which is his evidence in
chief. Mr. Carey has referred us to the relevant provisions of
the rules O.38 r.1, O.38 r.2(3) and O.28 r.4(3). Those rules
accord with the experience of those of us who sit exercising this
type of jurisdiction, that the evidence on applications of this
kind, commenced by originating summons, or by originating
application in the lower courts, being by affidavit, there is no
right on which the party can insists to supplement that evidence
by oral evidence. On the other hand, it is clear that the judge
has a discretion to allow a deponent, in appropriate
circumstances, to supplement his affidavit cases in which he may
be cross-examined on his affidavit, and then re-examined orally in
reply. The case of Re A, to which I have already referred,
reported in (1988) 1 Family Law Reports 365, is a case in which,
in proceedings of this type, oral evidence was given; that appears
from page 369 G of the report. But what immediately becomes
apparent is that, as it happens, all the parties concerned in that
case the mother and the father, a doctor and a grandfather, were
present in court and there was no good reason why the judge should
refuse to exercise his discretion to allow oral evidence; indeed,
it does not appear from the report that the question ever arose.
But in this case the mother was still in Australia with the
two-year old twins; there was no suggestion that it would have
been possible for her to come to this country, that she had been
invited to do so, or that funds were being made available for her
to do so; the case of the father, based, as r say, upon the
promiscuity and drug-taking of the mother and the suggestion that
she had left the children alone at night and so on, had only been
raised a matter of a day or two before the hearing before the
learned judge, and I can see that the learned judge may very well
have thought that it would be most inappropriate, in the light of
the general ambit of this Convention, to hear the oral evidence of
the father, and of his father, without having any opportunity to
hear oral evidence on the other side. However, it seems to me that
I need not go as far as that. Whether or not the judge was to
allow oral evidence to be given at the hearing was a matter which
was purely within his discretion, and on the well-established
principles on which this, and any other appellate,court acts, in
deciding whether or not to interfere with a discretion exercised
by a judge at first instance, I say that I am completely satisfied
that there is no possible ground for attacking the basis upon
which the judge exercised his discretion in this case. Indeed, I
would go as far as to say that I find it difficult to conceive, in
the circumstances of this case, his having exercised his
discretion in a different manner. I stress once again that the
whole purpose of this Convention is not to deny any hearing to a
father in the circumstances of this father; it is to ensure that
parties do not gain adventitious advantage by either removing a
child wrongfully from the country of its usual residence, or,
having taken the child with the agreement any other party who has
custodial rights to another jurisdiction, then wrongfully to
retain that child. The purpose of the Convention, and of the Act
which embodies it as part of the law of this country, is to ensure
that the right court should deal with that sort of issue. The
right court in this case is the South Australian COurt and the
delay which would have been occasioned had there been an
adjournment to enable the mother to give oral evidence,had she so
wanted or been so able, could only have worked to the detriment of
the child and against the whole basis of this Convention.
So not only do I say that the judge’s exercise of his
discretion could not be interfered with by this court, but in my
judgment it was, in the circumstances of this case, a very proper
exercise of that discretion.
Mr. Levy’s third point on behalf of the father depends upon
the effect of Article 13. I remind myself again that that Article
provides that the judicial authority of the requested State – that
is the High Court – is not bound to order the return of the child
if the person who opposes his return – the father – establishes
that – that makes it clear that the burden is on the father –
there is a grave risk that his return would place the child in an
intolerable situation. That seems to me not only the construction
which is the most normal meaning of the words used in Article 13
but is indeed, as Mr. Carey submitted, the one which is most
favourable to Mr. Levy, because he does not have to prove that the
return of the child would place him in an intolerable situation,
but that there is a grave risk that his return would place him in
an intolerable situation.
Admittedly the judge had before him the affidavit of the
father, to which I have referred, making the allegations which I
have mentioned; he also had before him four affidavits obtained
from neighbours and friends in Australia, which on the face of
them, although in some cases they included hearsay evidence,
appear to support the case of the father. But as against that and,
as I say, apart altogether from the considerations to which I have
already referred with regard to the object of the Convention,
there was the very significant fact that the father was not saying
that the twins, whom he had left with their mother, were exposed
to an intolerable situation. The most he said about that, quoting
a passage from his affidavit at page 38 of the bundle, was this:
“It is true that I am also concerned about the other two
children but at the present time I feel that Lei is most at
risk because of his age. The twins at the moment would not
know what was going on.”
In my judgment the judge was perfectly entitled to take note
of that fact as he did because, as he said on page 5E of the
transcript:
“It is a fact, however, that the twins are living with the
mother and that the court that will deal with the twins – if
the father wishes to, or perhaps if a local authority takes
the same serious view of the mother as the father does – will
be the Australian Court.”
Then he goes on:
“I am not at all satisfied, on the material I have seen, that
it could possibly be said that there is a grave risk that the
child would be placed in an intolerable situation by being
removed to Australia. Australia is a common law country and
the Courts have ample powers to protect children. The father
can either take proceedings of his own accord – which he says
he will – or he can alert the appropriate local authority in
Australia and the Australian Court can make whatever order is
required, if any, to protect the children.”
I wholly agree with what the judge said in that passage.
The other matter on this question, namely that of Article 13
is whether or not the father would go back to Australia with Lei
if the court ordered him to be returned there. As to that, the
father’s own evidence is silent. One can see the dilemma in which
he was placed; if he said that in no circumstances would he go
back, he might be in difficulty; equally, if he said he would go
back with Lei, if Lei were ordered to be returned, it might make
it more difficult to establish that the return would place Lei in
an intolerable situation. So the learned judge was denied any kind
of evidence on that point and he did not seek to draw any
inferences. I mention that merely because the question whether the
“abducting” parent would return with the child to the country of
habitual residence was a material consideration considered in the
case of Re A, to which I have already referred.
The final point upon which Mr. Levy relies was that provision
of Article 13 which provides that
“In considering the circumstances referred to in this
Article the judicial authorities shall take into account the
information relating to the social background of the child
provided by the central authority, or other competent
authority, of the child’s habitual residence.”
I do not think that Mr. Levy went so far as to assert that
the South Australian authorities should have provided in their
original statement material relating to the allegations that the
father had subsequently made; clearly they could not have done so,
because they did not even know of their existence. But Mr. Levy
did submit that in the light of those allegations the judge should
have adjourned the mother’s application in order to obtain such
information from the central authority, such information being, as
I understand it, whether or not the mother’s behaviour was such as
to put Lei in an intolerable position if he were returned to
Australia.
For the purposes of this appeal I am prepared to assume that
that information could relate to the social background of the
child within the meaning of that phrase in Article 7(b) and
Article 13, although I have the gravest doubts whether it does
extend that far, and I see much force in Mr. Carey’s submission
when following up an interjection by my Lord, Mr. Justice Lincoln,
that it probably does not extend this far having regard to the
difficulties that the central authority might have experienced in
investigating that kind of allegation. But, as I have said, for
the purposes of this appeal I am prepared to assume that it does
extend that far. Even if it does, it seems to me that this again
was a matter for the discretion of the judge, and again it seems
to me that he was fully entitled to say that the object of this
Convention and the Act and the rules made under it is, as I repeat
once again from the passage in Lord Justice Nourse’s judgment:
“…. to provide for a summary return to the country of
their habitual residence of children who are wrongfully retained
in another country in breach of subsisting rights of custody.”
That must be the approach of the courts in this country. If
the submissions which Mr. Levy has so ably made to us on behalf of
his client were to be accepted, I believe that it could drive a
coach and horses through the provisions of this Convention, since
it would be open to any “abducting” parent to raise allegations
under Article 13, and then to use those allegations, whether they
were of any substance or not, as a tactic for delaying the hearing
by saying that oral evidence must be heard, information must be
obtained from the country of the child’s habitual residence, and
so on. That is precisely what this Convention, and this Act, were
intended to avoid, and in my judgment the courts should be astute
to avoid their being used as machinery for delay. In this case
the Australian courts are the proper courts in which to
investigate the allegations made by the father; if those
allegations have substance I have no doubt that the Australian
courts will deal with them appropriately.
Accordingly, in my judgment this appeal should be dismissed.
MR. JUSTICE ANTHONY LINCOLN: I agree.
I would only add that there are numerous indications in the
Convention itself of the desire of the contracting parties that
the return of a child who has been removed from his habitual
residence should be prompt. It is permissible to consider the
preamble, which refers to the parties’ desire to establish
procedures to ensure their prompt return to the State of their
habitual residence; and Article 1, which is not incorporated in
the law of this country, but which it is permissible to look at,
states that
“the objects of the present Convention are to secure the
prompt return of children wrongfully removed to, or
retained-in, any contracting State.”
Article 2 provides for the use of “the most expeditious
procedures available”.
Finally, in Article 7, which is a power incorporated in the
law of England, the central authorities are urged to cooperate
with each other “to secure the prompt return of children”.
In my judgment there is a very heavy burden indeed upon a
person alleged to have abducted a child in bringing himself or
herself within the provisions of Article 13, and the court should
hesitate very long before it grants what is in effect an exemption
from the urgency which is a characteristic of this Convention and
the Act incorporating it.
(Order: Appeal dismissed; no order as to costs, save legal aid
taxation, both parties; application by appellant to appeal to
House of Lords refused; order of Court of Appeal to be stayed for
seven days, pending application to House of Lords for leave to
appeal).