UK – IN RE A – 1987

Court: Court of Appeal (Civil Division) United Kingdowm
Number: Unknown

Applicant: Father

and

Respondent: Mother

Date: 10 Jun 1987

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In re A (a Minor)

Court of Appeal (Civil Division)

The Times 13 Jun 1987

Hearing-Dates: 10 Jun 1987

Counsel: R. Johnson, QC and P. Stewart for the Appellant
P. Singer, QC for the Respondent

Panel: Mustill and Nourse, LJJ

Judgment by: Nourse, LJ

This appeal raises a question under the Child Abduction and
Custody Act 1985, which was enacted in order to enable the United
Kingdom to ratify two international conventions. The one which is
in point here is the Convention of the Civil Aspects of
International Child Abduction (“the Convention”), which was signed
at the Hague on 24th October 1980. By section 1(2) of the 1985
Act, and subject to the provisions of Part 1 thereof, the
provisions of the Convention set out in Schedule 1 thereto have
the force of law in the United Kingdom. One of the other
contracting states is the Province of British Columbia, as between
which state and the United Kingdom the Convention came into force
on 1st August 1986.

The subject of these proceedings is a small boy call GA, who
was born on 11th November 1983 and is now aged three and a half
years. On 13th March 1987, on an application by his father under
the 1985 Act., Ewbank, J. ordered G’s mother to return him the
Canada forthwith, the operation of the order being suspended by
consent on terms to which I will refer in due course. Against
that order the mother now appeals.

The material facts, most of which I can take from he judgment
of the learned judge, are these. The mother and father were
married on 22nd October 1981. The father is thirty-six and the
mother is thirty. The father was born in Argentina and has lived
in Canada since the age of five. The mother was born in England
and she lived in Canada from 1975 onwards. They are both Canadian
citizens. During the marriage they were part-time hairdressers
and they shared the care of G. In September 1985 the mother came
to England on a visit to her parents. It was a six weeks holiday
and she brought G with her. When she arrived in England she said
she was not going to go back to Canada and she kept G with her in
England. The father started proceedings in Canada. He obtained
an ex parte order from the Supreme Court of British Columbia on
15th December 1985. That order gave him interim custody of G.
The father and mother had discussions on the telephone. The
father came to England in February 1986 and the mother handed G
over to him in accordance with the Canadian order.

The mother returned to Canada in July 1986. Whilst she was
there she made an application to the British Columbian Court to
vary the custody order by making an order for joint custody
instead. On 11th Aught 1986 she swore an affidavit in those
proceedings. She said she had to return to London on the
following day or she would lose her job. She said that G had been
with the father for approximately eight months by then, and that
she would like the custody of G for the next six months. In
paragraph 7 she said this:

“I believe my husband is worried that if he agrees to joint
custody and allows G . . . to live with me in England that I
would apply for full custody in an English court. I have no
intention of doing so since I feel it is in G’s best
interests to see his father and maintain a close relationship
with him. I know V . . . loves our son as much as I do and I
am applying to the Court for an order of joint custody so
that I have the legal right to take my son to England.”

Although the mother had stated in her affidavit that she
would like her six months custody of G to start in the following
September or October and that she or the father would be willing
to go to Vancouver to take him back to England, the father agreed
that she should take him with her on her return to England on 12th
August; and that she duly did. On 19th August the matter came
back before the Supreme Court of British Columbia when, after
hearing counsel for each parent, it was ordered by consent that
they be granted joint custody, the mother to exercise custody in
England for six months of each year commencing on 19th August and
the father for the other six months of each year. Counsel who
then appeared for the father has sworn an affidavit in these
proceedings, stating that the learned British Columbian Judge,
Judge Boyd, inquired of counsel as to whether they were satisfied
that the joint custody order was in the best interests of G.

The mother’s six months period of custody was due to expire
on 19th February 1987. In september 1986 the father had visited
her and G in England for two and a half weeks, in order to help
her to move into a new flat in South London. Before that she and
G had lived with her parents nearby. In January 1987 the mother
told the father that she was going to apply to vary the consent
order for joint custody. She had decided that she was not going
to comply with it. The result was that the father came over to
England nd on 13th February. By an originating summons issued on
the same day the mother sought to make G a ward of Court, with
care and control being committed to her. On 24th February the
father countered by issuing an originating summons under the 1985
Act.

The convenient course is to refer the matter next to the
material provisions of the Convention and the Child Abduction &
Custody Act 1985. The provisions of the Convention set out in
Schedule 1 to the 1985 Act and thereby having the force of law in
the United Kingdom, do not include the preamble or Articles 1 and
2. However, it is not suggested that we cannot look at those
provisions in order to construe the articles which are set out in
Schedule 1. The preamble expresses the desire of the States
signatory:

“. . . 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 states that the objects of the Convention are:

(a) to secure the prompt return of children wrongfully
removed to or retained in any contracting State; and

(b) to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in the
other Contracting States.

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 the 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.

The provisions on the Convention which are most in point in
the present case are to be found in Articles 3, 12 and 13.
Article 3 is in these terms:

“The removal or the retention of a child is to be considered
wrongful where–

(a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was
habitually resident immediately before the removal or
retention; and

(b) at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.

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 first two paragraphs of Article 12 are in these terms:

Where a child has been wrongfully removed or retained in
terms of Article 3 and, at the date of the commencement of
the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a
period of less than one year has elapsed from the date of the
wrongful removal or retention, the authority concerned shall
order the return of the child forthwith.

The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the
period of one year referred to in the preceding paragraph,
shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new
environment.”

Article 3 so far as material is in these terms:

Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State
is not bound to order the return of the child if the person,
institution or other body which opposes its return
establishes that–

(a) —

(b) there is a grave risk that his or her return would expose
the child to physical or psychological harm or otherwise
place the child in an intolerable situation.



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.”

In the application of these provisions to the facts of the
present case a number of points and clear and undisputed. First, G
has been “retained” here by the mother from 19th February 1987
onwards. Immediately before that date he was habitually resident
in British Columbia. The retention is in breach of the rights of
custody attributed to the father under the law of that state, and
at the time of the retention those rights would have been actually
exercised but for the retention. The retention of G is
accordingly to be considered wrongful under Article 3. Secondly,
at the date of the issue of the father’s originating summons under
the 1985 Act (24th February 1987) a period of less than one year
has elapsed from the date of the wrongful retention. It follows
that the English court is bound to order the return of G forthwith
under the fist paragraph of Article 12, unless the mother
establishes that the case falls within Article 13, in which event
the court has a discretion as to whether the return should be
ordered or not. The ground on which the mother contends that the
case falls within Article 13 is that there is a grave risk that
G’s return would expose him to psychological harm. That is the
question which is in issue between the mother and the father in
these proceedings.

The matter first came before Ewbank, J. on 6th March 1987.
At that stage the independent evidence which went to the question
of psychological harm consisted of letters dated 20th and 27th
February respectively from a general practitioner and the
principal of the day nursery at which G has been since September
1986. G had not then been seen by a consultant psychiatrist. The
mother sought an adjournment so that that could be arranged. The
learned judge expressed the view that the mother’s case at that
stage was not a strong one and, with some doubt, he granted an
adjournment for seven days. On the afternoon of 12th March the
parents, the mother’s parents and G were seen for one hour by Dr.
Dora Black, a consultant child psychiatrist at the Royal Free
Hospital and at Great Ormond Street and and experienced expert
witness in cases concerned with the psychological well-being of
children. As the judge said, she made a report with great
expedition which was available to the parties at the adjourned
hearing on the following day.

At that hearing oral evidence was given by Dr. Black, the
mother, the grandfather and the father. The grandfather expressed
extreme hostility to the father, and the judge thought that he had
not been a particularly helpful figure in maintaining contact
between the father and G. There was also affidavit evidence
before the court, including one sworn by the principal of the day
nursery.

It is unnecessary for me to refer to the evidence at any
great length. At the end of her written report Dr. Black, having
expressed the opinion that G should remain with the mother and
have good access to his maternal grandparents who were important
attachment figures to him, said this:

“. . . If the court feels that this matter must be
considered in Canada, then I respectfully submit that it will
imperil G . . .”s personality development unless he goes in
his mother’s custody and preferably with his grandparents
too. I am not sure if this is feasible and would recommend
that the least detrimental solution for G . . . would be for
him to stay in England.”

These views were confirmed by Dr. Black at the end of her
cross-examination. That led to the learned judge raising with
counsel for the mother the possibility that she might go back to
Canada with G. Counsel said that his understanding was that if
she was forced to, then she would, by which he meant that if G was
ordered to be returned to Canada the mother would move heaven and
earth to return with him. However, the mother had not dealt with
that in her affidavit evidence and she had not yet given her oral
evidence. The matter was raised with her at the end of her
cross-examination when her answers pointed up the very
understandable dilemma of her inability to be parted from G on the
one hand and the great difficulties which she would face in going
to Canada with him on the other. On being pressed to say what she
would do in the event of an order being made for the return of G
to Canada, she said that she would go there as soon as she could
thereafter.

When the father came to give his evidence, he said in
cross-examination that if mother went back to Vancouver he would
propose that she stayed with G and that he slowly moved back into
G’s life. At the end of his evidence he appeared to indicate to
the learned judge that the mother could have G, so long as he
could be involved in G’s life.

In giving judgment, Ewbank, Jr. reviewed the evidence at some
length. In regard to an allegation by the mother that she had
consented to the order of 19th Aug 1986 under duress he said this
(page 5 at D of the transcript):

. . . The duress she is speaking of arises because she felt
that she had to agree to joint custody in order to persuade
the father to allow her to bring the child to England at all.
It is not duress in any normal sense. She told me that
although she had consented to an order for custody for six
months thee was a private agreement between her and the
father that the period should be a year. Her evidence on
this aspect and on other aspects of this case is
unsatisfactory. I do not accept that she was under duress.
I accept that she may have decided to trick the father. I do
not accept there was any private agreement.”

Having dealt extensively with the written and oral evidence
or Dr. Black, the learned judge said (page 9 at A), that the
mother had to establish a grave risk of psychological harm. He
continued:

“. . . I take the words to mean that the risk has to be more
than an ordinary risk. I take it to mean that it is
recognised that such psychological harm may be expected from
the implementation of an order which involves taking a child
away from one parent and passing him to another, and that the
grave risk of psychological harm means something more than
would otherwise be expected. In that context I remember that
no professional advice or treatment for any psychological
problems was sought prior to the father’s arrival.”

The learned judge then contrasted the two possibilities of G
living only with his father in Canada on the one hand, and only
with his mother in England on the other. He said that if that was
the choice there were aspects of psychological harm to be weighed
up and balanced. Then comes the decisive part of his judgment
(page 9 at F-G):

“. . . In fact however the situation is not balanced in that
way because the mother has made it clear that if an order is
made under the Act and G . . . has to return to Canada she
will go with him as soon as she can, although thee will be
innumerable financial and practical difficulties. And the
father has made it clear that if the mother will go back to
Canada he will let her stay in his flat with G . . ., or
alternatively agree to her staying with her brother who lives
in Bowen Island, about an hour-and-a-half’s drive from his
home, with G . . . What he wishes to do is to have regular
contact with G . . . and to be part of G . . .’s life. He
is prepared to make those arrangements and to agree to those
plans, at any rate in the sort term, and at any rate until
the Canadian court makes a decision.

So in reality the balance I have to strike is between the
psychological harm to which G . . . will be exposed if he
stays in England and loses his father and the psychological
harm, if any, that he would be exposed to if he returns to
Canada with his mother and stays with his mother in Canada,
seeing his father regularly until such time as the Canadian
court deals with the question of his future. Once that is
realised to be the real choice before the court the answer is
clear. The psychological harm of not making an order far
outweighs any psychological harm of making the order. That
being the case and the Convention being clear I have to order
the return of the child forthwith. But I stay that order by
consent, provided the mother returns to Canada with the child
and the father agreeing that she should have the care of the
child until such time as the Canadian court orders
otherwise.”

During the discussion which took place after judgment counsel
for the mother took instructions as to the time limit which she
proposed for her return to Canada with G. Having done so, he told
the judge that it might take something in the region of six weeks.
The judge said that he thought that was reasonable. The order in
the proceedings under the 1985 Act as draw, having ordered that
the mother do return G to Canada forthwith, proceeds as follows:

BY CONSENT IT IS FURTHER ORDERED THAT the operation of this
order be suspended provided that:

i) The Defendant returns with the said child to Canada
within six weeks

ii) the Plaintiff agrees that the Defendant should keep the
care of the said child prior to any order that the Canadian
courts may make upon the basis that the Plaintiff has liberal
access to the said child.

In the wardship proceedings it was ordered, first, that upon
G leaving the jurisdiction the wardship be discharged and,
secondly, that the mother be restrained from removing G from the
jurisdiction save for the purpose of traveling to Canada.

Two points clearly emerge form the decisive passage in the
judgment of Ewbank, Jr. Firs,t he thought that in deciding
whether there was a grave risk that G’s return to Canada would
expose him to psychological harm he was entitled, indeed bound, to
consider the practical consequences of his making an order to that
effect. Secondly, on what he had been told by the parents and
through counsel, he thought that the practical consequences would
include the return of the mother with G and his remaining in her
care until such time as the British Columbian court otherwise
ordered. A third point is not quite so clear. The learned judge
expressed himself to be carrying out a balancing exercise. I
believe that it is not mere pendantry to say he was in truth
carrying out a comparative exercise. Having done so he concluded
that the psychological harm of not making an order far outweighed
any psychological harm of making the order. That was not
precisely what he had to decide, because it would still be
possible, in theory at any rate, for the psychological harm of
making the order to fall within Article 13(b). However, I think
that there can be no doubt that the judge thought that that was
not the case here. He really said as much when he said:

“That being the case and the Convention be clear I have to
order the return of the child forthwith.”

His view on the matter was clearly tenable on the basis of
the passage which I have read from Dr. Black’s written report. He
found that there was not a grave risk of psychological harm. He
therefore recognised that he had no discretion in the matter and
no power to refuse an order for G’s return.

The learned judge’s view on the first of these points is
attacked by Mr. Johnson, who has appeared for th mother in this
court. He submits that the judge asked himself the wrong question
for two reasons: first, because he carried out a balancing
exercise on the erroneous footing that he was exercising a
discretion; secondly, because the question whether there is a
grave risk of psychological harm is a preliminary to return, and
the judge was therefore wrong in considering the practical
consequences of an order to that effect.

The first of these objections disappears once it is
recognised that the learned judge was in truth carrying out a
comparative exercise and was in reality of the view that any
psychological harm of making the order was not sufficient to fall
within Article 13(b). It is important to remember that he had
already taken the material words of Article 13(b) to mean that the
risk has to be more than an ordinary risk, or something greater
than would normally be expected on taking a child away from one
parent and passing him to another. I agree with Mr. Signer, who
appears for the father, that not only must the risk be a weight
one, but that it must be one of substantial, and not trivial,
psychological harm. That, as it seems to me, is the effect of the
words “or otherwise place the child in an intolerable situation”.
It is unnecessary to speculate whether the ejusdem generis rule
ought to be applied to the wording of an international convention
having the force of law in this county. Assuming that it ought
not, I nevertheless think that the force of those strong words
cannot be ignored in deciding the decree of psychological harm
which is in view.

The second objection is in my view misconceived. 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 procedure cannot be as summary as that. Moreover, as
Mr. Singer has pointed out, there is internal evidence to the
contrary within Article 13 itself: see the last paragraph, which
requires the authority of the requested stated to take into
account the information relating to the social background of the
child provided by the central authority (in this country the Lord
Chancellor — see section (3(1)(a) of the 1985 Act) or other
competent authority of the child’s habitual residence.

Two further points have been debated in relation to Article
13(b). First, Mr. Johnson has submitted that the “return”
contemplated in that and other provisions of the Convention, as it
applies to this case, is a return to the custody of the father.
On a consideration of the Convention as a whole, in particular to
the preamble, I think it is clear that what is contemplated is a
return to the country of the child’s habitual residence. On that
footing I need not consider an argument which Mr. Johnson sought
to base on the view propounded by him. Secondly, it is suggested
that it is unclear whether remote, as opposed to proximate,
practical consequences can be considered. I do not find it
necessary to express any general view on that question, which I
would expect to be answered by an application of probabilities and
common sense. In the present case it is enough to say that the
learned judge was entitled to proceed, as he did, on the footing
that an order for G’s return would result in the mother’s
returning with him and also that there would be a further
application to the British Columbian Court as soon as practicable
thereafter.

For these reasons, I conclude that Ewbank, J. was entitled to
consider the practical consequences of an order for G’s return to
Canada and that he did not consider any consequences which he was
not entitled to consider. However, on the basis of fresh
affidavit evidence on behalf of the mother, which we have admitted
this morning, it is said that it can no longer properly be assumed
that the mother will return to Canada with G if the learned
judge’s order stands. It must be very doubtful whether the
requirements laid down in Ladd v Marshall (1954) 1 WLR 1489 are
satisfied, but a benevolent approach is sometimes appropriate in
cases where the interests of the children are concerned. I should
record that Mr. Singer intimated that if the fresh evidence was
admitted and if we thought it possible that it would affect the
outcome of this appeal, he would wish to apply to cross-examine
the mother and perhaps even to file evidence in answer. Before
giving judgment, we for our part have intimated that the fresh
evidence will not affect the outcome of the appeal.

The fresh evidence consists of affidavits sworn by the
other’s solicitor and the mother herself. The solicitor submits
that the court should at least consider the financial and other
difficulties which stand in the way of the mother’s plan to return
with G to Canada become a reality; that the mother and her
advisers could not have anticipated the order of Ewbank, J; and
that she had not fully considered her financial circumstances and,
in the light of those circumstances, her ability or inability to
return to Canada.

The mother deposes to her earnings and outgoings, which
include the repayment by monthly installments of a bank loan taken

out for the purchase of a motor car. She estimates that if she
were not to sell the motor car she would be left with a debt in
the region of 1,000 pounds which cannot be satisfied out of other
assets, because she has none. The bank has refused an extension
of her borrowing facility. Then she says that she has
unsuccessfully asked for help from her friends and her employer b
y lending her the money for the air fares to Vancouver and her
initial living expenses there. I will say at once that the
problem over th e air fares has been resolved, because G has an
open dated return which is still valid and the father has offered
to provide the mother with a one way ticket.

Reverting to her living expenses, the mother says that she
would have to rent accommodation because her brother is leaving
Bowen Island and moving several hundred miles inland.
Furthermore, thee is no certainty that she would be able to find
accommodation or even employment whilst she was in Vancouver. It
is also the case that the father’s offer to let her stay in his
flat with G is longer open because his circumstances have now
changed.

In paragraph 6 of her affidavit the mother says this:

“When I was asked by Mr. Justice Ewbank if I would travel to
Vancouver if he ordered that G . . . be returned I had not
considered the financial or other arrangements which would be
required. I was remain primarily concerned with G . . .’s
welfare and it was for that reason that I said in answer to
Mr. Justice Ewbank’s questions that I would follow G . . .
to Vancouver in the event that Mr. Justice Ewbank ordered
that G . . . be returned to Canada. However, in practice I
cannot see how I can comply with the Order.”

Finally, she refers to her present position in England; to
her flat, which is ideal for her and G and which she would very
much like to keep; to her inability to earn sufficient money to
support homes both in England and Vancouver, even if she was able
to obtain employment there; to the fact that her employer could
not keep her present job open for her on her return after, say two
months, which might well be and under-estimate; and to the fact
that the life which she has established here for G and herself
would in all probability be completely disrupted, even if it
should subsequently be ordered that she and G should be allowed to
return to England.

Having carefully considered the fresh evidence, I am in no
doubt that the obstacles which the mother now raises against her
return to Canada do not extend beyond the innumerable financial
and practical difficulties to which Ewbank, Jr. referred on 13th
March and all of which (with the exception of her brother’s move
inland and the unavailability of th father’s flat) must have been
within the reasonable contemplation of the mother on that day.
The learned judge, who say and heard her give evidence, thought
that she had made it clear that she would go to Canada which G as
soon as she could, and he accepted her proposal that she should be
given six weeks to do so. I also bear in mind that the judge
rejected her allegation that she consented to the order of 19th
August 1986 under duress and her evidence about a private
agreement with the father, and that he thought that her evidence
on those and other aspects of the case was unsatisfactory. He
also accepted that she may have decided to trick the father. All
this means that we should treat this further evidence of hers,
albeit untested by cross-examination, with some reserve and as a
further attempt to avoid an obligation previously undertaken.

Both the father and the mother now agree that the order which
they asked Judge Boy to make on 19th August 1986 is not in the
best interests of G. There can be no doubt that the British
Columbian Court is the proper authority to decide all questions
relating to G’s long-term future. It is the duty of both parents
to that court to refer the matter to it again as soon as
practicable. It is the parental duty of the mother to G to go
with him to Canada and thus minimise so far as is possible the
further instabilities which are likely to beset him. It is
incumbent upon both parents to do everything which they can to
help G over the difficult period until the British Columbian court
can decide what are his best interests in the long term.

I think that Ewbank, J. came to the correct decision on the
evidence which was before him, and that his decision is not in any
way invalidated by the fresh evidence which is now before this
court. I would therefore dismiss this appeal.

Mustill LJ: I agree.