UK – IN RE N – 1995 (Ordered that the child be taken into custody should the father and child set foot in England) US MOTHER v IRAQI FATHER. Father removes the child to Iraq. The California court had ordered that the child not be removed from CA without the permission of both parents or by leave of the court. Court ordered the father to return the child forthwith. Father agrees to come to England to discuss the future. Mother applies to have the child turned over to her when the father arrives in England. The question before the court was, could the court make such an order before the father had arrived in England? The court determined it had jurisdiction to do so under the Child Abduction and Custody Act of 1985 and thus the Hague Convention.
===========================================================
In re N. (Child Abduction: Jurisdiction)[1995] Fam. 96
3 International Abduction [UK 1995]
===========================================================
1994 Aug. 31
Wilson J.
001 Children – Custody rights – Breach – Order of
Californian Court restraining both parents from removing
child from jurisdiction – Father removing child to Iraq –
Californian court ordering father to return the child to
California – Father intending to visit United Kingdom with
child – Whether English court having jurisdiction to make
interim directions in respect of child before arrival in
United Kingdom – Child Abduction and Custody Act 1985 (c.
60), s. 5, Sch. 1, arts. 7, 8, 11
002 A boy, born in November 1991, lived in California with
his mother following the separation of his parents. The
father was an Iraqi national and the mother a U.S. national.
The Superior Court of California had ordered, inter alia,
that tile child should not be removed front California
without the consent of both parents or the leave of the
Court. In July 1994, the father, having received the child
for agreed week – end contact, flew with him to Iraq. The
Californian court directed the father to return the boy to
the the mother forthwith. The father agreed to bring the
child to London in order to discuss the future and indicated
that they would arrive in the United Kingdom on 2 September
1994. The mother applied, ex parte, for an order under the
Child Abduction <* page 97> and Custody Act 1985 FN1
requiring the father to return the child to her pending an
inter partes hearing, the order to be served on tile father
on arrival at Heathrow.
003 On the question whether the court could make the order
before the father and child had entered the jurisdiction: –
004 Held, granting the application, that since tile Child
Abduction and Custody Act 1985, in giving effect in the
United Kingdom to the Convention oil the Civil Aspects of
International Child Abduction, had imposed on the court a
duty to co-operate with all other contracting states and to
act expeditiously in making orders to secure the return of
wrongfully taken children, and since nothing in the Act or
the Convention expressly or impliedly limited the court’s
jurisdiction to children already in the United Kingdom, it
was open to the court under the wide terms of section 5 of
the Act of 1985 to make interim directions in respect of a
child who had not yet arrived in the United Kingdom but who
was likely to do so; and that the court’s duty could be
discharged only by making orders for the boy’s initial
restoration to the mother’s care in England if, as there
were substantial grounds for expecting, he arrived in the
United Kingdom with his father (post, pp. 99D – 100B).
005 No cases are referred to in the judgment or were cited
in argument.
APPLICATION
006 On 9 June 1994, following the inception of divorce
proceedings by the mother of a boy, N., born on 2 November
1991, the Superior Court of California ordered that both
parents should have joint custody; that the mother would
care for him physically; that the father should have
visiting rights; and that the boy should not be removed from
the state of California without the consent of both parents
or the leave of the court. In breach of the order the father
went to Iraq with the boy. On 26 July 1994 the Superior
Court of California varied the earlier order by granting
sole custody to the mother and directing the father to
return the boy forthwith. Subsequently the father intimated
to the mother that he intended to arrive at Heathrow Airport
on 2 September 1994 with the boy.
007 On 31 August 1994, the mother applied, ex parte, for
an order under the Child Abduction and Custody Act 1985
requiring the father to return the child to the mother
pending an inter partes hearing.
008 The application was heard in chambers and the judgment
is reported with the consent of Wilson J
009 The facts are stated in the judgment.
010 Henry Setright for the mother.
WILSON J.
011 This is an application made ex parte by it mother. She
has not yet issued proceedings under the Child Abduction and
Custody Act <* page 98> 1985; but she proposes to do so and
subject to constraints of time she will do so this
afternoon, and, if not this afternoon, tomorrow. The
proposed defendant to the proceedings is the father. The
child concerned is N., who is now some 24 3/4 years old.
012 The rather is an Iraqi national. The mother is a
United States national. After the little boy was born, the
parties married and they remain married. They lived at all
material times in California. When the marriage broke down,
the boy went with the mother to live at another address in
California and the mother issued proceedings for divorce. An
agreement was reached which was recorded by stipulation in
an order of the Superior Court of California on 9 June 1994.
The order provided that the boy should be in the joint
custody of both parents; that responsibility for his
physical care should be with the mother; that the father
should have visitation rights to him; and that he should not
be removed from the State of California without the consent
of the parties or the leave Of the Court.
013 In the late part of July 1994, the mother handed the
boy to the father for what she believed would be a weekend
camping trip to Santa Barbara in the State of California.
But the father had laid elaborate plans to remove the boy
from the State of California and from the United States of
America. He flew with the boy to Iraq via New York and
Jordan, and that is where it is believed that the father and
the boy still remain. It was, prima facie, a clear breach of
the order by consent of 9 June 1994 and or the rights of
custody attributed to the mother under Californian law, that
state being clearly the state in which the boy was
habitually resident immediately before his removal to Iraq.
014 When the mother discovered that the father and the boy
had gone to Iraq, she quickly moved the Superior Court of
California for further relief. It seems that the father’s
attorney was present at that hearing. The order made on 16
July 1994 gave sole physical custody of the boy to the
mother and directed his return to her forthwith. A warrant
was issued for the father’s arrest for violation of the
previous order.
015 The mother and the father have had certain discussions
over the telephone, she in the United States and he in Iraq.
By the middle of August, the father was indicating to her
that he might be prepared to come and discuss their
differences, both in respect of the boy and otherwise, in a
third country, specifically England. This led the mother to
inform the American administrative authorities and they in
return requested the Lord Chancellor’s Department to take
all possible steps to assist in the return of the boy to the
mother’s care in America.
016 Discussions between the parents have fructified into
what, on the evidence before me, has become a fairly firm
understanding that the parties will meet in London this
coming weekend; and the father has indicated that, to that
end, he will arrive with the boy in London on Friday, 2
September 1994, in order to meet the mother and to discuss
their deferences. The mother has, accordingly, made plans to
come herself to London and she is expected to arrive on
Thursday, 1 September 1994.
017 Such are the circumstances in which the mother asks
this court to exercise what is said to lie its jurisdiction
under the Child Abduction and Custody Act 1985 to make
orders which will have the effect of authorising the
tipstaff to collect the boy from his father’s care. assuming
that they <* page 99> do together arrive at Heathrow Airport
on Friday, 2 September 1994 — and to restore the boy, in
the first instance temporarily, to the care of the mother
pending a further analysis by this court of where its duties
lie, or alternatively how its powers should be exercised,
under the Act of 1985.
018 Mr. Setright, who I believe knows as much as any other
member of the bar about the intricacies of the Child
Abduction and Custody Act 1985, has very properly put before
me the fact that there is no reported case in which an order
has been made under the Act of 1985 in respect of a child
who has not yet been brought within the jurisdiction of
England and Wales.
019 There is no doubt that, had the boy arrived within the
last hour at Heathrow Airport, I would have had the power to
make the appropriate interim directions under section 5 of
the Act of 1985 to hold him in this country in the most
advantageous circumstances from his point of view that may
be devised, pending all inter partes inquiry as to whether
he should be returned to California. Looking at the matter
on the basis of common sense, it would seem to be
extraordinary if that power were to exist in respect of a
child who has just landed upon these shores but were not to
exist in respect of a child who there was good reason to
believe was likely to land upon these shores. And if, in
truth, there is no jurisdiction to make orders in the latter
case, there would seem to be a likely frustration in a
number of such cases of the common intention of the states
which signed the Convention on the Civil Aspects of
International Child Abduction and imported it into their own
laws. So I look to see whether I am driven by the
terminology of the Act to conclude that the interim powers
given to me under section 5 cannot be exercised other than
in respect of a child already here.
020 There is certainly nothing in section 5 itself which
suggests that limitation. Nor is there any other section in
Part I or Part III of the Act itself – Part II being
irrelevant – which so provides, and it would have been easy
for Parliament to have so provided if It had wished to do
so.
021 I look then to the terms of the Convention itself,
which are set out in Schedule I to the Act of 1985. I note
that under article 7 central authorities are bidden to:
“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 the Convention.”
022 I appreciate that that article 7 is addressed to
administrative authorities. Nevertheless its terms are such
that, in application to this case, it amounts to a mandate
to the administrative authorities of California and of
England to co-operate to secure the prompt return of this
boy. The obligation under article 7 is not, expressly or by
implication, limited to the central authorities of the
jurisdiction from which the child has been removed and of
the jurisdiction where the child then is. I note article 8,
namely that anybody
“claiming that a child has been removed … in
breach of custody rights may apply either to the
central authority of the child’s habitual
residence or to the central authority of any
other contracting state for assistance in
securing the return of the child.”
<* page 100>
The words “any other” are, in my view, of significance and
clearly cover this jurisdiction, notwithstanding that the
boy is not now here.
023 Article II provides: “The judicial or administrative
authorities of contracting states shall act expeditiously in
proceedings for the return of children.” The terminology is
noticeably wide. I consider myself to be under a duty, as
the judicial authority of a contracting state, to act
expeditiously, as Mr. Setright bids me do this afternoon, in
proceedings for the return of this child.
024 I interpret the language both of the articles of the
Convention and of the text of the Act as being deliberately
wide in its instruction to this court to co-operate with all
other contracting states in making orders which will secure
the return of wrongfully taken children; and in this case
its duty can be discharged only by making the orders for the
boy’s initial restoration into his mother’s care in England
if, as there are substantial grounds for expecting, he does
land here with his father during the next few days.
Orders accordingly
Costs reserved
Legal aid taxation
Solicitors: Bindman & Partners
===========================================================
23 May 1998
Notes by William M. Hilton, CFLS
This case illustrates the Court’s duty to interpret The
Convention and its enabling legislation so as to cause the
return of a child to his or her habitual residence of
origin.
The court finds that while there was nothing specific that
stated it could exercise jurisdiction, there was also
nothing that said it could not and then uses the language of
Art. 7 to accomplish the intent of The Convention.
This case can then stand for the general proposition that
when there is a conflict in the matter before the court, the
court should resolve the matter in favor of operation of The
Convention, e.g., questions about facts, statements of law,
etc.
——————–
1. Child Abduction and Custody Act 1985, s.5: “Where an
application has been made to a court in the United
Kingdom under the Convention, the court may, at any
time before the application is determined, give such
interim directions as it thinks fit for the purpose of
securing the welfare of the child concerned . . . ”
Sch. 1, art. 7; see post, p 99F; Art 8: see post, p
99H; Art. 11: see post, P. 100A.