UK – IN RE T – 1993 (Custody rights) (Access) The father applied under Article 21 for an order that the mother “take all necessary steps to facilitate access to his three children pursuant to an order of the Superior Court of the state of California” The application was dismissed. The court stated “It is not correct procedure for the central authority to issue an originating summons in the circumstances of the present case, since article 21 confers no jurisdiction on a court to determine matters relating to access or to recognize and enforce foreign access orders, the role of the central authority is limited to one of executive cooperation”. The court said that the fathers application should have been brought under the Children’s Act of 1989.
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In re T. (Minors) (International Child Abduction: Access)(United Kingdom 1993)
1 W.L.R. 1461 [1993]
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In re T. (MINORS) (INTERNATIONAL CHILD ABDUCTION: ACCESS)
Practice Note
1993 Feb. 17
Mar. 17
Bracewell J.
Children – Custody rights – Access – Proceedings for enforcement
of foreign access order – Role of central authority – Child
Abduction and Custody Act 1985 (c. 60), Sch. 1, art. 21
SUMMONS
By a summons dated 12 January 1993 the father applied under
article 21 of the Hague Convention on the Civil Aspects of
International Child Abduction, as enacted by section 1(2) of the
Child Abduction and Custody Act 1985,1 for an order that the
mother take all necessary steps to facilitate access to his three
children pursuant to an order of the Superior Court of the State
of California.
Judgment was delivered in chambers and is reported with the
permission of the judge.
Henry Setright and Leonard Klein for the father.
David Hershman for the mother.
Cur. adv. vult.
17 March BRACEWELL J., having ruled that the father’s application
should have been brought under the Children Act 1989, made the
following statement. Having considered the submissions before me,
I am satisfied that it is not correct procedure for the central
authority [the Lord Chancellor’s Department] to issue an
originating summons in the circumstances of the present case.
Since article 21 confers no jurisdiction on a court to determine
matters relating to access or to recognise and enforce foreign
access orders, the role of the central authority is limited to one
of executive co-operation.
Accordingly, the duty of the central authority on receiving an
application to make arrangements for organising or securing the
effective exercise of access rights under article 21, is to make
appropriate arrangements to provide English solicitors to act on
behalf of the applicant for the purpose of instituting an
application under section 8 of the Children Act 1989.
By reason of the international element and the complexity which is
usually involved in such proceedings, serious consideration should
be given to commencing proceedings in the High Court even if the
case does not strictly fall within Practice Direction (Family
Division: Distribution of Business) [1992] 1 W.L.R. 586.
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1. Child Abduction and Custody Act 1985, Sch. 1, art 21: “An
application to make arrangements for organising or securing
the efEcctive exercise of rights of access may be presented
to the central authorities of the contracting states in the
same way as an application for the return of a child.”
Since April 1992 the Official Solicitor has taken over
responsibility on behalf of the Lord Chancellor’s Department for
the child abduction unit.
In some cases it may be appropriate to invite the Official
Solicitor to consent to act on behalf of the children in the
Children Act procecdings where difficult matters arise.
Application dismissed.
Application for certificate under section 12 of the Administration
of Justice Act 1960 for leave to appeal direct to House of Lords
refused.
Solicitors: Bindman & Partners; Irwin Mitchell, Birmingham.