UK – MOTHER – 1987

Court: High Court of Justice, Family Division, United KingdomNumber: CA 522 of 1987.

Applicant: Mother


Respondent: Stephen Robert Duncan

Date: 29 Jan 1988

THE HIGH COURT OF JUSTICE, Case No: CA 522 of 1987.

Royal Courts of Justice
Friday, 29th January, 1988.



Re: DUNCAN (minor)

Transcribed from the Official Court Tape by Barnett, Lenton & Co.,
46/47 Chancery Lane, London, W.C.2).

Mr. EVERALL (instructed by Messrs. Hatchett Jones & Kidgell)
appeared as Counsel on behalf of the Plaintiffs.

MR. M. TAYLOR appeared on behalf of the First Defendant.

MISS L.G. PARKER, the Second Defendant, appeared in Person.

(As approved by the Judge)

Mr. JUSTICE WOOD: I have before me two applications — the
one is by an originating summons dated l6th June 1987, issued
under the provisions of the Child Abduction and Custody Act, 1985,
and the second is a summons within the summons to commit the
grandparents of the child involved, a little boy called Andrew,
born on 27th September 1983. It is important to notice at once
that the jurisdiction which I am exercising is under that 1985 Act
and not, as so often in the past in these abduction cases, under a
wardship jurisdiction.

The government department responsible for acting at the
request of a foreign government in seeking to find a child who has
been abducted, is the Lord Chancellor’s Department, and it is felt
that there is a need for the public to realise the seriousness of
these abduction cases; it is for that reason in the main that I
give this judgment in open court.

The plaintiff to the summons is the mother of Andrew and the
Defendant is the father. When the summons was issued his
whereabouts was not known, but it was suspected that he was within
this jurisdiction. The marriage of the parents took place on 23rd
July 1983 and separation took place during 1985. The family were
living in British Columbia in Canada, and, until the abduction at
the end of May of last year, the child was living with his mother.

There were a number of orders in the Courts of British
Columbia. The first was on 28th May 1985, when by consent it was
ordered by the Provincial Court of British Columbia, sitting at
West Vancouver, that the mother should have Andrew’s custody and
that father should have access.

On 24th September 1986 there was a variation in access, and
on 13th April 1987 the Supreme Court in British Columbia gave
custody of Andrew to his mother, defined access and ordered that
an access report should be made. Access in fact took place to the
father (the Defendant), on the and, the 9th and the 30th May 1987,
but on that latter date the child was not returned and disappeared
with his father. Investigations were made by the Royal Canadian
Mounted Police and information was gathered that the Defendant
father had gone to England; that was clearly in breach of the
order in existence.

On 1st July 1987 the Supreme Court of British Columbia
ordered that the child be returned to his mother immediately and
made an order (by then it was probably too late) restraining the
father from removing Andrew from the jurisdiction, and then made,
what we would call in this country, a “seek and find order.” As a
result of that the matters were reported by the relevant Canadian
government to the Lord Chancellor’s Department and a request
arrived very early in June. The Lord Chancellor’s Department has a
panel of solicitors who are prepared to act in these cases, and he
instructed those who act in this case, who have instructed Mr.

The proceedings after the issue of the summons are material.

The next day, on 17th June 1987, Mr. Justice Hollis made a
seek and find order, and he also made an order requiring the
paternal grandfather and the paternal uncles of young Andrew to
give information about the child. The wording of the order, so far
as it concerns the uncles, is not material but that concerning the
grandfather is important, and the order was to the grandfather
and, indeed, the grandmother, and that I will read:

“Do forthwith, upon service of this order upon them, or
either of them, disclose to the Plaintiff’s solicitors,
Messrs. Hatchett Jones & Kidgell, of 8 Crescent, London.
EC3, all information possessed by them—”

and here are the important words

“— as to the whereabouts of the child Andrew Edward Duncan
and the Defendant Stephen Robert Duncan.”

That order was served upon the grandparents on 23rd June and
they were in touch with the solicitors by telephone. The result,
however, was not effective and on 28th July 1987, Mr. Justice
Swinton Thomas made an order for publicity, and also made a
further order against the grandparents and the uncles, and the
additional phrasing in the order was requiring them, in the event
of any such information coming into their possession thereafter,
to inform the solicitors. The widest publicity was given and the
Press were most helpful, but despite that, there was no result.

The order of 28th July was served on the grandfather only
and, on 29th October, the grandparents were brought before Mr.
Justice Swinton Thomas on bench warrants. The grandfather was
cross-examined — I have seen a transcript of the evidence which
he gave — but the learned Judge felt that although the evidence
was not satisfactory, it was impossible to make any positive
finding that the grandfather was in breach of the order.

The learned Judge, Mr. Justice Swinton Thomas, made a new
seek and find order and released the grandparents. The order of
28th July was served on each of the uncles (Nicholas and Andrew)
on, respectively, the 30th and 31st October, and as a result of
information and an application made to me on 20th January of this
year, I directed that the grandparents and the two uncles should
attend before me for cross-examination, and that cross-examination
started two days ago, on the 27th. Let me make one thing clear
right away. The grandmother was unable to attend, unfortunately
she is in hospital having had a major operation, and she is
discharged and has been discharged from any consideration of

On Wednesday, at the end of the day, grandfather had been
cross-examined, the two uncles had been shortly cross-examined,
and as a result of further information which was placed before me
(to which I do not intend to refer) I joined Miss Parker as a
defendant, so that she became the subject of a seek and find order
together with the father, and it was clear, albeit not to the
Defendants, but to the Plaintiff and the court, that the
likelihood of discovering Andrew’s whereabouts was increasing

However, on the morning of Thursday 18th, Andrew and his
father and Miss Parker — who is his co-habitee as I understand it
— were produced at court. Grandfather told me that during the
night, the father of Andrew (the Defendant) had ‘phoned asking
about his mother’s health, as a result of which he had been
advised to give himself up and, after deliberation, he had decided
so to do.

Let me deal with one or two matters. The father (the
Defendant) has not given evidence before me, and now that Andrew
has been found it is not entirely clear whether the court has
power to direct him so to do. It occurs to me, as a matter of
comment, that both the foreign governments who make the request to
the Lord Chancellor’s Department and the authorities in this
country, would be interested to know the details of an abduction
and what has happened up until the time when the child is found.
When one looks at Section 24(a) of the Child Abduction and Custody
Act, 1985, which has been added by amendment, there is a power
there to require witnesses to attend and give information about
the whereabouts of the child. That power has been placed in
statutory form, but it is a power inherent to the court in
wardship proceedings and it was clearly thought that in the
absence of the statutory provision there was no power in the court
in such proceedings as the present to order witnesses to attend
and give such evidence.

Bearing that in mind, it seems to me that there is no power
at present to order a defendant to give evidence after the child
has been found and surrendered to the authorities, and it may be
that the Lord Chancellor’s Department will give consideration to
the desirability of such a power to be introduced by further

I turn to the application for committal of the grandfather.
The form of the order, which I have already indicated, is perhaps
not as tightly drawn as would be desirable. The evidence which he
gave was clouded with precautionary comments and it may be that he
saw the Defendant and Andrew before that order was made. The
order, as drawn, requires him to give evidence of “the
whereabouts,” and it is possible that a layman, looking at that
order, would think that he is required to say whether he knows
where the child Andrew “is.” I would suggest that thought be given
to rephrasing these orders in the future, so that the order might

“All information possessed by them as to the past movements
and the present whereabouts of the child or of the

It might be advisable to put a date for the past movements, so as
to provide some limitation. Phrased like that, there is absolutely
no doubt whatsoever that this grandfather was in contempt of the
order. But the form of the order as it was drawn does leave an
element of doubt, and whilst I do not accept that he has told me
the whole truth about the matter, and I was unimpressed by him,
nevertheless he has made an apology and I do not think it right in
the circumstances to make any order committing him to imprisonment
for contempt.

The 1985 Act came into existence after much deliberation
internationally to seek co-operation between governments for the
return of children wrongly abducted. There has, over the years, as
anyone experienced in the jurisdiction concerning children and
international abduction is aware, been an increase in its
incidence, with the upset and consequential unnecessary trauma to
many of the children involved. After international deliberation
and consultation, two conventions were brought into being — the
Hague Convention and the European Convention — and the 1985 Act
gives effect to the provisions of those Conventions to which the
United Kingdom government is a signatory. Part I deals with the
Hague Convention; Part II of the Act, with the European Convention
and Part III adds some supplementary provisions. I am here
concerned with the first part of the Act, and British Columbia are
a party to that Convention.

The central authority — namely the authority to whom the
request is made by the foreign government — is the Lord
Chancellor in the Act is the High Court. Section 5 reads as

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 or of preventing changes in
the circumstances relevant to the determination of the

As I read it, that gives the court power to deal with
interlocutory matters such as injunctions, seek and find orders
and publicity, in the same way as it has inherent powers in

The additional section, section 24(a), to which I have
already referred, deals with the power to order disclosure of the
child’s whereabouts, and it applies to both Part I and Part II of
the Act. Subsection (2) is the one to which I would refer. It

A person should not be excused from complying with an order
under subsection (1) above by reason that to do so may
incriminate him or his spouse of an offence. But a statement
or admission made in compliance with such an order, shall not
be admissible in evidence against either of them in
proceedings for any offence—-”

and I stress

“—- other than perjury.”

The Convention has many detailed provisions. Article 3 deals
with the wrongful removal and is clear here. Article 7 provides

“Central Authorities shall co-operate… to secure the prompt
return of children and to achieve the other objects of this


“In particular, either directly or through any intermediary,
they shall take all appropriate measures – ”

and I intend to refer to four of them:

(a) to discover the whereabouts of a child
who has been wrongfully removed or retained;

. . . . .

(c) to secure the voluntary return of the child or to bring
about an amicable resolution of the issues;

. . . . .

(g) where the circumstances so require, to provide or
facilitate the provision of legal aid and advice, including
the participation of legal counsel and advisers;

(h) to provide such administrative arrangements as may be
necessary and appropriate to secure the safe return of the

The importance of expedition is emphasized in Article 11, which
provides that

“The judicial or administrative authorities of Contracting
States shall act expeditiously in proceedings for the return
of [the child].”

And the power which this court has, is defined by Article 12, and
I read the first part only:

“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 Contracted 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 only provision which allows any discretion in the court is
that in Article 13, which provides that

“Notwithstanding the provisions of the preceding Article,—

(that is Article 12)

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 opposed its return
establishes that – ”

and then I look at

(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.”

Now it seems to me that that provision is likely to apply only in
the most extreme cases, where evidence of the exposure to physical
or psychological harm, or intolerable situation, is both obvious
and incontrovertible: it is not applicable here.

Article 16 makes it clear that unless and until the final
order is made deciding not to return the child, or unless there is
unreasonable delay, no other proceedings to decide the merits of
the rights of custody of the child shall take place in this
country. Section 9 of the Act makes it clear that a custody order
— which by section 27 of the Third Schedule includes wardship and
many others — shall not be effective in any attempt to defeat the
provisions of the Convention. I do not think I need refer to
those in detail.

The result of that short review of my jurisdiction is clear,
that I must make (and I have made) an order here for the return of
Andrew to his mother, and she is flying over to this country, due
to arrive today. In order to meet my duties under Article 7,
sub-paragraphs (c) and (h), arrangements were made for the wife of
the solicitor involved, instructed by the Lord Chancellor’s
Department, to look after Andrew for last night, possibly also for
tonight, and I adjourned and ask the Court Welfare Officer to
assist in smoothing out the arrangements for that to take place. I
have seen this volunteer (who has given evidence before me) and
she is a highly suitable person; I am grateful to her for
assisting the court. However, it may be that volunteers of this
calibre are not available; and, as another general comment, I
would suggest that perhaps the Lord Chancellor’s Department, and
the Embassies or High Commissions involved, should give some
thought to the handling of children who have been recovered,
discovered and placed in the hands of the court, and where the
court needs to make some temporary provision for their safe
accommodation and happy accommodation pending the arrival of a
parent from overseas.

The father here (the Defendant) has never been served with
the order and no question applies therefore. nor is there any
suggestion that it came to his notice by publicity, and no-one has
sought to commit him. But there is a question here of costs.

In the circumstances, and perhaps taking a lenient view, I do
not propose to order that the grandfather should pay any costs.
But there is an application for costs against the Defendant
father. The provision as to costs is contained in section 11 of
the Act, and in Article 26 of the Convention, and it is, I think,
only necessary for me to say that I have power to order the
Defendant to pay the costs and also — and I am quoting now from
the end of Article 26 —

“. . . to pay necessary expenses incurred by or on behalf of
the applicant, including travel expenses, any costs incurred
or payments made for locating the child, the costs of legal
representation of the applicant, and those of returning the

The mother, the Plaintiff (the Applicant) has, by arrangement
through the authorities here, a nil contribution and a Legal Aid
certificate, but there is no good reason why she, in the ordinary
way, should not be treated as a perfectly normal litigant and, in
the circumstances, I can see absolutely no reason why this father,
who has caused all these proceedings and this anxiety and trauma
to the mother, should not pay the costs, both the legal costs and
the costs involved in that phrase which I read out from Article 26
of the Hague Convention.

It is clear therefore, turning now in general terms, that
despite the assistance of the Press, this child Andrew has been
carefully hidden in this country since June of last year. As yet,
the provisions of this Act and of the relevant Conventions may not
be well known publicly, and it so happens that in my judgment, due
to the particular circumstances of this case, including the fact
that the child was ultimately produced voluntarily, I have been
able to take a lenient view of what has occurred. One can, of
course, understand the strength of emotional feeling in a parent,
and the supportive approach of the family unit. But it must be
recognised that although adults are locked in battle, children are
not to be moved around as pawns on a chess board and in defiance
of valid court orders in this or some other relevant jurisdiction.
It must be realised that every possible avenue of enquiry will be
persistently and relentlessly pursued, and witnesses may be
required to attend the court, if necessary, on more than one
occasion. In these cases, any failure (even the slightest) to
comply strictly with an order of the court, is likely to be
regarded as a matter so serious as to merit a custodial penalty if
the breach (and therefore the contempt) is established.
Moreover, it is to be noted that the immunity in section 24(a)(2)
specifically excludes prosecution for the offence of perjury, from
which it is reasonable to suppose that such is the importance
placed upon finding children who have been abducted, that any
evidence ultimately found to have been perjured, is likely to
result in serious consideration being given to a prosecution.

In my judgment the importance of the provisions of this
legislation must be made clear to all. I have indicated and made
an order last night and I shall now hear submissions as to any
variation that is necessary.

MR. EVERALL: My Lord, I do not think any variation of the order
is necessary. My Lord, I can tell you that the mother and the
maternal grandmother arrived here at about 8.30 or 9 o’clock — by
“here” I mean the United Kingdom — so they are on their way to
the home of those instructing me, and it is hoped that they will
be able to fly off to Canada either today or tomorrow.

JUSTICE WOOD: Very well.

MR. EVERALL: My lord, I know that my learned friend’s instructing
solicitors hold the First and Second Defendants’ passports, to the
order of the court — they have given an undertaking. My Lord, I
do not know if I might respectfully submit if that undertaking
could be varied, so that they could release the passports to the
Defendants when those solicitors have been notified by my
solicitors that the child has left the United Kingdom.

MR. JUSTICE WOOD: Yes. I see no reason why not. Mr. Taylor, that

MR. TAYLOR: My Lord, yes, that is in fact—-

MR. JUSTICE WOOD: If your instructing solicitor would like a
limitation on the period of time, —-

MR. TAYLOR: My Lord, it was indeed my intention to make an
application in those terms.


MR. TAYLOR: (Inaudible).

MR. JUSTICE WOOD: Certainly. Well, let us say that, 1 think,
simply on being notified by the Plaintiff’s solicitors that the
child has returned to British Columbia and has arrived in British

MR. EVERAL: My Lord, yes.

MR. TAYLOR: My Lord, I am very grateful.

MR. JUSTICE WOOD: Yes. Very well.

MR. TAYLOR: My Lord, on the question of costs, your Lordship has
ordered the First Defendant to pay the costs. My Lord, yesterday
your Lordship considered if the order for costs ought to be only
up to the time that the Defendat was legally aided, —-

MR. JUSTICE WOOD: You are quite right. So far as the legal
costs are concerned, —-

MR. TAYLOR: My Lord, yes.

MR. JUSTICE WOOD: —- up to, let us say, the short
adjournment yesterday.

MR. TAYLOR: My Lord, yes.

MR. JUSTICE WOOD: But the rests of the costs are not

MR. TAYLOR: My Lord, yes. I am obliged.

MR. JUSTICE WOOD: That is all the outside costs — you know,
non legal costs.

MR. TAYLOR: My Lord, yes.

MR. JUSTICE WOOD: That means all her tickets and so on, he must
pay for.

MR. TAYLOR: My Lord, yes.

MR. JUSTICE WOOD: Yes, so be it. Now, Mr. Duncan, stand up.

MR. DUNCAN: Yes, my Lord.

MR. JUSTICE WOOD: It has been an unhappy history, this episode
in your family. I hope nothing like this will ever happen again.

MR. DUNCAN: I hope not, my Lord.

MR. JUSTICE WOOD: You are the head of the family.

MR. DUNCAN: I hope not, my Lord.

MR. JUSTICE WOOD: Yes, very well.

COUNSEL: My Lord, one thing. May I ask for legal aid taxation?

MR. JUSTICE WOOD: Yes, of course; both sides.

COUNSEL: I am obliged.

MR. JUSTICE WOOD: That will be added in the order.