RE B. (A MINOR) (ABDUCTION) (UK Court of Appeal 1994)[1994] 2 FLR 249, [1994] Fam Law. 606, [1995] 2 FCR 505
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RE B. (A MINOR) (ABDUCTION) Court of Appeal (Civil Division)
[1994] 2 FLR 249, [1994] Fam Law. 606, [1995] 2 FCR 505
HEARING DATES: 29 Apr. 1994
CATCHWORDS:
Child abduction — Hague Convention — Child living in Australia
— Father agreeing to removal of child to stay with mother in
Wales for 6 months — Mother not returning child — Father
applying for child to be returned to Australia under Hague
Convention — Whether father had ‘rights of custody’ within terms
of Convention at date of child’s removal from Australia — Whether
father’s consent to removal obtained by deception requiring him to
be treated as never having consented at all — Whether English
court having jurisdiction to make a Convention order
HEADNOTE:
The child, who was now 6 1/2, was Australian. The mother had
emigrated to Australia in 1982 and the father was Australian-born.
The parents were not married, and separated in 1990. The father
remained in contact with the child. He contributed financially
towards a holiday for the mother and the child in 1990, and gave
the mother some money to invest in a home. The mother did not
apply the money for that purpose, having become a heroin addict,
and in 1991 and 1992 she lived a chaotic existence. In April 1992
the mother left Australia and returned to Britain and left the
child to be cared for by the maternal grandmother and the father.
In 1993 the grandmother wished to visit Britain for a holiday with
the child. The father would not agree to the child leaving
Australia for longer than 6 months. In June 1993 the father and
the grandmother attended a meeting with the father’s solicitor in
Australia and a minute of a consent order was drawn up, which
included a provision that the child could be taken out of
Australia for the purposes of travailing for up to 6 months, The
document was sent to the mother in Wales who signed it. The father
signed an application for a passport for the child. Arrangements
ware made for a fresh copy of the minute of the consent order to
be sent to the mother, but the mother did not receive this until
August 1993. The grandmother was anxious to travel to Wales and
the father telephoned the mother to ask whether she had signed the
second copy of the minute. The mother stated that she had and that
the father would receive that copy very shortly. The grandmother
deposited a bond with th father’s solicitors and signed an
authority that the bond was to be used to take any action that
might be required to recover custody of the child. In January 1994
the mother issued an application for wardship. The father’s
solicitor had applied for the draft order to be approved by the
court in Adelaide, and although the return date for that
application was the day after the wardship summons had been
issued, the international time difference was such that notice of
the wardship proceedings was received by the father’s solicitors
after the approval of the Adelaide court had been obtained. The
child was due to return to Australia 9 days later, but was not
returned by the mother. The father applied to the English court
for an immediate return order under Art 12 of the Hague
Convention. The judge ordered the child’s return to Australia. The
mother appealed.
Held — dismissing the appeal —
(l) The Convention was to be construed broadly as an international
agreement according to its general tenor and purpose, without
attributing to any of its terms a specialist meaning which the
sort of words in question might have acquired under the domestic
law of England. ‘Rights of custody’ was a term which, when so
construed, enlarged upon, but was not necessarily synonymous with
the simple connotations of ‘custody’ when that word was used
alone. The acts of removal or retention on which the jurisdiction
to make a mandatory return under Art 12 was founded were mutually
exclusive and involved a single act or event only.
(a) (Peter Gibson LJ dissenting) As a matter of language, ‘rights’
might be either confined to those propounded by law or conferred
by court order or might describe the inchoate rights of those who
were carrying out duties and enjoying privileges of a custodial or
parental character, though not formally recognised or granted by
law. It would be wrong to take the narrow view that only rights of
the first class could be referred to as ‘rights of custody’, and
the question whether a court would be likely to uphold those
rights in the interests of the child depended upon the
circumstances of each case. In the circumstances of th’ present
case, the answer reached by the judge was unimpeachable.
(3) The question of whether a purported consent to the child’s
removal obtained from the aggrieved parent was or was not a valid
consent was similarly to be determined according to the
circumstances of each case. It was, however, reasonably certain
that the courts of the requested state were unlikely to regard as
valid a consent that had been obtained through a calculated and
deliberate fraud on the part of the absconding parent. The judge
reached a conclusion that was unassailable. The father’s consent
to the child’s removal was obtained through a cruel deceit.
NOTES:
Statutory provisions considered
Adoption of Children Act 1896 (Western Australia)
Family Court Act 1915 (Western Australia) as 34, 35, 36, 41, 42
Hague Convention on the Civil Aspects of International Child
Abduction 1980, Arts l, 2, 3, 4, 5, 12, 13, as enacted by the
Child Abduction and Custody Act 19%5
CASES-REF-T0:
Barnardo v McHugh [1891] 1 QB 194
C (A Minor) (Abduction), Re [1989] l FLR 403, sub nom C v C
(Minor: Child Abduction: Rights of Custody Abroad) [1989] l WLR
654, [1989] 2 All ER 465, CA H. Re; S (Minors) (Abduction: Custody
Rights), Re [1991] 2 AC 476, [1991] 2 FLR 262, [1991) 3 WLR 68,
[1991] 3 All ER 230, HL
Hewer v Bryant [1970] 1 QB 357, [1969] 3 WLR 910, [1969] 1 All ER
13, CA
J (A Minor) (Abduction: Ward of Court), Re [1989] Fam 85, [1090] 1
FLR 276, [1989] 3 WLR 825, [1989] 3 All ER 590
(A Minor) (Abduction: Custody Rights), Re ll990) 2 AC 562, [1990]
3 WLR 492, sub nom C v S (A Minor: Abduction: Illegitimate child)
[1990] 2 FIR 442, [1990] 2 All ER 961, HL
Von Hatzfeldt-HildenbUrg v Alexander [1912] 1 Ch 284
Walround v Walround (1858) Johnson 18
COUNSEL: J Munby QC for the mother; J Holman QC and D Taylor for
the father
PANEL: Staughton, Waite, Peter Gibson LJJ
JUDGMENT ONE BY: WAITE LJ
JUDGMENT ONE
WAITE LJ:
F, the 6 1/2-year-old boy who is the subject of this appeal, is
Australian. He was born in that country on 21 August 1987, and was
ordered to be returned there, on the application of his father
under the terms of the Hague Convention, by an order of Connell J
of 30 March 1994. His mother appeals on the ground that the judge
had no jurisdiction to make a Convention order because neither the
child’s original removal to this country nor his retention here
were, so she claims, wrongful.
F is illegitimate. He was born in Australia of an unmarried
association between the mother, who emigrated to Australia with
her parents at the age of 21 in 1982 and is now aged 33, and the
father who is 40 and Australian-born. The relationship broke down
when the parents separated in August 1990. The father remained in
contact with F, and when the mother wished to take F together with
her mother (‘the maternal grandmother’) to Britain in 1990 for a
short holiday he contributed A$9000 to their expenses. Soon after
their return to the home State of Western Australia in early 1991
it became apparent that the mother had become addicted to heroin.
The father gave her A$38,500 to invest in a home for F and
herself, but she did not apply the money for that purpose, and for
the remainder of 1991 and the early part of }992 the mother lived
a chaotic existence as a result of her addiction.
Eventually in April 1992 the mother left Australia and returned to
Britain. Her departure was in breach of bail conditions imposed as
a result of pending charges for shoplifting. F was left to be
cared for the maternal grandmother and the father. At first he
spent the week with his grandmother and weekends with the father,
but from February 1993 the roles were reversed, and F was with his
father for weekdays and grandmother for weekends. From April 1992
onwards the social security payments payable to the person having
the care of F were paid to the maternal grandmother, with the
authority of a direction signed for that purpose by the father.
By the summer of 1993 the grandmother had made a plan to return to
Britain for a long holiday and wished to take F with her. The
father’s response was that he would not be willing to allow F to
leave Australia for anything longer than a holiday of 6 months,
after which he would return with the grandmother. He insisted,
moreover, that the arrangements for the child’s return should be
established with due legal formality.
Matters of guardianship and custody are regulated in Western
Australia by a non-federal statute, the Family Court Act 1975
(Western Australia), to which I shall refer hereafter as ‘the 1975
Act’. The jurisdiction which it confers or the Family Court of
Western Australia (FCWA) is co-extensive with equivalent federal
law, and there are cross-vesting provisions which enable all
States to make orders valid within each others’ jurisdictions. The
term ‘guardianship’ is used in the 1975 Act to describe
responsibility for the long-term welfare of the child, as distinct
from ‘custody’, which is defined by s 34(2) as follows:
‘A person who has or is granted custody of a child under this Act
has —
(a) the right to have the daily care and control of the child; and
(b) the right and responsibility to make decisions concerning the
daily care and control of the child.’
In regard to the children of unmarried parents, s 35 of the 1975
Act provides:
‘Custody and guardianship
Subject to the Adoption of Children Act 1896 and any order made
pursuant to this Division [meaning that part of the Act], where
the parents of a child who has not attained the age of eighteen
years were not married at the time of the birth of the child or
subsequently, the mother of the child has the custody and
guardianship of the child.’
Sections 36 and 36A enable orders with respect to custody or
guardianship or access or welfare to be made in favour of a wide
class of persons, including anyone who can demonstrate that his
paramount interest is the welfare of the child. Section 41(1) and
(2) and s 42(3)-(6) provide for a system of registration of
agreements, including agreements relating to custody, with the
court so as to make them enforceable as rules or orders of court.
Section 42 provides:
‘Agreements between parents
No agreement made between the parents of a child shall be held to
be invalid by reason only of its providing that one of the parents
shall give up the custody or guardianship of the child to the
other.’
On 9 June 1993 the father and maternal grandmother attended a
meeting with the father’s solicitor Mrs Walter. According to MA
Walter’s evidence, which was accepted by Connell J. the maternal
grandmother emphasized that she was simply taking the child to
Wales (where the mother now lives) for a holiday, after which she
and the child would return to Australia. As a result of that
meeting Mrs Walter drew up a minute of a consent order of the FCWA
(‘the original minute’). It was headed in the matter of family
proceedings between the father and the mother and provided as
follows:
‘In respect of the father’s application filed contemporaneously
herewith, the following orders may be made by consent:
1. The father and mother have joint guardianship and the father
has sole custody of the child [F] born 21 August 1987.
2. That [the maternal grandmother] be and is hereby permitted to
take the said child out of Australia for the purposes of traveling
to South Wales only from 1 August 1993 up to and including 14
January 1994, by which date the said child is to have been
returned to western Australia.
3. The mother be restrained and an injunction is hereby granted
restraining the mother from having possession of the children’s
passports at any time.
4. The mother keeps the father advised at all times as to the
telephone number and address at which the said child can be
contacted.
5. During the time that the said child is absent from Australia
pursuant to the order contained in pare 2 hereof, the father have
weekly telephone access with the child from 4 pm each Sunday
(western Australia time) and the mother make the child available
at that time.
6. That the mother be restrained and an injunction is hereby
granted restraining the mother from removing the child from the
care of [the maternal grandmother] during such time as the child
is absent from Australia.
7. That if [the maternal grandmother] returns to Australia prior
to 14 January 19g4, the mother is to do all things necessary to
ensure that the said child accompanies [the maternal grandmother].
8. For the purposes of ensuring the return of the said child to
the State of Western Australia on or before 14 January 1994, the
mother at least five (5) days prior to departure pay to the father
the sum of $10,000 (‘the bond’) to be held in trust by the father
on the following conditions:
(a) In the event that the child returns to Western Australia on or
before 14 January 1994 the bond be refunded to the mother her
nominee within 48 hours of his return.
(b) In the event that the child does not return to Western
Australia on or before 14 January 1994 or when [the maternal
grandmother] returns to Australia, whichever will first occur,
then the bond be paid forthwith to the father to be used by him to
take all necessary action to ensure the child is returned to
Western Australia.
9. In the event of any contested litigation arising from the
mother’s failure to return the child in accordance with the orders
contained in pare 2 hereof, and subject to any further order of
this court, the forum for the determination of that dispute so far
as is practical be the Family Court of Western Australia.
10. The order contained in para 9 hereof shall not prevent the
father obtaining in some other overseas court an immediate order
for the return of the child and shall not restrict in any way any
application the father might bring for any breach of the order
contained in pare 2 hereof.
11. Within 48 hours of the return to Western Australia of the said
child, the child’s passport be delivered to the father.
12. Upon the child’s return to Western Australia, the father and
mother be restrained and an injunction is hereby granted
restraining each of them from removing the said child from Western
Australia without the prior written consent of the other party.
13. Upon the return of the child to Western Australia in
compliance with the order contained in para 2 hereof, the mother
have reasonable access to the said child defined to include weekly
telephone access.
14. That the father’s application be otherwise dismissed.’
Provision was made at the foot of the original minute for it to be
signed both by the mother and by the father.
On 16 June 1993 the original minute was sent by Mrs Walter to the
mother at her address in Wales for signature. The mother did duly
sign it and posted it back, but her letter was misdirected and as
a result was never received by Mrs Walter. The mother later
admitted in her evidence to Connell J that she signed the document
without any intention of co-operating with its terms. There has
been no challenge at the hearing of this appeal to the judge’s
consequent finding that the father’s consent to F’s travel to
England and Wales was obtained by deception.
Arrangements were meanwhile made for the grandmother to be
supplied with a passport for F to authorize his removal from
Western Australia. The passport authorities required the relevant
application to be signed by the father, and his signature was duly
supplied for that purpose.
Arrangements were also made for a fresh copy of the original
minute (‘the second minute’) to be sent to the mother for
signature. She did not receive it until August 1993. By that time
the starting-date for the proposed holiday had arrived and the
maternal grandmother was anxious to go ahead with it. Her flight
was booked for 25 August 1993. The father was still insisting that
the child could not leave without the mother’s signature on the
second minute, early in August 1993 the father and the mother
spoke on the telephone. The mother assured the father that she had
already signed the second minute and the he would very shortly
receive it, On 24 August 1993 the maternal grandmother deposited a
bond of A$5000 with Mrs Walter’s firm and signed an authority that
the bond was to be used to take any action that might be required
to recover custody of F in the event that the second minute should
not be received back from the mother or be completed by her
incorrectly.
The father was persuaded by the mother’s assurance and by the
grandmothers bond that they were sincere in their undertaking to
return the child to Australia by the agreed date of 14 January
1994, and on 25 August 1993 he vent to the airport and saw off the
maternal grandmother and F on their flight to Britain A few days
later he received the second minute back from the mother with her
signature, signed it himself, and handed it to Mrs Walter.
During that autumn a hitch occurred in the arrangements for
completing the formal approval of the second minute by the FCWA.
Mrs Walter took the view that once F had left Australia the FCWA
no longer had jurisdiction to approve the order, and that the
authority of the federal jurisdiction was required. She
accordingly on 4 November 1993 filed an application (‘the Adelaide
application’) to have the minute approved by the court in
Adelaide. The return date was 5 January 1994. The Adelaide
application was served on the mother in Wales on 21 December 1993.
She consulted solicitors the next day, obtained legal aid, and on
4 January 1994 her solicitors issued an originating summons in
Cardiff to have F made a ward of court.
Notice of the wardship proceedings was faxed by the mother’s
solicitors to Mrs Walter’s firm, but as a result of the
international time differences and those within Australia, it was
not received by Mrs Walter until after she had obtained from the
registrar in Adelaide at 9.45 am on 5 January 1994 the formal
approval of the Adelaide application.
The father’s response to service of the wardship proceedings was
to write to the mother, telling her that she was not to go back on
her word, and that he expected F to be returned to Australia on 14
January 1994 in accordance with the agreement. F was not returned,
and the father’s application to the English court for an immediate
return order under Art 12 of the Hague Convention was accordingly
issued in England on 21 January 1994.
The central issue
Her counsel, Mr Munby, has not sought to suggest that the mother’s
conduct, or that of the maternal grandmother, can be defended on
any equitable or moral ground. The judge’s finding that:
‘the mother, assisted by her own mother, cruelly deceived the
father; and she now seeks to profit by her deceit’, is not
challenged. The crucial issues are:
(l) did the father have ‘rights of custody’ within the terms of
the Convention at the date of F’s removal from Australia?; and, if
so,
(2) does the fact that the father’s consent to that removal was
obtained by deception require him to be treated as though he had
never consented at all, so as to render the removal a breach of
his ‘rights of custody’?
The terms of the Convention
The governing Articles are the following:
‘Article l
The objects of the present 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.
Article 2
Contracting States shall take all appropriate measures to secure
within their territories the implementation of the objects of the
Convention. For this purpose they shall use the most expeditious
procedures available.
Article 3
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.
Article 4
The Convention shall apply to any child who was habitually
resident in a Contracting state immediately before any breach of
custody or access rights. The Convention shall cease to apply when
the child attains the age of 16 years.
Article 5
For the purposes of this Convention —
(a) “rights of custody” shall include rights relating to the care
of the person of the child and, in particular, the right to
determine the child’s place of residence;
(a) “rights of access” shall include the right to take a child for
a limited period of time to a place other than the child’s
habitual residence.
Article 12
Where a child has been wrongfully removed or retained in terms of
Article 3 and, at the date of 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 th preceding paragraph, shall also
order the return of the child, unless it is demonstrated that the
child is now settled in its new environment.
Where the judicial or administrative authority in the requested
States have reason to believe that the child has been taken to
another State, it may stay the proceedings or dismiss the
application for the return of the child.
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, institution
or other body which opposes its return establishes that —
(a) the person, institution or other body having the care of the
person of the child was not actually exercising the custody rights
at the time of remove or retention, or had consented to or
subsequently acquiesced in the removal or retention; or
(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 judicial or administrative authority may also refuse to order
the return of the child if it finds that the child objects to
being returned and has attained an age and degree of maturity at
which it is appropriate to take account of its views.
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.’
The judge’s conclusion
It was common ground before Connell J that the mere fact of his
paternity of F as an illegitimate child gave the father no
automatic custodial right of any kind under the law of Western
Australia. The judge held, however, that he had acquired rights
amounting for Convention purposes to ‘rights of custody’ — first
through his active role in the care of the child, secondly through
the status which the mother and the grandmother had themselves
accorded to him as a party whose consent was necessary before F
could be removed from the jurisdiction or issued with a passport,
and thirdly through the rights recognized or accorded to him when
the mother signed the second minute. He held, further, that the
father’s consent to F’s removal from Australia was not true
consent — it having been obtained by the deceit of both mother
and maternal grandmother — and that the removal was therefore
without his authority and in breach of his ‘rights of custody’.
The case-law
Counsel are agreed that the authorities establish that:
(a) The Convention is to be construed broadly as an international
agreement according to its general tenor and purpose, without
attributing to any of its terms a specialist meaning which the
word or words in question may have acquire under the domestic law
of England. ~
(b) ‘Rights of custody’ is a term which, when so construed,
enlarges upon, and is not necessarily synonymous with, the simple
connotations of ‘custody’ when that word is used alone Re C (A
Minor) (Abduction) [1989] 1 FLR 403 per Lord Donaldson MR at p
413). It was found convenient in argument to refer to the rights
so described as ‘Convention rights’.
(c) The acts of removal or retention on which the jurisdiction to
make a mandatory return under Art 12 is founded are mutually
exclusive and involve a single act or event only (Re H; Re S
(Minors) (Abduction; Custody Rights) [1991] 2 AC 476, [1991] 2 FLR
262).
The case of Re C (above) concerned the effect of an order of the
Federal Family Court in Australia made at divorce. The Deputy
Registrar in Sydney had made a consent order in November 1986 that
the mother should have sole custody of the child of the marriage,
and that she and the father should share joint guardianship. The
order contained a direction that neither the mother nor the father
should remove the child from Australia without the other’s
consent. In 1988 the mother removed the child to England without
the knowledge or consent of the father, who applied for an Art 12
order under the Convention. Latey J refused it on the ground that
since the father did not have custody under the law of the State
of habitual residence in Australia, the removal was not in breach
of any right of custody attributed to him and was not therefore
wrongful within the terms of Art 3. It was held in this court,
allowing the fathers appeal, that the terms of Art 5 have to be
read into Art 3 and may in certain circumstances extend the
concept of custody beyond the ordinarily understood domestic
approach (Butler-Sloss LJ at p 407). The father’s right of
objection to a removal from Australia under the terms of the 1986
order was to be treated as conferring on him ‘rights of custody’
for the purposes of Art. 3 and Art. 5, ever though a limited power
of veto of that kind might not normally be regarded as an
attribute of custody.
In Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, the
House of Lords was concerned, as in this case, with the law of
Western Australia affecting the child of unmarried parents. It
will be necessary to refer to the facts of that case, because in
this appeal one side seeks to contrast them and the other to say
they are indistinguishable. They were summarized by Lord Brandon
of Oakwood (pp 575 and 576) as follows: –
‘Both the appellant (“the father”) and the respondent
(“the mother”) were born in England and are citizens of
the UK. The father is 38 and the mother is 32. In 1969
the father and in 1978 the mother went to live and work
in Australia. They met and in May 1978 began living
together at a home in Western Australia. They did not
marry, then or later. On 6 December 1987 the mother
gave birth to a boy whom I shall call J. Both the
mother and the father were registered as J’s parents
and J has dual Australian and British nationality,
The relationship between the mother and the father,
following the birth of . was not an harmonious one. In
1988 there was a short separation between them when the
mother left the joint home taking J with her. In about
January 1989 there was a second and longer separation
when the mother again left the joint home taking J with
her. During this second separation both the mother and
the father consulted solicitors. The father was made
aware that under the law of Western Australia, since he
and the mother were not married, the mother was
entitled to the sole custody and guardianship of J.
unless he applied to a court and obtained an order to
the contrary. The father at one time indicated an
intention to make such an application but did not do
so. In May 1989 the moths and the father were
reconciled and she went back to live with him bringing
J with her.
In January 1990 the mother’s parents, who live in
Stockport, went out to Australia for a holiday. They
stayed with the mother and the father at their jointly
owned hose in Western Australia. The mother made a
decision to leave the father and return to England with
J to live there, initially at any rate at her parents’
home. In February 1990 the mother’s father returned to
England, leaving his wife behind. At the beginning of
March 1990 the mother, with financial assistance from
her father, bought tickets for herself and J to travel
on the same flight to England as that on which her
mother was due to return. She succeeded by various
subterfuges in concealing her intention from the father
and on 21 March 1990 flew with J and her mother to
England, arriving there on 22 March 1990. It was then,
and has remained ever since, the settled intention of
the mother not to return to Australia but to make a
long-term home for herself and J in England.
On or about 26 March 1990 the father applied to the
Supreme Court of Western Australia for the custody of J
and other relief. His application was supported by two
affidavits sworn by him. On 3 April 1990 Walsh J
ordered the application to be transferred to the Family
Court of Western Australia. On 12 April l990 Anderson J
in the Family Court heard the application on an ex
parte basis and made an order giving the father sole
guardianship and custody of J. He also gave directions
for the service of the order on the mother in England
and this was effected shortly afterwards. Finally by an
amendment to his order dated 26 April 1990 he made a
declaration that the removal of J from Australia by the
mother had been wrongful. It will be necessary to
consider later whether this declaration was rightly
made.’
The issue of alleged wrongful removal was dealt with by Lord
Brandon (at p 577F) in these terms:
‘I consider first the question whether the removal of J
from Australia to England by the mother was wrongful
within the meaning of Art 3 of the Convention. Having
regard to the terms of Art 3 the removal could only be
wrongful if it was in breach of rights of custody
attributed to, ie possessed by, the father at the time
when it took place. It seems to me, however, that since
s 35 of the Family Law Act 1975-1979 of Western
Australia, as amended, gave the mother alone the
custody and guardianship of J. and no order of a coup
to the contrary had been obtained by the father before
the removal took place, the father had no custody
rights relating to J of which the removal of J by thE
mother could be a breach. It is no doubt true that,
while the mother and father were living together with J
In their jointly owned home in Western Australia, the
de facto custody of J was exercised by them jointly. So
far as the legal rights of custody are concerned,
however, these belonged to the mother alone, and
included in those rights was the right to decide where
J should reside. It follows, in my opinion, that the
removal of J by the mother was not wrongful within the
meaning of Art 3 of the Convention. I recognize that
Anderson J thought fit to make a declaration that J had
been wrongfully removed from Australia. I pay to his
declaration the respect which comity requires, but the
courts of the UK are not bound by it and for the
reasons which I have given I not consider that it was
rightly made.’
The opposing contentions
On the two crucial questions already mentioned the parties argue
as follows
(1) Did the father have ‘rights of custody’ within the terms of
the Convention at the date of F’s removal from Australia? ,
Mr Munby accepts that the expression ‘rights of custody’ is wider
in scope than the term ‘custody’ on its own, but submits that the
crucial word is ‘rights’. That term is only apt to describe the
rights that flow from a legal status conferred by law or by order
of a court of law, It has to be distinguished from de facto
enjoyment of custody with the agreement of the person entitled to
the sole right (properly so called) to enjoy custody.’ At the date
of F’s removal from Australia (25 August 1993) the father had no
rights in that sense because they were denied to him by s 35 of
the 1975 Act and no order of any court had yet been made in his
favour. All he had enjoyed up to that point was de facto care of
the child shared with the maternal grandmother. This case is
therefore indistinguishable from Re J.
Mr Holman for the father submits that the regime in Western
Australia after the mother left for Wales in April 1992 was one
under which, even before any written agreement was brought into
being, the father was functioning in the fullest sense as a
parent. That status was assented to by the mother and maternal
grandmother, and tacitly acknowledged by their acceptance that he
had the right to object to F’s removal from Australia, to give
authority for the diversion of social security payments to the
grandmother, and to give approval for the issue of a passport. His
status was further reinforced when they, acknowledged his right to
insist on their acceptance of an order in the form of the minutes.
It was a status, moreover, that the courts would have been astute’
to protect if it had ever been challenged. If, that is to say, the
mother had chosen to return to Western Australia and had there
sought unilaterally to determine the father’s status by asserting
her sole custodial rights under s 35 of the 1975 Act, the FCWA
would have been certain to intervene to prevent her from doing so.
This case, he argued, is essentially one of shared parenting
between the father and the maternal grandmother in the complete
absence from the. country of the custodial parent. It is therefore
wholly distinguishable from the situation in Re J. where both
parents were within the Western Australian jurisdiction and the
father enjoyed no custodial status at all independently of his
cohabitation with the mother. The situation here is much more akin
to Re C in that the father has acknowledged rights of control over
F’s movements in and out of Australia — the only difference
between that case and this being that the father here has rights
which any court would be bound to recognize and enforce whereas
the father in Re C had similar rights already formalized under
court order.
Mr Munby’s riposte to that is that if (contrary to his primary
submission) the father was enjoying ‘rights’ in the sense
contended for by Mr Holman they necessarily depended upon the
agreement — express or implied — of the mother Any such
agreement would be rendered invalid by s 42 of the 1975 Act.
(2) Does the fact that the father’s consent to that removal was
obtained by deception require him to be treated as though he had
never consented at all, s, as to render the removal a breach of
his ‘rights of custody’ (assuming such rights to be established)?
Mr Munby contends that the father’s consent to F’s removal on 25
August 199 was a genuine consent, however fraudulently obtained by
the mother and maternal grandmother. The deceit may be
reprehensible, but the fact that consent can given makes it
impossible to say that the removal was wrongful in the sense of
involving a breach of the father’s rights of custody. Mr Holman
submits that the judge was right to hold that a consent obtained
by deceit is no consent.
Conclusion
The purposes of the Hague Convention were, in part at least,
humanitarian. The objective is to spare children already suffering
the effects of breakdown their parents’ relationship the further
disruption which is suffered when they are taken arbitrarily by
one parent from their settled environment and moved t another
country for the sake of finding there a supposedly more
sympathetic forum or a more congenial base. The expression ‘rights
of custody’ when used the Convention therefore needs to be
construed in the sense that will best accord with that objective.
In most cases, that will involve giving the term the widest sense
possible.
There is no difficulty about giving a broad connotation to the
word ‘custody’. Attention was drawn by Lord Donaldson in Re C to
the width of its dictionary meaning, and by Sachs LJ in Hewer v
Bryant [1970] 1 QB 357 at p 373 to the diversity of the ‘bundle of
rights’ which it incorporates in legal terminology. The same is no
doubt true of the word ‘garde’, which (in the phrase ‘droit de
garde’) provides the translation for ‘rights of custody’ in the
French language version of the convention. ”
The difficulty lies in fixing the limits of the concept of
‘rights’. Is it to be confined to what lawyers would instantly
recognize as established rights — that is to say those which are
propounded by law or conferred by court order or is it capable of
being applied in a Convention context to describe the inchoate
rights of those who are carrying out duties and enjoying
privileges of a custodial or parental character which, though not
yet formally recognized or granted by law, a court would
nevertheless be likely to uphold in the interests of the child
concerned?
The answer to that question must, in my judgment, depend upon the
circumstances of each case. If, before the child’s abduction, the
aggrieved parent was exercising functions in the requesting State
of a parental or custodial nature without the benefit of any court
order or official custodial status, it must in every case be a
question for the courts of the requested State to determine
whether those functions fall to be regarded as ‘rights of custody’
within the terms of the Convention. At one end of the scale is
(for example) a transient cohabited of the sole legal custodian
whose status and functions would be unlikely to be regarded as
qualifying for recognition as carrying Convention rights. The
opposite would be true, at the other end of the scale, of a
relative or friend who has assumed the role of a substitute parent
in place of the legal custodian.
When that approach is applied to the particular circumstances of
the present case, the answer reached by the judge was in my
judgment unimpeachable. The father who saw off this young boy at
Perth airport on 25 August 1993 was the child’s primary carer,
sharing his upbringing with the maternal grandmother as his
secondary carer. It was a settled status which the absent mother,
as the only parent with official custodial rights, had at first
tacitly and later (by her acceptance of the father’s right to
insist on her signature of the minutes) expressly approved. I
accept Mr Holman’s submission that it was a status which any
court, including the FCWA, would be bound to uphold; at least to
the point of refusing to allow it to be disturbed — abruptly or
without due opportunity of a consideration of the claims of the
child’s welfare — merely at the dictate of a sudden reassertation
by the mother of her official rights. It was a status which falls
properly to be regarded as carrying with it rights in the
Convention sense, breach of which by unauthorized removal would be
rendered wrongful within the terms of Arts 3 and 5.
As for the issue of consent, the question whether a purported
consent to the child’s removal obtained from the aggrieved parent
was or was not a valid consent in similarly to be determined
according to the circumstances of each case. The only
starting-point that can be stated with reasonable certainty is
that the courts of the requested State are unlikely to regard as
valid a consent that has been obtained through a calculated and
deliberate fraud on the part of the absconding parent. That
applies in my judgment whatever the purpose for which the consent
is relied on — whether it be to nullify what would otherwise be
considered a wrongful breach of rights of custody for the purposes
of Art 3, or as a consent of the kind that is expressly referred
to in Art. 13(a).
Here again, the judge in my view reached a conclusion that is
unassailable. The father’s consent to F’s removal last August was
indeed obtained through a cruel deceit. It was cruel, moreover,
not only to the father but to the child. F is only 6, but he is
old enough to understand the assurance given to him when he left
Australia that he would be returned after an interval to the only
country he had every known and the only parent who had given him
continuous and consistent care; and vulnerable enough to suffer if
that expectation is destroyed. The judge was right to hold that a
consent so obtained was no true consent at all.
It follows that I would reject the submission that the present
case is indistinguishable on its facts from those of Re J. Nor is
there any principle to be deduced from the decision in that case
which would require the father in the present case to be treated,
notwithstanding his very different circumstances, as a party who
had been merely exercising what Lord Brandon described as ‘de
facto custody’.
I reject, also, the argument that because the father’s rights of
custody derive from the agreement (tacit or express) on the
mother’s part that he should exercise them, they are vitiated by s
42 of the 1975 Act. Sensibly construed in its legislative
context, that section amounts to no more than a saving provision,
designed to spare agreements for the sharing of custody or care
and control between parents — which it is the evident purpose of
the Act to encourage — from possible attack by the technically
(or historically) minded on the ground that they fell foul of the
old common law rule (exemplified by Barnardo v McHugh [1891] 1 QB
194 and Walround v Walround (1858) Johnson 18) which treated
agreements for the disposal of rights of custody as infringing
public policy.
It was suggested, finally, by Mr Munby that the mother’s agreement
to the terms of the minutes of order falls to be treated as void
for duress, on the ground that she gave her agreement for the sole
reason that she knew there was no other way of getting her child
back. This submission must, in my judgment fall, both because it
would involve an extension of the concept of duress beyond
anything that has so far been recognized in the authorities and
also because t! premise on which it is founded is in any event
unsound. Although success could not, of course, be guaranteed,
there was always available to her, as a means of getting her child
back, the facility of an application to a court in Australia for
an order giving her care and control and regulating the father’s
rights of contact. It would then have been a matter for argument,
and for decision by the court, as to whether or not she should be
given leave to exercise her care and control outside Australia, so
as to enable her to return to live with F in England or Wales.
It is unnecessary, in the light of these conclusions, to deal with
they interesting arguments that were addressed to us on the
alternative hypothesis that thin falls to be treated as a case of
alleged wrongful retention. Nor is it necessary to deal with the
yet further hypothesis (raised by the father’s respondent’s
notice) that F’s removal (or retention) was wrongful because it
was carried out in breach of the institutional rights of the
relevant Australian court.
I would dismiss the appeal,
JUDGMENT TWO BY: STAUGHTON LJ
STAUGHION LJ:
I agree that this appeal should be dismissed for the reasons given
by Waite LJ. The one point on which I wish to add something is the
effect of s 42 of the Family Court Act 1975 (Western Australia).
For convenience I repeat the text:
‘No agreement made between the parents of a child shall
be held to be invalid by reason only of its providing
that one of the parents shall give up the, custody or
guardianship of the child to the other.’
The first place where we should look for the meaning of an
Australian status is in the expert evidence; strictly speaking,
that should be the last place too. On the father’s behalf there
is an affidavit of Mr Truex, an Australian barrister and
solicitor.
He says of s 35:
’15. This section means that in Western Australia the
mother of a child born out of wedlock ordinarily has
full rights of custody and guardianship to the
exclusion of all other persons and the father of the
child has no such rights i the absence of an agreement
or court order conferring such rights on him.
21. By 7 September 1993 the minutes of consent order
referred to previously in this affidavit had been
signed by the parties. In my opinion, the minutes arc
written evidence of an agreement between the plaintiff
and the defendant that the plaintiff would acquire
joint guardianship and sole custody rights wit respect
to the child. It may be argued that the signing of the
minutes by the parties was effective on the part of the
defendant, to (in the words of s 42 of the Family Court
Act 1975 (Western Australia1) “give up the custody or
guardianship of the child to the [father]”. However, I
am unaware of any reported cases in Australia on this
point and I am not able to offer a firm opinion as to
whether this may have been the ease.’
So far as the evidence goes, Mr Truex is uncontradicted; there is
no expert opinion on behalf of the mother on this issue. But Mr
Munby urges us to read the section as providing that other terms
in an agreement shall not be invalid merely because it contains a
term as to custody or guardianship — which will remain invalid at
common law. I am not attracted by that argument, as it does not
seem to me to reflect the natural meaning of the language used.
It was wisely suggested by Waite LJ in the course of the argument
that we ought to look at s 42 in its context, and Mr Truex
provided us with a copy of the Australian Family Law & Practice
Reporter. That contains s 41, which is printed as follows:
‘SECTION 41 REGISTRATION OF CHILD AGREEMENTS
41(1) [Agreement may be registered] A child agreement
may be registered in any court having jurisdiction
under this Act.
41(2) [Effect of registration] Where a child agreement
is registered in a court —
(a) a party to the agreement shall not institute
proceedings under this Division seeking an order in
relation to child welfare matters;
(b) subject to subsection (4), the agreement, in so far
as it relates to child welfare matters, is enforceable
as if the agreement were an order of the Court; and
(c) the court may, by order, vary the agreement, in so
far as it relates to child welfare matters, if it
considers that the welfare of a child requires
variation of the agreement.
42(3) [Where agreement confers custody etc] Paragraphs
(a) and (b) of subsection (2) do not apply to a child
agreement to the extent, if any, that the agreement
purports to confer the custody or guardianship of the
child concerned upon a person who in not a parent of
the child.
42(4) [Enforcement] The court in which a child
agreement is registered under subsection (1) shall not
enforce the agreement, in so far as it related to child
welfare matters, if it considers that to do so would be
contrary to the best interests of a child. .
42(5) [Setting aside agreement] The court in which a
child agreement is registered under subsection (1) may
set aside the agreement if, and only if , the court is
satisfied that — ~
(a) the concurrence of a party was obtained by fraud or
undue influence;
(b) the parties desire the agreement to be set aside;
or
(c) the welfare of the child requires the agreement to
be set aside.
42(6) [Relevant provisions] In exercising powers under
this section, a court shall have regard to the
provisions of sections 28(2) and 39A.’
It seems to me that those must all be subsections of s 41, and
that there ar misprints in attributing (3), (4), (5) and (6) to
42, which is printed subsequently.
On that material it seems to me highly probable that the law of
Western Australia attributes some effect of some kind to an
agreement between parents as to custody or guardianship. No doubt
the courts retain ultimate control; and rights conferred by an
agreement remain provisional, conditional or inchoate. It would
not in my view be regarded as wholly ineffective. But my ultimate
conclusion is that we ought to resist the temptation to make our
own findings of Western Australian law. The point is not an simple
and easy as Mr Munby suggests. We should stick to the expert
evidence, tentative as it is. If we do that, we are left with the
view that an agreement can confer something properly described as
a right of custody.
I do not share the view of Peter Gibson LJ that the agreement was
to take effect if and when the Family court of Western Australia
made the order. The circumstances surrounding its execution show
in my judgment that the parties intended (objectively speaking, of
course) to be bound forthwith, insofar as the law would afford the
agreement binding effect without a court order.
DISSENT ONE BY: PETER GIBSON LJ
PETER GIBSON LJ:
i have found this a difficult case. No objective observer can fail
to regard as abhorrent the behaviour of the mother, and I have
every sympathy with the father who was deceived by her when he
gave his consent to the departure of his son from Australia to
this country. I would gladly have decided in favour of the father
if I could. But the issues to be resolved are questions of law to
be answered in the light of the true construction of the Hague
Convention, the terms of which have to be applied to the facts.
The first issue is whether the child was ‘wrongfully removed’
within the meaning of the Convention. For that meaning one looks
to Art 3, containing as it does the Convention definition of a
wrongful removal, The removal must be i breach of rights of
custody attributed to a person (in this case, it is argued, the
father). There is no dispute that if that condition is satisfied,
the other conditions for a wrongful removal were satisfied. That
the term ‘rights of custody’ is a broad term appears both from the
widening of its meaning by Art 5(a) to include rights relating to
the care of the person of the child and the right to determine the
child’s place of residence and from the decision of this court in
Re C (A Minor) (Abduction) [19893 1 FLR 403. I accept therefore
that the fact that custody is conferred on the mother by s 35 of
the Family Court Act 1975 does not mean that the father could not
also have rights of custody in the convention sense. Nevertheless
the rights in question must be more than de facto rights (Re J (A
Minor) (Abduction: Custody Rights) [1990] 2 AC 562).
Mr Holman QC for the father relied on six matters as establishing
that the father had rights of custody even without the agreement
on the consent order which the parties had agreed should be made
by the Family Court of Western Australia. All were matters to
which Connell J had regard in reaching his decision. They were as
follows:
(1) The mother had been absent for over a year.
(2) The father had day-to-day care of the child prior to his
removal.
(3) The mother, the father and the grandmother all believed that
the grandmother could not take the child out of Australia without
the father’s consent, and thereby the mother recognized that she
had conferred rights on the father as the sole parent in
Australia.
(4) The father delivered the boy to the grandmother to fly to
England.
(5) The father’s signature was required by the grandmother to
enable her to obtain a passport for the child.
(6) The father nominated the grandmother to receive social
security payments in respect of the child.
Of these matters the first two support the view that the father
had de facto rights, but no agreement or other source of legal
rights other than the agreed minutes of order is suggested by the
father in the affidavits sworn by him or on his behalf or in his
application to the Australian court, save for the tentative view
expressed by the father’s expert on Western Australian law, Mr
Truex, in para 23 of his affidavit of 18 March 1994 when answering
the question ‘Under the law in Western Australia, who had the
rights of custody in respect to the child before 5 January 1994?’
Mr Truex said: ‘The plaintiff may have acquired some custody or
guardianship rights by agreement either in April 1992 or when the
mother] signed the minutes before the child left Western
Australia.’ Earlier he had referred to the mother’s statement in
her affidavit of 22 February 1994: ‘It was agreed at that time
[April 1992] that . . . [the child) would be looked after by my
mother in Australia’, and he also referred to the evidence of the
father’s solicitor in Western Australia in her affidavit of 21
February 1994 that ‘from April 1992 to February 1993 . . . [the
grandmother] had the child most weeks and the father had him most
weekends; from February 1993, the father had the child all week
and [the grandmother] had him all weekend. . .’ But this is hardly
evidence of an agreement between the mother and the father,
intended to confer rights on the father.
The third and fourth matters cannot have conferred legal rights.
As for the fifth and sixth matters it is unfortunate that there is
no evidence of Australian law on the rights of a father of an
illegitimate child in relation to a passport application nor on
the significance, if any, of the father nominating the recipient
of social security payments, and it is not possible to draw safe
inferences from these matters. Although the evidence of these
facts is contained in the grandmother’s affidavit of 14 February
1994, Mr Truex makes no comment on them.
As for the agreed minutes, the prefatory words, ‘In respect of the
father’s application filed contemporaneously herewith, the
following orders may be made by consent’, show that the terms
which then follow were intended to take Affect only if and when
the Family Court of Western Australia made the order. That court
was not bound to make the order, nor was the Adelaide court which
in fact made the order, the registrar having a discretion (see Ord
31, r 8(3) of the Family Law Rules referred to in para 14 of the
affidavit of Mr Harp, the mother’s Western Australian lawyer, of
15 March 1994, and para 11 of Mr Truex’s affidavit). The position
seems to me even clearer than that which obtains when a contract
contemplates the execution of a further, more formal contract
between the parties, it being in such a case a question of
construction whether the further contract’s execution is a
condition of the bargain or a mere expression of the desire of the
parties as to the manner in which an agreed transaction will go
through (Von Hatafeldt-Wildenburg v Alexander [1912] 1 Ch 284 at
pp 288, 289 per Parker J). Here the agreed terms cannot be said
to have had legal effect before the order was made. What was
agreed between the mother and the father wee only that she would
consent to such an order by the Family Court of Western Australia
in those terms. Accordingly at the time of the removal of the
child, that agreement did not confer rights of custody on the
father.
Mr Truex does not address this point in his affidavit and, because
of doubts about the effect of s 42 of the Family Court Act 1915,
was only able to express the tentative view:
‘It may be argued that the signing of the minutes by
the parties was effective on the part of the Mother) to
. . . “give up the custody or guardianship of the child
to the [father]”.’
He frankly acknowledged that he was not able to offer a firm
opinion as to whether this may have been the case, On the view
that I take of the condition; effect of the agreement, it is
unnecessary to essay an opinion on this Western Australian
statute. .
I therefore regretfully conclude that the father did not have
rights of custody in the Convention sense at the time of the
child’s removal and accordingly the removal could not have been
wrongful in the Convention sense indicated in Art 3.
I turn to the alternative argument advanced by Mr Holman that
there has been a wrongful retention by the mother in breach of
rights of custody.
There must be a single occasion when the wrongful retention
occurred (Re H. Re S (Minors) (Abduction: Custody Rights) [1991] 2
AC 476, [1991] 2 FLR 262) as it is necessary to consider where the
child was habitually resident immediately before the retention.
Various dates were canvassed in argument: 27 August 1993 when the
child arrived in England; 2 December 1993, when the mother
instructed her solicitor to pursue wardship proceedings; 4 January
1994, when the wardship proceedings were issued; 5 January 1994
when the father learnt of the wardship proceedings, and 14 January
1994, when the child should have been returned but was not
returned to Australia. Only by the last of those dates had rights
of custody been granted by the Adelaide court to the father, and
there is at least a doubt about the validity of that order because
the mother withdrew her consent before it was made t see para 11
of Mr Truex’s affidavit) and her consent had if any event been
given to an order in the Family Court of Western Australia (see
paras 18-21 of Mr Karp’s affidavit). i
But whichever date is selected, a major difficulty in the way of
the father lies in the test of habitual residence. In Re J (above)
at pp 578, 579, Lord Brandon said:
(1) that the expression is not to be treated as a term
of art with some special meaning but it is to be
understood in accordance with the ordinary and natural
meaning of the words; ‘
(2) that it is a question of fact to be decided by
reference to all the circumstances of any particular
case;
(3) that a person may cease to be habitually resident
in a country in a single day; and
(4) where a young child is in the sole lawful custody
of the mother, his habitual residence will be the same
as hers. ‘
Accordingly, the House of Lords held that an unmarried mother, who
took her child with her when she left Western Australia with the
settled intention that neither she nor the child should continue
to be habitually resident there, thereby caused her son not to be
habitually resident in Western Australia immediately before she
arrived in England, and, immediately before the time 3 weeks later
when the Adelaide court gave the father guardianship and custody
of the child, that position continued. Similarly the position here
is that the child, having lost his habitual residence in Western
Australia when he was brought by his mother to England, has never
regained it.
For this reason, and without going into the other arguments
advanced by Mr Munby QC for the mother, I must reject Mr Holman’s
argument on wrongful retention in breach of rights of custody
attributed to the father.
Mr Holman made the further submission that there was a wrongful
retention by the mother in breach of rights of custody held by the
Adelaide court from 5 November 1993 when the proceedings there
were commenced. He submitted that the court was an institution
which had the right to determine the child’s place of residence as
soon as the father’s application was filed. This submission was
not based on the evidence of Australian law that had been deposed
to by either side, and I am unable to accept it. In my Judgment Mr
Munby was right to submit that a court does not have rights of
custody merely because its jurisdiction has been invoked or
because it is seised of proceedings which may lead to the making
of an order regulating such rights. The position would be
different if the commencement of proceedings alters the status of
the child and confers rights of the court, for example if the
proceedings were wardship proceedings (Re J (A Minor) (Abduction:
Ward of Court) [1989] Fam 85, [1990] 1 FLR 276). But that is not
this case.
For these reasons I have, with regret, reached the conclusion
that, with all respect to him, the judge erred, and for my part I
would have allowed the appeal and looked to the English court in
the wardship proceedings to give full weight to the meritorious
claims of the father for his son’s return.
DISPOSITION:
Stay granted for 6 weeks with liberty to apply. Leave to appeal to
the House of Lords refused. No order as to costs. Legal aid
taxation.
SOLICITORS:
Belmont & Lowe, agents for Hugh James bones & Jenkins; Ralph
Haring & Co.