UK – RE E – 1999(Return ordered) (Non-Convention Country) (Muslim Law) the mother took the three children to England. The father applies for their return. The court orders the children returned to Sudan. The mother appeals, the appeal is dismissed. Court held that “the application of Muslim law to this Muslim family was appropriate and acceptable”.
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Re E (Abduction: Non-Convention Country)[1999] 2 FLR 642
12 International Abduction [UK 1999]
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RE E (ABDUCTION: NON-CONVENTION COUNTRY)
Court of Appeal
Stuart-Smith, Pill and Thorpe LJJ
24 June 1999
001 Abduction — Non-Convention country – Welfare of
child – Muslim law – Mother not entitled to care for
children because of remarriage – Whether application of
Muslim law compatible with welfare of children
002 The mother and the three children were habitually
resident in the Sudan. Alter the parents’ divorce the
children stopped living with the mother and were cared for
by relatives, The mother remarried, which meant that, under
Islamic law in Sudan, she was disqualified front obtaining
custody of the children. Under the applicable law care would
usually have passed to the maternal grandmother, but because
the maternal grandmother could not care for the children a
court order provided that the paternal grandmother would
look after the children, with regular contact to the mother,
who had the right to visit the children at any time.
Following difficulties with contact, the mother abducted the
three children, bringing them, with her new husband and
fourth child, to England, where she sought asylum. The
father sought a peremptory return order in respect of the
children. The judge ordered the return of the three children
to Sudan. The mother appealed.
003 HELD – dismissing the appeal – the welfare
principle was the paramount consideration in non-Convention
eases, but what constituted the welfare of the child in an
individual case was subject to the cultural background and
expectations of the State of habitual residence. If
international child abduction was to be dealt with
effectively, courts had to show respect towards a variety of
concepts of child welfare. deriving from different cultures
and traditions. Given that there was no investigation into
the family justice systems operating within Convention
countries, and that no criticism of those justice systems
was permitted during litigation, it was not wise to permit
the abducting parent to criticise the standards of the
family justice system applied in a non-Convention State of
habitual residence, save in exceptional circumstances such
as persecution, or ethnic, sex or other discrimination.
Notwithstanding comments in Re JA (Abduction: Non –
Convention Country), Re M (Abduction: Peremptory Return
Order was not decided per incuriam. The application of
Muslim law to this Muslim family was appropriate and
acceptable and a solution in accordance with local law was
capable of being in the best interests of the-se children.
Cases referred to in judgment
Chamberlain v de la Mare (1983) 4 FLR 434, FD and CA
F (A Minor) (Abduction: Jurisdiction), Re [1991] Fam 25;
[1991] 1 FLR 1; [1990] 3 WLR 1272; [1990] 3 All ER 97, CA
G v G (Minors) (Abduction) [1991] 2 FLR 506, CA
JA (Abduction Non-Convention Country) Re [1998] 1 FLR 231,
CA
M (Abduction: Peremptory Return Order), Re [1996] 1 FLR 478,
CA
P (Abduction: Non-Convention Country), Re [1997] 1 FLR 780,
sub nom P (A Minor) (Child Abduction: Non-Convention
Country), Re [1997] 2 WLR 223, CA
S (Minors) (Abduction) Re [1994] 1 FLR 297, CA
Z (Abduction: Non-Convention Country), Re [1999] 1 FLR 1270,
FD
Geraldine More O’Ferrall for the mother
Nicholas Carden for the father
<* page 643>
THORPE LJ:
004 Last week Connell J ordered the peremptory return of
three boys abducted by their mother from the Sudan. On
Tuesday we granted her application for permission to appeal.
Today we decide the appeal.
005 For the facts I take the words of Connell J from a
note of the judgment below agreed by counsel and approved by
him.
006 The father was born in 1956 and is now 43. The mother
was born in June 1970 and is 29. On 19 December 1986 they
married in the Sudan. The father lived in this jurisdiction
previously and earlier had bought a property which he still
owns. Having married in the Sudan, in February 1987 the
mother and father came to the UK. In England on 1 April 1989
F was born. Also in England on 3 April 1991 M was born. In
1991 the mother, father and the two boys returned to the
Sudan.
007 There is an issue between the parents that the mother
at some time after August 1991 commenced a relationship with
a Mr M. On 23 April 1993 a third boy was born in the Sudan.
In May 1993 the father came to the UK. In December 1993 the
mother followed and brought the three boys. In April 1994
she returned to the Sudan with the children. She has not
lived in this jurisdiction since that time.
008 In 1995 the mother and father divorced in the Sudan.
For a period the children ceased to live with the mother. On
15 June 1955 the mother married Mr M in the Sudan. On 17
September 1995 the mother went to the equivalent of the
magistrates’ court in Sudan. She applied for the children to
be returned to her and that the father should not interfere
with the custody of the children with her. On 20 November
1995 an order was made by the court which appears in terms
to be a consent order. The mother said she did not in truth
consent. It was not possible to decide the issue.
009 An order was made for the children to remain living
with the father’s family. The mother, as local law
indicates, was disqualified from obtaining custody by reason
of her remarriage. The children were looked after by the
mother’s family and in particular the maternal grandmother.
However, the maternal grandmother had other difficulties
which prevented this. The order therefore provided that the
children live with the father’s mother. The order also
contained provision for contact Thursday and Friday
alternating. It incorporated provision for the mother to
visit the children at any time.
010 On 2 April 1996 the mother gave birth to K. In July
1997 the father remarried in the Sudan. His wife and
daughter are in the Sudan.
011 In April 1999 the mother was enjoying contact to the
three children. On 9 May 1999 the mother, together with the
four children and her second husband, came to the UK. Upon
arrival at Heathrow she sought asylum in this jurisdiction.
She did not tell the father or his family of her intention
to come to the UK. The mother’s reason for taking this
dramatic step was that she was deprived of seeing the
children as and when she wanted. She was dissatisfied with
the provisions of the order of 20 November 1995 and,
accordingly, decided to come here and claim asylum. In those
circumstances she was accommodated in temporary
accommodation. Her claim for asylum will be considered on 4
October 1999.
012 On 21 May 1999 the mother filed a statement in
support of her application for residence and to prevent the
removal of the children from England and Wales. On the same
day she obtained an ex parte order from Hale J. On 28 May
1999 Bodey J continued that order. On 4 June 1999 her
Honour
<* page 644>
Judge Pearlman ordered that the children remain in the
interim care and control of the mother and ordered the
injunctions to continue.
012 In relation to those facts the judge made the
following additional findings. He said:
‘In relation to the parents, the mother’s
future is uncertain. Her background is in the
Sudan – only in this jurisdiction very
recently, it is not known what is the basis of
her asylum or the prospects of success. All
that is known is that the application will not
be considered until 4 October 1999. The father
on the other hand has spent half his time in
England and half his time in the Sudan, In his
oral evidence he said in recent times he had
given up his work, had bought a property in
the Sudan – his intention is or was until
the issue of these proceedings to return to
the Sudan and live there and live in the
property – intended to put this into
practice later this year or sometime next
year. I heard his evidence and accept this was
his plan, only interrupted as a result of
these proceedings. In my view it is clear that
the children had habitually resided in the
Sudan until 9 May 1999. They are Sudanese
children removed by the mother from familiar
surroundings to the UK. They speak a very
limited amount of English. The children are
now living in temporary accommodation. There
is much doubt as to their future and that of
the mother.’
013 Connell J recorded the submissions of the parents
thus:
‘The mother says, adjourn the residential
application and grant her interim residence in
the meantime for further consideration of her
application at a later stage when the outcome
of her application for asylum is either
decided upon or when more is known about it .
. .
The father says, these are Sudanese children,
their whole background is Sudanese and the
court should make a peremptory order for their
return.’
014 He directed himself as to the law by adopting a
recent judgment of Charles J in the case of Re Z (Abduction:
Non-Convention Country) [1999] 1 FLR 1270. In that judgment
Charles J conducted a full and scholarly review of the
modern case law and distilled a number of propositions which
Connell J rightly found to be of great assistance, He said:
‘In light of that case, which is a helpful
guide, it is clear in this case and it is
common ground, that the welfare of the
children is the paramount consideration.
Equally, as stated by Charles J, there is a
presumption that the prima facie position is
in favour ‘of return of the children to the
country from which they were wrongfully
removed. Thirdly, the presumption can be
displaced in certain circumstances. Fourthly,
the application by the father was promptly
made the children have been in the country for
6 weeks. The question is – is the
presumption displaced?’
015 Connell J turned then to the expert evidence which
was not in dispute. A Miss Ragab told the judge that:
‘The most important fact in Sudanese personal
law, mainly Muslim Sharia law, [was that] once
a divorced mother has remarried . . . the care
of the
<* page 645>
children moves to the maternal grandmother.
If the maternal grandmother is unable . . . to
care for them, care moves to the paternal
grandmother in all cases.’
016 That expert had filed a written report before giving
oral evidence. In her written report she had said:
‘. . . there is no welfare officer in Sudan,
However, the court would have testimony of
witnesses close to the families, because
socially the Sudanese community is very close.
The court normally takes full account of the
social background of the children and their
families, and the economic capacity of the
custodian, the health of the carer and above
all what would be the best interest of the
children, according to the Sudanese culture.
Despite the same principles, the concept is
different from the British concept.’
017 Connell J then recorded the submission of the
mother’s counsel in these terms:
‘Accordingly, it is submitted by Miss More
O’Fcrrall that it is contrary to the best
interests of the children to order return to
Sudan as in the present circumstances the
mother has no chance of any order or
opportunity of changing the contact
arrangements . . .
Miss More O’Ferrall lays considerable stress
upon Re JA (Abduction: Non-Convention Country)
[1998] 1 FLR 231 which contains a
consideration of United Arab Emirates and
Muslim Sharia Law.’
018 The judge then cited at length from the judgment of
Ward LJ in Re JA before concluding as follows:
‘It can be seen from the consideration of that
passage that in different cases the Court of
Appeal has emphasised different aspects of
matters re abduction from a non-Convention
country – different emphasis on different
circumstances in the cases. Hence the
apparent contradiction between Re JA and Re M.
Here the evidence of the expert is that the
courts in the Sudan do take account of the
best interests of the children but they do so
in accordance with Sudanese law and culture,
which involves different concepts from British
concepts. With a Sudanese Muslim family
habitually resident in time Sudan this is
scarcely surprising.
I cannot conclude that Ward LJ’s view was that
the courts in this jurisdiction would never
make an order for return when Sharia law
applied, particularly if the children’s best
interests required that solution. Each case
must be decided on its own circumstances. The
approach of the courts of the competing
jurisdiction is an important feature but is
not conclusive. In my view the courts in Sudan
will apply Muslim law which is appropriate and
acceptable to this Muslim family.’
019 Before us Miss More O’Fcrrall renews her reliance on
the ease of Re JA and her submission that the absence of
justice for her client in Sudan adversely affects the
welfare of the children. She says that the judge has made an
order that separates the children from both parents and
returns them
<* page 646>
to a jurisdiction where there can be no discretionary review
of all relevant facts and circumstances to determine child
welfare but only the rigid application of Sharia rules that
deprive the children of a natural upbringing. As in Re JA
she says this court should overturn the peremptory order on
the grounds that the Sudanese system is inimical to child
welfare.
020 The ease of international and intercontinental air
travel has created the evil of international child
abduction. The response of the international community has
been the negotiation of the Convention on the Civil Aspects
of International Child Abduction signed at The Hague on 25
October 1980. Its ratification by the UK was followed by its
introduction into domestic law by the Child Abduction and
Custody Act 1985. The Convention has been extremely
successful. Since 1980 no less than 57 States have joined
the club. For the purposes of this judgment I shall refer to
States that have acceded as members and those that have not
as non – members.
021 However, there has been aim obvious limitation to
this success. The member States by and large all derive
their sense of law and justice from the Judaeo-Christian
root. No State that settles civil and family disputes
according to Islamic law has joined the club. The nearest
approach is the making of bilateral treaties between France
and Spain on the one hand and North African States on the
other. There is also the prospect of accession by States
with predominantly Muslim populations. For instance, Turkey
has signed the Convention but not yet ratified it, and
Turknmenistan is a full member. When a State accedes to the
convention existing members have the option to recognise the
accession, thus creating binding treaty rights between the
States, or to withhold recognition. The treaty is only
effective between the acceding States and those existing
members who have recognised accession.
022 It must be emphasised that the Convention is limited
to the provision of regulation to ensure the swift return of
abducted children. One of the underlying principles is that
it is for the country of origin to determine the conflict
between the parents that has culminated in flight. The
Convention does not provide any regulation for the
determination of that underlying dispute. That is for the
lex fori.
023 Of course, the successful operation of the Convention
depends upon mutual confidence that the family dispute will
be determined in tile country of origin according to
standards and principles of justice broadly comparable to
those available in the returning State. However, as the
number of club members has increased it may be increasingly
difficult to maintain that confidence. For instance, the
breakup of the USSR and the former Yugoslav Republic has
seen the accession of a number of individual jurisdictions.
Besides Turknmenistan, Uzbekistan has acceded, as have
Moldavia and Belarus. The UK has recognised the accession of
Turkinenistan and recognition of the other States is
pending.
024 Before recognising accession, the Foreign and
Commonwealth Office makes inquiries locally to satisfy
itself that there is in place a Central Authority and a
justice system capable of providing the reciprocal service
that the Convention requires. However, I do not understand
there to be any requirement of minimum standards of the
family justice system in the acceding State. Whilst
consideration was given to setting such a requirement, it
was decided that there was too obvious a risk of invidious
comparisons and inflammatory exclusions, To this extent
arrangements have
<* page 647>
developed since June 1997 when the Official Solicitor, as
Central Authority, was directly involved with vetting, as
noted by Ward LJ in Re JA at 240A. Of course the maintenance
of mutual confidence within the member States is crucial to
the practical operation of the Convention. But the promotion
of that confidence is probably most effectively achieved by
the development of channels for judicial communication such
as the Seminar for Judges convened in 1998 in Holland by the
Hague Conference on Private International Law.
025 The welfare principle as paramount has been the
cornerstone of the family justice system in this
jurisdiction for many years. We regard it as a touchstone in
measuring the quality of other family justice systems.
Article 3 of the United Nations Convention on the Rights of
the Child 1989 requires no less. But what constitutes the
welfare of the child must be subject to the cultural
background and expectations of the jurisdiction striving to
achieve it. It does not seem to me possible to regard it as
an absolute standard. It wourd be quite unrealistic to.
suppose that the concept of child welfare is equally
understood and applied throughout the 57 member States. The
further development of international collaboration to combat
child abduction may well depend upon the capacity of States
to respect a variety of concepts of child welfare derived
from differing cultures and traditions. A recognition of
this reality must inform judicial policy with regard to the
return of children abducted from non-member States.
026 The principles determining outcowe of applications
for the return of children abducted from non-member States
have been considered in a line of cases in this court,
culminating in the case of Re JA. In that case the leading
judgment was given by Ward LJ, as it was in its immediate
predecessor Re P (Abduction: Non-Convention Country) [1997]
1 FLR 780. In the earlier case this court allowed an appeal
from the decision of Stuart-White J who bad felt himself
constrained by authority to determine the application as
though notionally made under the Convention when his
instincts suggested that the opposite outcome would be
better for the child. After a full review of the
authorities, Ward LJ emphasised that he welfare
cqnsideration is always paramount. In the later case of Re
JA he had occasion to consider a point raised by a
respondent’s notice that had not been considered by Singer
J. The point was defined thus:
‘ . . . because the best interests of the
child is the court’s paramount consideration,
it is necessary that the. court have regard to
the way in which the issue is likely to be
resolved in the competing jurisdiction so as
to satisy itself that the question will be
decided along broadly similar welfare lines to
the way we have to judge the rssues which
arise.’
027 The expert evidence established that in the State of
Sharjah the mother had care of the child, subject to the
father’s guardianship, until the age of 12, when care passed
automatically to the father. The mother’s care had to be
exercised within about 100 miles of the father’s home and
the court had no discretion to entertain her application to
relocate in the UK. Ward LJ, having reviewed the
authorities, said:
‘These authorities seem to me clearly to
establish that it is an abdication of the
responsibility and an abnegation of the duty
of this court to the
<* page 648>
ward under its protection to surrender the
determination of its ward’s future to a
foreign court whose regime may be inimical to
the child’s welfare. If driven to it, I would
reluctantly say that the decision of this
court in Re M (Abduction: Peremptory Return
Order) [1996] 1 FLR 478 was decided per
incuriam.’
028 Whilst I am in agreement with the first sentence of
the citation, I do not share his view that the decision in
Re M was reached per incuriam. I believe that it holds a
legitimate place in the stream of authority, bearing in mind
that statements of judicial principle are always susceptible
to the requirements of each individual family case.
In Re M Waite LJ had said at 480:
‘Underlying the whole purpose of the
peremptory return order is a principle of
international comity under which judges in
England will assume that facilities for a fair
hearing will be provided in the court of the
other jurisdiction, and that due account will
be taken by overseas judges of what has been
said, ordered and undertaken to be done within
the English jurisdiction. That is of course
reciprocal. It has to be presumed that judges
in other countries will make similar
assumptions about the workings of our own
judicial system.’
029 As a general principle of private international law
that seems to me to be properly stated. In support of the
approach adopted by Waite LJ in Re M, I would also cite the
decision of this court in Re S (Minors) (Abduction) [1994] 1
FLR 297, seemingly not cited in Re JA. There the appellant
mother submitted that the question was:
‘. . . whether or not the court should order a
peremptory return to a jurisdiction which does
not apply a similar system of law to that
governing decisions over the welfare of
children adopted in the courts of England.’
030 The country in question was Pakistan, which meant
that ‘Muslim law principles will be applied to the case
unless there are overriding reasons to the contrary’. In
deciding the issue Balcombe LJ adopted the approach of the
Master of the Rolls in Re F (A Minor) (Abduction:
Jurisdiction) [1991] Fam 25, [19913 1 FLR 1 and held that it
would not be appropriate to deny the Pakistan courts
jurisdiction merely because they would try to give effect to
what was the child’s welfare from the Muslim point of view.
In a concurring judgment Nolan LJ said:
‘But it is implicit in 1(1)(a) [of the
Children Act 1989] that the paramountcy of the
child’s welfare is to be observed consistently
with the law to which the child is subject.’
031 I am also attracted by a passage from the judgment of
Brennan J in an Australian ease, cited with approval by Ward
LJ in the case of Re P. The sentence which I extract from
the citation is this:
‘In any event, when the Family Court is
determining an application for the
<* page 649>
return of a child to the place of the child’s
ordinary residence, the capacity, sensitivity
or procedures of the courts of that country
are likely to be of minor importance unless
the evidence shows that those courts are
unlikely to make and to enforce orders deemed
to be appropriate in that society to protect
the child and to serve his or her best
interests.’
032 That citation emphasises the importance of according
to each State liberty to determine the family justice system
and principles that it deems appropriate to protect the
child and to serve his best interests. There is an obvious
threat to comity if a State whose system derives from
Judaeo-Christian foundations condemns a system derived from
an Islamic foundation when that system is conceived by its
originators and operators to promote and protect the
interests of children within that society and according to
its traditions and values.
033 What weighed with Ward LJ in Re JA was not so much
that child welfare would not be considered as that the
mother would have no right to apply in Sharjah to relocate
to this jurisdiction. The relationship between the wrongful
international abduction of children and the rights of a
parent to relocate on separation have always seemed to me to
be intricately interconnected. In this jurisdiction we do
not refuse the application of the parent with the residence
order the right to exercise that responsibility in another
jurisdiction, unless the decision is clearly shown to be
incompatible with the paramount welfare consideration: see
Chamberlain de 1e Ia Mare (1983) 4 FLR 434. Such an approach
reinforces the obligation on the parent with the
responsibility of providing the primary home to apply for
permission to relocate and not to abduct. But the approach
that we adopt is by no means universal or even commonplace
even amongst the member States. Obviously the adoption of a
more restrictive approach to relocation applications
increases the pressure and temptation to abduct.
034 The Council of Europe has worked hard, and continues
to work hard, for the harmonisation of family law amongst
its membership. However, the number and diversity of the
member States makes this a difficult if not impossible goal.
Even the European Union has as yet made no endeavour to map
out a common approach to family law. I have no doubt that
the number and the diversity of the joined tIme Hague club
have made it impossible to formulate minimum standard
requirements of other family justice systems before
recognising accession. As a matter of logic, if we make no
investigation and, in litigation permit no criticism of the
family justice systems operating in the member States, I am
extremely doubtful of the wisdom of permitting the abducting
parent to criticise the standards of the family justice
system in the non-member State of habitual residence, save
in exceptional circumstances, such as those therein defined
by the Master of the Rolls in Re F [1991] Fam 25, 31, [1991]
1 FLR 1, 4, when he referred to persecution, or ethnic, sex,
or any other discrimination. I am equally doubtful of the
principle enabling a judge in this jurisdiction to criticise
the standards or paramount principles applied by the family
justice systems of a non-member State save in such
exceptional circumstances.
035 in summary, there are three relatively recent
decisions of this court on defences to peremptory return
applications asserting that the system of justice in the
foreign State threatened the paramount welfare principle.
They are of course Re S, Re M and Re JA. Only in the last
case did the defence succeed. But in my opinion that was not
because this court was signaling a
<* page 650>
change of course but because expert evidence established
that risk of harm to the child if return were ordered.
036 Of these three cases perhaps that which is nearest on
the facts to this is the ease of Re S. In neither case was
there any specific evidence of harm or risk of harm. In each
there was a generalized attack on the application of Muslim
perceptions of child welfare. Both States had received
systems of law during the brief flowering of the British
Empire. Pakistan applied s 17 of the Guardians and Wards
Act 1890 in these terms:
‘In the event of a dispute involving the
physical care of a child, the court shall be
guided by what, consistently with the law to
which the minor is subject, appears in the
circumstances to be for the welfare of the
minor.’
037 Post independence, both States have chosen to move to
an orthodox Islamification of family law. In such
circumstances it would seem to me to be particularly
insensitive of a court in London to hold that that move
offended a concept of child welfare that we retain.
038 I agree with Connell J that the outcome in particular
cases is particularly dependent on the factual matrix. His
findings of fact cannot be challenged. Nor can his
directions as to the law be faulted. In my opinion he was
plainly right in his conclusions.
039 I would dismiss this appeal.
PILL LJ:
040 I agree. The judge found the following facts at p
161:
‘In my view it is clear that the children had
habitually resided in the Sudan until 9 May
1999. They are Sudanese children removed from
(by?) the mother from familiar surroundings to
the UK. They speak a very limited amount of
English. The children are now living in
temporary accomodation, there is much doubt as
to their future and that of the mother.’
At p 168:
‘In relation to the welfare of the children:
in May 1999 they were settled in the Sudan.
They appear to be doing pretty well. The
eldest boy won a prize for “ideal pupil”.
They saw the mother and had extended contact.
The abduction took place when they were on
extended contact. In this country they are
strangers. Their future is uncertain. The
father says and I accept, that he intends to
return this year or next year to Khartoum when
he has bought a house. The mother’s broader
family is in the Sudan – has lived there for
the last 5 years.’
041 As to the law which would be applied in the Sudan,
the judge received evidence from an expert who set out the
principles of law which apply in circumstances such as the
present. The judge concluded at p 167:
‘Here the evidence of the expert is that the
courts in the Sudan do take account of the
best interests of the children but they do so
in accordance with Sudanese law and culture,
which involves different concepts from British
concepts. With a Sudanese Muslim family
habitually resident in
<* page 651>
the Sudan this is scarcely surprising. In my
view the courts in Sudan will apply Muslim law
which is appropriate and acceptable to this
Muslim family.’
042 It is not disputed that in the Sudan there is a
judicial system which operates under the rule of law. What
is submitted is that the operation of the Sudanese rule that
in present circumstances the mother cannot obtain a
residence order, is unacceptable and inconsistent with
English law notions of child welfare even though substantial
access by the mother to the children is provided,
043 I have no difficulty in accepting the judge’s
conclusion that the application of Muslim law to this Muslim
family is appropriate and acceptable. It is submitted on
behalf of the mother that the welfare of children, paramount
in English law, must take priority over notions of
international comity and respect for foreign courts in
non-Convention Stales. In my judgment the two arc not
inevitably in conflict, These arc Sudanese children. Their
welfare may well he served by a decision in accordance with
Sudanese law which may be taken to reflect the norms and
values of the Sudanese society in which they live. That is
a principle which the judge was entitled to lake into
account upon the facts of the ease, thereby giving
paramountcy to the welfare of the children. A solution in
accordance with local law is capable of being in the best
interests of the children. In Re F (A Minor) (Abduction.’
Jurisdiction) [1991] Fam 25, [1991] 1 FLR 1 Lord Donaldson
MR stated at 31H and 5 respectively:
‘Which court should decide depends, as I have
said, on whether the other court will apply
principles which are acceptable to the English
courts as being appropriate, subject always to
any contra-indication such as those mentioned
in Art 13 of the Hague Convention, or a risk
of persecution or discrimination, but prima
facie the court to decide is that of the State
where the child was habitually resident
immediately before its removal.’
044 Lord Donaldson also approved a statement made by
Balcombe LJ in G v G (Minors: Abduction) [1991] 2 FLR 506.
Balcombe LJ staled:
‘ . . . in enacting the 1985 Act, Parliament
was not departing from the fundamental
principle that the welfare of the child is
paramount. Rather it was giving effect to a
belief that in normal circumstances it is in
the interests of children that parents or
others should not abduct them from one
jurisdiction to another, but that any decision
relating to the custody of children is best
decided in the jurisdiction in which they have
hitherto normally been resident . . . ‘
045 Those statements of principle were repeated in this
court in Re S (Minors) (Abduction) [1994] 1 FLR 297. Nolan
LJ stated:
‘It is settled law that although Pakistan is
not a signatory to the Hague Convention, we
must apply the philosophy of the Convention to
the case before us; see G v C . . . and Re F .
. . This philosophy is that in normal
circumstances it is in the interests of the
children that parents or others should not
abduct them from one jurisdiction to another
but that any
<* page 652>
decision relating to the custody of children
is best decided in jurisdiction in which they
have hitherto been normally resident . . .’
046 Nolan LJ went on to consider the facts of that case
which involved Pakistan, He added:
‘In the present case tIme argument before us
is that Sir Gervase Sheldon wrongly failed to
appreciate or take sufficient account of the
fact that attitude of the Pakistani courts
towards the welfare of the children would
differ significantly from that of an English
court.’
047 Having considered the facts Nolan LJ said:
‘In my judgment, Sir Gervase Sheldon was fully
entitled to take the view that, for Muslim
children of Muslim parents whose home hitherto
has been in Pakistan, the principles of
Pakistani law are appropriate by English
standards’ – my emphasis.
048 The principle I have identified will not of course be
decisive in every case. There will be cases in which the
links between the children and foreign State are less strong
than they are in the present case. There may a be cases, as
Lord Donaldson MR contemplated, in which the nations
children’s upbringing in the foreign State are wholly
repugnant to English notions of provision for the welfare of
children. On the present facts, however, the conclusion of
the judge was in my view unimpeachable. Like Thorpe LJ, I
also do not agree with the suggestion that Re M (Abduction:
Peremptory Return Order) [1996] 1 FLR 478 was decided per
incuriam.
049 I agree that the appeal should be dismissed.
STUART-SMITH LJ:
050 I also agree, for the reasons given by my Lords.
051 Appeal dismissed. Detailed assessment of parties’
costs. Children wardship to terminate on departure.
Solicitors:
Miles & Partners for the mother
Sally Morris for the father
Barrister:
Philippa Johnson