UK – RE F – 1990

UK – RE F – 1990 (Return ordered on appeal) (Return to a non-Hague Convention Country) Mother asks for the return of the child to Israel. Israel was not a signatory of the Hague Convention. The English court gave interim control and care to the father and ordered the mother not to remove the child from the courts jurisdiction. The mother appeals the decision. The mother’s appeal was allowed. The child was ordered returned to Israel. This case relied on practices which the Australian courts have adopted.

==========================================================

Re F (Minor: Abduction: Jurisdiction)[1990] 3 All ER CA 97 [WMH Note 01]
[1991] Fam. 25

Court of Appeal, Civil Division
Lord Donaldson of Lymington MR, Neill and Balcombe LJJ
30 Jul 1990

Minor — Custody — Rights of custody — Foreign custody rights
— Jurisdiction — Wrongful removal or retention — Removal from
non-convention country — Father removing child from Israel to
England in breach of mother’s rights of custody — Mother
obtaining interim custody order from Israeli court — Father
subsequently obtaining similar order from English court —
Principles applicable in deciding appropriate forum to determine
child’s welfare — Whether English court should order child to be
returned to Israel — Child Abduction and Custody Act 1985, Sch
1, art 13.

The father, who had both English and Israeli nationality, married
the mother, an Israeli national, in Israel in 1979. They had two
boys, one born in 1980 and another born in 1986. The parties
resided in Israel except for a period between 1982 and 1985 when
they lived in England. The marriage was not happy and throughout
there were difficulties, separations and reconciliations. In
1989 they finally separated. Under Israeli law they were joint
guardians of the children. On 4 April 1990 the father came to
England with the youngest child, B, and, in breach of the
mother’s rights of custody under Israeli law, refused to return
the child to the mother. On 15 April the mother applied to an
Israeli court for interim custody of both children. The mother
then applied to the county court for an order requiring the
father to return the child to Israel but the judge gave interim
care and control of the child to the father pending further
inquiries by the court welfare officer and ordered the case to be
transferred to the High Court and also forbade the mother to
remove the child out of the jurisdiction. The mother appealed
against those orders. Since Israel was not a party to the
Convention on the Civil Aspects of International Child Abduction
as set out in Sch1 to the Child Abduction and Custody Act 1985
the question arose as to the extent to which convention
principles were applicable.

HELD — Where a child was wrongfully removed from a foreign
jurisdiction to the United Kingdom an English court should not
retain jurisdiction merely on the basis that a possible outcome
of custody proceedings, whether in the United Kingdom or the
foreign jurisdiction, was that the child may be ordered to remain
in the United Kingdom. Instead, applying the principle that the
welfare of the child was paramount, it was normally in the
interests of a child that it should not be abducted and any
decision relating to the custody of the child was normally best
decided by the court in the state where the child was habitually
resident. Accordingly, the English court should order the return
of the child to the jurisdiction of the court in the state where
the child was habitually resident if that court would apply
principles which were acceptable to English courts, there were no
contraindications such as to referred to in art 13 [FN-1] of the
[98] convention and there was no risk of persecution or
discrimination. Where the removal of a child was in breach of
rights of custody, the existence of prior orders by a foreign
court did no more than affirm or reinforce those rights and,
furthermore, the fact that there were ties with England was
merely on of the matters to be considered by the court charged
with resolving the dispute between the parents and did not point
to the English court as being the appropriate court for that
purpose. Moreover, possible outcomes of any proceedings had no
bearing on which court should decide the issue of custody.
Applying the normal rule that abducted children should be
returned to their country of habitual residence the father would
be ordered to arrange for the immediate return of the child to
Israel. The mother’s appeal would accordingly be allowed (see p
100 b to gj to p 101 d, post).

Notes

For the return of abducted children, see Supplement to 8
Halsbury’s Laws (4th edn) para 525A.

Cases referred to in judgments

Barrios and Sanchez [1989] FLC 92-054, Aust.Fam.Ct.
G (a minor) (wardship:jurisdiction), Re [1984] FLR 268, CA.
Giraudo v Giraudo [1989] CA Transcript 527.
H (infants), Re [1966] 1 All ER 886, [1966] 1 WLR 381, CA.
H and H [1985] FLC 91-640, Aust.Fam.Ct.
Khamis and Khamis [1978] FLC 90-486, Aust.Fam.Ct.

Case also cited

L (minors) (wardship:jurisdiction) [1974] 1 All ER 913, [1974] 1
WLR 250, CA.

Appeal

The mother of a minor appealed against the order of her Honour
Judge Vinner QC sitting in the Hastings County Court on 2 July
1990 granting interim custody, care and control of the child Ben
to the father until final disposal of the matter, refusing to
mother’s application for the return of the child to Israel,
ordering the parties’ claims for custody of the child to be heard
by the Family Division of the High Court and restraining the
mother from removing the child from the father’s care or from the
jurisdiction of the court. The facts are set out in the judgment
of Lord Donaldson MR.

Adrian Salter for the mother.
Judith Rowe for the father.

LORD DONALDSON OF LYMINGTON MR

This is an international child abduction case. It is not,
however, one to which the Child Abduction and Custody Act 1985
applies because Israel has not yet been named in an Order in
Counsel made under s 2, and may indeed not be a party to the
Convention on the Civil Aspects of International Child Abduction
(The Hague, 25 October 1980; TS 66 (1986); Cm 33) to which that
Act gives effect. Nevertheless, like all international child
abduction cases, it is in a special category.

The facts are these. The father is English by birth, but
has acquired additional Israeli nationality. The mother is
Israeli by birth. They met at Kibbutz Yig’at in Israel in 1975
and in 1977 the father was converted to Judaism. He returned to
England in January 1979 sent the mother a telegram announcing
that he was coming to Israel and proposing marriage. His
proposal was accepted and he went to Israel. However, in May
1979 he had second thoughts and broke off the engagement. In the
following month the couple were in fact married, when the mother
told him that she was pregnant, and the child, Ron, was born in
January 1980. Ron is therefore ten and a half years old. Ben,
the child [99] with which these proceedings are primarily
concerned, was born in September 1986 and is therefore just under
four years old.

The marriage has not been a happy one and in May 1989 the
parties were considering a divorce. Nothing came of this, but in
September 1989 they executed an informal separation agreement and
were rehoused in separate accommodation in the kibbutz. Under
the agreement both parents had ‘control’, to use the word used in
the agreement, of the children and it provided for divided care.
Whatever the status of that agreement, it is clear that under ss
14 and 15 of the Israeli Capacity and Guardianship Law 1962 the
parents are joint guardians of their minor children, and have
joint custody and the joint right to determine their place of
residence. [WMH Note 02]

The basic disagreement between the parents is clearly
concerned with where they shall live, although there are no doubt
other problems. The father wants to live in England. Indeed, he
left the mother and Ron, the elder child, in Israel in October
1980, and it was not until September 1982 that he and the mother
were reconciled. That reconciliation was achieved when the
mother and Ron joined him in England. The mother was unhappy in
England, but stayed here until 1985 when the family moved back to
Israel. Since then, both parties have lived in Israel, although
the father paid a short visit to England last Christmas,
accompanied by the younger son, Ben. Before the mother would
agree to that visit, she required the father to give security for
the prompt return of Ben. [WMH Note 03]

On or about 4 April of this year the father came to England,
taking Ben with him. They are now living with the paternal
grandparents. He neither obtained nor even sought the consent of
the mother, and left her a letter falsely promising to return Ben
on 18 April. On 15 April the mother applied to the District
Court of Nazareth for interim custody of both children, and on 26
April the father made a similar application to the Hastings
County Court in relation to Ben. The Nazareth court made an
order in favour of the mother and ordered the father to return
Ben. [WMH Note 04] The mother applied to the Hastings court for
an order requiring the return of Ben to Israel, but this was
refused pending further inquiries in the form of a court welfare
officer’s report which was to include the result of inquires in
Israel. Meanwhile, the father was given interim custody and care
and control, the case was transferred to the Family Division of
the High Court and the mother was forbidden to remove Ben from
the jurisdiction.

The Hastings County Court orders were made by her Honour
Judge Viner QC, and it is from those orders that the mother now
appeals.

No one could or would criticize the judge’s decision to
order further inquiries and to give interim care, custody and
control to the father, who is, after all, the only parent present
in England, provided always that it was appropriate that the
English rather than the Israeli courts should decide what the
welfare of Ben required. If it was more appropriate that this
should be decided by the Israeli court, as I have no doubt that
it was, she should have ordered the return of Ben to Israel at
the earliest possible moment.

If this had been a convention case, there would have been no
argument. The father’s action in bringing Ben to England was a
‘wrongful removal’ within the meaning of the convention, having
been undertaken in breach of the mother’s rights of custody under
the law of Ben’s habitual place of residence immediately before
the removal. There are no contraindications, such as those
contemplated by art 13. But this is not a convention case and
the question inevitably arises of the extent to which convention
principles are applicable.

I agree with Balcombe LJ’s view expressed in Giraudo v
Giraudo [1989] CA Transcript 527 that, 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
the children that parents or others shall not abduct
them from one jurisdiction to another, but that any
decision relating to the custody of the children is
best decided in the jurisdiction in which they have
hitherto been normally resident.’

[100] This decision was not drawn to the judge’s attention,
although she was referred to two earlier cases, Re H (infants)
[1966] 1 All ER 886, [1966] 1 WLR 381 and Re G (a minor)
(wardship:jurisdiction) [1984] FLR 268, in which children were
ordered to be returned. She distinguished those cases on the
grounds that in each case there had been orders by foreign courts
relating to the children prior to their removal and that in Re G
the family had no fixed ties with England, although the mother
was of English nationality. In the instant case, by contrast,
she held that the father had important ties with England and that
not all Ben’s ties were with Israel.

For my part, I consider that the existence of prior orders
by a foreign court is of little, if any significance so long as
the removal was in breach of rights of custody. [WMH Note 05]
The existence of a prior order would do no more than affirm and
reinforce those rights. So far as ties with England are
concerned, this is not one of the matters which falls to be
considered by the court charged with resolving the dispute
between the parents. It does not point to the English courts as
the courts appropriate for that purpose.

Similarly, I reject the judge’s reliance on her view of
Ben’s future. As she put it: ‘. . . this is not a case where his
future is inevitably tied up with Israel. It might be so, but
that is not an inevitable certainty.’ That is something which
has to be taken into account by the appropriate court, be it
English or Israeli, but does not point to one rather than the
other.

Finally, the judge expressed doubts as to the extent to
which the father is free to return to Israel without adverse
consequences as a result of his abduction of Ben. If, for
example, he were imprisoned, this would deprive Ben of his
father’s care and attention for a period. Quite apart from the
fact that this involves the father being allowed to rely on his
own wrong, it ignores the fact that, so long as Ben remains in
England, he is cut off from his mother and younger brother. In
fact, the criminal charges were instituted in Israel by the
mother when she discovered that Ben had been abducted, and we are
told that she does not intend to press those charges. Of course,
it will be for the Israeli authorities to decide what difference
that makes. [WMH Note 06]

There is no evidence that the Israeli courts would adopt an
approach to the problem of Ben’s future which differs
significantly from that of the English courts. It is not a case
in which Ben or his father are escaping any form of persecution
or ethnic, sex or other discrimination. In a word, there is
nothing to take it out of the normal rule that abducted children
should be returned to their country of habitual residence.

The welfare of the child is indeed the paramount
consideration, but it has to be considered in two different
contexts. The first is the context of which court shall decide
what the child’s best interests require. The second context,
which only arises if it has been decided that the welfare of the
child requires that the English rather than a foreign court shall
decide what are the requirements of the child, is what orders as
to custody, care and control and so on should be made.

In my judgment, the judge mixed the two questions. Thus, in
her judgment, having distinguished Re G (a minor)
(wardship:jurisdiction) [1984] FLR 268, on the basis that the
parents were of different nationalities, but the mother, though
English, had no fixed ties with Britain, she continued in this
way:

‘In this case the applicant clearly has important ties
with this country notwithstanding his conversion and
acceptance of dual nationality. It could not be said
that on common sense all Ben’s ties are with Israel.
As regards the future and Ben, this is not a case where
his future is inevitably tied up with Israel. It might
be so, but that is not an inevitable certainty.’

In other words, she was saying that, if one possible outcome of
any proceedings, whether in Israel or England, would be that Ben
might remain in England, the English courts should retain
jurisdiction.

This is an error in principle. Possible outcomes have no
bearing on which court should decide. Which court should decide
depends, as I have said, on whether the court will [101] apply
principles which are acceptable to the English courts as being
appropriate, subject always to any contraindication such as those
mentioned in art 13 of the 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.

I would allow the appeal accordingly and order the immediate
return of Ben to Israel.

NEILL LJ.

I agree. The general principle is that, in the ordinary
way, any decision relating to the custody of children is best
decided in the jurisdiction in which they have normally been
resident. This general principle is an application of the wider
and basic principle that the child’s welfare is the first and
paramount consideration. This principle is subject to exceptions
and these exceptions will no doubt be worked out in future cases.
In the present case, however, I can see no reason whatever why
the general principle should not be applied. I too consider that
the judge erred in this case and applied the wrong principle.
Accordingly, this court is entitled to, and should interfere. I
too, for the reasons explained by Lord Donaldson MR, would allow
this appeal.

BALCOMBE LJ

I agree that this appeal should be allowed for the reasons
given by Lord Donaldson MR and Neill LJ and following the
decision in Giraudo v Giraudo [1989] CA Transcript 527.

I add that the effect we are giving to the Child Protection
and Custody Act 1985 in relation to non-convention countries is
consistent with the practice which the Australian courts have
adopted.

By 1976 Australia had entered into bilateral treaties with
New Zealand and Papua New Guinea with respect to children removed
from those jurisdictions, and those treaties were enshrined in
the provisions of s 68 of the Australian Family Law Act. That
enactment helped then to shape the common law. In Khamis and
Khamis [1978] FLC 90-486, when dealing with a child who had been
removed from California, the Full Court of the Family Court of
Australia indicated that, in determining an appropriate forum,
the court should endeavour to apply principles identical to those
outlined in s 68 of the Family Law Act, notwithstanding that
California was not a signatory to any bilateral treaty, nor did
the legislation particularly apply to it.

Australia, but not Chile, is a party to the Convention on
the Civil Aspects of International Child Abduction (The Hague, 25
October 1980; TS66 (1986); Cm 33), and in Barrios and Sanchez
[1989] FLC 92-054 the Full Court of the Family Court of Australia
was concerned with children who had been removed from Chile to
Australia. In its judgment the court said (at 77,609):

‘. . . the clear policy of the Convention is that save
in exceptional circumstances, children who have been
removed from their lawful custodial parent in another
country without the authority of a court should be
returned to that parent. In the present case we think
it is appropriate to take this into account as an
element to be considered. . . ”

I also agree with what the Full Court of the Family Court of
Australia said in H and H [1985] FLC 91-640 that, as a general
principle, courts should act in comity to discourage the
abduction of children across national borders. The forum which
has the pre-eminent claim to jurisdiction is the place where the
child habitually resided immediately prior to the time when it
was removed or retained without the consent of the other parent.

In my judgment, a rapid accession to the Hague Convention by
all nations would be a welcome advance towards the recognition of
the rule of law by all nations.

Appeal allowed

Solicitors: Cartier and Co (for the mother); Morgan & Lamplugh,
Hastings (for the father)

Mary Rose Plummer, Barrister.

—————————————————
[WMH Note 01]: This case applies The Convention on the Civil
Aspects of International Child Abduction, done at the Hague on 25
Oct 1980 [Convention] to countries that are not contracting
states within the meaning of Art 28. This apears to be contra to
the rule in the United States: See Mohsen v Mohsen (Dist.Ct.
Wyoming 1989), No. C89-0147J.

[WMH Note 02]: The existence of joint custody rights in the
parents prior to any form of legal action has been held to be a
right of custody within the meanings of Arts 3 and 5 of the
Convention in all cases that have applied this type of a statute.
For typical language see California Civil Code Section 197.

[WMH Note 03]: A typical agreement would include language that
(here) Isreal was the Habitual Residence of the child within the
meaning of Art 3, that the retention of the child beyond a
certain date was a wrongful retention within the meaning of Art
3, that the parent in the Habitual Residence had and was
exercising a right of custody within the meaning of Art 5, etc.

[WMH Note 04]: If reasonable notice and opportunity to be heard
were given, this order would be enforceable in nearly all of the
United States pursuant to 9 Uniform Laws Annotated (ULA) 23, the
Uniform Child Custody Jurisdiction Act (UCCJA).

[WMH Note 05]: See Art 3 of the Convention. It is important to
stress to the court that the right of custody spoken of in the
Convention does not require a formal court order, it may and is
usually found by operation of law and possibly custom.

[WMH Note 06]: An argument can be made that abduction of a child
is per se child abuse and accordingly the parent that takes the
child should not be allowed to have custody as that parent is a
child abuser. Further the seeking of criminal sanctions may be
the only practical way the left behind parent has to locate and
cause the return of the child, particularly as to the costs of
investigation, location, etc. This attitude also impinges on the
sovereignty of the country of Habitual Residence as to the
application of their laws on such issues.

——————–
1. Article 13, so far as material, provides: ‘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 removal 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.’