Re H (Minor: Abduction)Family Division
[1990] 2 FLR 439, [1990] FCR 990
Date: 16 Jan 1990
CATCHWORDS:
Child abduction — Mother granted interim custody of child
by Canadian court — Mother taking child to England without
obtaining necessary leave of court — Whether removal of child a
breach of rights of custody attributed to a person, institution
or other body — Whether removal wrongful — hague Convention on
the Civil Aspects of International Child Abduction, Art. 3.
HEADNOTE:
The mother and father of a child had lived together in
Canada. They separated an an order was made by an Ontario court
granting interim custody of the child to the mother with interim
access to the father. The court also ordered that the child was
not to be removed form Ontario without the leave of the court.
The mother took the child to England without obtaining leave of
the court or informing th father. The father applied to the
English High Court for the child to be returned to Ontario on the
ground that the removal by the mother was wrongful under Art 3 of
the Hague Convention, which provided that the removal of a child
was to be considered wrongful if it was in breach of the rights o
custody attributed to a person, an institution or another body,
either jointly or alone, under the law of the State in which the
child was habitually resident immediately before the removal.
The mother contended that the removal was not wrongful because
the rights of custody resided in the mother and the words ‘breach
of the rights of custody’ in Art 3 meant ‘breach of other
people’s rights, not the mother’s own right’s.
Held — ordering the return of the child to Ontario — there
was nothing in Art 3 of the Convention which indicated that the
breach of the ‘rights of custody’ had to be a breach of the
rights belonging to another person. The mother was in breach of
her own rights of custody which she had been granted under the
law of Ontario and, accordingly, the removal of the child was
wrongful within the meaning of Art 3 of the Convention.
NOTES:
Statutory provision considered
Hague Convention on the Civil Aspects of International Child
Abduction 1980, Art 3 (as set out in the Child Abduction and
Custody Act 1985, Sch. 1)
CASES-REF-TO:
C (A Minor) (Abduction), Re [1989] 1 FLR 403; [1989] 1 WLR 654;
[1989] 2 All ER 465 CA
J (A Minor) (Abduction), Re [1990] 1 FLR 276; [1989] Fam 85;
[1989] 3 WLR 825, FD
COUNSEL
Joanna Dodson for the father; Michael Warren for the mother.
PANEL: Ewbank J.
JUDGMENT BY-1: Ewbank, J
JUDGMENT-1:
Ewbank J: This is an application by a father under the
Hague Convention which was brought in to force in England under
the Child Abduction and Custody Act 1985. The Child concerned is
K, born on 11 May 1988 and who is now 1 3/4 years old. Her
mother is Scots by birth. Her father comes from Northern Ireland
the both lived in Canada. They lived together there from about
Easter 1984 until December 1988 and K was born in Canada.
In December 1988 the mother came to England, bringing K with
her, and she stayed with relations in England until Jun 1989.
She then returned to Canada. When she returned, the father
wanted to resume seeking K but there were difficulties and he
made an application to the Supreme Court of Ontario.
On 19 September 1989 there was a consent order made by the
Supreme Court of Ontario granting interim custody to the mother;
also granting interim access to the father. Included in the
order, but not necessarily by consent, was that the child was not
to be removed from Ontario without the leave of the court.
There is some doubt whether the mother realised the
significance and importance of that provision. I have seen a
letter from her solicitor in Ontario to her, indicating that she
is not sure whether the mother realised the full meaning of the
order. In any event, after the order for interim custody to the
mother, the mother on 28 September 1989 returned to England with
K. She did not seek or obtain the leave of the court and she did
not tell the father what she was doing.
The father made an application to the Ontario court and
started these proceedings by originating summons of 6 December
1989. These proceedings are issued asking for the return of the
child to Ontario on the ground that the removal of the child by
the mother was wrongful under Art 3 of the Hague Convention.
This article provides that the removal of a child is to be
considered wrongful if 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. It is
conceded that K was habitually resident in Ontario at the time
the mother brought her to England. The issue, accordingly, is
whether the removal by the mother was in breach of rights of
custody attributed to a person, an institution or any other body
either jointly or alone.
In Re C (A Minor) (Abduction) [1989] 1 FLR 403 it was held
that the right of custody might reside in the court or in a
mother or a father or some care-taking institution, and in that
case where there had been an order where the child was not to be
removed from Australia without the consent of both parents, it
was held that the father had a limited right of custody in that,
under Art 5 of the Hague Convention, he had a limited right to
determine the child’s place of residence. In Re J (A Minor)
(Abduction) [1990] 1 FLR 276 the right of custody in a wardship
case was held to reside in the court and, accordingly, a removal
without the court’s consent was held to be a wrongful removal.
This case takes the matter a stage further. On behalf of
the mother it is said that, although the mother’s removal of the
child was contrary to the order of the Ontario court, it could
hardly be in breach of any rights of custody since the rights of
custody resided in the mother. And it is boldly said on behalf
of the mother that the words ‘breach of rights of custody’ in Art
3 of the Hague Convention must mean breach of other people’s
rights of custody, not the breach of the mother’s own rights.
When the matter first came on, there was no certificate of
relevant law under Art 8(f) of the Hague Convention nor any
expert evidence on the law of Ontario and I suggested that an
application should be made under Art 15 for a declaration that
the removal of the child was wrongful according to the law of
Ontario. In the short time available it has not been possible to
obtain such a declaration but instead a certificate has been
issued by the central authority of Ontario, dealing with the
relevant law. This certificate is issued under Art 8(f) of the
Convention, supplemented by an affidavit by the Crown law Officer
in the Crown Law Office at the Ministry of the Attorney-General
of the Province of Ontario.
The affidavit states that it is the opinion of the Crown Law
Officer that the mother’s conduct in removing the child from the
Province of Ontario constituted a wrongful removal within the
meaning of Art 3 of the Convention in that it was a breach of the
rights of custody attributed to her under the law of the Province
by reason of a judicial decision. Her rights of custody under
the order of 19 September 1989 were rights of custody within the
province of Ontario which specifically provided by the order of
the court that the child was not to be removed from Ontario, and
in removing the child the mother was in breach of the rights of
custody which she had been granted. The certificate from the
central authority of the Province of Ontario is to the same
effect.
There is nothing, in my judgment, in Art 3 which indicates,
as the mother asserts, that the breach of the rights of custody
has to be a breach of the rights belonging to some other person.
In my judgment, it is clear that the removal of the child is to
be considered wrongful and, accordingly, the child must be
returned to the Province of Ontario.
DISPOSITION:
Order accordingly
SOLICITORS:
Hodge Jones & Allen for the father; Edwin Coe, agents for
Waddington & Son, for the mother.