In re H (Minors) (Abduction: Custody RightsIn re S (Minors) (Abduction: Custody Rights
[Consolidated Appeals]
[United Kingdom 1991]
[1991] 2 AC 476, [1991] 3 All ER 230, [1991] 3 WLR 68, [1991] 2
FLR 262, [1991] Family Law 427, 1992 [1 FCR 45
Lord Donaldson of Lymington M.R.
Stuart-Smith L.J. and Sir Roger Ormrod
23, 27 Jul 1990
Lord Bridge of Harwich, Lord Brandon of Oakbrook
Lord Griffiths, Lord Oliver of Aylmerton
and Lord Jauncey of Tullichettle
07, 08 May; 13 Jun 1991
Minor — Custody rights — Breach — Children resident in Ontario
and California in mothers’ custody — Taken out of jurisdiction
by fathers without mothers’ knowledge in breach of court orders
— Whether wrongful “retention” or “removal” — Whether wrongful
retention single event — Canada and United States subsequently
acceding to Hague Convention on Child abduction — Whether
Convention applicable — Child Abduction and Custody Act 1985
(c.60), s.2(2), Sch. 1, art. 3
In the first appeal, the father of two children who where
Canadian nationals and in the custody of their mother had failed
to return the children to their mother after a period of access
and without her knowledge and in breach of an order of the
Supreme Court of Ontario, had taken them outside the jurisdiction
to india and later to England. The mother, having discovered her
childrens’ whereabouts, applied to the High Court in England for
their return to Canada under the Child Abduction and Custody Act
1985 FN 01 which gave effect to the 1980 Hague Convention on
the Civil Aspects of International Child Abduction. The judge
dismissed the application , and the Court of Appeal upheld his
decision, on the ground that the childrens’ removal had occurred
before the date upon which Canada, in relation to the Province of
Ontario, had become a contracting state for the purposes of the
Act, by an Order in Council which made no special provision for
retrospectivity and that their subsequent presence in the United
Kingdom did not constitute a continuing “retention” within the
meaning of the Convention.
In the second appeal, the father of two American children in the
custody of their mother had similarly failed to return them after
a period of access and, without the mother’s knowledge and in
breach of an order of a Califorian court, had taken the children
outside the jurisdiction to England. The mother applied to the
High Court for the return of her children under the Act. The
judge held that since the children had been taken from the United
States before it had become a contracting state, she was bound by
the decision of the Court of Appeal to hold that the Act and the
Convention did not apply.
On appeals of the mothers: —
Held, dismissing the appeals, that on a true construction of the
Convention, both removal and retention of a child in breach of
custody rights were single events occurring on a specific
occasion; that removal, being the removal of a child from the
jurisdiction of a state of its habitual residence and retention,
being the retention of a child lawfully removed for a limited
period from the jurisdiction but not returned on the expiry of
that period, were mutually exclusive concepts under the
Convention; and that, accordingly, since the children in both
appeals had been removed from the states of their habitual
residences on dates prior to the coming into force of the
Convention, the court had no jurisdiction under section 2(2) of
the Act of 1985 to order their return (post, pp. 491F, 499F-G,
500B-C, D-E, 501B-F).
Decisions of the Court of Appeal, post, pp. 481B et seq.: [1991]
2 W.L.R. 62; [1991] 1 All E.R. 836 and of Booth J., post, p. 489G
affirmed.
The following cases are referred to in the opinion of Lord
Brandon of Oakbrook:
B v. B. (Minors: Enforcement of Access Abroad) [1988] 1 W.L.R.
526; [1988] 1 All E.R. 652
In the marriage of W. M. and G.R. Barraclough (1987) 11 Fam. L.R.
773
C. v. C. (Abduction: Rights of Custody) [1989] 1 W.L.R. 654;
[1989] 2 All E.R. 465, C.A.
In re E. (A Minor) (Abduction) [1989] 1 F.L.R. 135, C.A.
Fothergill v Monarch Airlines Ltd. [1988] A.C. 251; [1980] 2 All
E.R. 696, H.L. (E.)
In the marriage of J. G. Gollogy and E. A. Owen (1989) 13
Fam.L.R. 622
In re Mahaffey (A Minor) (unreported), 08 Oct 1990, Sir Stephen
Brown, P.
Navarro v Bullock (Unreporeted), 01 Sep 1989, Superior Court of
California
Sheikh v Cahill (1989) 546 N.Y.S.2d 517
Widlund v Widlund (unreported), 07 Dec 1989, District Court of
Minnesota
Palle v Palle (unreported) 23 Feb 1990, Circuit Court of
Illinois.
Reg. v Secretary of State for the Home Department, Ex parte Read
[1989] A.C. 1014; [1988] 3 W.L.R. 948; [1988] 3 All E.R. 993,
H.L. (E.)
In re S. (A Minor) (unreported), 18 May 1990, Court of Appeal
(Civil Division) Transcript No. 475 of 1990.
Viola v. Viola, 1988 S.L.T. 7
Widlund v Widlund (unreported), 07 Dec 1989, District Court of
Minnesota
The following case is referred to in the judgment ofLord
Donaldson of Lymington M.R. in In re H:
In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562;
[1990] 3 W.L.R. 492; [1990] 2 All E.R. 449, C.A.; [1990] 2 A.C.
562; [1990] 3 W.L.R. 492; [2 All E.R. 961, H.L (E.)
The following addtional cases were cited in the argument in the
Court of Appeal in In re H.:
In re E. (A Minor) (Abduction) [1989] 1 F.L.R. 135, C.A.
In re S. (A Minor) (unreported), 18 May 1990, Court of Appeal
(Civil Division) Transcript No. 475 of 1990
The following additional cases, although not cited, were referred
to in the skelton arguments submitted to the Court of Appeal:
C. v. C. (Abduction: Rights of Custody) [1989] 1 W.L.R. 654;
[1989]2 All E.R. 465, C.A.
Fothergill v Monarch Airlines Ltd. [1988] A.C. 251; [1980] 2 All
E.R. 696, H.L. (E.)
P. (G.E.) (An Infant), In re [1965] Ch. 568; [1965] 2 W.L.R. 1;
[1964] 3 All E.R. 977 C.A.
Appeal from Anthony Lincoln J.
On 11 July 1990 Anthony Lincoln J. dismissed the mother’s
application for the return of her sons, T. and J. to her custody
and to the jurisdiction of the Ontario Court pursuant to the
Child abduction and Custody Act 1985 and the 1980 Hague
Convention on the Civil Aspects of International Child Abduction
(Cmnd. 8281). The mother appealed on the grounds that (1) the
judge was wrong in law in holding that the father’s retention of
the children in or after March 1986 was not a wrongful retention
to which the Act of 1985 applied; (2) the judge was wrong in law
in holding that a retention within the terms of the Act and the
Convention, and in particular within the terms of section 2(2),
was not a continuing act but one which occurred only on the date
when the retention began; (3) the judge was wrong in law in
holding that there was no wrongful retention occurring on or
after the date on which the Act came into force in the United
Kingdom; (4) the judge was wrong to give undue weight to
provisions in respect of time limits in the Convention and in his
interpretation of the Convention and of section 2(2) of the Act;
and (5) the judge was wrong in law in that he failed to give
sufficient weight, in his interpretation of the nature of a
wrongful retention in the terms of the Convention and of section
2(2) of the Act, to the purposes of the Act and the Convention.
The facts are stated in the judgment of Lord Donaldson of
Lymington M.R.
Nicholas Wall Q.C. and Henry Setright for the mother.
The words “removal” and “retention” in article 3 of the 1980
Hague Convention on the Civil Aspects of International Child
Abduction, incorporated into the Child Abduction and Custody Act
1985, are not coterminous. The act of abduction takes place as
soon as the child is removed, in breach of custodial rights or a
court order, from the jurisdiction of the court where he has
habitually lived. Removal from the care of the parent enjoying
custodial rights, but not from the jurisdiction, is not within
article 3. Retention, consistently with normal meaning ascribed
to it (see the Oxford English Dictionary), is not a single event,
but a continuing process. It is not confined to an act retaining
a child after a period of lawful access. Every wrongful removal
is followed by a wrongful retention until the child is returned.
The children were removed from the mother’s custody and from
the jurisdiction of the Ontario court in March 1985 and then
retained by the father. On the coming into force of the
Convention between the United Kingdom and Canada on 1 August
1986, their retention became unlawful and the provisions of the
Convention became applicable. Thus, for the purposes of article
12 of the Convention, time began to run as at that date. There
is therefore no contradiction between the concept of continuing
retention and article 12. The fact that more than one year has
elapsed from the date of the wrongful removal or retention does
not make the argument inconsistent with In re S. (A Minor)
(unreported), 18 May 1990, Court of Appeal (Civil Division)
Transcript No. 475 of 1990.
Retention as here defined is consistent with the purpose of
the Convention, namely, to enable the court to exercise its
jurisdiction in respect of as many children as were unlawfully
retained as at August 1986, subject to the temporal safeguards
provided by articles 12 and 13. There is no binding authority
defining “wrongful retention.” If, as suggested in In re J. (A
Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, 571, the
words may apply to situations other than retention after lawful
access, then the present case falls within article 3. If
retention is defined not as a continuous process, but as a single
event, then such an event occurred on the date when the
Convention first took cognisance of it, namely, 1 August 1986, so
that article 3 would still apply.
Paul Focke Q.C. and Edward Fitgerald for the father.
Provision was made by section 2(2) of the Child Abduction
and Custody Act 1985 and an Order in Counsil for the date on
which the Convention was to come into force between the United
Kingdom and Canada. There is no provision in the legislation for
retrospectivity, although such a provision could have been made.
The Convention therefore applies to wrongful removals and
retentions occurring on or after the specified date, namely 1 Aug
us 1986. Both events took place long before the Convention came
into force.
“Retention” means non-return of the children to the person
having rights of custody over them under the law of the state of
their habitual residence after a temporary period of lawful
access or possession enjoyed by some other party in another
jurisdiction: see In re E. (A Minor) (Abduction) [1989] 1 F.L.R.
135 and In re J. (A Minor) (Abduction: Custody Rights) [1990] 2
A.C. 562.
The children were wrongfully removed when the father took
them abroad in March 1985 during a period of access which was
only lawful while they remained in Canada. Their presence in any
other jurisdiction is properly to be characterised throughout as
following an unlawful removal. There never was an unlawful
retention because there was no period of lawful possession
outside Canada which subsequently became unlawful so as to become
a retention within the meaning of the Convention. A retention
cannot follow a removal. As the disjunctive “or” in article 3
suggests, those terms are mutually exclusive and provide
independent grounds for activating the Convention. The mother
can therefore only rely on the father’s removal and that took
place long before the Convention came into force.
Alternatively, if the father’s failure to return the
children after the period of access is to be characterised as
wrongful retention within the Act, the language and purpose of
section 2(2) and the articles, particularly 3 and 12, indicate
the unlawful act is constituted by a single event, not a
continuing process. The words “removals or retentions” both
refer to events occurring at chronologically identifiable points.
Unlawful removal occurs at the date the child is removed from the
jurisdiction. Unlawful retention occurs because there has been
retention beyond the legitimate period of access. If retention
were a continuous process, every unlawful removal would turn into
an unlawful retention of indefinite duration, and there would be
no purpose in providing that Orders in Council should specify a
date for the purpose of excluding abductions or retentions prior
to its commencement. For the purpose of article 12, time starts
to run from an identifiable point. The whole operation of the
12-month rule depends on identifying that point of time. The
mother’s construction would render the 12-month rule pointless:
see In re S. (A minor) (unreported 18 May 1990; Court of Appeal
(Civil Division) Transcript No. 475 of 1990.
The purpose of the Convention is to provide for the
peremptory return of abducted children only when application is
made for a remedy within a reasonable tie after the initial
breach of custody rights in the jurisdiction of habitual
residence. That is the purpose underlying articles 12 and 13.
It will be inconsistent with that purpose to allow the remedy of
peremptory return to be available years after the initial breach
of custody rights relied on by the mother.
Wall Q.C. replied.
Lord Donaldson of Lymington M.R. announced that the appeal
would be dismissed for reasons to be given later.
Cur. adv. vult.
27 July 1990. The following judgments were handed down.
LORD DONALDSON OF LYMINGTON M.R.
This appeal is concerned with the construction and
application of the Child Abduction and Custody Act 1985, where
the chain of events relied upon as rendering it applicable began
before the Act was in force.
On 11 July 1990 Anthony Lincoln J. held that the Act had no
application and the mother, with the assistance of the Lord
Chancellor as the central authority under section 14(1) of the
Act, appealed to this court. We dismissed that appeal on 23 July
1990, but took time to put our reasons into a writing for
delivery at a later date. This we now do.
I take the facts from the judge’s judgment:
“This is a mother’s application under the Child
Abduction and Custody Act 1985 for the return of two
children to the jurisdiction of Ontario under article
12 of the Hague Convention on the Civil Aspects of
International Child Abduction. The two children are
T., who was born in Canada on 13 Aug 1978, and J., also
born in Canada on 18 October 1979. Both children have
Canadian nationality.
The mother was born in India and is a Canadian citizen.
She currently lives in Indianapolis. She has converted
to Christianity, whereas the father is a Sikh. He,
too, was born in India. he migrated to England in the
mid-1960s. They are an educated couple, he being an
electronic engineer. They married in 1974 in
Nottingham. They emigrated to Canada in 1976, where,
as I have said, the two boys were subsequently born.
In 1982 the father took the children away from the
matrimonial home to England. This was the first of a
number of removals. The couple resumed cohabitation,
and again in 1982 the same thing happened. On this
occasion, the father sent the children to India. But
some five months after their removal he returned the
children to Canada. The marriage was not a happy one
at this stage in 1983, and in January 1984 the mother
left home, taking the two boys with her to a women’s
shelter in Toronto. There she obtained an immediate ex
parte order from the Toronto court for interim custody
of th children. On 20 September 1985 Judge Michael
Bollan, sitting in the Supreme Court of Ontario, made
an order under which, among other things, he gave
custody of both children to the mother, with access to
the father. Furthermore, he imposed an injunction upon
either party restraining them from removing the two
boys from the jurisdiction of the court in Ontario.
That order and the date thereof is of importance in
this case. In March 1986 the father was due to have
the boys with him for the purpose of access for a
week’s holiday. If he had complied with the order, the
father would have returned the two children to the
mother on 15 March 1986, which is the second important
date in this history. He failed to do so. He alleged,
and continues to allege, that the children complained
of attempts by the mother to convert them to
Christianity. he alleged that they no longer wished to
live with the mother. He expressed grave concerns
about their upbringing and, above all, he stated that
he felt that the Supreme Court (I do not use his words)
really let him down by not ensuring that the children
were brought up according to the tenets of the Sikh
philosophy or religion. So, under what he described as
tremendous pressure and in the believe that the court
were unable to protect his children, he violated the
order of the Supreme Court on that date. The mother
contacted the police and lodged complaints. Since,
prima facie, the father was guilty of the criminal
offense of abduction, warrants were issued for the
father’s arrest. According to the father, he took the
children to England and then to India to what he
describes as his ‘ancestral home’ in the Punjab. There
the children were enrolled at a public school. In the
autumn of 1986, again according to the father, he
applied for a divorce.
“At the end of 1986 he applied for the custody of the
children to the Indian court. The mother acknowledged
receipt of the application through her solicitors and
forwarded a copy of the Ontario court’s judgment to the
Indian court, requesting the return of her children.
The mother’s case is that she was not subsequently
informed of the actual date of the custody hearing in
India. The father was granted a divorce in due course
and remarried and now has two children by that second
marriage. In July 1987 the mother received information
that the father and the two boys were still in India,
and she learned of the remarriage. She swore an
affidavit to support the request for the father’s
extradition from india. On 23 July 1987 Judge Bollan,
sitting in the Supreme Court in Ontario, gave leave for
the mother to obtain passports for the children for the
purpose of giving effect to her custodial rights. He
also issued an order which might result in the
apprehension of the children: what would here by
called a seek and find order. On 27 July 1987 the
Indian court sat in judgment and, exercising the
equivalent of wardship jurisdiction there, awarded
custody of the two children to the father. It would
appear that the Indian court was aware of the Canadian
judgment but nonetheless proceeded to make the order I
have just referred to. Towards the end of July the
mother wen to India, where she learned that the father
had applied for immigration papers with a view to
returning with his new wife to England along with the
two boys. The father states that the mother, during
her stay in India, went to T.’s school there and tried
to entice him away. No doubt there is a dispute about
that. He also says that the mother and he met
together, and again this is disputed. In January 1988
the mother remarried and went to live with her new
husband in Indianapolis. The father states that
towards the end of 1988 he and the two children
returned to England and lived with his mother and two
brothers at an address in Barking, Essex. There is
some quite involved dispute about the facts here not
material to this application. The father obtained
employment in this country. In June 1989 the mother,
who appears to have lost touch with the children,
located them through her sister at the address in
Barking. She then contacted the authorities in Canada
and sought legal advice. Up to this stage the Hague
Convention played no part in her thinking or the
thinking of any of her advisers. They were focusing
upon the proceedings for the father’s extradition. The
mother said that she was unaware of the Convention and
was not advised about it.
“The elder boy, T., in late 1989 sat his entrance
examination for a college in Essex and the children
started at new schools. In June 1990 the extradition
proceedings were started in England. At this stage the
Convention begins to play a part. On 22 June 1990 the
wife, who must by now have been advised of her rights
under the Convention, issued this application under the
Act of 1985. Douglas Brown J. directed the father to
hand over the children to the tipstaff. He awarded the
interim care and control of the two boys to the mother,
and ordered that they were not to be removed from her
without leave of the court or further order. On 26 Jun
the children were located and passed into the physical
care and control of the mother. On 4 July Johnson J.
heard the application of the father for interim care
and control to be passed back to him. Johnson J.
refused that application. At the same time he ordered
that the court welfare officer should interview the
children on the question of their attitude towards
returning to Canada. It transpires that, during the
course of a 20-minute interview, the court welfare
officer has elicited that both boys wish to go to
Canada; that this is known to the father, and indeed
has been referred to explicitly in these proceedings.
The battle is now joined, in the sense that affidavits
have been sworn. The father has enlisted the support
of his family and of neighbours, who all testify that
they have seen the two boys living a normal and
cheerful life. Dr. Arnold Bentovim, the well known
child psychiatrist, has also produced his evidence,
which is solely opinion evidence — he has not seen the
children and indeed is wholly unaware of their wishes.
But he has stated in paragraph 4 of his affidavit:
‘Although it is extremely regrettable that these
children were removed from their mother’s care four
years ago, it seems clear from the school reports that
these children have settled with their father and are
making good progress, which would indicate a degree of
emotional adaptation to the situation with their
father. It may be deleterious to their progress for
any abrupt change to take place in their lives at this
time from their father’s care, particularly if there is
a question of them living in another country. They may
suffer extreme psychological trauma. ‘ I would
describe that affidavit as guarded in its terms and,
with great respect to Dr. Bentovim, one on which it
would not be wise to place too great a reliance, having
regard to the fact that he has not been able to
investigate this matter in any depth.”
The Act was passed in order to enable the United Kingdom to
ratify inter alia the 1980 Hague Convention on the Civil Aspects
of International Child Abduction. For the purpose of the Act,
the contracting states other than the United Kingdom are those
specified by Order in Copuncil under section 2. Canada has been
such a state from Aug 1986 in relation to all the provinces,
other than Saskatchewan and Alberta, which were added with effect
from 1 November 1986 and 1 February 1987 respectively. Section 2
also provides expressly:
“except where the Order otherwise provides, the
Convention shall apply as between the United Kingdom
and that state only in relation to wrongful removals or
retentions occurring on or after that date.”
The relevant Order in Council, now the Child Abduction and
Cusotdy (Parties to Conventions) (Amendment) (No. 2) Order 1987
(S.I. 1987 No. 1825) makes no such special provision.
Apart from the objections arising out of the fact that the
children left Canada before the Act came into force, there is no
longer any dispute about its application. Articles 3 and 5(a) of
the Convention are in the following terms:
“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 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;”
At the time in March 1986 when the children left Canada,
both the mother and the Supreme Court of Ontario had rights of
custody within the meaning of the Convention — the mother in
relation to custody, care and control, and the court in relation
to removal from its jurisdiction — and taking the children
abroad without the consent of either the mother or the court
involved a breaches of those rights.
It was argued below that the Convention did not apply
because by 1 August 1986 it could not longer be said that Canada
or Ontario, under whose law the rights of custody arose, was “the
state in wich the child was habitually resident immediately
before the removal or retention,” sicne by then they had for some
months been living in India. This was rightly rejected by the
judge on the ground that a wrongful act by the father could not
alter the habitual residence of the children for the purposes of
the Act and the Convention. It would have been otherwise if the
father’s act had been lawful: see In re J. (A Minor) (Abduction:
Custody Rights) [1990] 2 A.C. 562. This is now accepted.
The sole reason why Anthony Lincoln J. held the Act to be
inapplicable was that “wrongful retention” like “wrongful
removal” was treated as an event which occurred on a specific
occasion and was not a continuing state. This is shown most
clearly by a consideration of article 12, which contains a
reference to “a period of less than one year has elapsed from the
date of the wrongful removal or retention” in which event,
subject to article 13, the court is required to order the return
of the child forthwith, whereas if a year or more has elapsed the
court has to consider whether it is demonstrated that the child
is now settled in its new environment. This assumes a fixed
terminus a quo in the case of a retention as well as removal, and
is inconsistent with retention being treated as a continuing
breach of rights of custody. The judge held that “the initial
retention occurred in March 1986,” which was before the Act came
into force.
In this court Mr. Wall, appearing for the mother, virtually
accepted that “wrongful retention” was not a continuing state for
the purposes of the Act and the Convention, but he argued that
neither took cognizance of a wrongful retention before 1 August
1986, and that accordingly, for those purposes, the wrongful
retention took place on that date when for the first time the Act
and Convention took cognizance of it.
I cannot accept this argument. Section 2(2) of the act,
which reads: “and, except where the Order other wise provides,
the Convention shall apply as between the United kingdom and that
state only in relation to wrongful removals or retentions
occurring on or after that date,” clearly contemplates that for
Convention purposes wrongful removals and retentions can occur
and be recognised as such before the date when the Act and
Convention came into force.
This would have been sufficient to dispose of this appeal
if, contrary to the fact, the Ontario court had agreed to the
father taking the children out of its jurisdiction and he had
failed to return them to the jurisdiction at the end of the
holiday. However, on the facts as they are, the appeal should in
my judgment be dismissed upon a different ground, namely, that
for the purposes of the Act and Convention there was a wrongful
removal in March 1986 and there never was any wrongful retention.
The Convention throughout treats removal and retention as
true alternatives. In In re J. (A Minor) (Abduction: Custody
Rights) [1990] 2 A.C. 562, 571, I said:
“For my part, I entirely agree with [Douglas Brown J.]
that retention after a period of lawful possession —
by which I think he was quite plainly addressing his
mind to a limited period of possession such as commonly
occurs when access rights are exercised or where both
parents agree to a child going abroad, perhaps to visit
grandparents or something of that sort, but the
intention being merely that it should be a temporary
visit — is the situation at which this provision is
primarily addressed. However, I am bound to say that,
if the wording of the Convention has a wider effect and
sweeps up other situations, then, as I see it, it would
be our duty to give effect to it.”
In this appeal I have had to give this aspect further
thought. I still think that the contrast is between an act of
removal which at once breaches rights of custody and an act which
only does so when it is continued beyond the limits of lawfulness
in terms of time. However in the context of this case I have
also asked myself: “removal from what?” and the answer must, I
think, be “removal” from the jurisdiction of the courts of the
child’s habitual residence. If this is right, “retention” must
similarly have an extraterritorial component, namely “retention
outside the jurisdiction.” The contrast is between the case of
an English ward of court who is taken abroad without the consent
of the court, which is a wrongful removal, and one who leaves the
jurisdiction with the court’s consent for a limited stay abroad
and is not returned, which is a wrongful retention. The two
cases are mutually exclusive and, as applied to the facts of this
case, the children were the victims of a wrongful removal and not
of a wrongful retention.
There are at least two pointers to this being the correct
approach. The first is contained in article 12 and, in
particular, the contrast between the first and second paragraphs.
If the terminus a quo for the one year period is the moment when
the child leaves “the sate in which [it] was habitually resident
immediately before the removal or retention” (see article 3), it
makes sense that after the expiration of this one year period the
court should inquire whether the child has settled into its new
environment. If, however, the terminus a quo has no reference to
a change in territoriality, the second paragraph of article 12
would apply in a situation in which a child has been wrongfully
retained in its home state for over 12 months and then removed to
another state, where it was soon discovered. In such a case no
question of settlement in a new environment would arise, yet the
Convention assumes that it would.
The second is the wording of article 3: “in breach of
rights of custody . . . under the law of the state in which the
child was habitually resident immediately before the removal or
retention . . .” (My emphasis.) Although quite plainly the Act
and Convention can only apply if the child is found in a
different state from that in which it was habitually resident,
this wording suggests that it is the removal out of the original
jurisdiction or the retention out of that jurisdiction which of
itself gives rise to a conflict of laws.
Anthony Lincoln J. went on to consider various matters which
would have arisen for consideration under the Convention if he
had been wrong in his primary holding that it had no
application. In my judgment he was right to hold that the
Convention did not apply and his conclusion on these and other
matters, whilst entitled to great respect, should not be taken to
bind the judge who is charged with the wardship jurisdiction in
relation to these children who, if so minded, will be free to
hear further evidence and to reach a different conclusion.
It was agreed at the conclusion of the argument that so far
as the costs of the appeal were concerned, there should be no
order other than on for laegal aid taxation.
STUART-SMITH L.J.
I agree that this appeal should be dismissed. In the
judgment of Anthony Lincoln J., and in the arguments of counsel,
it seems to have been assumed that the relevant removal or
retention referred to in article 3 of the Convention was removal
from the custody or care of the parent or other person who was
exercising those rights. For my part I am not persuaded that
this assumption was wrong, and on this point I respectfully
differ from Lord Donaldson of Lymington M.R. and Sir Roger Ormrod
who take the view that the removal or retention must be a removal
from the jurisdiction of the court or retention outside its
jurisdiction.
I acknowledge that such a construction perhaps makes better
sense of the provision in article 12 that even after the expiry
of a year from the removal or retention, the judicial or
administrative authority shall order the return of the child,
unless it is demonstrated that the child is now settled in its
new environment. But it does not seem to me to be necessary to
imply these additional words into article 3. The Convention does
not apply at all unless the child is taken from the territory of
one party to the Convention to that of another. it is perhaps
worthy of note that in the European Convention on Recognition and
Enforcement of Decisions concerning Custody of Children, and on
the Restoration of Custody of Children certain provisions of
which have the force of law in the United Kingdom by virtue of
section 12(2) of the Child Abduction and Custody Act 1985,
“improper removal” is defined as removal of a child across an
international frontier in breach of a decision relating to his
custody: see article 1(d). I do not suggest that one can
construe an international Convention by reference to a European
Convention, even on a related topic; but merely that if removal
were intended to mean removal from the jurisdiction of the court
rather than the custody of the parent, it seems to me that one
would expect article 3 to say so in terms. I do not therefore
think that this was a case of wrongful removal when the children
were taken from Ontario.
Both before this court and Anthony Lincoln J., counsel on
behalf of the mother submitted that the word “retention” involved
a continuing state of affairs, going on from day to day until the
child was returned to the parent who was entitled to its custody.
While the word “retention” frequently does have this meaning it
may, as it seems to me, involve only a single act or event, if
the context so requires.
Section 2(2) of the Act of 1985 provides:
“An Order in Council under this section shall specify
the date of the coming into force of the Convention as
between the United Kingdom and any state specified in
the Order; and, except where the Order otherwise
provides, the Convention shall apply as between the
United Kingdom and that state only in relation to
wrongful removals or retentions occurring on or after
that date.”
The use of the word “occurring” is appropriate to a single event,
but not to a continuous state of affairs.
It was common ground between counsel that the word
“retention” was apt to cover a situation where the child has been
lawfully in the care of one parent, for example, during a period
of access, but that parent fails to return the child at the end
of the period of access. But Mr. Wall submits that every
wrongful removal is followed by a wrongful retention, until the
child is returned. If that is so, then it would seem that the
word “removal” itself would be unnecessary. Article 3 itself
therefore seems to me to predicate that removal and retention are
mutually exclusive concepts.
Bu the most compelling argument against Mr. Wall’s
construction appears to me to be based on article 12. This
provides:
“Where a child has been wrongfully removed or retained
in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial or
administrative authority of the 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.”
In my judgment this postulates a single event, both in the
case of removal and retention from which the period of one year
can begin to run. It cannot be a continuing event. Moreover, I
cannot accept the wrongful retention only starts on 1 August 1986
when the Convention was applied as between the United Kingdom and
Ontario, since section 2(2) plainly postulates wrongful
retentions occurring before this date.
Accordingly I agree with the reasoning of the judge that
this was a wrongful retention which occurred when the children
were not returned at the end of the period of access, and that
event was plainly before 1 August 1986.
SIR ROGER ORMROD
The issue in this appeal is whether the Child Abduction and
Custody Act 1985 applies or not in this case. Anthony Lincoln J.
held that it did not, by reason of section 2 which provides that
the Convention shall only apply “in relation to wrongful removals
or retentions occurring on or after that date . . .” i.e. 1
August 1986, the date on which the relevant Order in Council came
into effect.
On the facts, the mother obtained an order for custody of
both children in the Court of Ontario on 20 September 1985. In
March 1986 the father had access to the children under the order.
He ought to have returned the children to the mother on 15 March
1986. Instead, he removed the children out of Ontario to India.
All this occurred before 1 August 1986; therefore, unless
“retention” can be regarded as a continuing state of affairs,
section 2 applies to exclude this case from the Act.
Mr. Wall virtually concedes that in this context “retention”
is not a continuing state of affairs — rightly in my opinion.
Nevertheless, he sought to argue that in such a situation as this
“retention” must be deemed to occur on the date on which the Act
became applicable. This cannot be right in my view because it
would mean that exclusion in section 2 would be bypassed in every
case.
Although it makes no difference to the result, given the
dates set out above, it is questionable whether the judge was
right to treat this as a case of retention rather than removal.
The question arises as to what the words “removal” and
“retention” in section 2 mean. Do they relate to the mother’s
custodial rights, or to the jurisdiction of the court of the
habitual residence of the children?
At first sight article 3 appears to define removal or
retention in terms of breach of rights of custody but, in fact,
its purpose is to define “wrongful.”
The Act and the Convention are only concerned with children
who are no longer within the jurisdiction of the original court;
there are only two ways in which this can come about wrongfully
— by removal of the child from the jurisdiction without consent,
or by removing the child with consent, but failing to return the
child in accordance with the order or agreement: that is,
wrongfully retaining the child.
On this footing the father had not right to remove the
children from Ontario, although he could remove them from the
mother’s care for the period of access. It follows that this is
actually a case of wrongful removal.
I would, however, dismiss this appeal.
Appeal dismissed.
Legal aid Taxation.
Leave to appeal refused.
Solicitors: Ralph Haring & Co.; E. Edwards Son & Noice, Grays.
D.E.C.P.
In re S. (Minors) (Abduction: Custody Rights)
21 Aug 1990. The Lord Chancellor having authorised the issueof
proceedings in the Family Division on her behalf, Mrs. S., a
citizen of the United States of America, sought by originating
summons the return to her custody and to the jurisdiction of the
Califonria Court, pursuant to the Child Abduction and Custody Act
1985 and the Convention, of her daughters B. and A., takken to
England by her former husband, Mr. S. Booth J. granted an ex
parte order to that effect and listed the matter for hearing
inter partes on 24 Aug 1990.
28 Aug 1990 Booth J. dismissed theapplication on the ground
that, following In re H. (Minors) (Abduction: Custody Rights),
ante, p. 418B, the court had no jurisdiction under the Act of
1985 and the Convention. The judge granted a certificte to
section 12 of the Administration of Justice Act ;1969 that a
sufficient case for an appeal to the House of Lords under Part II
of the Act have beenmade out to justify an application for leave
to be made before the House.
31 Oct 1990. The Appeal Committee of the House of Lords (Lord
Bridge of Harwich, Lord Templeman and Lord Ackner) allowed Mrs.
S’s petition for leave to appeal.
28 Nov 1990. The Appeal Committee of the House of Lords (Lord
Bridge of Harwich, Lord Templeman and Lord Ackner) allowed Mrs.
H’s petition for leave to appeal.
Mrs. H. and Mrs. S. appealed.
James Munby, Q.C. and Henry Setright for Mrs. H. and Mrs. S.
“Retention” in article 3 of the Hague Convention on the Civil
Aspects of international Child Abduction is capable of being a
continuing state of affaris, for the ordinary and natural meaning
of “retain” is “hold fast, detain, keep hold of, or continue to
have.” “Thus, the words “from the date of the wrongful . . .
retention” in article 12 are to be read as meaning “from the
commencement of the wrongful retention”. It is not necessary to
treat retention as a single event in order to make the Convention
work. This approach is consistent with foreign jurisprudence:
see In the marriage of W. M. and G.R. Barraclough (1987) 11 Fam.
L.R. 773; In the marriage of J. G. Gollogy and E. A. Owen (1989)
13 Fam.L.R. 622; Navarro v Bullock (Unreporeted), 01 Sep 1989,
Superior Court of California; Sheikh v Cahill (1989) 546 N.Y.S.2d
517; Widlund v Widlund (unreported), 07 Dec 1989, District Court
of Minnesota and Palle v Palle (unreported) 23 Feb 1990, Circuit
Court of Illinois.
In construing an intrnational convention, the courts should not
employ the same rigorous principles as would be applied to
adomestic statute: see C. v. C. (Abduction: Rights of Custody)
[1989] 1 W.L.R. 654, 663D-F; Fothergill v Monarch Airlines Ltd.
[1988] A.C. 251 and B v. B. (Minors: Enforcement of Access
Abroad) [1988] 1 W.L.R. 526. A purposive construction should be
adopted.
“Removal” and “retention” are not mutually exclusive concepts. A
parent who wrongfully takes a child and contiues to hold that
child and thereafter continues to hold that child is quilty of
both removal and retention. Although the Convention refers
throughout to “removal or retention,” the word “or” is not there
used disjunctively but used as shorthand for “and/or.” Viola v.
Viola, 1988 S.L.T. 7 and Kilgour v Kilgour, 1987 S.L.T. 568
suggest that removal and retention are not necessaryily mutually
exclusive. Where a parent has wrongfully taken a child and
continues to hold that child thee is “retention” so long as that
state of affaris continues. Whether or not there had been
wrongful removal there was, therefore, in each case wrongful
retention on the dates when the Act and the Convention came into
force betweenthe United Kingdom and relevant contracting state.
In any event, removal or retention becomes wrongful for the
pruposes of the Act and the Convention only when the Convention
comes into force as between the United Kingdom and the relevant
contracting state. Finally, removal and retention relate to
removal or retention adverse to the rights of custody and not to
removal or retention out of the relevant jurisdiction.
A practical consequence of thecontrary view tken bythe majorityof
theCourt of Appeal is that attention is focused on a date that
that is often not within the knowledge of the innocent party:
see article 3(b) of the Convention. [Reference was also made to
In re J. (A Minor) (Abduction: Custody Rights) [1990 2 A.C. 562;
In re E. (A Minor) (Abduction) [1989] 1 F.L.R. 135; In re S. (A
Minor) (unreported), 18 May 1990; Court of Apeal (Civil Division)
Transcript No. 475 of 1990 and In re Mahaffey (A Minor)
(unreported), 08 Oct 1990.]
Paul Focke Q.C. and Edward Fitzgerald for Mr. H.
The Convention is not designed to provide an absolute remedy in
every case. It seeks to prevent or discourage cross-border
kidnapping and to discourage forum shopping. The typical
situation at which the Conventio is aimed is tha in which the
hcild is removed from the country of the original jurisdiction
witout the consent of the parent with custody, i.e. wrongful
removal.
The inclusion of wrongful retention was intended to cover cases
where the child has been lawfuly removed from the jurisdiction
but not retained: see the Explanatory Report to the Convention
and Reg. v Secretary of State for the Home Department, Ex parte
Read [1989] A.C. 1014, 1052. Removal and retention are
accordingly mutually exclusive concepts. The case was one of
wrongful removal and not wrongful retention: see, ante, p.
486A-C, per Lord Donaldson of Lymington M.R. and pp. 488G-489C,
per Sir Roger Ormond. it is clear from the language of the
Convention that the words “removal or retention” are parallel
words and are both intended to refer to an event that occurs at a
chronologically identifiable point rather than a continuous
process of indefinite duration. Time therefore runs from the
date when the chiild crosses an international boundary into a
contracting state. Accordingly, even if this was a case of
retention, the retentionoccurred some five months before the date
of the coming into force of the Convention as between the United
Kingdom and Ontario. The case falls outside the temporal scope
of the Convention.
Fitzgerald followed.
Mr. S., in person adopted the argument submitted on behalf of Mr.
H.
Mundby Q.C. replied.
13 Jun LORD BRIDGE OF HARWICH. My Lords: I have the advantage
of reading in draft the speech of my noble and learned friend,
Lord Brandon of Oakbrook. I agree with it and the reasons he
gives I would dismiss these appeals.
LORD BRANDON OF OAKBROOK. My Lords, the House has before it two
appeals relating to claims by the mothers of the children
abducted by their fathers from their habitual places of residence
in countries abroad and take to the United Kingdom. In each case
the claim was brought under the Child Abduction and Custody Act
1985 (“the Act of 1985”), by which domestic effect was given to
the adherence of the United Kingdom to the Convention on the
Civil Aspects of International Child Abduction, signed at the
Hague on 25 Oct 1980 (Cmmnd. 8281) (“the Convention”). It will
be convenient to refer to the cases in which the two appeals
arise as “In re H.” and “In re S.”
The appeal in In re H. is from an order of the Court of
Appeal (Lord Donaldson of Lymington M.R., Stuart-Smith L.J. and
Sir Roger Ormrod [1991] 2 W.L.R. 62 dated 27 Jul 1990. By that
order the Court of Appeal dismissed an appeal by Mrs. H. from an
order of Anthony Lincoln J. dated 11 Jul 1990 dismissing her
application for the summary return of her two children, T. and
J., to the jurisdiction of the Supreme Court of Ontario. The
appeal in In re S. is a leapfrog appeal from an order of Booth
J., dated 28 Aug 1990 by which she dismissed the application of
Mrs. S. for the summary return of her two children, B. and A., to
the jurisdiction of the Superior Court of California County of
Santa Clara. Both appeals are brought by the leave of the House.
The ground on which the Court of Appeal rejected the claim
of Mrs. H. in In re H. was that, having regard to the relative
dates of the acts of Mr. H. relied on and of the coming into
force of the Convention between the United Kingdom and Ontario,
the Convention did not apply and the court therefore had no
jurisdiction to make any order under it. In In re S. Booth J.
rightly held that he essential facts in that case could not be
distinguished from those in In re H., that she was bound by the
decision of the Court of Appeal in that case, and she therefore
had no alternative but to dismiss Mrs. S.’s claim. In these
circumstances it is common ground that the two appeals succeed or
fall together.
The material facts and the history of the proceedings in or
related to In re H. are as follows. Both the appellant, Mrs. H.,
and the respondent, Mr. H., where born in India. In 1974 they
were married in England. In 1976 they emigrated to Canada where
they had two children, T. now aged 12 and J. now aged 11. Those
children and Mrs. H. are Canadian citizens. The marriage was
unhappy and in January 1984 Mrs. H. left Mr. H. taking the two
children with her. On 20 Sep 1985 the Supreme Court of Ontario
made an order granting the custody of both children to Mrs. H.,
with access to Mr. H., and restraining both parents from removing
the children from the jurisdiction of that court. In early 1986
Mr. H. took the children lawfully to a place in Ontario for a
week’s staying access. The children should have been returned by
him to Mrs. H. on 15 Mar 1986, but soon after the commencement of
the period of access Mr. H. took the children from Ontario first
to England and subsequently to India. In do so he acted in
direct breach of the order of the Supreme Court of Ontario
referred to above and therefore unlawfully. The children
remained with Mr. H. in India until about the end of 1988 or
beginning of 1989 when he took them again to England. His
marriage to Mrs. H. had by then been dissolved. Mrs. H.
subsequently discovered that the children were in England and
took steps under the Convention to have them returned to Ontario.
She applied to the Central Authority for Canada designated for
the purposes of the Convention, which then made a request to the
Lord Chancellor, as the Central Authority similarly designated
for England and Wales, for an order that the children be returned
to the jurisdiction of the Supreme Court of Ontario pursuant to
the Convention. On 22 Jun 1990 the Lord Chancellor, on behalf of
Mrs. H. and in her name, applied to the Family Division of the
High Court here for such an order under the Act of 1985. As
indicated earlier, that application was dismissed by Anthony
Lincoln J. on 11 Jul 1990 and Mrs. H.’s appeal from his decision
to the Court of Appeal was dismissed on 27 Jul 1990.
Meanwhile on 11 July 1990 parallel proceedings in wardship
where begun by Mr. H., as a result of which the children were
made wards of court and the interim care and control of them in
England was given to Mrs. H. On 20 Aug 1990 the full hearing of
the wardship proceedings came before Rattee J., who on 23 Aug
1990 made an order the main effect of which was to give Mrs. H.
care and control of the children and leave to take them out of
the jurisdiction to a new home which she had established with her
second husband in Indianapolis, in the State of Indiana, subject
to the children remaining wards of court and to Mrs. H.
undertaking to return them to the jurisdiction of called upon to
do so. Pursuant to that order the children are presently living
with Mrs. H. and her second husband in Indianapolis.
The material facts and the history of the proceedings in or
related to In re S. are as follows. The appellant, Mrs. S., and
the respondent, Mr. S., are the parents of two children, B. now
aged 11 and A. now aged 8. Mr. and Mrs. S. and the children were
all born in the United States of America and are citizens of that
country. The marriage of Mr. and Mrs. S. was unhappy and at some
time prior to August 1986 they separated and subsequently the
marriage was dissolved. Following the separation proceedings
relating to the children were begun in the Superior Court of
California County of Santa Clara and by an order of that court
dated 08 Sep 1986 it was provided that after 01 Sep 1986 Mrs. S.
should have the physical care of the children during the week in
school term time and that Mr. S. should have weekend staying
access to them. The order further provided that Mr. S. should
have staying access in the school summer holiday with the express
stipulation that the children should not be away from either
parent in that period without prior written consent. on 26 Jun
1987 Mr. S. took the children for a week’s staying access in
California pursuant to the order. They were due to be returned
to Mrs. S. on 05 Jul 1987 but Mr. S. did not return them and
instead took them out of California and in Jul 1987 to England
without Mrs. S.’s knowledge or consent. In so doing he acted in
direct breach of the order referred to above and therefore
unlawfully. On 10 Aug 1990 Mrs. S. discovered that the children
were in England and took steps under the Convention to have them
returned to the United States of America. She applied to the
Central Authority for the United States of America designated for
the purposes of the Convention, which then made request to the
Lord Chancellor, as the Central Authority similarly designated
for England and Wales, for an order that the children be returned
to the State of California. On 21 Aug 1990 the Lord Chancellor,
on behalf of Mrs. S. and in her name, applied to the Family
Division of the High Court here for such an order under the Act
of 1985. As indicated earlier, that application was dismissed by
Booth J. on 28 Aug 1990.
On that date a parallel proceedings in wardship were begun
by Mrs. S., as a result of which the children were made wards of
court and the interim care and control of the children was given
to Mr. S. with access to Mrs. S. In Oct 1990 the full hearing on
the wardship proceedings came on for hearing by Ward J., who on
19 Oct 1990 made an order the main effect of which was to give
Mrs. S. from 30 Oct 1990 the care and control of the children and
leave to take them out of the jurisdiction to her home in the
United States of America, subject to the children remaining wards
of the court and to Mrs. S. undertaking to return them to the
jurisdiction if called upon to do so. Pursuant to that order the
children are presently living with Mrs. S. in the United States
of America.
It will be apparent that, as a result of the wardship
proceedings in each case, Mrs. H. and Mrs. S. have achieved their
main object of securing the return of their children to their
care in the country in which they have chosen to make their home.
That being so, the view might be taken that the present appeals,
even if successful, would not serve any further useful purpose
for them. To take that view, however, would be to ignore the
important fact that, under the orders made in the two wardship
proceedings, the children in each case remain wards of the High
Court in England, and that both Mrs. H. and Mrs. S. are bound by
undertakings to return their children to the jurisdiction of that
court if called upon to do so. success in the appeals, if
obtained, would mean that the applications made on behalf of and
in the names of Mrs. H. and Mrs. S. for summary orders for the
return of their children under the Act of 1985 would have been
allowed and that they were therefore entitled to have the custody
of their children untrammelled by the orders made in the wardship
proceedings, which would then have to be discharged. It is in
this respect that the present appeals, if successful, would put
Mrs. H. nd Mrs. S. in a better position with regard to their
children than they are in at present.
The Convention, which was signed by the United Kingdom on 19
Nov 1984 and ratified by it on 20 May 1986, provides so far as
material:
“The States signatory to the present Convention,
“Firmly convinced that the interests of children
are of paramount importance in matters relating to
their custody,
“Desiring to protect children internationally from
the harmful effects of their wrongful removal or
retention and to establish procedures to ensure
their prompt return to the State of their habitual
residence, as well as to secure protection for
rights of access,
“Have resolved to conclude a Convention to this
effect, and have agreed upon the following
provisions–
“CHAPTER I–SCOPE OF THE CONVENTION
“Article 1
“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 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; (b) ‘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.
“CHAPTER II–CENTRAL AUTHORITIES
“Article 6
“A Contracting State shall designate a Central
Authority to discharge the duties which are imposed
by the Convention upon such authorities. . . .
“Article 7
“Central Authorities shall co-operate with each
other and promote co-operation amongst the
competent authorities in their respective States
to secure the prompt return of children and to
achieve the other object’s of this Convention. . .
. . . .
“CHAPTER III–RETURN OF CHILDREN
“Article 8
“Any person, institution or other body claiming
that a child has been removed or retained in breach
of custody rights may apply either to the Central
Authority of the child’s habitual residence or to
the Central Authority of any other Contracting
State for assistance in securing the return of the
child. . . .
“Article 12
“Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of
the commencement of the proceedings before the
judicial or administrative authority of the
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
the preceding paragraph, shall also order the
return of the child, unless it is demonstrated that
the child is now settled in its new environment. .
. . . .
“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 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. . . .
“Chapter V. General Provisions
“Article 35
“This Convention shall apply as between Contracting
States only to wrongful removals or retentions
occurring after its entry into force in those
States.
The Convention entered into force in the United Kingdom on
01 Aug 1986 upon the coming into force on the Act of 1985 pursuant
to the Child Abduction and Custody Act 1985 (Commencement) Order
1986 (S.I. 1986/1048). the Act of 1985 provides so far as
material:
PART I
“INTERNATIONAL CHILD ABDUCTION
“1(1) In this part of this Act ‘the Convention’
means the Convention on the Civil Aspects of
International Child Abduction, which was signed at
the Hague on 25 Oct 1980.
“(2) Subject to the provisions of this Part of this
Act, the provisions of that Convention set out in
Schedule 1 to this Act shall have the force of law
in the United Kingdom.
“2(1) For the purposes of the Convention as it has
effect under this Part of this Act the contracting
states other than the United Kingdom shall be those
for the time being specified by an Order in Council
under this section.
“(2) An order in Council under this section shall
specify the date of the coming into force of the
Convention as between the United Kingdom and any
state specified in the Order; and, except where the
Order otherwise provides, the Convention shall
apply as between the United Kingdom and that state
only in relation to wrongful removals or retentions
occurring on or after that date.”
Schedule 1 to the Act of 1985 sets out (inter alia)
articles 3, 4, 5, 7, 8, 12 and 13 of the Convention. It does not
set out the preamble, article 1 or article 35.
The relevant Orders in Council for the purposes of section
2 of the Act of 1985 are the Child Abduction and Custody (Parties
to Conventions) Order 1986 (S.I. 1986/1159) as amended, and the
Child Abduction and Custody, (Parties to Conventions) (Amendment)
(No. 2) Order 1988 (S.I. 1988/1083). Under the first of these
Orders the Convention came into force as between the United
Kingdom and Ontario on 01 Aug 1986. Under the second Order the
Convention came into force between the United Kingdom and the
United States of America on 01 Jul 1988. Neither Order “otherwise
provides” for the purposes of section 2(2).
The Court of Appeal in In re H. dealt with these three
points as follows. With regard to the first point, it held that
removal and retention are both events which occur once and for all
on a specific occasion. With regard to the second point, it held
that removal and retention where mutually exclusive concepts.
With regard to the third point, it held by a majority (Stuart-
Smith L.J. dissenting) that removal or retention meant removal
from or retention out of the jurisdiction of the courts of the
child’s habitual place of residence, so that In re H. was one of
removal and not of retention. It was not in dispute that Mr. H.
had taken his two children out of Ontario a few days before 15 Mar
1986, that is to say on a date well before the date of 01 Aug 1986
on which the Convention came into force as between the United
Kingdom and Ontario. It follows, on the Court of Appeal’s views
on the meaning in the Convention of the expressions removal and
retention that the Convention did not, by reason of section (2(2)
of the Act of 1985 apply to In re Ho. and that the court therefore
had no jurisdiction to make the order sought by Mrs. H.2
Mr. Mumby Q.C., as counsel for both the appellants, Mrs. H.
and Mrs S., challenged the views of the Court of Appeal on each of
the three points referred to above. With regard to the first
point, he submitted that, while removal was an event which
occurred once and for all on a specific occasion,retention was a
continuing state of affairs, beginning on a specific occasion but
continuing from day to day thereafter. With regard to the second
point, he submitted that, while retention could occur without
prior removal, where there was removal it would be in practice
always be followed by retention. The two expressions could not,
therefore, be treated as mutually exclusive. With regard to the
third point, he submitted that removal or retention meant removal
from, or retention out of, the care of the parent with custodial
rights. On the basis of these submissions, Mr. Mumby contended
that the case of In re H. was a case of retention rather than one
of removal; and the retention continued from day to day after its
inception; and that it was, therefore, still in existence at all
material times from01 Aug 1986, the date on which the Convention
came into force as between of the United Kingdom and Ontario.
In support of his contention that retention in the
Convention meant a continuing state of affairs which could follow
on after removal, Mr. Mumby relied on two main matters. First,
the ordinary and natural meaning of the word retention and,
secondly, various observations made by judges in a number of
reported case, including in particular observations contained in
my speech in In re J. (A Minor) (Abduction; Custody Rights) [1990]
2 A.C. 562 at pp. 578 and 579. With regard to the first matter, I
would agree that retention can and usually does connote a
continuing state of affairs. The word may, however, be used in a
context in which it means, and can only mean, an event occurring
once and for all on a specific occasion. Imprisonment is another
word which is capable of having two similarly different meanings.
With regard to the second matter, in none of the reported cases,
including In re J., in which the observations relied on by Mr.
Mumby were made, was it necessary to decide between the two
possible meanings of retention. It follows that all such
observations were no more than obiter dicta. In these appeals,
however, it is necessary to decide between the two meanings and
for that purpose to have regard to the context of the Convention
as a whole.
Before addressing the three points in respect of which Mr.
Mumby challenges the view taken by the Court of Appeal, I would
make some preliminary observations about the nature and purpose of
the Convention. The preamble of the Convention shows that it is
aimed at the protection of children internationally (my emphasis)
from wrongful removal or retention. Article 1(a) shows that the
first object of the Convention is to secure the prompt return to
the state of their habitual residence (that state being a
contracting state) of children in two categories: (1) children
who have been wrongfully removed from the state of their habitual
residence to another contracting state; and (2) children who have
been wrongfully retained in a contracting state other than the
state of their habitual residence instead of being returned to the
latter state. The Convention is not concerned with children who
have been wrongfully removed or retained within the borders of the
state of their habitual residence.
So far as category (1) is concerned, it appears to me that
a child only comes within it if it is wrongfully taken out, i.e.
across the frontier, of the state of its habitual residence.
Until that happens, although the child may already have been
wrongfully removed within the borders of the state of its habitual
residence, it will not have been wrongfully removed for the
purposes of the Convention. So far as category (2) is concerned,
it appears to me that a child can only come within it if it has
first been removed rightfully (e.g. under a court order or an
agreement between its two parents) out of the state of its
habitual residence and subsequently retained wrongfully (e.g.
contrary to a court order or an agreement between its two parents)
instead of being returned to the state of its habitual residence.
The wrongful retention of a child in one place in the state of its
habitual residence, instead of its being returned to another place
within the same state, would not be a wrongful retention for the
purposes of the Convention.3 The typical (but not necessarily
the only) case of a child within category (2) is that of a child
who is rightfully taken out of the state for a specified period of
staying access with its habitual residence at the expiry of that
period.
In the light of these preliminary observations I turn to
the three points in respect of each of which the view taken by the
Court of Appeal has been challenged by Mr. Mumby. With regard to
the first point, whether retention is an event occurring on a
specific occasion or a continuing state of affairs, it appears to
me that article 12 of the Convention is decisive. I set out that
article earlier but it will be helpful to set it out again now.
It provides:
“Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of
the commencement of the proceedings before the
judicial or administrative authority of the
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
the preceding paragraph, shall also order the
return of the child, unless it is demonstrated that
the child is now settled in its new environment. .
. . . .
The period of one year referred to in this article is a period
measured from the date of the wrongful removal or retention. That
appears to me to show clearly that, for the purposes of the
Convention, both removal and retention are events occurring on a
specific occasion,for otherwise it would be impossible to measure
a period of one year from their occurrence. It was submitted by
Mr. Mumby that, in the case of retention, the date from which the
period of one year was to be measured was the date of the
inception of the retention and that, if article 12 was interpreted
in that way, it was not inconsistent with the retention being a
continuing state of affairs. I find myself unable to accept that
submission. To interpret article 12 in that way involves
inserting into it words which are not thee and, if intended to
apply, could readily have been put in. I consider that article 12
leads inevitably to the conclusion that retention, like removal,
is an event occurring on a specific occasion.4
With regard to the second point, whether removal and
retention are mutually exclusive concepts it appears to me that,
once it is accepted that retention is not a continuing state of
affairs but an event occurring on a specific occasion, it
necessarily follows that removal and retention are mutually
exclusive concepts. For the purposes of the Convention, removal
occurs when a child, which has previously been in the state of its
habitual residence, is taken away across the frontier of that
state; whereas retention occurs where a child, which has
previously been for a limited period of time outside the state of
its habitual residence, is not returned to that state on the
expiry of such limited period. That being so, it seems to me that
removal and retention are basically different concepts, so that it
is impossible either for them to overlap each other or for either
to follow upon the other. This interpretation of the Convention
is strongly supported by the fact that, throughout the Convention,
removal and retention are linked by the word “or” rather than by
the word “and,” which indicates that each is intended to be a real
alternative to the other. It was submitted by Mr. Mumby that the
word “or,” where it links removal and retention, should be
construed as meaning “and/or.” This again involves inserting into
the Convention words which are not there, and which could, if
intended to apply, readily have been put in. I cannot, therefore,
accept that submission.
With regard to the third point, whether removal or
retention means removal from or retention out of the care of the
parent having the custodial rights, or removal from or retention
out of the jurisdiction of the courts of the sate of a child’s
habitual residence, I am of the opinion that the latter meaning is
the correct one. I think that follows necessarily from the
considerations to which I referred in my preliminary observations
about the nature and purpose of the Convention, that the
Convention is only concerned with international protection for
children from removal or retention, and not with removal or
retention within the state of their habitual residence. It was
suggested in argument that article 3(b) was difficult to reconcile
with the view on the third point which I have said that I regard
as correct. Article 3(b) specifies the second of two matters
required to render a removal or retention wrongful. That second
requirement is that at the time of removal or retention the
custody rights of the custodial parent “were actually exercised,
either jointly or alone, or would have been so exercised but for
the removal or retention.” It was suggested that, if removal for
the purposes of the Convention involved the taking of the child
concerned across the frontier of the state of its habitual
residence, it might be impossible for the custodial parent to show
that the requirement contained in article 3(b) was satisfied. In
my view article 3(b) must be construed widely as meaning that the
custodial parent must be maintaining the stance and attitude of
such a parent, rather than narrowly as meaning that he or she must
be continuing to exercise day to day care and control. If the
narrow meaning was adopted, it could be said that a custodial
parent was not actually exercising his or her custodial rights
during a period of lawful staying access with the non-custodial
parent. That, as it seems to me, cannot be right. Provided that
what I have described as the broader meaning of the requirement
contained in article 3(b) is adopted, I do not consider that such
requirement is inconsistent with the view on the third point which
I have said that I regard as correct.
I would add that the views which I have expressed on the
first and second points are in accordance with the decision of the
Lord Ordinary (Prosser) in the Scottish case Kilgour v Kilgour
1987 S.L.T. 568.
In the result I have reached the same conclusions on each
of the three points in issue as the Court of Appeal reached,
either unanimously or by a majority, in In re H. I also agree
with the Court of Appeal that, on the basis of those conclusion,
In re H. was a case in which the children were the subject of
removal rather than retention. Since it is common ground that the
essential facts in In re S. cannot be distinguished from those of
In re S. were also the subject of removal rather than retention.
It further follows that in In re H. the wrongful removal took
place before the Convention had come into force as between the
United Kingdom and Ontario, and that in In re S. the wrongful
removal took place before the Convention had come into force as
between the United Kingdom and the United States of America, so
that, by reason of section 2(2) of the Act of 1985, the court had
no jurisdiction in either case to make an order for the summary
return of the children under the Act.
My Lords, for the reasons which I have given I would
dismiss both the appeals.
LORD GRIFFITHS
My Lords:
I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Brandon of Oakbrook. I agree
with it and, for the reasons which he gives, I too, would dismiss
both the appeals.
LORD OLIVER OF AYLMERTON. My Lords, I have had the advantage of
reading in draft the speech of my noble and learned friend, Lord
Brandon of Oakbrook. I agree with it and, for the reasons which
he gives, I too, would dismiss both the appeals.
LORD JAUNCEY OF TULLICHETTLE. My Lords, I have had the advantage
of reading in draft the speech of my noble and learned friend,
Lord Brandon of Oakbrook. I agree with it and, for the reasons
which he gives, I too, would dismiss both the appeals.
Appeals dismissed
Solicitors
Ralph Haring & Co.
E. Edwards Son & Noice, Grays
——————–
1. Child Abduction and Custody Act 1985, s. 2(2); see post, p
496G-H. Sch. 1, art. 3; see post, pp 494H-495B.
2. This holds that retention is not an ongoing act. This may be
contra to the view of the United States. WMH 28 Aug 1991
3. The Convention only applies between contracting states and
does not apply internally.
4. On the other hand if one looks at the one year period from the
perspective that it is after one year that the child could be
considered settled into its new environment and that is its only
purpose, then the one year period does not take on the
characteristics that are given here, e.g., a period of time within
which the retention or removal is measured from. WMH Comment 27
Aug 1991.