UK – RE O – 1997 (Return to U.S. denied in Sweden, return to Sweden ordered in England) The mother takes the children to Sweden. The father applies for their return. Return denied under article 13(b). The father files an appeal and the appeals court reserved its judgement. The father then abducted the children from Sweden and was stopped at the airport in England. The father applies to the English court for the return of the children to the U.S. The mother applies for their return to Sweden. The English court ordered the children returned to Sweden. The father did not seek a stay or appeal. He stated he would wait for the Appeals court decision in Sweden. (See Mr. Hilton’s extensive footnotes on this case)
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Re: “O” (Minors) [UK 1997]High Court of Justice, Family Division, 30 May 1997
3 International Abduction [UK 1997]
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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London WC2, United Kingdom
30 May 1997
Before:
Mr. JUSTICE HOLMAN
RE: “O” MINORS
Mr. Henry Setright (instructed by Messrs. Margaret Bennett &
Co.) appeared as Counsel on behalf of the Father (Proposed
Plaintiff).
Mr. Bernard Mocatta, Solicitor, appeared on behalf of the
Mother (Proposed Defendant).
Friday, 30th May, 1997
JUDGMENT
(As approved by the Judge)
Mr. JUSTICE HOLMAN:
Introduction and Background
001 This unusual case raises an issue of fundamental
importance for the smooth operation internationally of the
Hague Convention on the civil aspects of international child
abduction. In summary, a mother wrongfully removed her children
from California to Sweden. Both the United States Of America
and Sweden are Contracting States to the Hague Convention, as,
of course, is the United Kingdom. The father applied through
the American and Swedish central authorities for the return of
the children to California pursuant to the Convention, which is
incorporated into Swedish law by what Swedish lawyers refer to
as “The Implementation Act”.
002 After full and careful consideration, the appropriate
Swedish court applied the discretion under Article 13(b) of the
Convention to refuse to order the return of the children to
California. The father appealed from that decision to a higher
Swedish court and earlier this week that appeal was heard in
Sweden. The appellate court has reserved its judgment. The
father, who had traveled to Sweden for the hearing of the
appeal, then himself “abducted” the children from Sweden.
Whilst traveling back to California with them by air, he
touched down at Heathrow Airport in England to change flights.
He was arrested. The children are temporarily present in
England.
003 The father now applies to me, through the American
and English central authorities, for an order for the return of
the children to America pursuant to Article 12 of the Hague
Convention. The issue of fundamental importance, to which I
have referred, is whether I should entertain on its merits that
application under the Convention. Alternatively, the father
applies for an order for the return of the children to
California under the Children Act 1989 and/or in the exercise
of the court’s inherent jurisdiction. The mother cross-applies
for orders under the Children Act 1989 and/or in the court’s
inherent jurisdiction for the return of the children to Sweden.
Facts
004 I must now set out the background facts in a little
more detail. The father is aged 41. He was born and brought up
entirely in America and is an American citizen. The mother is
aged 43. She was born and brought up entirely in Sweden and is
a Swedish citizen. In 1986 the parties married and made their
home in California. They have two children. The elder,
Charlotte, was born on 3rd September 1988, so she is now aged
about eight and a half. The younger, Samantha, was born on 27th
April 1992, so she in now aged just five. Each of the children
have dual American and Swedish nationality. Neither parent and
neither child has any relevant connection with England or the
United Kingdom whatsoever and, indeed, as I understand it,
neither chi1d has ever spent any time at all in the United
Kingdom, except, perhaps, on occasions when changing flights at
an airport.
005 Sadly, the marriage of the parents became unhappy and
there was a physical separation at the latest in about May
l996. In that month the mother petitioned for divorce in a
court in Los Angeles in California. The parties continued at
that time jointly to own their former matrimonial home.
006 On 2nd July 1996 the Superior Court of Los Angeles,
in which the divorce was proceeding, made an order by consent
of the parties in the terms of a stipulation which the parties
had reached. In effect, that order contemplated that the former
home would be sold. It dealt with temporary arrangements
pending the sale and provided that, pending that sale, the
mother would have the physical custody of the children from
Sunday evening to Friday evening and the father would have the
physical custody of the children from Friday evening until
Sunday evening. It further provided thee during the periods
when each parent respectively had the physical custody of the
children that parent would have the exclusive use and
possession of the family home. So, in effect, the children
would live all the time at the home, during the weekends with
their father alone, and during the weekdays with their mother
alone. Jumping ahead in the chronology, I understand that it
was only earlier this month, namely in May 1997, that the home
was actually sold.
007 On or about 13th September 1996 the mother removed
the children from California without the prior knowledge or
consent of the father and took them to Sweden, where her own
family still live. Very promptly, on 20th September 1996, the
father signed appropriate forms in America invoking the help of
the American central authority under the Hague convention in
his endeavour to obtain the return of his children to
California. At some stage after that, although I am unclear as
to exactly when, legal proceedings were formally commenced in
Sweden pursuant to the Hague Convention and the Swedish
Implementation Act, to which I have referred, for the return of
the children. Meantime, the father also took proceedings in
America. There was a hearing before the Los Angeles Superior
Court on 5th December 1996 within the pre-existing divorce
proceedings between the parties. It appears quite clear on the
face of the resulting American order that the mother was
represented at that hearing by an attorney called E. Bonnie
Marshall. However, I have been told today that the mother,
herself, was not aware that that hearing was taking place, or
was scheduled to take place, until some time after it in fact
took place.
008 At all events, on 5th December 1996, the American
court found that the mother had “wilfully violated the Court
orders giving visitation and custody to [the father]” and
awarded both the legal and the physical custody of each of the
children to the father. It further ordered the mother to return
both children to California forthwith. At this moment, so far
as I and anybody else in court before me are aware, that order
remains in full force and effect and, indeed, it is the only
order in any jurisdiction formally according the custody of
either of the children to either parent .
009 On 6th February 1997 the father’s application to the
Swedish courts for the return of his children under the Hague
convention was heard in the Lansrattan court (which I will
hereafter refer to as the “County Court”) in Scania, Sweden.
That court actually gave its judgment and made its order on
13th February l997. The father was not personally present at
any stage during the proceedings in the County Court in Sweden,
but was represented throughout by lawyers instructed, as I
understand it, through the central authorities. I have been
told today that those lawyers advised him, in what he has
subsequently come to regard as mistaken advice, that it was not
necessary for him to attend that hearing. I should add,
however, that I have also been assured that in all other
respects’ the father has and continues to have complete
confidence in his Swedish lawyers.
010 Although he did not personally attend the hearing, it
is clear from the judgment of the Swedish County Court that
considerable written material was placed before that court by
and on behalf of the father. Equally, however, considerable
written material was placed before the court by and on behalf
of the mother and, as I understand it, she herself did give
some oral evidence to that court.
011 I have before me a translation of the Judgment of the
Swedish County Court. There is no magic in length, but I
mention that it runs to eight and a half closely spaced A4
pages and is, therefore, a judgment which deals with the matter
in some considerable detail. It in quite clear from that
judgment that the Swedish court took the view that there had
been a wrongful removal of the children from California in
terms of Article 3 of the Hague Convention. It is clear, also,
that the Swedish court recognized that, accordingly, the
children had to be returned to California unless the court
exercised its discretion under one of the provisions of Article
13 of the Convention. It concluded its judgment in the
following passage (I mention that I am reading from page 8 of
the translation of the Swedish judgment):
“Even though the formal conditions for
implementation have been satisfied,
transfer [that is, return of the children
to California] may be refused under the
provisions of section 12 of the
Implementation Act. In the present case,
that which is stated in point 2 of this
legal paragraph should therefore be
considered; i.e. whether there is a serious
risk that such transfer would harm the
child’s physical or mental health or
otherwise place the child in an
unacceptable situation. It in apparent from
the preparatory work to the legislation, on
the one hand, that it should be apparent
from objective circumstances that there is
such a risk and, on the other hand, that
transfer would obviously be in conflict
with the child’s best interests.”
012 I interpolate at this point that I am, of course,
reading from a translation into English of the Swedish language
in which the judgment was expressed. It in obvious that during
the course of such translation some different English words
have been selected by the translator than the words which
appear in Article 13 of the Convention itself. Thus, for
instance, there is the reference to placing the child in an
“unacceptable” situation, whereas Article 13 of the Hague
convention refers to placing the child in an intolerable
situation. But, quite clearly, making those allowances for
translation, the Swedish court in that passage was clearly
applying to the letter the terms of Article 13 of the Hague .
Convention.
013 The Swedish judgment continues:
“The father has claimed in this case that
he has not abused either alcohol or
narcotics since he was convicted ten years
ago for driving under the influence of
alcohol and a minor possession of
marijuana. This statement gains no support
in the examination of the case. In the
absence of any other enquiry than that by
the mother in this matter, the statement
that her husband still continues to use
marijuana cannot, in the view of the County
Court, be disregarded. In addition, the
County Court ascertains that the father has
not been capable of providing any account
in the matter of, inter alia, work, living
conditions, and care of the children which,
in a satisfactory manner, would show that
he has adopted any measures with the
purpose of creating, for the children’s
best interests, the preconditions for as
gentle a transfer of them as possible.
Besides, it has not been contented in this
case that Charlotte cannot return to her
previous school. The County Court further
ascertains that the father has not
presented any evidence which refutes that
laid against him by the mother in the form
of the examination carried out concerning
his personality, principally his behaviour
and behavioral approach vis-a-vis his
children.
Against this background and against the
background of other matters that have
transpired in this case, the County Court
finds that a transfer of Charlotte and
Samantha to their father would be obviously
contrary to the children’s best interests.
Thus, it is the opinion of the County Court
that there are circumstances of such a
nature that it may be deemed warranted to
refuse transfer under the provisions of
section 12(2) of the Implementation Act
[which clearly is a reference to the
provisions of Article 13 of the
Convention]. This application in therefore
rejected.”
014 Within about three weeks of that decision, and within
the time provided under the relevant Swedish rules, the father
appealed to the higher Swedish Kammarrattan (to which I will
refer as the “Swedish Appellate Court”). The hearing of that
appeal took place on Monday of this week, namely 26th May 1997.
On this occasion the father did attend personally. I understand
that both parents gave some oral evidence to the Swedish
Appellate Court. In addition, there was legal argument as to
the correctness, or otherwise, of the decision of the Swedish
County Court. The Swedish Appellate Court reserved its judgment
and made it clear that it would give its decision and reasons
within four weeks, namely by (at the latest) about the end of
June 1997.
015 The following day, namely on Tuesday, 27th May 1997,
the father was permitted to have contact or access to both of
the children. He agrees that he had assured the mother that he
would not make any attempt to remove the children from Sweden
and that he would return them to her at the agreed end of the
period of contact. Further, he gave to the mother his passport
and his own aeroplane ticket for his return to America.
016 Notwithstanding that assurance and those safeguards,
the father, in fact, removed the children from Sweden to
Copenhagen in Denmark. It is not necessary to go into any
detail as to the further steps which he took, but the upshot
was that he embarked with the children to fly from Denmark to
America via London. He landed at London with the children
yesterday, Thursday, 29th May. Immediately on arrival he was
arrested by the police at Heathrow pursuant to a warrant for
the extradition of the father back to Sweden to face criminal
charges connected with the removal of the children by him from
Sweden.
017 Arrangements were made for the children to be
voluntarily accommodated overnight by the London Borough of
Hillingdon, and the mother, herself, flew from Sweden to
England, Thus, by yesterday evening both parents and both
children were all present in England and, indeed, I had to make
certain temporary orders to which it is not necessary to refer
in any further detail.
018 Today, Friday, 30th May 1997, the father was taken to
Bow Street Magistrates’ Court in connection with the
extradition proceedings and where an application was made on
his behalf for bail. However, the magistrate at that court
refused to grant bail and has remanded the father in custody
until next Wednesday, 4th June. I postponed this hearing before
me until the father was able, albeit still in custody, to be
}wrought to this court.
019 Meantime, by an application dated 29th May 1997, the
mother has applied to the Superior Court of Los Angeles for a
modification of its order of 5th December 1996. That
application is expressed to be returnable before the Los
Angeles Court at 1.30 pm (obviously, Los Angeles time) today,
30th May 1997. Because of the time difference it will be a few
hours yet before that application comes before the Los Angeles
court, but, in terms of date, it comes before that court on the
same date that I am hearing this matter in London. The formal
application orders the father to appear before that court, but
since, as we all know, he is in physical Custody in England
thee is, of course, a practical impossibility for him to do.
020 By her application to the Los Angeles court the
mother asks that the order of 5th December 1996 be modified so
as to give custody of both children to herself and, as I
understand it, monitored visitation to the father. I have to
say that I find it very difficult to comprehend why, at this
precise moment in the history of these proceedings, the
mother’s American lawyers have thought it appropriate to make
that particular application. Of course I can understand that
there may have been many periods of time subsequent to 5th
December 1996 when it might have been appropriate for her to
apply to the American court for a modification of its order. An
obvious example might have been immediately after the decision
of the Swedish County Court on 13th February 1997 not to order
the return of the children pursuant to the Hague Convention.
But quite why it was thought necessary or appropriate to issue
that application at the precise moment when the children were
temporarily in England I cannot, myself, understand.
021 At all events, I intend to consider the applications
before me on the basis that the American order of 5th December
1996 remains extant as the governing custody order at the
precise moment that I am giving this judgment and considering
this matter. I do, however, observe that objectively there
seams some absurdity in the fact that in the space of a single
day, fundamentally in relation to the same matters, there have
been legal hearings in two courts in England, namely the Bow
Street Magistrates’ Court and the High Court or Justice, and
also in a court in Los Angeles, and all at the same time as we
are awaiting the decision of the Swedish Appellate Court in
properly constituted proceedings there.
022 I turn from that account of the facts to consider the
applications which are before me.
Application under the Hague Convention
023 By a fax dated 29th May 1997 the American central
authority under the Hague Convention notified the Child
Abduction Unit, which acts as the English central authority
under the Hague Convention, that they would be forwarding to it
an application under the Convention for the return of Samantha
and Charlotte to America. The formal application has not yet
been received by the Child Abduction Unit here, but I intend to
treat the fax to which I have referred as if, itself, it
constituted a formal request by the American Central authority
to the English central authority under the Hague Convention. In
my judgment, quite clearly, I must first determine what orders,
if any, I should make on that application before giving any
consideration to the cross – applications of each parent, to
which I have referred, for orders under the Children Act or the
inherent jurisdiction of the court.
024 In relation to his application under the Hague
Convention, Mr. Setright, on behalf of the father, submits,
correctly, that the state of habitual residence of these
children remains California. At any rate in the eyes of English
law and the manner in which English courts have interpreted the
Convention, one parent of legitimate children (as these
children are) cannot, by a process of abduction, unilaterally
change the children’s habitual residence against the will of
the other parent unless and until that change is sanctioned by
a court of competent jurisdiction. No court has yet made any
order which would have the effect of sanctioning the change of
the children’s habitual residence from California to Sweden.
Mr. Setright further submits, correctly, that it remains the
case that these children were wrongfully removed from
California in terms of Article 3 of the Convention.
025 So he submits that it is now my duty under the
Convention and the Child Abduction and Custody Act 1985, which
incorporates it into English law, substantively to hear and
determine the application of the father via the American and
English central authorities for the return of the children to
California. He says that it is my duty loyally to apply Article
12 of the Convention, unless I am satisfied that Article 13
provides a discretionary ground for not returning the children
in this particular case. Of course, he does not suggest that I
should embark today on a consideration of any issues that may
arise under Article 13, but submits that I should adjourn his
application for substantive consideration on an early date
after more evidence of the kind which was available in Sweden
has been filed within these English proceedings. Meantime, he
submits that I should make orders designed to ensure that the
children remain within this jurisdiction until a substantive
application can be heard.
026 In developing his submission Mr. Setright pointed to
the general duty of co-operation on central authorities and
“competent authorities” (in which I include the judicial
authorities and this court) under Article 7 of the Convention.
He points to the fact that Article 8 refers to “the central
authority of any other Contracting State” and is not limited to
the central authority of the Contracting State (in this case
Sweden) to which the children were first wrongfully removed.
The all-embracing effect of Articles 1 and 8 is very important.
It underpins the international web of central authorities and
other competent authorities, including courts, which are all
committed to Preventing the harmful effects of international
child abduction. Nothing in this judgment is intended in any
way to detract from the importance in appropriate cases of
several central authorities all co-operating and interacting
together.
027 Mr. Setright points to Article 9 and the importance,
if an abducted child is moved to a second Contracting State, of
the first requested State promptly transmitting the application
to that State; and he also points to the last paragraph within
Article 12, which tends to be rarely referred to, which
provides that “where the judicial or administrative authority
in the requested State has reason to believe that the child has
been taken to another State, it may stay the proceedings or
dismiss the application for the return of the child.
028 So he submits that, in effect, resolution of the
outstanding issues under the Hague Convention has now passed
from Sweden to England. He stresses that the proceedings are
still pending in Sweden in the sense that there has not yet
been a final decision on the appeal there. He submits that
proceedings under the Convention are, in character, essentially
ones of “enforcement”; that enforcement proceedings can be
identically replicated in any convention country; and that,
therefore, no question of comity between this court and the
Swedish courts and legal system arises.
029 But, in my judgment, all these submissions overlook
two fundamental points. The first is that one of the
fundamental purposes of the Convention and its mechanisms in to
prevent, by deterring, international child abduction. The
preamble to the Convention refers to ”The States signatory to
the present Convention … 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
… [I underline and emphasize the word “and”]. Thus, ensuring
prompt return of children to the State of their habitual
residence is one of the objectives of the Convention, in
conjunction with the important overall objective of desiring to
protect children from the harmful effects of their wrongful
removal or retention. As the Explanatory Report by Elisa
Perez-Vera issued by the Hague Conference itself in 1982 and
frequently referred to by the courts, not only of England but
of many other Contracting States, makes clear at paragraphs 16
to 19 “. . . effective respect for rights of custody and of
access belongs on the preventive level, insofar as it must lead
to the disappearance of one of the most frequent causes of
child abductions”.
030 Thus, one objective of the Convention is to provide
an effective mechanism for the prompt return of children
through administrative and judicial procedures so that people
in the position of the father in this case do not resort to
self-help and secondary abduction. In my judgment, it would run
quite counter to this objective if a parent, who had failed to
procure the return of his child from one Contracting State,
could successfully obtain a re-run of his application by
himself abducting the child to or via another Contracting
State.
031 The second fundamental point is that the machinery of
the Convention, read as a whole, essentially contemplates a
summary procedure to be operated once only. In particular
Article 16 provides that the judicial or administrative
authorities of the State to which the child has been removed or
in which it has been retained, shall not decide on the merits
of rights of custody “until it has been determined that the
child is not to be returned under this Convention”. Thus, if a
child is abducted to England and, within proceedings under the
Convention, the court decides that, because of the discretions
under Article 13, it should not be summarily returned, the
force of the Convention insofar an it relates to summary return
in then spent. There cannot be second or subsequent
applications under the Convention.
032 In my judgment, that principle and approach must
apply no less forcefully just because the summary procedure
under the Convention has taken place in another Contracting
State. I can no more sit “on appeal” from the decision of the
County Court in Sweden in thin case (whose decision and order
at this moment remains in existence) than I could if an earlier
decision not to return the children had been made in
proceedings here.
033 Even when a court is exercising a statutory
jurisdiction and duty, as I am under the Child Abduction and
Custody Act 1985, there is a discretion to decline to exercise
the jurisdiction; for example, when a court stays proceedings
on the principal of forum non conveniens. I stress that I do
not regard the principle of forum non conveniens as having any
direct application whatsoever to the present case or, indeed,
to proceedings under the Convention generally; nor do I regard
myself as exercising a power to “stay” in the conventional
sense the father’s application under the Child Abduction and
Custody Act and the Convention. Nevertheless, the existence of
that inherent power in other types of legal proceedings,
including proceedings for the exercise of a statutory
jurisdiction and duty, fortifies me in the view that I can, and
should, decline to entertain on its merits the application
under the Convention for the return of these children to
America.
034 I stress that I am declining even to entertain the
application under the Convention on its merits. I am not
hearing it on its merits. I do not have, and do not wish to
express or imply, any view as to whether or not within the
Swedish proceedings and the current Swedish appeal the children
should be returned to America. In my judgment that is a matter
within the exclusive province of the Swedish appeal court,
which is, even now, considering its decision
035 For those reasons, I intend to exercise an inherent
jurisdiction and discretion not to entertain the father’s
application under the Hague Convention.
Cross – applications under the Children Act and in Wardship
035 I now turn to consider what orders I should make in
relation to these children under the Children Act or in
wardship. On my direction they are now wards of this court. The
father seeks orders to provide for their return with him to
California. The mother seeks orders to permit their return with
her to Sweden. Clearly, the one place where the children cannot
remain for any significant period of time is England, where
neither child and neither parent has any significant or
relevant connection.
036 In considering these applications I put the
Convention to one side and must, and do, apply the testy in
section 1 of the Children Act 1989. I must make the welfare of
each of there children my paramount consideration. I must, and
do, have regard in particular to all the matters listed in
section 1(3) of the Children Act 1989 which, at this point, I
specifically re-read and remind myself of, although I do not
propose to refer seriatim to all the matters listed there.
037 I stress that I view the decision which I have to
make on these cross-applications as very short-term and
temporary in character. It is a choice between returning the
children to America to be subject to further legal proceedings
there in which, no doubt, the mother would be asking to be able
to take them back to Sweden; or to return them to Sweden for
the very short period of time (less than a month) which will
remain between today and the announcement of the decision of
the Swedish Appellate Court. If that court reverses the
decision of the Swedish County Court, then, presumably, it will
order the return of the children to California forthwith. If
it does not reverse that decision, then I presume that further
proceedings can take place in Sweden, not under the Convention
but on the merits of the custody issues as to whether the
children should live in Sweden or in America, .
038 It would be unfair to base this important decision on
the fact that, at any rate temporarily, the father is in
custody for an offense connected with abducting the children
themselves; and I leave that fact out of account altogether.
039 It seems to me, in approaching the decision, that the
salient facts are these: Clearly, the mother acted very
wrongfully in first removing the children from California last
September. Nevertheless, the fact is that the children have now
resided with the mother in Sweden for over eight months. The
old home in California has, as I have said, been sold. The
children have had some indirect contact with their father but,
as I understand it, have not otherwise seen him (I stress
through no fault of his) at any time between last September and
Tuesday of this week. Temporarily at leant the children have
come to rest in some sort of status quo in Sweden. The mother
has made arrangements properly to accommodate them there. The
elder child, Charlotte, is going to a school there. I have been
specifically told by the father, through Mr. Setright, that
there is no particular criticism on a short-term and temporary
basis of the practical arrangements that the mother has made
for the children in Sweden, although, of course, the father
remains adamant that in the longer term it is more in the
interests of the children to be brought up by him then by their
mother.
040 In that situation it seems to me that the welfare of
these children is clearly better served in the short-term (and
I stress again that I am only dealing with the very short-term
of a few weeks) by their returning to Sweden where they were
living in satisfactory and relatively settled conditions until
just three days ago.
041 For those reasons, I propose on the
cross-applications to make orders permissive of the return of
the children forthwith to Sweden.
042 That concluded the judgment, and I will now turn to
consider the form of the orders.
043 Mr. Setright and Mr. Mocatta, this is what I have in
mind. If I could just dictate this to you and then you will
each tell me if it is, in some way, technically unsatisfactory
or fails technically to meet the situation as I have now
decided it.
So, it will say:
“Upon hearing Counsel on behalf of Gregory O’Donobue (the
Father)” — I think, actually, are you a solicitor?
MR. MOCATTA: I am a solicitor, yes.
MR. JUSTICE HOLMAN: Can we say not “counsel”, can we say
“advocates”? I like to be very undiscriminatory about this.
Can we say:
“Upon hearing Advocates on behalf of Gregory O’Donobue (the
Father) and Susanna Gregmar O’Donobue (the Mother) and upon the
applications of the Father for the return of the children to
California either under the provisions of the Child Abduction
and Custody Act 1985 and the Hague Convention or, failing that,
under the provisions of the Children Act 1989 and under the
inherent jurisdiction of the court; and upon the application of
the Mother for the return of the children to Sweden under the
provisions of the Children Act 1989 and under the inherent
jurisdiction of the Court it in ordered that:-
(1) The Court declines to exercise any jurisdiction under the
Child Abduction and Custody Act 1985 and the Hague Convention;
(2) The said applications of the Father are dismissed;
(3) The mother do have leave to remove the children forthwith
from England to Sweden;
(4) Until the children leave the jurisdiction pursuant to
paragraph (3) above –
(i) they do remain Wards of this Court, and
(ii) they be in the care and control of and do reside with
their mother;
(5) Forthwith upon the children leaving the jurisdiction
pursuant to paragraph (3) above they do cease to be Wards of
this Court and all English proceedings do cease.”
Then (6) will be any provision about costs, which I will come
to as a separate matter, and then under that I want to add
these words:
“… and the Court records that this Order is made solely to
enable the children to return to the situation which existed
immediately before they were removed from Sweden on 27th May
1997. It is not a determination on the merits or at all of the
questions –
(i) whether the children should be returned to California under
the Hague Convention, or
(ii) where or with which parent the children should live in the
longer term.”
I just want to go back. Where I said, “. . . and the Court
records that thin Order is made solely to enable the children
to return to the situation”, I want to say, “to enable the
children to return to the legal and factual situation which
existed immediately before.” etc..
I hope, Mr. Setright, at any rate, that sufficiently records
the “without prejudice” aspect of your submission.
MR. SETRIGHT: My Lord, if I can turn briefly to those behind me
—
MR. JUSTICE HOLMAN: Yes
(Counsel confers with h is instructing solicitor)
MR. SETRIGHT: My Lord, yes.
MR. JUSTICE HOLMAN: I hope that that is not just one belt and
one pair of braces but several and, indeed, I have gone out of
my way in the judgment to try and make that clear, and I do
intend for a variety of reasons to say that the judgment I have
given should be transcribed at the expense of public funds
There is a variety of reasons for that. One is that I think it
should be available to Swedish courts so they understand what
has happened. I think it should be available to the American
court — it cannot be in a few hours’ time but at any
subsequent hearing. I think it should be available to both
central or all three central authorities involved, and,
incidentally, it may be of interest to a wider audience; but
that in purely secondary.
MR. SETRIGHT: The appropriate additional orders will have to
be added : “Leave for the judgment to be transcribed with
expedition at public expense” —-
MR JUSTICE HOLMAN: Certainly.
MR. SETRIGHT: — because one does not know —
MR. JUSTICE HOLMAN: Then paragraph (6) of the order itself will
say, “Leave” — it is not just leave — “It is directed that”
—
MR. SETRIGHT: Yes, my Lord.
MR. JUSTICE HOLMAN: — “a transcript of the Judgment be made
as a matter of urgency at the expense of public funds and
copies supplied to” — I think I will say the solicitors for
both parties. They will soon make sure it in used anywhere else
relevant, will they not?
MR. SETRIGHT: Yes.
ME JUSTICE HOLMAN: “Copies supplied to the solicitors for both
parties”.
MR. SETRIGHT: Then leave for the judgment to be disclosed to
other central authorities, because they are all outside the
jurisdiction; my Lord, and leave subject to the usual
restrictions on anonymity for the judgment to be reported. In
fact, the judgment and this order to the central authorities.
MR. JUSTICE HOLMAN: Very well. Paragraph (6) had beetle say
(6)(i) what I have just said and (6)(ii): Cleave for the
judgment (edited to give anonymity to the children) to be
reported”. If I say it can be reported, that says it —
MR. SETRIGHT: It must.
MR. JUSTICE HOLMAN: I do not need go beyond that.
MR. SETRIGHT: I agree, with respect, by Lord. Apart from
costs, there is one other point and one only and that is this.
My instructions from my lay client, the father, are that he
would wish, it he can, to take this matter to the Court of
Appeal.
MR. JUSTICE HOLMAN: Before we get to that, let us just deal
with costs because appeal comes —
MR. SETRIGHT: Last.
MR. JUSTICE HOLMAN: —- after the Question of costs.
MR. SETRIGHT Yes, my Lord.
MR. JUSTICE HOLMAN: So far as costs are concerned — so
paragraph (7) of the order is costs — what submission do you
want to make?
MR. SETRIGHT: There is legal aid on this side, my Lord, and I
would suggest that the court should make or consider making no
order as to costs.
MR. JUSTICE HOLMAN: What is your position, Mr. Mocatta?
MR. MOCATTA: I am not really sure, is the answer, my Lord. I
was formally instructed by the Swedish lawyer representing Mrs.
O’Donobue, the mother, and I was assured that I would be paid
by the Swedish Legal Aid or the Swedish lawyers, but am not
sure —
MR. JUSTICE HOLMAN: I am only on the question of whether or not
there be an order as to costs inter partes.
MR. MOCATTA: I would feel it appropriate I should make that
request, my Lord, inter partes because it was a matter of
public importance that thin matter was heard, or of significant
importance.
MR. JUSTICE HOLMAN: Yes, but are you asking that Mr. O’Donobue
should pay your client’s costs?
MR. MOCATTA: I would be bound to ask for that if I were under a
legal aid in this country and if I feel I am under a similar
situation in Sweden I would ask for that order, my Lord.
MR. JUSTICE HOLMAN: The position is, of course, that
automatically under the Convention Mr. O’Donobue has a legal
aid certificate to which he is not required to make any
contribution, however well off he may be; so does he not gain
the protection of the Legal Aid Act?
MR. MOCATTA: My Lord, I would have thought that would be the
case but protection is not a hundred per cent. It is possible,
is it not, for the legal aid to pay my costs as well?
MR. JUSTICE HOLMAN; The Legal Aid Fund? I am certainly not
going to make an order for your costs out of the innocent Legal
Aid Fund.
MR. MOCATTA: Then I can say no more.
MR. JUSTICE HOLMAN: No, but I do not honestly think I can make
an order for your costs to be paid by Mr. O’Donobue.
MR. MOCATTA: Not if he is legally aided, no.
MR. JUSTICE HOLMAN: Well, he is.
MR. MOCATTA: In which came it ought to be against the Fund and
I hear your Lordship’s comment.
MR. JUSTICE HOLMAN: I think the answer is no order as to costs;
so legal aid taxation for the father and, if legally aided, the
mother leaving aside appeal, are there any other substantive
orders that either of you seek?
MR. SETRIGHT: There are not, my Lord, and I wonder if the court
would give me no more than two minutes because, so far an the
application I was about to make is concerned, it is certainly
my view that the father should have a moment or two to consider
the instructions which I have received.
MR. JUSTICE HOLMAN: Certainly. There would be two applications
you would have to make: One would be an application for leave
to appeal and the second, which would not be contingent on the
first, would be for a stay.
MR. SETRIGHT: Yes. Rather than my saying a single word more —
MR. JUSTICE HOLMAN: You take some instructions.
MR. SETRIGHT: If I may.
MR. JUSTICE HOLMAN: You did mention that there had been this
threat some time ago to take the children to Spain. But I am,
of course, trusting implicitly that Mrs. O’Donohue, whose
connections are entirely (in so far as they are not with
America) with Sweden, will be taking theme children to Sweden
and nowhere else and resubmitting herself to the full
jurisdiction of the Swedish courts.
MR. MOCATTA: My Lord, I did not mention that point. My
instructions are in writing that there is a flat denial that
she would ever go to Spain. She has a good benefit scheme in
Sweden at the moment; the children are at school; she in with
her parents and her brother, I believe, or sister — I may be
corrected on that — but certainly another close member of the
family and she has no intention of going to Spain whatsoever.
MR. JUSTICE HOLMAN: I will rise for a short while.
(Short adjournment)
MR. JUSTICE HOLMAN: Mr. Setright, just before we resume, there
in one matter which I mentioned during the course of argument
and omitted to say in the judgment that I intend to add a
sentence about when I do correct this judgment, and that is
that in deciding on return to Sweden I have not been influenced
in any way by the fact that temporarily Mr. O’Donobue is in
custody. It seems to me that it would have been unfair to have
based this important decision on the fact that, at any rate,
temporarily, he is in custody for an offense connected with the
children themselves, and I intended to say a sentence to that
effect. We Will put that in, but I just mention that now. Yes?
MR. SETRIGHT: My Lord, so far as an application for a stay and
for leave in concerned, and I am very grateful for the time the
court has given me. It had been the father’s instruction that
he sought both and, recognizing the novelty of the first part
of the court’s decision, felt that it was a matter he wished to
pursue because he wishes to do everything he can to ensure that
the children return to California. But, my Lord, having had the
chance to consider the matter carefully, and having received
some advice on the quality, with respect, of the extempore
judgment that he has just heard and its likely reception on any
appeal, he has instructed me, regretfully but nonetheless
firmly, that he does not seek either leave to appeal or a stay,
recognizing that the children and the mother must return to
Sweden where he trusts they will stay until the decision of the
Court of Appeal.
MR . JUSTICE HOLMAN: Thank you very much. I think, if I may say
so, that is a very humane decision on the part of Mr. O’Donobue
because, although (as I have recently said) I am not influenced
at all in the decision by the fact that he is in custody, that
remains the fact and, amongst other things, if he had
successfully persuaded me even to stay these proceedings the
children could not be with him; they would have to be living
with their mother; she is bereft really here, and it would have
just prolonged the agony for these children. So, I respect and
admire the humanity of Mr. O’Donohue’s decision.
MR. SETRIGHT: There was another side to it, which is the
interest of the central authority, and Miss Hutchinson and I
would have felt it right to talk realistically to Mr. Nicholls
and, realistically, that could only be done on Monday morning.
So the stay I would have asked for would have been until 4 pm
on —
MR. JUSTICE HOLMAN: Appeals, anyway, in the end do not depend
on central authorities but on the parties.
MR. OUTRIGHT: Precisely so.
MR. JUSTICE HOLMAN: Hank you very much. So that, in fact,
concludes it.
That means, Mrs. O’Donobue, that you can, in fact, an far as
this court is concerned, fly out with the children tonight. I
do not suppose that is practicable, but you are completely at
liberty to do just that.
Now, has there been further contact during the course of this
day with the London Borough of Hillingdon?
MR. MOCATTA: My Lord, no. There has been contact with a social
worker with the London Borough of Hillingdon, but there has
been no other. I assume I will have to take this court order to
them.
MR. JUSTICE HOLMAN: I do not think you will have to take it;
you will have to fax it. Have you got a fax number? In my room
I have a battery of fax numbers for the London Borough of
Hillingdon and others.
MR. SETRIGHT: My Lord, we can provide one.
MR. JUSTICE HOLMAN: Yes. The position is, if we just look at
yesterday’s order, that clearly says that until the said
hearing, which is the hearing which is now concluding, neither
parent was to remove or attempt to remove either of the
children from accommodation voluntarily provided. So, the force
of last night’s order is already spent and I have said that the
children are to be in the care and control and residence of the
mother. I think once you have the order, which you will get
just an soon as the associate can finish her typing, you can
fax it to Hillingdon and you can just take the children and
look after them as a mother, making whatever arrangements you
can for them.
MR. MOCATTA: There are suitable arrangements for tonight,
anyway.
MR. JUSTICE HOLMAN: Yes, I have confidence in that fact. But I
do hope, Mrs O’Donobue, you do understand that I am doing no
more than saying they just go back to Sweden for now and you
each seemed to have had your different advice about how things
went in the Court of Appeal there, but none of that is anything
to do with me at all. I do not want you to have some raised
hope by anything that has happened here that the children may
yet remain in Sweden, because they may not. But that is nothing
to do with me. All right?
Other than the completion of the typing, is there anything else
that we can usefully do?
MR. MOCATTA: I think in the order yesterday you described my
client fully as Susanna Marguereta Gregmar. I trust that is in
the order as well, because your Lordship omitted that.
MR. JUSTICE HOLMAN: Yes, I got that from something you faxed to
me yesterday.
To the security people, where will Mr. O’Donobue have to go –
Brixton? I am sorry it has been a long day for you. I have to
say that if he had been got to Bow Street, as he should have
been, at ten of crock this morning he would have been here by
11 o’clock and we would all have been gone by — I do not know
— anyway, by four o’clock. So, I am very, very sorry you have
been kept here late, but I think I can say with my hand on my
heart it is not my fault. There we are.
Mr. O’Donobue, I would like you to understand that I do know
this all began with an abduction by their mother. I am not
entering into the rights and wrongs of any of it or the
background. But, as a human being, I have great sympathy for
you. I would like you to understand that.
Thank you all very much indeed.
(The Court adjourned)
==============================================================
COMMENTS
by
William M. Hilton, CFLS
Attorney At Law
Box 269, Santa Clara, CA 95052
TEL: 408/246-8511; FAX: 408/246-0114
Genral Comment
For a similar case see Patrice d’Assignies and Sandra
Escalante, Superior Court of California, Los Angeles, Number BD
051876, dated 09 Dec 1991. This is on Hilton House Web Site as
Escalante_california.txt.
In Escalante two children were was removed from France by the
mother and an action under The Convention was commenced by the
father in Los Angeles. After several weeks of on again, off
again hearings, the Los Angeles Superior Court advised counsel
on Friday that the Court would make its decision on Monday. By
this point it was rather clear that the children would be
ordered back to France.
Over the intervening weekend the father was granted access and
then absconded with the children.
The Court, on Monday, after stating that in fact the Court was
going to order the children returned, but because of the
actions of the father, found that Art. 13(b) applied since the
father’s abduction placed the children in an intolerable
situation.
Ultimately, after several years and further litigation, the
children were returned to the mother.
Paragraph by Paragraph Comment
006 Having the children stay in the family home while the
parents move in an out is sometimes called “bird nesting” and
while it is uncommon (as it requires at least a modicum of
civility, usually absent in these cases) it is not unheard of.
007 A person removing a child from California in
violation of a custody order could be subject to criminal
prosecution under California Penal Code Section 278.5 or the
Federal International Parental Kidnapping Crime Act of 1993, 18
U.S.C. 1204. It is of interest to note that the District
Attorney of Los Angeles has a very capable Child Abduction
Unit.
009 The Convention, of course, does not require that the
wronged parent be present. The issue of whether or not the
wronged parent should be present is one where competent counsel
can differ, but in the whole it is, all things considered, the
better tactic to have both rather than one parent present. At
least by this the court can see for themselves that the wronged
parent does not have horns and a tail. Perhaps if neither
parent were present at the hearing and if the entire hearing
was conducted by affidavit, then the absence would not be a
factor.
This paragraph also points out the necessity of having
competent counsel available for the wronged parent in the
requested forum.
011 Since the only issue that is supposed to be before
the Swedish Court is whether or not the children should be
returned under The Convention, one wonders why it took 44 pages
to decided against the return. In reading the translation it
would appear, at least to the writer, that the Swedish court
was in fact during a best interests hearing rather than a
hearing under The Convention.
012 I would respectfully take exception with the Court in
its opinion that the use of the term “unacceptable” rather than
“intolerable” was merely a translation issue. I would say,
based on the precis of the Swedish order, that in fact the
Swedish meant that the living conditions in California were
“unacceptable” to the Swedish court and therefore they would
not return the children. I do not believe that the Swedish
court found that the situation in California ever reached the
level that “intolerable” connotates for the court to exercise
its discretion and not return the children.
019 It will be interesting to see the result of the
mother’s application. There is a doctrine of law in the United
States Courts called “disentitlement”, see, e.g., In re Prevot
(6th Cir. 1995) 59 F.3d 556. Under this doctrine a person who
is seriously in violation of the law is not allowed to use the
court system until things are “made right”, e.g., the children
are returned to California by the mother. California has
applied this doctrine in a number of cases.
021 I cannot but strongly agree with the Court as to the
absurdity of the multiple actions. One of the objectives of
The Convention, I would opine, is one court, one order. This,
of course, makes the Court’s decision to not entertain an
action under The Convention and ordering the forthwith return
of the children to Sweden all the more correct.
023 The Court makes a nice procedural point: The use of
a FAX rather than the actual document. This is, of course, in
accord with The Convention. Arts. 23, 30; 42 U.S.C. 11605.
024 – 032 As I understand it the Court, rightfully, is stating
that once a court of a sister nation is seized of the matter
and that matter is still pending, then that court has exclusive
international jurisdiction over the matter and the only duty of
other courts is to forthwith return the child and/or the
parties to that forum.
This is very similar to the scheme adopted by the Uniform Child
Custody Jurisdiction Act (UCCJA) in the United States, Section
6, which holds that when a court is exercising its jurisdiction
in conformity with the UCCJA, then all other courts are
prohibited from exercising concurrent jurisdiction. This is
well developed and regularly followed doctrine under decisions
of the State courts in the United States.