UK – RE P – 1995

Re P (Abduction: Declaration) (UK 1995)[1995] 1 FLR 831
Court of Appeal, 09 Feb 1995
5 International Abduction [UK 1995]
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RE P (ABDUCTION: DECLARATION)

Court of Appeal

Butler-Sloss and Millett LJJ and Sir Ralph Gibson

9 February 1996

001 Child abduction — Declaration — Mother taking child
to California — Father making application under Hague
Convention on Civil Aspects of International Child Abduction
1980 — Central Authority advising father to seek
declaration that removal of child wrongful — Whether
English court having jurisdiction to make declaration.

002 The child was born in England in 1991 to an American
mother and English father. The mother on two occasions took
the child to the USA but returned. In October 1992, at a
contested hearing in the Family Division, the president made
a residence order in favor of the mother with leave to
remove the child from the jurisdiction to live in
California. However, the mother returned to live with the
father for a further 18 months. In February 1994 the
mother’s sister, by deception, removed the child and took
her to the USA. The parents jointly made an application
under the Hague Convention, although the mother later
asserted that she was a party to the child’s removal. The
application was forwarded by the Central Authority in the
UK, the requesting State, to the Central Authority of the
requested State, the State Department of the USA in
Washington. Meanwhile, the office of the Attorney-General
in California was consulting the State Department about the
position of the mother and child in California, where the
mother had made a guardianship application relying on the
president’s order to demonstrate that there was no merit in
the father’s claims. The production of the President’s
order led to a disinclination in California to accept the
Convention application and no steps were taken with regard
to it. To start the machinery of the Convention moving, the
Official Solicitor’s office on behalf of the Lord
Chancellor’s Department suggested that a request should be
made in England for the High Court to make a declaration
that the removal of the child had been wrongful within the
meaning of Art. 3, on the ground that, since the parents had
resumed cohabitation for a period of more than 6 months
after the residence order was made, the residence order had
ceased to have effect within the meaning of s 11(5) of the
Children Act 1989; that the child was habitually resident in
England immediately prior to her removal, and that the
father’s right of custody had been breached. The mother
appealed against the declaration, contending that the
declaration did not fall within Art. 15 and that the judge
had no jurisdiction to make, or alternately ought not to
make, a decision as to the habitual residence of the child
sine that issue was exclusively one for the court in
California.

HELD — Dismissing the appeal —

(1) The jurisdiction to comply with the father’s request
was to be found in the words of s 8 of the 1985 Act,
which clearly contemplated applications for the
purposes of Art. 15 of the Convention to be made by
any person appearing to the court to have an interest
in the matter, and not limited to the applicant or to
the circumstances within the narrow definition of Art.
15. The declaration could properly be granted without
recourse to the inherent jurisdiction of the High
Court.

(2) As to whether the declaration ought to be made, s 8
presupposed that the court in the requesting State
would tread the path which would also be trodden by
the requested State. The issue properly the concern
of the requesting Sate — England in the present case
— was whether an applicant parent had rights of
custody according to English law at the time of the
removal. However, the request for a declaration made
it inevitable that the English court would have to
consider, however provisionally, issues such as
habitual residence and breach which were to be decided
in another place. As a question of policy, the
English court should not debar itself from the power
conferred by Parliament to grant a declaration at the
request of another signatory to the Convention. The
judge had been correct to make the declaration, which
in no way trespassed upon the jurisdiction of the
court in California.

Statutory Provisions Considered

Child Abduction and Custody Act 1985, s 8

Children Act 1989, s 11(5)

Hague Convention on the Civil Aspects of International Child
Abduction 1980, Arts. 3, 15, 31

Case referred to in judgment

F (Abduction: Ward of Court), Re [1989] Fam 85, [1989] 3
WLR 825, [1989] 3 All ER 590, sub nom F (A Minor)
(Abduction), Re [1990] 1 FLR 276

James Holman, QC and Henry Setright for the mother
Camden Pram QC and Charles Kemp for the father

Cur adv vult

BUTLER-SLOSS LJ:

003 This is an appeal by a mother against a declaration
made by Douglas Brown J on 12 December 1994 in response to
an application by the father under s 8 of the Child
Abduction and Custody Act 1985 and Art. 15 of the Convention
on the Civil Aspects of International Child Abduction 1980.
The application for the declaration was made by the father
against the background of an unusual and complicated family
history. We dismissed the appeal and directed that the
declarations and the judgment of Douglas Brown J be sent to
the Central Authority of the USA forthwith. We now give our
reasons for dismissing the appeal.

004 The father is English and the mother is an American
citizen. They married in Las Vegas in November 1990 when he
was 22 and she was 20. They came to England where the
child, a girl E, was born on 28 June 1991. Shortly
thereafter the mother attempted to leave with the child and
was stopped at the airport. the child was made a ward of
the court. The mother was given leave in August 1991 by
Waite J to take the child to the USA on condition that she
returned in England in September 1991. She actually
returned 2 weeks later and resumed living with the father.
Further orders of High Court judges gave her leave to
remove the child but the mother resumed cohabitation with
the father and remained with him until July 1992 when she
again left with the child. After further court orders and a
period which the mother spent with the child in the USA,
there was a contested hearing before the President of the
Family Division. On 22 October 1992 he ordered that there
should be a residence order in favour of the mother with
leave to her to remove the child permanently our of the
jurisdiction to live in Santa Barbara, California, on her
undertaking to return to the jurisdiction when called upon
to do so. The mother left with E but returned to live with
the father in January 1993 and remained with him for nearly
18 months. She because pregnant and they went to Hawaii in
January 1994 for the birth of the second child who was
placed for adoption. They remained in Hawaii until
mid-March 1994 when they went to Egypt for a holiday. They
flew back to England and remained together until 6 May 1994
when the mother flew to California where she now is. When
the parents left in January 1994, E was left in the care of
the parental grandmother in London. On 16 February 1994 the
mother’s sister flew over and by a deception including a
forged letter said to be signed by the mother, the facts of
which are fully set out in the judge’s judgment, she removed
the child from the grandmother and took her to the USA. The
mother and father jointly made an application under the
Convention, although the mother now asserts that she was a
party to the removal of E by the sister.

005 The application under the Convention remains alive and
was processed by the Central Authority in the UK, the Lord
Chancellor’s Department, as the requesting State and was
forwarded to the Central Authority of the requested State,
the State Department of the USA in Washington. The law of
the requested State with which we are concerned however is
the domestic law of California, the territorial unit of the
Contracting State; see Art. 31 of the Convention. While
the joint application was received by the State Department,
the office of the Attorney-General in California was
consulting the State Department about the position of the
mother and child in California where the mother has made a
guardianship application relying upon the President’s order
made in 1992 to demonstrate that there is no merit in the
father’s claims in respect of the child. It appears that in
California at least, the production of the President’s order
has led to a disinclination on their part to accept the
Convention application. No steps so far have been taken
either by the State Department or the Attorney-General’s
office in California to put the Convention application
before a California court and no court is yet seized of the
issue. In order to start the machinery of the Convention
moving, the representative of the Official Solicitor’s
office acting on behalf of the Lord Chancellor’s Department
suggested that a request should be made to England for the
High Court to make a declaration under s 8 of the Child
Abduction and Custody Act 1985 and Art 15 of the Hague
Convention. In response to that request an application was
made by the father which was heard by Douglas Brown J. He
made the declaration in the following terms:

‘It is declared that pursuant to s 8 of the
Child Abduction and Custody Act 1985 that the
removal of the minor E . . . from the
jurisdiction of England and Wales was wrongful
within the meaning of Art. 3 of the Convention
on the Civil Aspects of International Child
Abduction.’

006 In a careful and comprehnsive judgment the jduge set
out the facts based on the affidavit evidence provided to
him. He directed himself as to the correct approach to
conflicting affidavit evidence and formed firm conclusions
adverse to the mother’s case from the inferences which he
drew from that evidence. The application for a declaration
under s 8 (to which I shall refer in a moment) required him
to consider the effect of the subsquent history of this
family upon the President’s order made in 1992 uner the
Children Act 1989 and whether the order or any part of it
was still effective. A decision as to the continuing
validity of the direction to allow the mtoher to remove E
permanently form the jurisdiction to California is crucial
to a decision as to the rights of custody, if any, to which
the father is now entitled under English law and to
determine whether he is entitled to the declaration he
seeks.

0007 The judge found on the evidnece available to him that
the mother had voluntarily resumed cohabitation with the
father after the 1992 order. the effect of s 11(5) of the
Children Act is to bring a residence order to an end where
the parties have subsequently resumed cohabitation. Section
11(5) states;

‘Where —

(a) a residence order has been made with
respect to a child; and

(b) as a result of the order the child lives,
or is to live, with one of two parents who each
have parental responsibility for him, the
residence order shll cease to have effect if the
parents live together for a continuous period of
more than six months.”

008 Both these parents had parental responsibility and the
judge found that they had cohabited for over 15 months.
Once the residence order ceased to have effect the judge
found that the leave to take the child out of the
jurisdiction also lapsed and ceased to have effect. The
1992 order was no longer valid. The relevant date for the
removal of the child is 16 February 1994. On the evidence
before the judge the child had been, according to English
law, ordinarily resident in England with both parents from
January 1993, if not indeed from birth, until her removal in
February 1994. The departure of her parents without her to
Hawaii had no effect upon that residence.

009 Section 8 of the 1985 Act provides for the English
court to make a declaration in a Convention case:

‘The High Court or Court of Session may, on an
applicatiion made for the purposes of Article 15
of theConvention by any person appearing to the
court to have an interest in the matter, make a
declaration or declarator that the removal of
any child from, or his retention outside, the
United Kingdom, was wrongful within the meaning
of Article 3 of the Convention.’

010 Article 15 of the Hague Convention is as follows:

The judicial or administrative authorities of a
Contracting State may, prior to the making of an
order for the return of the child, request that
the applicant obtain from the authorities of the
State of the habitual residence of the child a
decision or other determination that the removal
or retention was wrongful within the meaning of
Article 3 of the Convention, where such a
decision or determination may be obtained in
that State. The Central Authorities of the
Contracting States shall so far as practicable
assist applicants to obtain such a decision or
determination.

011 In order to compy with the request from the Central
Authority for a declaration and to come within the
definition in Art. 3, the judge made findings as to the
habitual residence of the child prior to her removal, the
father’s rights of custody and the breach of those rights by
the mother and declared that the removal was wrongful.

012 On appeal, Mr Holman QC for the mother raises a
question of jurisdiction which was not raised before the
judge and is the only point on appeal. He argued that the
judge had no jurisdiction, alternatively ought not, to make
a decision as to habitual residence of the child within the
meaning of the Convention since that issue was exclusively
one for the court in California where the child now is. He
did not take issue on the other findings of the judge. His
primary argument is that the declaration does not fall
within the ambit of Art. 15. If there is jurisdiction to
grant a declaration, inherent in which is a finding of
habitual residence, one of the major issues in the proposed
Californian proceedings, the English court as a matter of
policy ought to decline to deal with the matter which the
Convention requires to be decided by the requested State,
the USA. He expressed concern that a decision by this
court would either embarrass the California court seized of
the case or the English decision might be over-influential
or even conclusive in the eyes of the administrative
authorities or the Central Authority without ever being
placed before an American court.

013 He developed a persuasive argument that the request
did not comply with Art. 15 and ought not to have been
entertained. No decision had been made by the judicial or
administrative authorities as to the habitual residence of
the child which was a precondition of a request under Art.
15. This was a request by the Central Authority which was
premature and not within the ambit of Art. 15.

014 It is not necessary for the decision in this case to
explore whether an application in the present circumstances
can or cannot be made under the umbrella of Art. 15. I am
satisfied that the jurisdiction to comply with the request
is to be found in the words of s 8 which clearly
contemplates applications for the purpose of Art. 15 to be
made by any person appearing to the court to have an
interest in the matter and not limited to the applicant or
to the circumstances within a narrow definition of Art. 15

015 Swinton Thomas J in Re F (Abduction: Ward of Court)
[1989] Fam 85, sub nom Re F (A Minor) (Abduction) [1990] 1
FLR 276 made a declaration that the removal of a ward of
court from the jurisdiction was wrongful within the meaning
of Art. 3 of the Convention. The child had been removed to
the USA by the mother without leave of the court. The
application was made by the applicant father at the
suggestion of the Lord Chancellor’s Department as the
Central Authority of the UK. The judge found that s 8 was
permissive and not restrictive and did not preclude the
court from making a declaration at an earlier stage. I
agree with the decision arrived at by Swinton Thomas J but
disagree with his view that it was based upon the inherent
jurisdiction. In my judgment in Re F as in the present case
s 8 was the basis for the jurisdiction and the declaration
could properly be granted without recourse to the inherent
jurisdiction of the High Court.

016 Should such a declaration be made? Section 8
presupposes that this court will tread the path which will
also be trodden by the California court and we would not
presume to do so unless asked. The purpose of Art 15 goes
to the obligation of the State to comply with the request.
In a situation falling directly within Art. 15 the requested
State may have made a firm or provisional finding or made an
assumption that the habitual residence is English. In the
present appeal the request is at an earlier stage, where the
Central Authority of the USA faced with the 1992 English
order and a complicated matrimonial history seeks our
assistance before placing the application before the
judicial authorities. In the interests of comity it is
proper for us to assist when called upon to do so. In the
general run of cases on such a request made before there is
a decision or assumption by the requested State as to where
is the habitual residence of the child, it would be
preferable for the English court, if the facts permit it, to
make a declaration upon the assumption that the habitual
residence is in England, rather than making a specific
finding on an issue still in dispute in the other State.
The issue properly to be the concern of the English court
under the Convention is whether an applicant parent had
rights of custody according to English law at the time of
the removal. In order to make a declaration however under s
8 that the removal or retention was wrongful, the English
court would also have to make a provisional decision about
breach, although that too is a matter within the
jurisdiction of the other State. The request for a
declaration makes it inevitable that the English court will
have to consider, however provisionally, issues which are to
be decided in another place, unless the English court always
declines to make a declaration which Parliament has given
jurisdiction to the court to make. In my view as a question
of policy the English court should not debar itself from its
powers to grant a declaration at the request of another
signatory to the Convention. In my view the approach of the
Lord Chancellor’s Department, or more particularly the
Official Solicitor on their behalf, to the problem of
English law faced by the Central Authority of the USA in
this case was helpful and the advice to seek a declaration
sensible. The judge on the application was justified in
granting the decision.

017 The only question which remains is whether he should
have made findings as to habitual residence. On the
particular facts of this case with the existence of the 1992
order the judge, on being asked to make a declaration, had
no alternative but to grasp the nettle and make his findings
on habitual residence. If he did not on the facts of this
case, he could not make a declaration nor assist the
requested State. A finding of cohabitation and habitual
residence of the mother was crucial to the decision as to
the present status of the 1992 order and he was not in a
position to assume habitual residence as one might on other
facts.

018 I do not however consider that his judgment and its
clear conclusions based upon the written evidence available
to him will be misunderstood in the USA. That jurisdiction
has received a Convention application from the father and
will deal with it as appropriate. The judicial or
administrative authorities faced with the judgments from the
English courts and the declaration will accept as little or
as much of them as they choose. We are not trespassing upon
their jurisdiction in these judgments. They know, as a we
know, that the decision whether the removal or retention of
this little girl was wrongful within the definition of Arts.
3 and 5 and whether Art. 12 is to apply is theirs and theirs
alone. Douglas Brown J made this point clearly at p 26 of
his judgment and I make it again. I have no concern that
our judgments will be misunderstood or misapplied in the
USA.

MILLET LJ:

019 The child in this case was born in England in June
1991. The history of her life so far has been related by
Butler-Sloss LJ and I need not repeat it. In February 1994
she was removed from this country in unusual circumstances
and taken to live with her mother and maternal grandparents
in California. The father applied to the Lord Chancellor’s
Department for assistance in procuring the return of the
child to this country under the provisions of the The
Convention on the Civil Aspects of International Child
Abduction.

020 The case was investigated by the District Attorney’s
office for the district of Santa Barbara which reported that
the mother claimed to have a custody order of the English
court. In due course his office was provided with a copy of
an order of the President of the Family Division which had
been made in October 1992. That order contained a residence
order in favour of the mother and gave her leave to take the
child permanently out of the jurisdiction to live with her
in California. Not surprisingly, the Attorney-General for
California reported to the Lord Chancellor’s Department that
it appeared to him that the mother’s action in bringing the
child to California was authorized by that order.
Accordingly, he did not think that he could proceed under
the Hague Convention as the child had not been wrongfully
removed from England or retained in California.

021 In the course of discussions on the telephone between
a representative of the Lord Chancellor’s Department and her
counterpart in the State Department in Washington, the
English official suggested that an application should be
made to the English court to determine whether, having
regard to the President’s order, the removal of the child
from this country had been wrongful. Criticism has been
made of her for making this suggestion, but in my view the
criticism is misplaced. the official in question was doing
no more than her duty in helping her counterpart in the USA
by suggesting a practical solution to a problem arising from
the existence of an order of the English court.

022 As a result of this discussion, the father applied for
a declaration under s 8 of the Child Abduction and Custody
Act 1985 (‘the 1985 Act”) that this removal of the child
from the jurisdiction in February 1994 was wrongful within
the meaning of Art. 3 of the Hague Convention. This
depended on whether the President’s order of October 1992
was still in force 14 months later despite all that had
happened in the meantime. In considering that question, the
judge asked himself the following questions:

(1) Was the child habitually resident in
England on the date of her removal?

(2) Did the father have rights of custody in
respect of the child on that date?

(3) Was he exercising those rights immediately
prior to her removal?

(4) Was the child removed in breach of those
rights?

023 The judge also considered whether or not to exercise
his discretion to make the declaration sought. He answered
all those questions in the affirmative and declared that:

‘. . . the removal of the minor . . . from the
jurisdiction of England and Wales was wrongful
within the meaning of Art. 3 of the Convention
on the Civil Aspects of International Child
Abduction.’

024 The mother now appeals that order. She does not
suggest that it was wrongly made on the evidence before the
judge nor, as I understand it, is she unduly concerned by
the judge’s finding that in the events which happened the
President’ order had ceased to have effect by February 1994.
Her concern is that the concept of wrongful removal under
the Convention means removal in breach of rights of custody
attributed to a person under the law of the State where the
child was habitually resident immediately before the
removal; that the judge’s declaration necessarily involves a
finding that the child was habitually resident in England
immediately before her removal; and that although, as she
recognises, this will not operate as res judicata,
nevertheless it may embarrass her in the California courts
where she wishes to argue, on fuller evidence than was
available in England, that the child was already habitually
resident in California at the time of her removal from
England in February 1994.

025 In Re F (unreported) this court held that the
construction of expressions in the Convention such as
‘rights of custody’ and ‘breach’ is a matter for the courts
whose jurisdiction under the Convention have been invoked,
that is to say, the courts of the requested State. The only
question which falls to be answered by reference to is the
domestic law of the requesting State is what rights, if any,
in relation to his child, and in particular what rights
determine the child’s place of residence, were possessed by
the deprived parent under the domestic law of that State at
the time of the child’s removal.

026 Similar considerations apply to the child’s place of
residence. The question whether the child was habitually
resident in the requesting State within the meaning of ARt.
3 of the Convention immediately before removal is
exclusively a matter for the requested State. If disputed
it will have to be resolved by that court on the evidence
available to it, and by applying its own understanding of
the meaning of ‘habitual residence’ in the Convention. In
determining the question he was asked to decide, he judge in
the present case had to decide whether the President’s order
was still in force. That was a pure question of English
domestic law which did not depend on the meaning of any
expression in the Convention. If and insofar as it may have
been required for the judge to form a view whether the child
was habitually resident in England immediately before her
removal, that too was a pure question of English domestic
law which did not depend on the Convention.

027 A declaration that the removal of a child from England
was wrongful within the meaning of Art. 3 of the Convention
presupposes that the child was habitually resident in
England within the meaning of the Convention at the time of
the removal, but does not necessarily involve a final
determination of that fact. It may be based on a
concession, assumption or provisional finding to that
effect. Even if it is based on a finding, as it was in the
present case, that finding will depend upon the meaning
ascribed to the expression ‘habitual residence’ in the
Convention as a matter of English law.

028 I do not wish to suggest that the meaning of habitual
residence in English domestic law differs in the least from
the meaning which an English court would ascribe to that
expression in the Convention, or that the courts of England
and California would interpret the Convention differently.
I am, however, concerned to make the point that when it
comes to determining where the child was habitually resident
in February 1994 the questions which the courts of England
and California will have to decide are technically different
questions. The English court had to decide whether the
child was habitually resident in England according to
English domestic law (if that were relevant to the continued
subsistence of the President’s order) or according to the
meaning which English law ascribes to that expression in the
Convention (if this was otherwise material to the
application of Art. 3). The California court will have to
decide whether she was habitually resident in England
according to the meaning which Californian law ascribes to
that expression in the Convention. I can so no reason why
the finding of the judge below should embarrass the
Californian court or impede the mother in putting forward
her case in that court.

029 Before us, four questions were raised. I can deal
with them quite briefly. I shall take them in turn.

(1) Has the English court jurisdiction to make
a declaration of wrongful removal under s 8 of
the 1985 Act in the absence of a request from
the appropriate judicial or administrative
authority of the requested state?

030 Butler-Sloss LJ has set out the provisions of s 8 of
the Act and Art. 15 of the Convention and I need not repeat
them. The mother submits that the court cannot grant a
declaration under s 8 unless the conditions of Art. 15 are
satisfied, and in particular unless the application is made
at the request of the judicial or administrative authority
of the requested State. In my judgment that is not correct.
Where the request does not emanate from the appropriate
authority of the requested State, the Central Authority of
the requesting State is under no obligation to assist the
applicant to obtain the declaration. But it is not a
precondition of the exercise of the jurisdiction conferred
by s 8 of the 1985 Act that the procedure laid down by Art.
15 of the Convention has been followed. Section 8 speaks of
an application ‘for the purposes of Article 15’ not of an
application ‘made in accordance with the provisions of
Article 15’ not of an application ‘made in accordance with
the provisions of Article 15’, and in my view the choice of
words is deliberate. The jurisdiction of the English court
cannot sensibly be made to depend on an investigation into
the status under a foreign system of the authority which
initiated the request, and Parliament cannot sensibly have
intended that in case of doubt the English court should
delay entertaining the application until a letter or further
letter of request has been obtained.

031 In my judgment ‘the purposes of Article 15’ does not
mean ‘for the purpose of enabling the Central Authority to
satisfy a request made in accordance with Art. 15’. It
means ‘for the purpose of satisfying, either immediately or
in due course, the appropriate judicial or administrative
authorities of the requested State that the removal was
wrongful by the law of the requesting State’. In the
present case the application was initiated by the State
Department in Washington and there is no evidence that it
was made at the request of the judicial or administrative
authorities in California; but it was made in order to
satisfy them (and the Californian court in due course) that
the President’s order did not authorise the mother to remove
the child from the jurisdiction in February 1994. It does
not matter whether its immediate purpose was to persuade the
Attorney-General of California to proceed, or whether its
purpose was to persuade the Attorney-General of California
to proceed, or whether its purpose was to <* page 840>
provide evidence on which the Californian court could act;
either would in my view fall within the words of s 8.

032 In Re F (Abduction: Ward of Court) [1989] Fam 85, sub
nom Re F (A Minor) (Abduction) [1990] 1 FLR 276 Swinton
Thomas J held that s 8 was an enabling section which did not
exclude the inherent jurisdiction of the court. He felt
unable to grant the declaration under the section because,
in his view, it was not sought ‘for the purposes of Article
15’. I do not find it necessary to consider whether that
was a correct finding on the facts of that case or whether
he did not take too narrow a view of the statutory
jurisdiction. The existence of the statutory jurisdiction
depends in my view on the purpose for which the declaration
is sought and not on the source of the initiating request.
If it is sought for a proper purpose it can be granted under
s 8; if it is not sought for a proper purpose it should not
be granted at all.

(2) Has the English court jurisdiction to grant
a declaration under s 8 when it has not yet been
agreed or determined by the courts of the
requested State that the child was habitually
resident in England at the time of the removal?

033 The jurisdiction conferred by s 8, with its reference
to ‘the purposes of Article 15’, presupposes that the child
was habitually resident in England at the time of the
removal. But it does not follow that the court must make a
finding to that effect. The court may be content to assume
it. In a proper case the court can assume th facts on which
its own jurisdiction depends.

034 I would be most unwilling to hold that Art. 15 can be
invoked by the requested State only once the child’s place
of habitual residence has been determined. The
inconvenience of such a ruling is really demonstrated by the
facts of the present case. The ascertainment of the child’s
habitual place of residence in February 1994 may involve
long and complex investigation. From the point of view of
the Californian court, however, the President’s order would
appear to make such an investigation unnecessary. Either
the child was already habitually resident in California, or
she was habitually resident in England and was removed to
California in the exercise of rights conferred by the order.
In either case there was no room for the operation of the
Convention. It would be most inconvenient if the
Californian court could not ask the English court to
determine the effect of the President’s order, making any
necessary assumptions about the child’s place of habitual
residence. I would read the words ‘the State of the
habitual residence of the child’ in Art. 15 as meaning ‘the
State of which the child is assumed or alleged to be
habitually resident” and not as ‘the State of which the
child has been found to be habitually resident’.

(3) Should the English court make findings of
habitual residence where this is disputed and is
likely to be relitigated in the requested State?

035 I do not think it is possible to lay down any general
rule. It will often be sufficient to assume that the child
was resident here rather than decide it, and if so this will
probably be the better course. Where the declaration is
based on an assumption, this will be apparent from the
judgment, but in order to prevent misunderstanding it may be
advisable to include an appropriate recital in the order.
This course was not open to the judge in the present case,
since the fate of the President’s order and the habitual
residence of the child were bound up with each other.

(4) Can this court interfere by including a
recital to such effect in the order made below?

036 In my judgment this court cannot interfere. The
inclusion of such a recital would not be correct, since the
judge did not base his decision on any assumption. The
mother’s real complaint is that the judge did make findings
of habitual residence. We cannot interfere on that ground
because (1) the appeal is against the order not the
judgment; and (2) the mother raised no objection to the
judge adopting the course he did. It was open to the mother
to say, ‘I do not concede that the child was habitually
resident in England at the relevant time but did not contest
it in this court’ but she never did.

I agree that the appeal should be dismissed.

SIR RALPH GIBSON:

I agree with both judgments.

Solictors: Reynolds Porter Chamberlain for the mother
Kingsly Napley for the father

Barrister: Patricia Hargrove.