UK – RE S – 1992

Re S (Minors) (Abduction)Court of Appeal
Balcombe and Nolan LJJ
United Kingdom
17 Dec 1992

[1994] 1 FLR 297

Child abduction — Non-Convention case — Mother wrongfully
removing children from Pakistan — Father seeking their return —
Principles to be applied in non-Convention cases.

The parents were Muslims, born in Pakistan. The mother lived in
England from the age of 5 and acquired British citizenship. The
father came to England as a student and married the mother in
England in August 1977. The following month they went to live in
Pakistan. They had three children born in 1978, 1985 and 1989.
In November 1992 the mother took the two younger children to
England without the father’s knowledge or consent. On arrival
she issued proceedings under the Children Act 1989 for intermin
residence and prohibited steps orders. The father sought the
return of the children to Pakistan. This was a non-Convention
case, since Pakistan was not a signatory to the Hague Convention.
The judge, holding that the test under s 17 of the Guardians and
Wards act 1890 which the Pakistan courts would apply in deciding
questions relating to the children’s future approximated to the
test provided by s1(1) of the Children Act 1989, decided that the
interests of the children required that they should go straight
back to Pakistan. He directed accordingly. The mother appealed,
contending that Pakistan did not apply the same system of law
regarding decisions on the welfare of children as that adopted in
the English courts.

HELD — dismissing the appeal — it was settled law that the
court must apply the philosophy of the Hague Convention in
non-Convention cases, that philosophy being that in normal
circumstances it was in the interests of the children that
parents or others should not abduct them from one jurisdiction to
another but that any decision relating to the custody of children
was best decided in the jurisdiction in which they had hitherto
been normally resident, provided that the courts in that
jurisdiction applied principles which were acceptable to the
English courts as being appropriate. On the facts, these were
Pakistani Muslim children whose home was in Pakistan, so that it
was clear that prima facie their future should be decided in
pakistan, and the difference in the tests applied under Pakistani
and English law was not such as to entitle the court to say that
the Pakistan courts were not the appropriate form in which to
decide their future.

Statutory Provisions considered

Children Act 1989, s 1(1)

Guardians and Wards Act 1890 (of Pakistan), s 17

Cases referred to in judgment

F (A Minor) (Abduction [1991] Fam 25, [1990] 3 WLR 1272, [1990] 3
All ER 97, sub nom F (A Minor) (Abduction: Jurisdiction), Re
[1991] 1 FLR 1, CA

G v G (Minors) (Abduction) [1991] 2 FLR 506, CA
L (Minors) (Wardship: Jurisdiction), Re [1974] 1 WLR 250, [1974]
1 All ER 913, CA

Mohammed Bushir v Ghulan Fatima [1953] PLD Lah 73
R (Minors) (Wardship: Jurisdiction), Re [1981] FLR 416

Appeal from Sir Gervase Sheldon sitting as a deputy judge of the
High Court

Nicholas Wall QC and Janet Bazley for the mother
Judith Parker QC and Caroline Reid for the father

BALCOMBE LJ:

This is an appeal by the mother of two children from an order
made by Sir Gervase Sheldon sitting as a deputy judge of the High
Court on 8 December 1992, whereby he directed that the children
concerned should be returned immediately to Pakistan whence the
mother had brought them to England some few weeks previously.

The circumstances of the family are these. The father was born
in Pakistan and is now aged 35. The mother was born in Pakistan
and is now aged 33. In 1964, when she was only 5 years old, she
and her family came and settled in the UK and she subsequently
acquired British citizenship. She met the father in 1977 when he
was in this country studying, and they married in a register
office in this country on 24 August 1977. Both the father and
mother are Muslims.

In September 1977 the parties, ie the mother and the father, went
to Pakistan and they lived initially in the home of the father’s
parents in Lahore. I should say here that the father’s family is
of some material substance. They have a good business in
Pakistan and the parties have been able to live in circumstances
of some comfort whilst in Pakistan — they enjoyed good
accommodation, they had the use of several servants and so on.

The first child of the marriage, a son, was born on 27 July 1978,
so he is now aged 14. He is not the subject of these
proceedings. The second child was born on 24 February 1985, is a
daughter now aged 7 and she is one of the two children with whom
this case is concerned.

In May 1985 the parties visited England with the elder son, and
the daughter. There was apparently a move by the mother at that
time to leave the father but she subsequently agreed to return to
Pakistan. They returned to Pakistan to live separately from the
father’s parents, in Karachi — that, of course, is some
considerable distance from Lahore. It has always been the
mother’s case that the difficulties in the marriage arise largely
from what she considers the interference by the husband’s
parents.

When the parties moved to Karachi, however, the elder son did not
accompany them. Different explanations have been given for this
but the fact is he remained living with his grandparents but
seeing the parties reasonably frequently. In 1987 the father,
the mother and the daughter moved to Rawalpindi, again some
distance from Lahore, and on 6 November 1989 their third child,
another boy, also a subject of these proceedings, was born. He
is now aged 3.

In 1989 the daughter entered nursery school in Rawalpindi and by
all accounts, according to the evidence which has been put in
these proceedings, has been doing well thee. In April this year
the parties moved to a new home in Rawalpindi owned by the
paternal grandfather.

The father’s business requires him to make frequent trips abroad
and in November of this year he was in Czechoslovakia on
business. While he was away the mother left Pakistan in
circumstances of some secrecy and came to England with the two
younger children. For a time the father did not know where they
were but within a week he learnt that they were at the maternal
grandmother’s home in a suburb of London living there, as it now
turns out, in circumstances of some discomfort because it was
only a small house and there was not sufficient accommodation for
the mother and the children.

The mother then took the initiative by issuing proceedings under
the Children Act for appropriate orders to prevent the children
being removed from this country without the leave of the court,
and she obtained ex parte orders from the county court
prohibiting the father from removing either child from her care
or from the jurisdiction. Those were limited to 7 days simply to
hold the ring, and the applications for interim residence and
prohibited steps orders were transferred to the High Court where
they came before Sir Gervase Sheldon on 4 December 1992 and his
judgment, as I have said, was given on 8 December 1992.

Those in summary are the relevant facts. This is what has
sometimes been called a ‘kidnapping case’, although Ormrod LJ, in
a case which I will refer, deprecated the use of that term.
Nevertheless, it was a case in which the mother wrongfully, as I
have to say, removed two of the children from the family home,
from their native land, from the only country they had known as
their home, and brought them to this country without informing
the father of what she was doing.

There is a fair amount of law as to the test to be applied in
these circumstances where, as here, the country from which the
children came, Pakistan, is not a signatory to the Hague
Convention on the abduction of children and this is, therefore,
what is nowadays called a ‘a non-Convention case’.

But even before this country became a subscriber to the Hague
Convention — and it was adopted as part of our domestic law by
the Child Abduction and Custody Act 1985 — the problems
presented by actions of the type which the mother has taken in
this case had long been known to our courts, and the case from
which all the relevant modern law derives is the case of Re L
(Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250. I need not
refer to the facts of that case nor to the classic passage from
the judgment of Buckley LJ at p. 264 because it is referred to in
all the subsequent cases and it will be convenient to refer to
the summary of it which Ormrod LJ gave a subsequent case — again
a non-Convention case, in fact a pre-Convention case: Re R
(Minors) (Wardship: Jurisdiction) (1981) FLR 416 and I wish to
refer only to brief passages in the judgment of Ormrod LJ. After
deprecating the use of the term ‘kidnap’ or ‘kidnapping’ and
referring to them both in inverted commas, he said at p 425H:

‘”Kidnapping”, like other kinds of unilateral
action in relation to children, is to be
strongly discouraged, but the discouragement
must take the form of a swift, realistic and
unsentimental assessment of the best
interests of the child, leading, in proper
cases, to the prompt return of the child to
his her own country, but not the sacrifice of
the child’s welfare to some other principle
of law.’

Then at the top of p 426 he refers to the passage in the judgment
of Buckley LJ to which I have already referred, in these terms:

‘The damage to a child’s interest which may
arise from not making a summary order is
conveniently set out by Buckley LJ at p
264E-H of his judgment in Re L . . . In a
sentence, they are alienation from
background, home, schools, friends, relations
and, ultimately, from his country and its
society and culture. These dangers have to
be weighed against the risk to the child of
possible, perhaps probable, separation from
the mother, of being entrusted to the care of
a father whose capabilities and fitness to
act as a single parent may be in doubt, in
surroundings which may be unfavorable in
themselves, and of being subjected to a
regime of law under which the protection of
the interests may be open to question. . . ‘

So looking at this, as of course we are bound to do, as a matter
of what the interests of the children require, it is clear that
Ormrod LJ, in considering the balancing exercise which had to be
effected by the court, recognised that one of the facts to be
taken into account is the regime of law in the country to which
the child is to be returned if that is the order which the court
is to make. Since then the Hague Convention came into force, it
has been adopted by this country in relation to certain
signatories, and I have already said that Pakistan is not one of
the Convention countries. But twice in this court it has been
laid down that in non-Convention cases, the principles behind the
Convention are to be taken into account.

In G v G (Minors) (Abduction) [1991] 2 FLR 506, which was a case
from Kenya, I said that the jurisprudential concept which law
behind the Child Abduction and Custody Act 1985 was that welfare
normally required the return of the abducted child to the country
whence it had been abducted. That particular passage from my
judgment was approved by this court in a further case, Re F (A
Minor) (Abduction: Custody Rights) [1991] Fam 24 at p. 30, sub
nom Re F (A Minor) (Abduction: Jurisdiction) [1991] 1 FLR 1 at p
3 where Lord Donaldson of Lymington MR cited a passage from my
judgment in G v G with approval:

‘. . . in enacting the 1985 Act, Parliament
was not departing from the fundamental
principle that the welfare of the child is
paramount. Rather it was giving effect to a
belief “that in normal circumstances it is in
the best interests of children that parents
or others should not abduct them from one
jurisdiction to another, but that any
decision relating to the custody of children
is best decided in the jurisdiction in which
they have normally been resident.”‘

Then in a later passage from the same judgment, Lord Donaldson of
Lymington MR says this at pp 31-1 and p 4 respectively:

‘Possible outcomes have no bearing on which
court should decide. Which court should
decide depends, as I have said, on whether
the other court will apply principles which
are acceptable to the English courts as being
appropriate, subject always to any
contra-indication such as those mentioned in
Art 13 of the Hague Convention, or a risk of
persecution or discrimination, but prima
facie the court to decide is that of the
State where the child was habitually resident
immediately before its removal.’

That case was a case of the removal of a child from Israel.

So the issue which came before Sir Gervase Sheldon was this.
Applying the test that the welfare of the children is paramount,
did their interests require that they should go straight back to
Pakistan in order that the courts of that country should decide
what their welfare required, or should the matter be allowed to
go ahead in this country, again so that the courts of this
country should decide what their welfare required, with the
inevitable delay — though one would hope not lengthy — that
they would entail?

Sir Gervase Sheldon, applying the principles to which I have
referred, said that the children should go straight back. The
matter then came before this court last week when it granted a
stay pending the hearing of the appeal, and we heard the appeal
yesterday.

The position of the mother can best be summarised by the
following submissions from the skeleton argument which Mr. Wall
QC has argued on her behalf. Paragraph 4 really highlights the
issues in this case:

‘The question raised by the instant case is .
. . whether or not the court should order a
peremptory return to a jurisdiction (a) which
does not apply a similar system of law to
that governing decisions over the welfare of
children adopted in the courts of England,
and/or (b) in which one parent asserts she
will not receive a fair trial.’

I can deal with that last point quite briefly.

The mother has asserted that because of the influence, as she
says, which the father’s family has in Pakistan, she will not get
a fair trial there. The judge who has the advantage of seeing
both the parents in the witness-box did not accept that assertion
and it seems to me that it is not something to which this court
can pay any significant regard. It was merely her belief that
she would not get a fair trial in Pakistan. I know of no
evidence which justifies that assertion.

But it is undoubtedly the case that in the two immediately
previous non-Convention cases to which I have referred — G v G
(which was a case from Kenya) and Re F (which was a case from
Israel) — the countries concerned applied a system of law which
was as near as no matter the same as that applied in this
country, namely a system whereby in deciding questions abut
children the welfare of the child is paramount.

There is evidence before the court in the form of an affidavit
from Professor Pearl, who is an expert in Pakistan Law, that the
law applicable in Pakistan is the Guardians and Wards Act 1890.
It is perhaps not irrelevant to note that the Act dates from the
time when Pakistan was part of the Indian Empire. Section 17 of
that Act states that:

‘In the event of a dispute involving the
physical care of a child, the court shall be
guided by what, consistently with the law to
which the minor is subject, appears in the
circumstances to be for the welfare of the
minor.’

Then he goes on to say:

‘In the Muslim law as applied in Pakistan,
the mother retains custody (physical care)
until the girl reaches puberty and the boy
reaches the age of 7. However, the mother
will lose this entitlement to custody if she
is deemed to be unsuitable.

In accordance with s 17 of the 1890 Act, the
courts have developed the presumption that
the minor’s welfare lies in granting custody
in accordance with the personal law of the
minor. In this case, the personal law is the
Muslim law as applied in Pakistan. This
means that Muslim law principles will be
applied to the case unless there are
overriding reasons to the contrary.

According to Muslim law, the mother will lose
the entitlement to bring up her children in
her own care in the following circumstances:
(a) if she concludes a subsequent marriage,
or forms a liaison with another man other
than a close relative of the children; (b) if
the mother is deemed to be unsuitable, for
instance if she has a way of life which the
court would consider unIslamic; (c) if there
is a suggestion that the children would not
be brought up as Muslim.’

I can deal with that last point immediately because as the judge
himself said: ‘There was no suggestion that the mother would not
bring the children up as Muslim.’ He goes on to detail the other
respects in which the Muslim personal law differs from the law
applicable in this country.

The father also put in expert evidence by Dr Doreen Hinchcliffe,
another expert on Muslim law. I need not refer to it in any
detail, because in substance she agrees with what Professor Pearl
says to be the relevant law.

The main submission which Mr Wall on behalf of the mother has
raised before us is that because of these matters to which I have
just referred, that the welfare of the child is qualified by
reference to Muslim law, this is not a case where we should take
the view that the interests of the children requires their
immediate return to Pakistan because the Pakistan court will, so
it is said, apply s 17 of the 1890 Act, which in turn brings into
play those matters of Muslim law to which I have referred.

What the judge himself said is:

‘In fact I am far from persuaded that the
Pakistan courts, if matters were to be
referred to them, would fail to do justice
between the parties, or, as enjoined by the
Guardianship and Wards Act 1890, in deciding
questions as to the children’s future to be
“guided by what consistently with the law to
which (they are) subject appears in the
circumstances to be for (their) welfare”.
That, in my view, is a test which
approximates to that provided by s 1(1)(a) of
the Children Act 1989 which would apply if
the substantive issues were to be determined
in England as to the paramountcy of the
children’s welfare. Nor, in my opinion,
would it be appropriate for this court to
deny the Pakistan courts jurisdiction merely
because as Professor David Pearl has
suggested they would try “to give effect to
what is the minors’ welfare from the Muslim
point of view”.’

I should add one further factor which is relevant to this case.
The mother has said in evidence that she will not return to
Pakistan with the children even if this court orders that they
should do so, and that therefore the children’s interest will
suffer by their being parted from their mother — they are young
children of course. It is an argument which the court has to
take into account, unattractive though it is, because it has the
effect of seeking to put a pistol to the head of the court. But
nevertheless this is what the judge said about this:

‘. . . although I could not order her to
return to Pakistan with the children, I still
entertain the hope that, if she really has
their interests at heart and despite her
protestations to the contrary that is what
she will do.’

I would echo that and say that in certain other cases of which I
have knowledge, that has in fact happened, namely, that the
mother, although saying that she would not return with the
children, has in fact done so. I certainly would hope that that
is what will happen in this case.

But be that as it may, we have to say whether or not the judge,
who clearly had a discretion here, was wrong in the way he
exercised his discretion by directing the return of the children
to Pakistan in a peremptory way without any investigation of the
merits by the English courts. All the matters of which Buckley
LJ and Ormrod LJ spoke are present here. These are Pakistani
Muslim children. Their home is in Pakistan. They have been
brought up in Pakistan. Their religion is Muslim. They have been
wrenched away from all they knew to this country. Prima facie,
therefore, it must, within the test to which I have referred, be
in their interest that they should go straight back to allow the
courts of their own country to decide what their interests
require.

The only point is whether the fact that the Pakistan courts apply
a test, which I have set out, which is not in all respects the
same as that which the English court would apply, is a good
reason for not following what would be the obvious course. The
primary criticism made by Mr Wall of Sir Gervase Sheldon’s
judgment is where he says that in his view the test which the
Pakistan courts would apply ‘approximates to that provided by s
1(1)(a) of the Children Act 1989’ and he relies on the
differences pointed out by Professor Pearl and accepted by Dr
Hinchcliffe, to which I have already referred.

Whether the use of the word ‘approximates’ is right, I do not
find it helpful to go into. It is really a matter of semantics.
What I am quite clear of in my mind is the test which Lord
Donaldson referred to in Re F (above) was whether or not the
system of law was appropriate. I repeat again:

‘Which court should decide depends . . . on
whether the other court will apply principles
which are acceptable to the English courts as
being appropriate . . .’

Sir Gervase Sheldon clearly thought that it would be appropriate
for the Pakistan courts to exercise their jurisdiction. To put
it the other way round: would it be appropriate for this court
to deny Pakistan courts jurisdiction merely because, as Professor
Pearl suggested, they would try to give effect to what is the
minors’ welfare from the Muslim point of view? The judge thought
not and in my judgment the manner in which the judge exercised
his discretion is one with which this court cannot interfere.

Even if this were not a matter of the judge’s exercise of his
discretion, with which we could not interfere unless we were
satisfied that it was wrong, I would go so far as to say,
although it is not necessary for me to do so, that if the
decision had been mine, I would have exercised the discretion in
the same way. It does seem to me that what we have been told of
the system of law applied in Pakistan does not entitle this court
to say that the Pakistan courts are not the appropriate fora in
which to decide the question of the future of these Pakistani
children, more especially, as I say, bringing into the balance
all the positive matters in relation to their welfare which
require their return to Pakistan, from which they should never
have been taken, as soon as possible.

I would, therefore, dismiss this appeal.

NOLAN LJ

I agree. It is settled law that although Pakistan is not a
signatory to the Hague Convention, we must apply the philosophy
of the Convention to the case before us; see G v G Minors)
(Abduction) [1991] 2 FLR 506 and Re F (A Minor) (Abduction:
Custody Rights) [1991] Fam 25, sub nom Re F (A Minor) (Abduction:
Jurisdiction) [1991] 1 FLR 1. This philosophy is that in normal
circumstances it is in the interests of the children that parents
or others should not abduct them from one jurisdiction to another
but that any decision relating to the custody of children is best
decided in the jurisdiction in which they have hitherto been
normally resident; see the judgment of Balcombe LJ in the former
case at p 514D, which was approved and adopted by Lord Donaldson
MR in the latter at p 30 and p3, respectively.

Balcombe LJ went on to say in G v G at p 514E:

‘The question why certain countries are
brought in and others are not may (I put it
no higher) be because, in some cases the
appropriate authorities have not been
satisfied about the efficacy of the legal
arrangements in those countries. In the case
of Kenya, I see no reason to believe that a
custody hearing in Kenya having regard to S
17 of the Guardianship of Infants Act to
which I have already referred, would not be
dealt with in this country.’

In the present case the argument before us is that Sir Gervase
Sheldon wrongly failed to appreciate or take sufficient account
of the fact that the attitude of the Pakistani courts towards the
welfare of the children would differ significantly from that of
an English court. The appellant relies in this connection upon
the affidavit of Professor Pearl, sworn on 13 December 1992,
which confirms a written statement of his expert opinion which
was before Sir Gervase Sheldon and to which he referred. The
essential difference can, I think, be summarised by saying, as
was said in the Pakistan case of Mohammad Bashir v Ghulam Fatima
[1953] PLD Lah 73, that the courts in Pakistan will try to give
effect to the minors’ welfare from the Muslim point of view.
That seems to me neither surprising nor, in the circumstances of
these children, objectionable. They are the children of Muslim
parents who are part of a Muslim family.

Sir Gervase Sheldon is criticised for saying that the test laid
down in s 17 of the Pakistan Guardians and Wards Act 1890, namely
that the court would be ‘guided by what, consistently with the
law to which [the minor is] subject appears in the circumstances
to be for [the] welfare [of the minor] . . . ‘ approximates to
that provided by s 1(1)(a) of the Children Act 1989, namely, that
when a court determines any question with respect to the
upbringing of a child, the child’s welfare should be the court’s
paramount consideration. But it is implicit in s (1)(a) that the
paramountcy of the child’s welfare is to be observed consistently
with the law to which the child is subject. The difference
between the two tests is simply the difference between Pakistan
and English law. No one suggests, nor could it be suggested,
that summary return can only be justified when the law of the
country of previous residents is the same as that of England.
The test, as Lord Donaldson MR said in Re F [1991] Fam 25 at pp
31-1, [1991] 1 FLR 1 at p 5, is:

‘Which court should decide depends, as I have
said, on whether the other court will apply
principles which are acceptable to the
English courts as being appropriate, subject
always to any contra-indication such as those
mentioned in Art 13 of the Convention, or a
risk of persecution or discrimination, but
prima facie the court to decide is that of
the State where the child is habitually
resident immediately before its removal.’

In my judgment, Sir Gervase Sheldon was fully entitled to take
the view that, for Muslim children of Muslim parents whose home
hitherto has been in Pakistan, the principles of Pakistani law
are appropriate by English standards.

This is a sad case and one can only express the hope that the
mother will feel able, bearing in mind the attention which the
case will inevitably attract, if only in professional circles, to
overcome the fear of injustice of which she speaks and accompany
her children back to Pakistan and put her case before the courts
of Pakistan.

For these reasons and for the reasons given in the judgment of
Balcombe LJ, I too would dismiss this appeal.

Appeal dismissed with costs. Order for costs not to be enforced
without leave of the court. Legal aid taxation of appellant’s
costs. Appellant’s liability for costs assessed at nil.
Application for cots against the Legal Aid Board adjourned and to
be referred to the registrar.

Solicitors: Van Emden & Co. for the Mother
Green David Conway & Co for the father.

Barrister: Patricia Hargrove