UK – RE S – 1997

UK – RE S – 1997 (Habitual residence) This case is a question of habitual residence. Mother and father were not married. The mother is resident in England when she dies. The maternal Grandmother and Aunt take the child back to Ireland. The court rules that England is the habitual residence and the removal of the child was unlawful.

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In re S (A Minor) (UK 1997)House of Lords – 24 Jul 1997
19 International Abduction [US 1997]
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House of Lords

In Re S (A Minor) (1997)

Lord Goff of Chieveley
Lord Slynn of Hadley
Lord Nolan
Lord Nicholls of Birkenhead
Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE IN
RE S (A MINOR) (1997)

ON 24 JULY 1997

LORD GOFF OF CHIEVELEY

My Lords,

001 I have had the advantage of reading a draft of the
speech of my noble and learned friend, Lord Slynn of Hadley.
For the reasons he has given, I would dismiss this appeal.

LORD SLYNN OF HADLEY

My Lords,

002 This appeal raises three principal questions:

003 First, whether the English High Court had jurisdiction
on 13 March 1996 to make an order giving interim care and
control to the father of an infant E. and subsequently to
order that E. remain a ward of court;

004 Second, whether taking E. on 11 March 1996 from
England to Ireland and subsequently keeping him there
constituted the wrongful removal or retention of a child
within the meaning of Article 3 of the Convention on the
Civil Aspects of International Child Abduction (“the Hague
Convention”) as given the force of law in the United Kingdom
by section 1(2) of and Schedule 1 to the Child Abduction and
Custody Act 1985;

005 Third, whether such taking and keeping of E.
constituted an unlawful removal of E. within the meaning of
Article 12 of the European Convention on Recognition and
Enforcement of Decisions concerning Custody of Children and
on the Restoration of Custody of Children (“the European
Convention”) (as given the force of law in the United
Kingdom by section 12(2) of and Schedule 2 to the Act of
1985) and of section 23 of that Act.

The First Question

006 E. was born on 21 January 1995. His mother was an
Irish national, his father Moroccan. They were not then, or
subsequently, married and it is common ground that as an
unmarried father, under English law prior to orders of the
English court in his favour, the father had no parental
rights in respect of E. It is also common ground that prior
to her death E.’s habitual residence was that of his mother
so that the question is what was the mother’s habitual
residence at the relevant times.

007 She had lived in England with the father from 1990 to
July 1995 when she obtained from the Willesden County Court
an ex parte interim order for the residence of E. and an
interim prohibited steps order. From 3 to 16 August 1995,
when she returned to England, E. and his mother stayed with
her mother (the first appellant in this case) on holiday in
Ireland. Thereafter she stayed in England until the 4
September when she returned to Ireland intending to come
back to England in January 1996. In fact she went to England
alone from 2 to 7 November 1995 when she returned to
Ireland; she went to England again with E. on 16 January
1996 and remained there until she was admitted to hospital
in London on 4 March and died there from a brain haemorrhage
on 10 March 1996.

008 E.’s father had looked after him for part of the time
whilst the mother was in hospital but on 5 March and 6 March
the grandmother and another daughter (the second appellant)
respectively came to London and helped to look after E.

009 On 11 March [1996] the two appellants took E. to
Ireland where he has lived since. It is at this stage that
the maternal family and the father resorted to the courts,
they in Ireland, he in England. On the same day, 13 March
1996, the Dublin Circuit Court made an order granting
guardianship and care and control of E. to the second
appellant, his aunt, and an hour or so later the English
High Court made an order granting interim care and control
of E. to the father, ordering that the grandmother return E.
to the jurisdiction of the English Court. To this end an
originating summons to make E. a ward of court, dated 12
March 1996, was issued on 14 March 1996. On 17 April the
aunt was joined as a second defendant to the proceedings
brought by the father and the wardship was continued.

010 The High Court’s jurisdiction in respect of children
so far as relevant is to be found in the Family Law Act
1986. Section 1 of that Act specifies the orders to which
Part I applies and includes:

d An order made by a court in England and Wales
in the exercise of the inherent jurisdiction of
the High Court with respect to children —

(i) So far as it gives care of a child to any
person or provides for contact with, or the
education of, a child . .

By section 2(3):

“A court in England and Wales shall not have
jurisdiction to make a section 1(1)(d) order
unless —

(a) the condition in section 3 of this Act is
satisfied, or

(b) the child concerned is present in England
and Wales on the relevant date and the court
considers that the immediate exercise of its
powers is necessary for his protection.”

011 The condition in section 3 of the Act is that on the
relevant date the child concerned —

“(a) is habitually resident in England and Wales
or,

(b) is present in England and Wales and is not
habitually resident in any part of the United
Kingdom.”

012 Since E. was not present in England and Wales at the
time that the order was made by the English High Court the
question is whether E. was habitually resident in England
and Wales on the relevant date, which, by virtue of section
7 of the Act, is the date when an application is made for an
order.

013 The trial judge, Mr. Lionel Swift Q.C., after a
hearing lasting eight days and a careful consideration of
the authorities as to what constituted “habitual residence”
recorded that there was no dispute that the mother was
habitually resident in England until 3 September 1995. He
then examined extensive evidence as to the movements of, and
the relationship between, the parents in the subsequent
period and said:

“I am prepared to accept that during the period
between September and December [1995] were it
necessary to find it, the mother might have been
described as habitually resident in Ireland. She
was there as part of her regular order of
life for the time being, though whether her stay
there was for a settled purpose other than to
stay there is debatable. But I am concerned with
the position at her death. I conclude that when
she returned to England in January she became
habitually resident here. If I am wrong about
that then certainly by the time she died that
was the position. In so finding I bear in mind
that it takes time in general to establish a new
habitual residence. But when she returned here
she was returning to her own home, and was
intending as I find to make her home here.”

014 Again after examining in detail the evidence as to the
period between January and 10 March 1996 he concluded that
at the date of her death the mother was habitually resident
in England.

015 In the Court of Appeal and before your Lordships’
House the appellants, though contending that E. and his
mother were habitually resident in Ireland between 4
September 1995 and 16 January 1996, accepted, so that it is
now common ground, that at the date of her death the mother,
and therefore E., were habitually resident in England. It is
accordingly unnecessary to examine in detail the evidence
upon which this finding of the judge was based.

016 The critical question is thus whether, since he had
left England on 11 March, E. was still habitually resident
in England on 13 March when Wall J. made his order in the
High Court. Had he become habitually resident in Ireland, or
at any rate lost his habitual residence here even if he had
not acquired an habitual residence in Ireland?

017 The learned trial judge found that the appellants
intended to take E. to Ireland without the father’s
knowledge and that they did in fact take E. without the
father’s consent or knowledge. Indeed it is said that the
father was ignored or brushed aside by the mother’s family
after her death. The judge was prepared to accept that
“there may be circumstances in which physical possession or
care may determine a child’s habitual residence,” which is a
question of fact, and that where a parent takes a child away
a new habitual residence may be acquired very quickly. But
he continued:

“I am not prepared to accept that a person with
no juristic power over a person of this age can
change his habitual residence within a day or
two. It is not necessary to consider the
position of a child kept by such a person over a
significant period of time.”

018 In the Court of Appeal Butler-Sloss L.J., with whom
the other members of the court agreed, took the same view as
the trial judge. In considering the appellants’ contention
that E. lost his habitual residence in England either when
the appellants took over his de facto care on 10 March
[1996] or when they took him to Ireland on 11 March [1996]
she said:

“The death of the mother, the sole carer, would
not immediately strip the child of his habitual
residence acquired from her, at least, while he
remained in the same jurisdiction. Once the
child has been removed to another jurisdiction,
the issue whether the child has obtained a new
habitual residence whilst in the care of those
who have not obtained an order or the agreement
of others will depend upon the facts. But
a clandestine removal of the child on the
present facts would not immediately clothe the
child with the habitual residence of those
removing him to that jurisdiction, although the
longer the actual residence of the child in the
new jurisdiction without challenge, the more
likely the child would acquire the habitual
residence of those who have continued to care
for the child without opposition. Since, in the
present case, the English court was seised of
the case within two days of the removal of the
child, it is premature to say that the child
lost his habitual residence on leaving England
or had acquired a new habitual residence from
his de facto carers on arrival in Ireland.”

019 She rejected two further contentions of the appellants
— first that a person having care of, but not having
parental responsibility for, a child who did what was
reasonable for the purpose of safeguarding or promoting the
child’s welfare pursuant to section 3(5) of the Children Act
1989 was enabled to change the child’s habitual residence;
and second that, because the Dublin Circuit Court had made
an order on an ex parte application giving the custody of E.
to his aunt who was made guardian, and prohibiting the
father from moving E. from Ireland, first in time, the
English court could not make the order which it did make in
respect of E.

020 There were thus concurrent findings of fact by the
trial judge and by the Court of Appeal that E. was
habitually resident in England at the time of the court
order on 13 March. By the fact of being taken out of England
by his grandmother and his aunt, who had no parental rights
over him, he had not lost his habitual residence in England
or acquired an habitual residence in Ireland. It is only in
exceptional circumstances that your Lordships’ House will
reject concurrent findings of fact, particularly where the
finding of the trial judge is based on a substantial amount
of oral evidence and where the judge’s assessment of the
truthfulness of the witnesses is crucial to his findings of
fact. In the present case I can see no justification for
rejecting the concurrent findings of fact even if I had
thought that they might possibly be wrong. I consider
however that the judge not only came to a conclusion to
which he was entitled to come but that he came to the right
conclusion, on his primary findings on fact as to the events
over the relevant period, that E.’s habitual residence
remained in England.

021 Although it seems to me that the appellants were wrong
to take E. away clandestinely without the consent of the
father, even without telling the father, and without the
consent of the court (as Budd J. put it in the Irish
proceedings on the Convention the rule should be “apply,
don’t fly”), it is fully understandable that, in the
distressing circumstances of the mother’s death, the
grandmother should wish to have with her the baby who had
spent several months at her house in Ireland in the latter
part of 1995. This desire, however, and the need for someone
to look after the child cannot, in my view, mean that by
merely taking E. out of the jurisdiction during a period of
two days they had ipso facto brought about a change in his
habitual residence. Neither appellant had parental rights
over the child, who was too young to form any intention as
to his own future residence, and two days with the
appellants in Ireland is not sufficient of itself to result
in his existing habitual residence being lost and a new one
gained. The position is quite different in the case of a
mother, with parental rights and on whose habitual residence
the child’s habitual residence depends. If she leaves one
country to go to another with the established intention of
settling there permanently her habitual residence and that
of the child may change very quickly. Such is not the
present case where no parental rights were involved and
where E.’s habitual residence did not depend on and
automatically change with those of the appellants.

022 I agree with Butler-Sloss L.J. that the powers
conferred by section 3(5) of the Children Act 1989 on a
person, who has care of a child but without parental
responsibility, to do what is reasonable in all the
circumstances for the purpose of safeguarding or promoting
the child’s welfare do not include the power to change the
child’s habitual residence merely by taking him out of the
jurisdiction. Whether it was reasonable in all the
circumstances of the case to take E. out of the jurisdiction
for the purpose of safeguarding or promoting his welfare,
quite apart from any question of a change in his habitual
residence, does not fall to be decided on the present
appeal.

023 I also agree with Butler-Sloss L.J. that the English
court’s order was not made without jurisdiction just because
a little earlier on the same day the Dublin Circuit Court
had given the aunt custody of E. and made her his guardian.
Whether or not it is right to regard both orders as taking
effect at the beginning of the day upon which they were
made, it is clear that, at the time the interim order of
care and control was made by the English court, E. was in
fact still habitually resident in England. The ex parte
orders giving custody to the aunt did not change E.’s
habitual residence so as to deprive the English court of
jurisdiction.

024 The appellants contended before the Court of Appeal
and before your Lordships that it was in any event
inappropriate for Wall J. to have made an order in relation
to an alien child who was at the time living in the country
of his nationality. In Re P. (G.E.) (An Infant) [1975] Ch.
568 a child was taken by his father away from the mother in
England to Israel. The Court of Appeal held that the parens
patriae jurisdiction of the English court could be exercised
in respect of the child who was ordinarily resident within
the jurisdiction, although not present there, when the
proceedings were begun. Lord Denning M.R. said, at p. 584:

“The Crown protects every child who has his home
here and will protect him in respect of his
home. It will not permit anyone to kidnap the
child and spirit it out of the realm. Not even
its father or mother can be allowed to do so
without the consent of the other. The kidnapper
cannot escape the jurisdiction of the court by
such a stratagem.”

025 In that case, however, the child was stateless whereas
here E. was an Irish national. It is submitted by the
appellants that that is a crucial distinction and that since
allegiance was owed to the Irish Republic and not to the
Crown the parens patriae powers could or should not be
exercised by the Crown. In In re B.-M. (Wardship:
Jurisdiction) [1993] 1 F.L.R. 979 Eastham J. had to consider
the case of a child who was a German national. He was taken
by his mother out of England where they had been living and
where the judge found that they had their habitual
residence. The mother was sole custodian of the child. On
the application of the father the child was made a ward of
court and the father applied for a declaration under the
Hague Convention that the retention by the mother was
wrongful. Eastham J. said, at p. 984:

“I have come to the conclusion that the English
wardship court does have jurisdiction over an
alien child provided England or England and
Wales is the habitual residence of the child.”

026 He approved the statement in Lowe and White “Wards of
Court” 2nd ed. p. 24 (1986), para. 2-11, that although it
was arguable that the decision in In re P. (G.E.) (An
Infant) only applies if the minor is stateless:

“It is submitted that the decision is wider than
that and extends to any alien minor who can be
said to be ordinarily resident in England.
Admittedly the court referred to the fact that
both father and son held travel documents
entitling them to return to England, issued
pursuant to the Final Act and Convention
relating to the Status of Stateless Persons
1954, but this plus the fact that the parties
had only obtained a temporary tourist visa to
visit Israel pointed to their being resident in
England so that the decision would appear not to
be confined to Stateless minors.”

027 But Miss Scotland Q.C. has submitted that Eastham J.’s
decision was erroneous.

028 Whilst it is correct that in In re P. (G.E.) (An
Infant) the child in question was stateless, I do not read
the statements of principle as to the court’s jurisdiction
by the three members of the Court of Appeal as being based
on, or limited to, that fact. In particular the statement of
Lord Denning M.R., at p. 584, already quoted is in general
terms. I can see no reason why as a matter of principle the
court’s jurisdiction should not be available to protect any
child who is habitually resident here or within the
jurisdiction from being “kidnapped” and “spirited” out of
the realm. Whether it is appropriate for that jurisdiction
to be exercised will depend on the facts of the case, but in
my opinion Eastham J. in In re B.-M. (Wardship:
Jurisdiction) was right to hold that the jurisdiction was
not limited to stateless children and to approve the view
expressed in Lowe and White that this jurisdiction goes
beyond the protection of stateless children but “extends to
any alien minor who can be said to be ordinarily
[habitually] resident in England.” I agree with Butler-Sloss
L.J. that it is habitual residence and not allegiance or
citizenship which is determinative of the court’s
jurisdiction.

029 Accordingly, in my opinion, on the findings of the
learned trial judge and the Court of Appeal that E. was
habitually resident in England at the date of his order,
Wall J. had jurisdiction to make the order which he made on
13 March 1996.

The Second Question

030 As to the second question the trial judge rejected,
but the Court of Appeal accepted, that on the facts of the
case there had been a breach of Article 3 of the Hague
Convention.

By that Article:

“The removal or the retention of a child is to
be considered wrongful where–

(a) it is in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone, under the
law of the State in which the child was
habitually resident immediately before the
removal or retention; and

(b) at the time of removal or retention those
rights were actually exercised, either jointly
or alone, or would have been so exercised but
for the removal or retention.”

031 The rights of custody referred to may arise, inter
alia, by operation of law or by reason of a judicial
decision, and, by Article 4, the Convention is to apply to
any child who was habitually resident in a Contracting State
immediately before any breach of custody or access rights.
“Rights of custody” are by Article 5 to “include rights
relating to the care of the person of the child and, in
particular, the right to determine the child’s place of
residence.”

032 A person claiming that a child has been removed or
retained in breach of custody rights may apply to the
Central Authority of the child’s habitual residence, or of
any other Contracting State, for assistance in securing the
return of the child. Where a child has been wrongfully
removed or retained in terms of Article 3 the judicial or
administering authority of the Contracting State where the
child is shall order the return of the child if, at the date
of the commencement of the proceedings before such
authority, a period of less than one year has elapsed from
the date of the wrongful removal or retention (Article 12).
Exceptions to the obligation of the requested State in that
Article are contained in Article 13. They are not relevant
to this case.

033 A child must, thus, be returned pursuant to Article 12
if there has been either a wrongful removal or a wrongful
retention within the meaning of Article 3. These are
separate events occurring on specific occasions and were
said in In re H. (Minors) (Abduction: Custody Rights) [1991]
2 A.C. 476 to be mutually exclusive concepts. Lord Brandon
of Oakbrook said, at p. 500B:

“For the purposes of the Convention, removal
occurs when a child, which has previously
been in the State of its habitual residence, is
taken away across the frontier of that State;
whereas retention occurs where a child, which
has previously been for a limited period of time
outside the State of its habitual residence, is
not returned to that State on the expiry of such
limited period.”

034 A.C. 562 at p. 578 Lord Brandon gave guidance as to a
number of preliminary points relevant to the application of
Article 3.

“The first point is that the expression
‘habitually resident,’ as used in article 3 of
the Convention, is nowhere defined. It follows,
I think, that the expression is not to be
treated as a term of art with some special
meaning, but is rather to be understood
according to the ordinary and natural meaning of
the two words which it contains. The second
point is that the question whether a person is
or is not habitually resident in a specified
country is a question of fact to be decided by
reference to all the circumstances of any
particular case. The third point is that there
is a significant difference between a person
ceasing to be habitually resident in country A,
and his subsequently becoming habitually
resident in country B.

A person may cease to be habitually resident in
country A in a single day if he or she leaves it
with a settled intention not to return to it but
to take up long-term residence in country B
instead. Such a person cannot, however, become
habitually resident in country B in a single
day. An appreciable period of time and a settled
intention will be necessary to enable him or her
to become so. During that appreciable period of
time the person will have ceased to be
habitually resident in country A but not yet
have become habitually resident in country B.
The fourth point is that, where a child of J.’s
age is in the sole lawful custody of the mother,
his situation with regard to habitual residence
will necessarily be the same as hers.”

035 The preamble to and Article 1 of the Hague Convention
are not set out in the Schedule to the Act but it is useful
to recall them. The preamble expresses the desire of the
States signing the Convention:

“To protect children internationally from the
harmful effects of their wrongful removal or
retention and to establish procedures to ensure
their prompt return to the State of their
habitual residence, as well as to secure
protection for rights of access.”

036 The objects of the Convention are stated in Article 1
to be:

“(a) To secure the prompt return of children
wrongfully removed to or retained in any
contracting State; and

(b) To ensure that rights of custody and access
under the law of one contracting State are
effectively respected in the other contracting
State.”

037 Your Lordships have been referred to a valuable
Explanatory report on the Hague Convention by Professor
Elisa Perez-Vera, Reporter to the First Commission of the
Hague Conference. It is not possible to set out long
extracts from that Report, helpful though they are, but I
draw attention to a number of points which are made in it.
First, the situations envisaged by the Convention are “those
which derive from the use of force to establish artificial
jurisdictional links on an international level, with a view
to obtaining custody of a child.” (Paragraph 11) Resorting
to this expedient “an individual can change the applicable
law and obtain a judicial decision favourable to him.”
(Paragraph 15)

038 The route adopted by the Convention “will tend in most
cases to allow a final decision on custody to be taken by
the authorities of the child’s habitual residence prior to
its removal.” (Paragraph 16) In Paragraph 19 it is said:

“. . . the Convention rests implicitly upon the
principle that any debate on the merits of the
question, i.e. of custody rights, should take
place before the competent authorities in the
State where the child had its habitual residence
prior to its removal: this applies as much to a
removal which occurred prior to any decision on
custody being taken–in which case the violated
custody rights were exercised ex lege–as to a
removal in breach of a pre-existing custody
decision.”

039 The Convention is not concerned with the law
applicable to the custody of children and reference is made
to the law of the State of the child’s habitual residence
“only so as to establish the wrongful nature of the
removal.” (Paragraph 36)

” . . . the rules of the Convention rest largely
upon the underlying idea that there exists a
type of jurisdiction which by its nature belongs
to the courts of a child’s habitual residence in
cases involving its custody.” (Paragraph 66)

040 In paragraph 71 it is said:

“Leaving aside a consideration of those persons
who can hold rights of custody . . . it should
be stressed now that the intention is to protect
all the ways in which custody of children can be
exercised.”

and:

“The Convention’s true nature is revealed most
clearly in these situations: it is not concerned
with establishing the person to whom custody of
the child will belong at some point in the
future, nor with the situations in which it may
prove necessary to modify a decision awarding
joint custody on the basis of facts which have
subsequently changed. It seeks, more simply, to
prevent a later decision on the matter being
influenced by a change of circumstances brought
about through unilateral action by one of the
parties.”

041 The father does not contend, and has not contended,
that there was here a wrongful removal when the child was
taken out of the jurisdiction on 11 March. In this he was
right. It is plain that when the appellants removed E. from
London to Ireland the father had no rights of custody over
E. by operation or law or by reason of any judicial or
administrative decision or by any binding agreement. There
was therefore no wrongful removal within the meaning of
Article 3.

042 The appellants say that this in fact was a removal
case and not a retention case and if the removal was lawful
that is the end of the matter, but alternatively that, if
this is to be treated also as a retention case, the
retention was equally lawful.

043 I do not agree that this case is to be treated only as
a “removal” case. Even though the two are separate and
mutually exclusive both can occur on the facts in relation
to the same child at different times. It must, however, be
necessary to point specifically to the event which
constitutes the removal or the retention. This is
necessarily so because of the provision of Article 12 that
for an order for the return of the child to be made at the
date of commencement of the proceedings, a period of less
than one year has elapsed “from the date” of the wrongful
removal or retention.

044 The appellants contend that E. was retained in Dublin
on his arrival there from England. That was on 11 March and
they say that this was the only relevant date since his
continuing retention there is not relevant for the purpose
of calculating the period of one year. It follows that since
the father had no rights of custody on 11 or 12 March the
retention following the removal was no more unlawful than
was the removal.

045 This argument ignores the possibility that the nature
of the retention may change and may change with effect from
a specific date so as to permit the calculation of one year
to be made. That this can happen is in my view plain. Thus a
parent or parents having rights of custody may agree that a
child shall go on 1 January to stay with a friend abroad for
a period of six months. The friend takes the child abroad.
That is clearly not a wrongful removal. The friend keeps the
child abroad until 30 June: that is clearly not a wrongful
retention. On 1 July the friend keeps the child and refuses
to return him. The parent’s consent has gone and the
retention becomes wrongful. The time runs from that date.
The flaw in the appellants’ argument is that it looks only
at the date of retention whereas what has to be considered
is the date of wrongful retention: see In re H. (Minors)
(Abduction: Custody Rights) [1991] 2 A.C. 476, 499.

046 This example is only one way in which a lawful
retention may become a wrongful retention. The same in my
opinion can happen where a parent had no parental rights
when a child was removed and initially retained in a way
which was not unlawful. If subsequently he acquires such
rights and demands the return of the child then the
retention may become wrongful.

047 That in my opinion happened in the present case. On
the basis of the finding of the trial judge that on 13 March
E. was habitually resident, even if not actually present, in
England, when Wall J. made his order giving interim care and
control of E. to the father and ordering that E. be returned
to the care and control of the father in the jurisdiction of
the High Court, the father acquired rights of custody within
the meaning of Articles 3 and 5 of the Convention. The
retention of E. contrary to that order and to the father’s
wishes thereupon became wrongful. Since no question of the
limitation provision in Article 12 arises it is unnecessary
to decide whether the relevant date is the making of that
order (13 March) or its service on the appellants
(apparently 16 March). It was on any view wrongful within
the meaning of the Convention by the later date and was not
prevented from being so by virtue of the order of the Dublin
Circuit Court on the same day. Such a result is not in any
way inconsistent (as the appellants argue it is) with the
decision of your Lordships’ House in In re H. (Minors)
(Abduction: Custody Rights) (supra) that removal and
retention are single events occurring on a specific occasion
and mutually exclusive concepts.

048 The appellants contend, however, that on the basis of
the decision of your Lordships’ House in In re J. (A Minor)
(Abduction: Custody Rights) [1990] 2 A.C. 562 the retention
of E. was not wrongful. In that case a mother and child were
habitually resident in Western Australia, the mother having
sole parental rights over the child. They left Western
Australia on 21 March 1990 and arrived in England on 22
March 1990 when it was found that retention of the child
began. On 12 April 1990 the court of Western Australia
granted sole guardianship and custody of the child to the
father and declared that the removal from Australia was
wrongful. In your Lordships’ House it was held that the
removal of the child was not in breach of any custody rights
of the father nor was the retention in England during the
three weeks before the Western Australia court’s order in
itself wrongful. The essential difference between that case
and the present was, however, that the mother had left
Western Australia, as Lord Brandon said, at p. 579:

“With a settled intention that neither she nor
J. should continue to be habitually resident
there. It follows that immediately before 22
March 1990, when the retention of J. in England
began, both she and J. had ceased to be
habitually resident in Western Australia. A
fortiori they had ceased to be habitually
resident there by 12 April 1990, the date of the
order of Anderson J. The consequence is that the
continued retention of J. in England by the
mother was never at any time a wrongful
retention within the meaning of Article 3 of the
Convention.”

049 The critical difference between In re J. (A Minor)
(Abduction: Custody Rights) and the present case is that E.
was habitually resident in England at the time of Wall J.’s
order. The same difference arose in In re B.-M. (Wardship:
Jurisdiction) [1993] 1 F.L.R. 979 where an unmarried mother
took her child to Germany on or about 3 September and on 4
September the father obtained a wardship order which was
served on the mother on 11 September. It was held by Eastham
J. that even if the removal was not unlawful because there
was no court order in existence yet the retention was
wrongful with effect from 11 September when the mother kept
the child out of the jurisdiction and failed to return her
in accordance with the orders of the English court, the
child having been habitually resident in England at the time
the wardship proceedings began.

050 Because the child’s habitual residence at the date of
the court’s order in the present case remained England I do
not consider that the result indicated in the present case
is inconsistent with the decision of your Lordships’ House
in In re J. (A Minor) (Abduction: Custody Rights) (supra);
it is consistent with the judgment of Eastham J. in In re
B.-M. (Wardship: Jurisdiction) which on this point also was
rightly decided.

051 I consider therefore that the Court of Appeal was
right to hold that the retention by the second appellant was
wrongful within the meaning of the Hague Convention.

The Third Question

052 As to the third question the trial judge held that
there had not, the Court of Appeal held that there had, been
an unlawful removal of E. from the jurisdiction contrary to
Article 12 of the European Convention.

053 The purpose and structure of the European Convention
is different from that of the Hague Convention and it does
not follow, though it may be, that what constitutes, or does
not constitute, an “unlawful removal” for the Hague
Convention, is, or conversely is not, an “unlawful removal”
for the European Convention.

054 As to the purpose, the Member States of the Council of
Europe recited that

“the making of arrangements to ensure that
decisions concerning the custody of a child can
be more widely recognised and enforced will
provide greater protection of the welfare of
children . . .”

055 As to the structure, by Article 7 of the Convention:

“A decision relating to custody given in a
Contracting State shall be recognised, and,
where it is enforceable in the State of origin,
made enforceable in every other Contracting
State.”

056 The procedure of applying through the central
authority of a Contracting State is prescribed by Articles 4
and 5 of the Convention and expanded in sections 14-22 of
the Act of 1985. Recognition and enforcement may be refused
in the circumstances specified in Articles 9 and 10 of the
Convention including that in Article 10(1)(d):

“If the decision is incompatible with a decision
given in the State addressed or enforceable in
that State after being given in a third State,
pursuant to proceedings begun before the
submission of the request for recognition or
enforcement, and if the refusal is in accordance
with the welfare of the child.”

By Article 1:

“(c) ‘decision relating to custody’ means a
decision of an authority in so far as it relates
to the care of the person of the child,
including the right to decide on the place of
his residence, or to the right of access to him.

(d) ‘improper removal’ means the removal of a
child across an international frontier in breach
of a decision relating to his custody which has
been given in a Contracting State and which is
enforceable in such a State; ‘improper removal’
also includes:

(i) the failure to return a child across an
international frontier at the end of a period of
the exercise of the right of access to this
child or at the end of any other temporary stay
in a territory other than that where the custody
is exercised:

(ii) a removal which is subsequently declared
unlawful within the meaning of Article 12.”

By Article 12:

“Where, at the time of the removal of a child
across an international frontier, there is no
enforceable decision given in a Contracting
State relating to his custody, the provisions of
this Convention shall apply to any subsequent
decision, relating to the custody of that child
and declaring the removal to be unlawful, given
in a Contracting State at the request of any
interested person.”

By Section 23(2) of the Act:

“Where in any custody proceedings a court in the
United Kingdom makes a decision relating to a
child who has been removed from the United
Kingdom, the court may also, on an application
made by any person for the purposes of Article
12 of the Convention, declare the removal to
have been unlawful if it is satisfied that the
applicant has an interest in the matter and that
the child has been taken from or sent or kept
out of the United Kingdom without the consent of
the person (or, if more than one, all the
persons) having the right to determine the
child’s place of residence under the law of the
part of the United Kingdom in which the child
was habitually resident.”

057 The appellants accept that where a child is removed
from the jurisdiction with the consent of the person having
the right to determine the child’s place of residence and
subsequently to that removal the child is “kept out” of the
jurisdiction in contravention of any provision for the
child’s return the removal will be deemed to have been
unlawful. They contend, however, that in section 23 the only
person who can make an application or whose consent was
relevant was that of E.’s mother and that Article 12 cannot
create rights for the person seeking the declaration which
were not in being prior to the removal. The father could
only be entitled to a declaration under section 12 if he had
the right on 11 March 1996 to determine E.’s place of
residence and the court had no right to determine (with
retrospective effect so as to confer rights on the father)
E.’s place of residence prior to the removal.

058 The trial judge accepted this approach. He said:

“I conclude that for a declaration to be made
the child must have been taken out from or sent
out or kept out of the United Kingdom without
the consent of the person who then had the right
to determine the child’s place of residence. In
my view the removal and retention thereafter is
not unlawful within the meaning of Article 12 or
Section 23(2) unless at the time it was without
the consent of the person having the right to
determine the child’s place of residence (see F.
v. S. (Wardship: Jurisdiction) [1991] 2 F.L.R.
349; not reversed on this point in the Court of
Appeal [1993] 2 F.L.R. 686 (C.A)).”

059 The definition in Article 1(d) of the Convention is of
“improper removal,” a phrase which occurs only in Article 10
whereas in Article 12 the reference is to a declaration of
“the removal to be unlawful”. The definition, however,
includes in (ii) a removal which “is subsequently declared
unlawful” and it is clear that an improper removal includes
an unlawful removal. By virtue of Article 1(d) a removal is
improper in two different situations–first if it is in
breach of a decision relating to the child’s custody “which
has been given.” This I understand to mean that the removal
of the child across an international frontier was improper
at the time it was effected in that it was in breach of an
existing decision. Secondly it may also be an “improper
removal” if there is a failure to return the child at the
end of the period during which the child had been properly
or lawfully outside the jurisdiction. This is not described
in the Convention as an unlawful or improper “retention” but
for the purposes of the Convention it makes retrospectively
“the removal” unlawful.

060 For the purposes of Article 12 there must have been at
the time of the child’s removal across an international
frontier no enforceable decision given in a Contracting
State relating to his custody. That was satisfied here as at
11 March 1996. For the Convention to apply to any subsequent
decision it must be one “relating to the custody of that
child and declaring the removal to be unlawful, given in a
Contracting State at the request of any interested person.”
The decision of Wall J. on the 13 March was a subsequent
decision given in a Contracting State relating to the
custody of the child. The father was plainly an interested
person. But was the decision one “declaring the removal to
be unlawful.”? On the face of it, that decision does not
declare, and for the purposes of its jurisdiction in making
the order of care and control and for E.’s return it did not
need to declare, that the initial taking of E. to Ireland in
itself was unlawful.

061 The respondent contends that the removal was unlawful
since removal of a child out of the jurisdiction is unlawful
if there is no consent to the child’s removal, even if there
is no one who has the right to consent other than the court.
I am not satisfied that this is right in the broad terms in
which it is put or that the initial taking to her home of E.
by a near relative was necessarily unlawful, even if it was
unwise without the consent of the court and even if the
lawfulness of E.’s retention in Ireland could be ended by an
order giving care and control to the father.

062 It seems to me, however, that after the making (or at
the latest the service) of Wall J.’s order giving care and
control to the father the retention of E. in Ireland and the
failure to return him to England became unlawful and
improper and for the purposes of the Convention constituted
an improper removal within the meaning of Article 1(d).

063 This result is reflected in section 23(2) of the Act
of 1985 which I have already quoted. In the present case it
is clear that these were custody proceedings relating to a
child who had been removed from the United Kingdom and in
respect of whom, before the judge, an order was sought
pursuant to the European Convention that his removal was
improper and unlawful within the meaning of Articles 1 and
12 of the Convention. The court is, by section 23(2),
empowered to declare the removal to have been unlawful if it
is satisfied that the applicant has an interest in the
matter and that

“the child has been . . . kept out of the United
Kingdom without the consent of the person . . .
having the right to determine the child’s place
of residence under the law of the part of the
United Kingdom in which the child was habitually
resident.”

064 The father had such an interest; E. was habitually
resident in England before, at and from 13 March 1996; the
father from 13 March had the right to determine E.’s place
of residence under English law; E. was kept out of the
United Kingdom without his father’s consent from that date,
if not earlier.

065 It follows in my opinion that section 23(2) is
satisfied and that the court is empowered to declare for the
purposes of the Convention that E.’s removal was unlawful.

066 I would, accordingly, uphold the decision of the Court
of Appeal that E. was at the relevant time habitually
resident in England and declare that E. had been wrongfully
retained out of the jurisdiction contrary to Article 3 of
the Hague Convention and further declare, for the purposes
of section 23(2) of and Articles 1 and 12 of Schedule 2 to
the Child Abduction and Custody Act 1985, the removal of E.
from the jurisdiction to have been unlawful.

LORD NOLAN

My Lords,

067 I have had the advantage of reading a draft of the
speech of my noble and learned friend Lord Slynn of Hadley.
For the reasons he has given, I too would dismiss this
appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

068 I have had the advantage of reading a draft of the
speech of my noble and learned friend Lord Slynn of Hadley.
For the reasons he has given, I too would dismiss this
appeal.

LORD HUTTON

My Lords,

069 I have had the advantage of reading a draft of the
speech of my noble and learned friend Lord Slynn of Hadley.
For the reasons he has given I too would dismiss this
appeal.