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|Session 2006 - 07|
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In re D (a child)
LORD NICHOLLS OF BIRKENHEAD
1. I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree that, for the reasons she gives, this appeal should be allowed.
LORD HOPE OF CRAIGHEAD
2. I have had the privilege of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with it, and for the reasons she gives I would allow the appeal. I wish to add only a few comments of my own to what she has said. I do so in view of the importance of the matters that were raised with us in the course of the debate.
3. The question at the heart of this case is, and has always been, whether the father had rights of custody within the meaning of article 5 of the Hague Convention which were breached by the mother when she removed the child to England from Romania in December 2002. In that respect it is no different from all the other cases where the Convention has been invoked to protect children from the harmful effects of their wrongful removal and to ensure their prompt return to the state of their habitual residence.
4. But if the child were to be returned now, almost four years after his arrival in this country, his return would be anything but prompt. The delays that the procedures adopted in this case have given rise to have exceeded by far anything that the framers of the Convention appear to have contemplated. They are so extreme that it is impossible to believe that the child's best interests would be served by his return forthwith to Romania, as article 12 would require if his removal from Romania were to be held to have been wrongful. As the preamble to the Convention indicates, its purpose is to protect children from the harmful effects of their wrongful removal. The assumption on which the remedy of prompt return proceeds is that the state to which the child will be returned is the state of his habitual residence. Through no fault of his own, the child whose return is being sought in this case has now been settled for so long in this country that this assumption is scarcely tenable.
5. Delay does not, in itself, excuse compliance with the Convention. Courts must do the best they can to give effect to it, so long as its provisions have not become completely unworkable. The lesson of this case is that every effort must be made to avoid such delays. If there is a dispute as to whether the removal was wrongful it should be dealt with summarily. A balance must, of course, be struck between acting on too little information and the search for too much. A court cannot make a finding that the child's removal was wrongful unless it is provided with a basis for doing so. But if it is to deal with the case summarily the court must not seek perfection. It has to do the best it can on the information that has been made available, as Butler-Sloss LJ indicated in C v C (Abduction: Rights of Custody)  1 WLR 654, 658A.
6. Article 15 of the Convention contemplates that the court may need to be provided with a determination from the authorities of the state of the child's habitual residence that the removal was wrongful. So a judge is not to be criticised if he decides to use this procedure because he cannot responsibly resolve the issue on the information provided by the applicant. Nevertheless if he decides on this course delay will be inevitable. Great care must therefore be taken, in the child's best interests, to keep this to the absolute minimum. The misfortunes that have beset this case show that, once the court has received the response, it should strive to treat the information which it receives as determinative.
7. Of course it is for the court to which the application is made, not the authorities of the requesting state, to decide whether the removal was wrongful within the meaning of article 3. The court must apply its own view of the Convention as best it can in the light of what it knows. No doubt there will be situations where the court feels that there may still be room for argument as to what the article 15 determination amounts to. But, as my noble and learned friend Lord Brown of Eaton-under-Heywood makes clear it must resist calls for further evidence. The further delay that this would cause is incompatible with the objects of the Convention. Detailed scrutiny of the child's welfare must be left for later. That is a matter for the state of his habitual residence. Speed is of the essence if the child is to be returned promptly to that state. The court must take this into account when considering whether enough information as to whether the removal was wrongful is available, and whether the information that it has is reliable.
8. In this case the response that was received from Romania was sufficient to show that the child's removal was not wrongful within the meaning of article 3. On 9 June 2005 the final Court of Appeal of Bucharest, upholding the court of first appeal, stated in the clearest terms that, under the law as it then stood in Romania, termination of marriage through divorce brings joint custody to an end, that cases where the agreement of the parties is required about a measure which the parent with custody proposes are limited, and that none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child's place of residence. It is wholly understandable that the father should feel aggrieved by what has happened in this case. The effect on his ability to exercise his rights of access is plain to see. But the phrase "rights of custody" has been given a particular definition by the Convention. It is only if there has been a breach of rights of custody as so defined that the removal can be described as wrongful for its purposes. The information provided by the Romanian court shows that, as the law stood at the time of the child's removal, the father had no such rights.
9. The absence of a right of veto is, then, decisive in this case. Had there been a right of veto the result might perhaps have been different, despite the delay. It has come to be appreciated in most, but not all, contracting states that for the Convention's purposes a right to grant or withhold consent to the child's removal from the state where he resides is a right of custody. Article 5 states that for the purposes of the Convention "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence. To understand what this means reference must be made to article 3, where the words "rights of custody" are used to define the circumstances in which the removal or retention of a child is to be considered wrongful - "wrongful" because the Convention proceeds on the assumption that welfare issues are best dealt with in the state where the child is habitually resident.
10. The key to what the phrase means lies in these facts. The Convention is an agreement between states. It seeks to address the problems that arise where a child is moved across international borders. It does not concern itself with disputes about the exercise of custody or access rights within the country of the child's habitual residence. The right to determine the child's place of residence has to be seen in that context. The word "place" in the phrase "the child's place of residence" must be taken, for Convention purposes, to include the country of the child's residence. A right to object to the child's removal to another country is as much a right of custody, for those purposes, as a right to determine where the child is to live within the country of its residence.
11. The phrase "rights of access" is also defined for the purposes of the Convention by article 5. But it is important not to treat this definition as limiting the rights that are included within the expression "rights of custody". There is no doubt that a right to determine the place of the child's residence will be helpful to the parent who wishes to exercise the right to take the child for a limited period of time to a place other than the child's habitual residence. Time and distance matter to parents who lead busy lives, and the place of the child's habitual residence may have a very real bearing on how often, or for how long, it is practicable for a right of access to be exercised. But the fact that a right to determine the place of the child's residence may be helpful to the parent who seeks access is not a reason for treating the right to determine where the child resides as something other than a right of custody for Convention purposes. They are not mutually exclusive rights. The Convention provides different remedies where rights of custody and rights of access have been breached. The nature and purpose of those remedies helps to show why, when it comes to removal or retention across international borders, the right to determine the place of the child's residence is treated as a right of custody.
12. This was not Professor A E Anton's view. Writing shortly after the Convention was entered into, he said that the definition of "rights of custody" in article 5 suggests that the breach of a right simply to give or to withhold consent to changes in a child's place of residence is not to be construed as a breach of rights of custody in the sense of article 3: "The Hague Convention on International Child Abduction" (1981) 30 ICLQ 537, 546. He referred to the fact that a suggestion that the definition of "abduction" should be widened to cover this case was not pursued. The suggestion was made by a member of the Canadian delegation during the final diplomatic conference on the Convention in October 1980: see footnote 16 to the judgment in Furnes v Reeves 362 F.3d 702 (11th Circ 2004), quoting from Linda Silberman, "Patching up the Abduction Convention: A Call for a New International Protocol and a Suggestion for Amendments to ICARA" (2003) 38 Tex Int LJ 41, 46, n 34. It was in these terms:
The fact that this suggestion was not pursued was taken by Professor Anton to indicate that, as the definition stood, taking the child out of the jurisdiction in those circumstances would not have been wrongful for the Convention's purposes.
13. Professor Anton was very well placed to comment on this issue, and his comments were noted by the Supreme Court of Canada in DS v VW  2 SCR 108 in support of its opinion that to hold otherwise would confuse the concepts of custody rights with access rights; see also Thomson v Thomson  3 SCR 551. But the view which Professor Anton expressed was his own view, as he was careful to point out in a footnote at the beginning of his article. It was not shared by the Court of Appeal in C v C (Abduction: Rights of Custody)  1 WLR 654. Referring to the phrase "the right to determine the place of the child's residence, Lord Donaldson of Lymington MR said at pp 663H-664B:
14. In In re P (A Child) (Abduction: Custody Rights)  Fam 293 the Court of Appeal had to decide whether the child's removal by the mother from the state of New York to England was wrongful. The father claimed that he had not consented to the removal and that he had rights of custody, in the Convention sense, under New York law. This was because he had been granted visitation rights, and because the court ordered that neither party was to remove the child from the state of New York except for temporary vacations without the prior written consent of the other party or prior court order. This was a ne exeat right similar to that which section 13 of the Children Act 1989 has laid down: see also section 2(3) of the Children (Scotland) Act 1995. The approach which was taken to this issue in C v C (Abduction: Rights of Custody)  1 WLR 654 is now commonly held amongst contracting states, as Hale J observed in In re W (Minors) (Abduction: Father's Rights)  Fam 1, 9. Ward LJ said in In re P  Fam 293 that the court was abundantly satisfied that C v C and the subsequent decisions in England to the same effect were right: para 55. In J, Petitioner  CSIH 36, 2005 GWD 15-251 the Inner House of the Court of Session in its turn held that "rights of custody" for Convention purposes included the right to grant or withhold consent to the child's removal from the United Kingdom under section 2(3) of the 1995 Act. The issue can now be regarded as settled, so far as the United Kingdom is concerned.
15. Unfortunately, as is usually the case in international Conventions on private law, the Hague Convention has not provided any formal mechanisms to ensure that the international legal norms that it has created are applied uniformly and consistently in the numerous contracting states: see Linda Silberman, "Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence" (2005) 38 U C Davis Law Review 1049, 1057. This means that its effectiveness is left in the hands of the respective central authorities and national courts that implement and interpret the Convention. Professor Silberman is highly critical of the way the courts in the United States have approached this issue: see p 1069:
16. Professor Silberman has singled out for particular criticism Croll v Croll 229 F 3d 133 (2d Cir 2000), cert denied, 534 US 949 (2001). The Court of Appeals for the Second Circuit departed in that case from the position that had been adopted almost unanimously by earlier decisions of intermediate courts, that a parent who could restrict whether the child moved away did have rights of custody within the meaning of the Convention. In footnote 94 at p 1071 she says that the mischief potentially caused by Croll should not be underestimated. In the same footnote she observes that "fortunately" the Court of Appeal in In re P  Fam 293 decided not to follow the views of the majority in Croll, which had concluded that Webster's Third New International Dictionary and Black's Law Dictionaries were an appropriate source for the definition of custody rights and that nothing in the Hague Convention suggested that the drafters intended anything other by the use of this expression than the ordinary understanding of custody as revealed by these dictionaries. Judge Sotomayor's dissent in Croll attracts this comment, at p 1070:
17. Certiorari was denied in Croll when it was considered by the Supreme Court, and other federal courts have followed the decision of the majority: Gonzalez v Gutierrez 311 F 3d 942 (9th Circ 2002); Fawcett v McRoberts 326 F 3d 491 (4th Circ 2003), cert denied 540 US 1068. In Gonzalez at p 949 the court said that a ne exeat clause served only to allow a parent with access rights to impose a limitation on the custodial parent's right to expatriate his child and that this, in its view, hardly amounted to a right of custody "in the plainest sense of the term." The Ninth Circuit followed this reasoning in Fawcett at p 500, holding that the ne exeat provision in section 2(3) of the Children (Scotland) Act 1995 did not confer "rights of custody" on the petitioning parent where the other parent had the exclusive right to determine the child's place of residence within Scotland.
18. The US decisions are not all one way. In Furnes v Reeves 362 F 3d 702 (11th Circ 2004) the Court of Appeals for the Eleventh Circuit said that it was not persuaded by the analysis in Croll. In a unanimous decision it said that the Convention's purpose is to prevent the international abduction of children and that it is thwarted, not satisfied, by the Croll majority's construction of the ne exeat right. And the Constitutional Court of South Africa referred with approval to Sotomayor J's dissenting opinion in Croll's case in Sonderup v Tondelli 2001 (1) SA 1171, noting in para 22 that the majority opinion was contrary to the weight of authority. Unfortunately when the Court of Appeals for the Fourth Circuit returned to the issue in Bader v Kramer 445 F 3d 346 (4th Circ 2006) it referred to its decision in Fawcett, which followed Croll, without disapproval. But it was able to distinguish those cases on the ground that rights of access and rights of custody were not mutually exclusive in German law, and that the visitation rights of one parent could be modified without disturbing the underlying joint custody of both parents. It held that, in the absence of any order removing the father's ability to determine the child's residence, he continued to retain joint custody over the child.