Judgments - In re D (a child)

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    19.  It is unfortunate that there remains such a profound difference of view between some, although not all, of the courts in North America and the view so widely adopted elsewhere in the common law world that a ne exeat clause confers rights of custody within the autonomous meaning which article 5 of the Convention indicates. One can only hope that the contributions that have been made to this debate by Professor Silberman in support of the dissent in Croll's case, taken together with the increasing weight of international authority, will encourage further thinking in those jurisdictions which still reject this view. It is, after all, in the best interests of the children who are caught up in these unhappy disputes that all states parties to the Convention should adopt the same approach. It can now be taken for granted that courts throughout the United Kingdom will give effect to ne exeat clauses that prohibit the removal of a child from another contracting state. Is it too much to hope that this approach will come to be universally recognised?

BARONESS HALE OF RICHMOND

My Lords,

    20.  The facts of this case are on any view extraordinary. They concern a little boy, A, who was born in Romania on 17 July 1998 and is now aged eight. His parents were married in Romania in January 1998 and divorced there in November 2000. In December 2002, the mother brought him to England without the knowledge or consent of his father. Proceedings under the Child Abduction and Custody Act 1985 and the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Cmnd 8281) ('the Convention') were launched in February 2003.

    21.  A dispute arose as to the effect of the orders made about A when his parents divorced. Each was permitted to adduce expert evidence. The judge found himself unable to resolve the difference of opinion between the experts and directed that a determination be obtained from a Romanian court pursuant to article 15 of the Convention. The Romanian proceedings were not resolved until 9 June 2005, when the final Court of Appeal in Romania ruled that the removal of A to this country had not been wrongful under Romanian law. Nevertheless, when the case came back before the English court on 1 August 2005 it was ordered that further evidence on Romanian law be obtained from an expert jointly instructed by the parents. That expert reported in October 2005 and reached different conclusions from the Romanian court. Thereafter the parties were permitted to put further questions to him.

    22.  The case eventually came on for hearing in February 2006 and judgment was handed down on 28 March ordering A's immediate return to Romania upon certain undertakings by the father. The mother then issued proceedings in Romania seeking permission to remain here with A. Those proceedings have still not been heard. The mother also appealed against the English order. At this point the child applied to be made party to these proceedings, but this was refused by the Court of Appeal. Nevertheless, the court directed a report from a CAFCASS officer. This made it clear that A was adamantly opposed to returning to Romania. The next day, on 24 May 2006, the Court of Appeal dismissed the mother's appeal, [2006] EWCA Civ 830. She now appeals to this House. A, through his litigation friend from the Children's Legal Centre, has been given leave to intervene in this appeal.

    The issues

    23.  The simple question before us is whether A should now be returned to Romania, some three years and 10 months after he left. But this depends upon the answers to some more complex questions arising under the Hague Convention. The first, and most important, is whether removing A from Romania to England was 'wrongful' within the meaning of article 3 of the Convention. Only then does the duty under article 12 to return him to his home country arise. Central to the answer to that question is whether the father has 'rights of custody' or only 'rights of access' within the meaning of article 5. In answering that question, the effect of the Romanian judgment under article 15 must be considered. If the conclusion is that the removal was wrongful, two further questions arise. Is the court entitled to refuse to return the child under article 13 - either because there is a grave risk that his return would place him in an intolerable situation or because he objects to his return and is of an age and maturity where it would be appropriate to take account of his views? Finally we are asked to consider the ways in which the point of view of a child in A's situation should be placed before the court in Hague Convention proceedings.

    Wrongful removal

    24.  The world would be a simpler place if the Convention had provided that all removal or retention of a child outside the country where he or she is habitually resident without the consent of the other parent or the authority of a court is wrongful. But it does not. The Convention recognises that not all parents have the right to demand the automatic return of children who have been taken away without their consent. It does so by providing that the removal or retention of a child is only wrongful under article 3 if 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". These rights may arise "by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that state." In addition, those rights must actually have been being exercised at the time (or would have been had it not been for the wrongful removal). Article 5(a) provides that "'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".

    25.  The Convention also obliges, in article 21, the Central Authorities to assist a 'left behind' parent in realising his or her 'rights of access', not by securing summary return to the home country, but through promoting their peaceful enjoyment, removing obstacles to their exercise, and initiating or assisting the initiation of proceedings to protect them. Article 5(b) provides that "'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence". Thus it was envisaged that the right to have the child to stay away from his home might still amount to 'rights of access' rather than 'rights of custody'. It is quite clear from the Explanatory Report of Professor Elisa Pérez-Vera (April 1981) that the original parties to the Convention drew a deliberate distinction between rights of custody and rights of access and did not intend that mere rights of access should entitle a parent to demand the summary return of the child. As Professor Pérez-Vera pointed out, such an approach would ultimately lead to "the substitution of the holders of one type of right by those who held the other" (para 65).

    26.  Nevertheless it is common ground between all the parties to this case that they are not mutually exclusive concepts. A person may have both rights of access and rights of custody. The question is, do the rights possessed under the law of the home country by the parent who does not have the day to day care of the child amount to rights of custody or do they not? States' laws differ widely in how they look upon parental rights. They may regard the whole bundle of rights and responsibilities which the law attributes to parents as a cake which can be sliced up between the parents: one parent having the custody slice, with the package of rights which that entails, and the other having the access slice, with the different package of rights which that entails. This is by no means an unusual way of looking at the matter. Alternatively, the state may regard the whole bundle of parental rights and responsibilities as inhering, and continuing to inhere, in both parents save to the extent that they are removed or qualified by the necessary effect of a court order or an enforceable agreement between them. The expert evidence in this case demonstrates that there was serious academic debate in Romania about whether the law adopted the first or the second approach. In the event, the Romanian court adopted the former whereas the single joint expert adopted the latter.

    27.  As Professor Pérez-Vera points out, following a long established tradition of the Hague Conference, the Convention does not define the legal concepts used by it. However, article 5 does make clear the sense in which the concepts of custody and access rights are used, "since an incorrect interpretation of their meaning would risk compromising the Convention's objects" (para 83). Custody relates to the care of the child's person rather than his property. It is a narrower concept than that of 'protection of minors' used elsewhere. It may, however, be jointly held. Access includes the right to 'residential access' even across national boundaries.

    28.  In the absence of a supranational body to define and refine these autonomous terms, member states must strive for consistent practice - not in the content of their domestic laws but in the effect that they give to the particular features of one another's laws. As Lord Browne Wilkinson said in In re H (Minors) (Abduction: Acquiescence) [1998] AC 72, 87 (albeit in the context of the meaning to be given to 'acquiesced' in article 13(a) of the Convention):

    "An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all contracting states."

    In that case, therefore, English concepts and English law rules about the meaning of acquiescence could have no direct relevance to the interpretation of the Convention. We must be equally prepared to resist projecting the view taken in English law of the rights of parents onto the Convention concepts as they apply to the laws of other member states which may take a different view.

    29.  There is no problem when return is requested by the parent with the right to the day to day care of the child - or in English terms the parent with whom it has been determined that the child is to live. The problem is with the characterisation of the other parent's rights. If these amount to joint custody, there is equally no problem. The main debate has been over the effect of what are sometimes referred to as 'travel restrictions' - either a court order prohibiting the removal of the child from the home country or a 'right of veto' giving one parent, who may or may not also have rights of access, the right to insist that the other parent does not remove the child from the home country without his or her consent or a court order.

    30.  The internal position in English and Scottish law is clear. Parents who share parental responsibility (that is all married parents and increasing numbers of unmarried parents) each have all the rights and responsibilities of parents. They retain those rights subject only to the practical limitations of any court order and can exercise them independently of one another unless this is inconsistent with a court order. While a residence order is in force, no person may remove the child from the United Kingdom without the written consent of each person with parental authority or the leave of a court (Children Act 1989, s 13(1)(b). In England, the person with the benefit of the residence order may remove the child for less than one month: s 13(2)). Even if there is no residence order, it is a criminal offence for a parent to remove a child from the United Kingdom without the consent of each person with parental responsibility or the leave of a court (Child Abduction Act 1984, ss 1 and 6; in England with the one month exception for people with the benefit of a residence order).

    31.  But the mere fact that English and Scottish parents enjoy such rights of veto does not of itself mean that they enjoy 'rights of custody' within the meaning of the Convention. Hitherto, however, both in England and Scotland, the courts have regarded travel restrictions as giving rise to rights of custody. As long ago as C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, the Court of Appeal held that a court order prohibiting either parent from removing a child from Australia without the other's consent gave the other parent rights of custody under the Convention. Lord Donaldson MR observed, at p 664, that the right to determine the child's place of residence "may be specific - the right to decide that it shall live at a particular address or it may be general, eg 'within the Commonwealth of Australia'". In In re W; In re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146, I applied the same approach to rights of veto arising by operation of law. Both cases were relied upon by the Inner House of the Court of Session in J, Petitioner [2005] CSIH 36, 2005 GWD 15-251, where it was held that the right of veto enjoyed, by virtue of section 2(3) and (6) of the Children (Scotland) Act 1995, by a parent with the right to contact amounted to 'rights of custody' under the Convention.

    32.  Mr James Turner QC, on behalf of the mother, has questioned whether a mere right of veto should amount to 'rights of custody'. The reasoning is simple. If rights of custody 'shall include' the right to determine the child's place of residence, it is not enough that they include the right to determine for the time being the country where the child lives - it must mean the right to determine where the child actually lives. The Convention envisages a compendium of more than one right. Furthermore, the purpose of the right to determine the country where the child lives is simply to facilitate the exercise of the right of access - and that does not attract the right to demand summary return to the home country. Indeed, a person possessing a right of veto may have no access rights at all; whereas a person having access rights may have no veto right. It would be surprising if a parent who enjoyed a close and continuing relationship with his child might have no rights of custody whereas a parent who has not seen his child for years might do so.

    33.  Mr Turner is able to cite other jurisdictions in the common law world which have taken this view. In 2000, in Croll v Croll 229 F 3d 133, a majority of the United States Court of Appeals for the Second Circuit held that a ne exeat clause in a Hong Kong custody agreement giving custody, care and control to the mother did not give rights of custody to the father. That decision was followed in 2002 by the Court of Appeals for the Ninth Circuit in Gonzalez v Gutierrez 311 F 3d 942; and in 2003 by the Court of Appeals for the Fourth Circuit in Fawcett v McRoberts 326 F 3d 491 (referred to without comment but distinguished in 2006 in Bader v Kramer 445 F 3d 346). The majority in Croll relied on the deliberate distinction drawn in the Convention between rights of custody and rights of access, the lack of international consensus on the issue, and the published views of Professor A E Anton, chair of the Hague Conference Commission which had drafted the Convention at (1981) 30 ICLQ 537, 546.

    34.  The majority in Croll were able to point to two decisions in the Supreme Court of Canada to demonstrate a lack of international consensus. In Thomson v Thomson [1994] 3 SCR 551, the court had held that removal in breach of a ne exeat clause in an interim custody order was in breach of rights of custody held by the court, in order to preserve its jurisdiction to make a final determination, but expressed the view that such a clause in a final order would not give the other parent rights of custody. In DS v VW [1996] 2 SCR 108, Thomson was relied upon a fortiori where any prohibition upon removal had been implicit in the custody order made in the United States.

    35.  However, in 2004 the United States Court of Appeals for the Eleventh Circuit in Furnes v Reeves 362 F 3d 702 rejected the reasoning of the majority in Croll v Croll in preference for the dissenting views of Sotomayor CJ. They pointed out that to order return of the child did not convert the other parent's rights of access into rights of custody, because there was no obligation to return the child to that other parent. The object was to maintain the status quo and the jurisdiction of the home country over any disputes. The observations in both Canadian cases were obiter. Apart from them, known opinion elsewhere in the common law world was united. Thus the full court of the Family Court of Australia, in JR v MR, 22 May 1991, had followed the English decision in C v C [1998] 1 WLR 654, as did Lindenmayer J at first instance in Director General, Department of Families, Youth and Community Care v Hobbs [1999] FamCA 2059. The Constitutional Court of South Africa had reached the same result in Sonderup v Tondelli (2001) (1) SA 1171 (CC). The Israeli High Court, in Foxman v Foxman in 1992 had also held that rights of custody should include cases where parental consent is required to remove the child from the country of residence. To these might have been added New Zealand, which has gone further still and held that rights of access can in themselves amount to 'rights of custody': G v B [1995] NZFLR 49; D v C [1999] NZFLR 97; see also Hunter v Murrow (Abduction: Rights of Custody) [2005] EWCA Civ 976; [2005] 2 FLR 1119 (para 42 below).

    36.  I acknowledge the force of Mr Turner's argument, especially when viewed against the original paradigm case of abduction by a non-custodial parent from the custodial primary carer. It is also the case that some parents who possess a right of veto have in fact very limited contact - if any - with their children, so that to force a child to return to the home country simply for the sake of obtaining permission to leave which will almost certainly be granted seems heavy handed. But the circumstances of families are infinitely various. It is an object of the Convention to enable such decisions to be taken in the courts of the home country where those circumstances can (in most cases) better be investigated and evaluated. It is not for the courts of the requested state to start making value judgments about the merits of the case, save to the very limited extent that the Convention permits this. As far as the Convention is concerned, a person either has rights of custody or he does not - the quality of his relationship with the child is not in point. It would, at the very least, be an odd result if a Convention designed to secure the summary return of children wrongfully removed from their home countries were not to result in the return of children whose removal had clearly been in breach of the laws, court orders or enforceable agreements in the home country.

    37.  Therefore, in common with the understanding of the English and Scottish courts hitherto, and with what appears to be the majority of the common law world, I would hold that a right of veto does amount to "rights of custody" within the meaning of article 5(a). I see no good reason to distinguish the court's right of veto, which was recognised as "rights of custody" by this House in In re H (A Minor)(Abduction: Rights of Custody) [2000] 2 AC 291, from a parental right of veto, whether the latter arises by court order, agreement or operation of law.

    38.  I would not, however, go so far as to say that a parent's potential right of veto could amount to "rights of custody". In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child's upbringing, including relocation abroad, this should not amount to "rights of custody". To hold otherwise would be to remove the distinction between "rights of custody" and "rights of access" altogether. It would be also inconsistent with the decision of this House in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562. There an unmarried father had no parental rights or responsibility unless and until a court gave him some; but he did, of course, have the right to go to court to seek such an order. This was held not to amount to "rights of custody" within the meaning of article 5(a). Nor could a subsequent order grant him such rights if by then the child's habitual residence had been changed.

    Article 15

    39.  Article 3 makes it quite clear that, however wrongful the removal might be in the eyes of the English or Scottish laws of parental responsibility, what matters is whether it is "in breach of rights of custody attributed to a person . . . under the law of the state in which the child was habitually resident immediately before . . ." Plainly, therefore, the first question is "what rights does that person have under the law of the home country?" The second question is, "are those rights 'rights of custody' within the meaning of the Convention?" What is the court in a requested state to do if uncertain of the answers? Article 15 contemplates that it may seek a determination from the authorities of the requesting state:

    "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 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."

    The last sentence indicates that this is something other than the assertion or certificate of the central authority (cf the certificate as to the law of the requesting state which, under article 8, sometimes accompanies a request from one central authority to another). It is a determination by the authorities having the power within the requesting state to make authoritative decisions relating to rights over children (see Professor Pérez-Vera, op cit, para 86). The reference to "administrative authorities" caters for those states in which some decisions about children are entrusted to bodies which are more administrative than judicial in character (see ibid, para 44).

    40.  In this case, being unable to decide between the competing experts, the judge requested the father to obtain an article 15 decision. The mother challenged the jurisdiction of the Romanian court of first instance which concluded that it did not have jurisdiction. The father appealed. The Court of (First) Appeal held that the first instance court had been wrong to refuse jurisdiction but that the father's rights did not amount to rights of custody for the purposes of article 3 of the Convention. The father launched a further appeal. In a fully reasoned judgment, the final Court of Appeal in Bucharest upheld the first Appeal Court's decision. It held that the equality of rights enjoyed by parents before their divorce is subject to exceptions. On divorce, the court is obliged to award custody to one or the other. The parent with custody shall exercise parental rights and fulfil parental duties. The parent without custody keeps his right to have personal contact with the child and to watch over his upbringing, education and professional training. The effect of divorce is to divide the bundle of rights between the parents. The agreement of the non-custodial parent is only required to certain specified measures - adoption and the loss or re-acquisition of Romanian citizenship. Otherwise, the divorced non-custodial parent does not have a right of veto of measures taken by the custodial parent relating to the child's person. His right to "watch over" is not a right to direct. Law 272/2004, which came into effect on 1 January 2005, requiring both parents to give their consent to the removal of a child from Romania, was not retrospective in its effect. Not surprisingly, therefore, the Bucharest Court of Appeal concluded that the removal of the child in December 2002 had not been wrongful. (It is perhaps worth noting that, according to a note provided by the Romanian Ministry of Justice, the Romanian central authority had originally taken the same view of the father's rights as eventually did the Bucharest court and declined to transmit the father's request. It only did so after the father had launched proceedings here.)

    41.  How then should the courts of the requested state respond to such a determination? Most certainly not as they did in this case. Having received a determination, binding between the parties, in the final court of the requesting state, the English High Court proceeded in effect to allow the father to challenge that ruling by adducing fresh expert evidence. The fact that the expert was jointly instructed does not cure the vice. This was a question on which there were known to be two views. The vice is that he was asked at all; and furthermore that he was asked to answer questions about the rights which the father enjoyed under Romanian law. The fact that a first instance court in Romania had reached a different conclusion in another case shortly before this decision (the Rada case) is not a sufficient reason for an English court to query the decision of the final Court of Appeal in Romania in the instant case. The ultimate result was that the English trial judge took a different view from the view taken in Romania. She ordered the return of the child to a country whose courts had authoritatively ruled that the mother was within her rights to remove the child to live in this country.

    42.  How could this have happened? On 28 July 2005, the Court of Appeal handed down its decision in Hunter v Murrow (Abduction: Rights of Custody) [2005] 2 FLR 1119. The English court had made an article 15 request to the New Zealand court concerning a child whose unmarried parents had separated before he was born and had never lived together, although father and child had had considerable contact by informal agreement with the mother. It appears that the father had neither parental responsibility nor rights of veto. Nevertheless, the New Zealand court held that the access which the father had enjoyed by virtue of the agreement with the mother amounted to 'rights of custody' for the purpose of the Convention. As the researches of counsel demonstrated, this takes the concept of 'rights of custody' further than it has been taken in other common law jurisdictions.

    43.  The Court of Appeal declined to accept that ruling. But their reasoning is important. They did not challenge the ruling as to the content of the father's rights in New Zealand law. They merely challenged the characterisation of those rights as rights of custody for Convention purposes. This was on the basis, long established in the English application of the Convention, that rights of custody are to be distinguished from mere rights of access: see, most recently, In re V-B (Abduction: Custody Rights) [1999] 2 FLR 192 and In re P (Abduction: Custody Rights) [2004] EWCA Civ 971; [2005] Fam 293. Hunter v Murrow afforded no warrant at all for allowing the father to challenge the Romanian court's decision as to the content of his rights under Romanian law. Save in exceptional circumstances, for example where the ruling has been obtained by fraud or in breach of the rules of natural justice, it must be conclusive as to the parties' rights under the law of the requesting state.

 
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