19
February 1999
KEANE
J (HAMILTON CJ, DENHAM and BARRINGTON JJ concurring):
The
factual background to this difficult and unfortunate case, brought under the
Hague Convention on the Civil Aspects of International Child Abduction
(hereafter 'the convention'), is as follows. The Plaintiff and the Defendant
are Egyptian and British citizens respectively. They met in the United States
in July of 1989 and lived together in New York from February of 1990 until
December of 1996, when the Defendant left the Plaintiff.
At
the time they met, the Plaintiff was carrying on a restaurant business. The
Defendant was in the United States on a visitor's visa: her home was in
Ireland. The Plaintiff and the Defendant entered into a Moslem wedding ceremony
on 5 March 1991, but it is accepted that, under the law of the State of New
York, this was not recognised as a valid marriage. They had one child, HI, the
minor named in the title, (hereafter 'H') who was born on 13 July 1991. The
Plaintiff is named in H's birth certificate as the father and the Defendant has
acknowledged him to be such. The Defendant, from 19 January 1991 to 3 February
1997, when she left the United States, had the status of an illegal alien.
When
the relationship between the Plaintiff and the Defendant broke down in December
of 1996 and the Defendant left the Plaintiff, she applied to the Family Court
in the County of Nassau, New York on 31 December for, and was granted, a
'temporary order of protection' in respect of the Plaintiff, which is the
equivalent of a barring order in our jurisdiction, and was also granted interim
custody of H.
On
3 January 1997, the Plaintiff filed a petition in the Family Court. Paragraph
14 stated:
That
it would be in the best interest of the child to have [visitation] awarded to
the petitioner for the following reasons: petitioner/father loves his child and
has always maintained a close relationship.
Paragraph
10 of the petition in the court form reads as follows:
(An
order of filiation) (A paternity acknowledgement) was filed by the Court of
County . . . on . . . , docket No . . ., concerning the and the child(ren) who
is/are the subject of this proceeding. A true copy is annexed hereto.
Under
this paragraph are the initials 'N/A'.
The
petition ends as follows:
Wherefore,
petitioner(s) pray(s) for an order awarding visitation of the child(ren) named
herein to the petitioner(s) and for such further and other relief as the court
may determine.
On
7 January, a petition was filed on behalf of the Defendant in the Family Court.
Paragraph 10 reads:
(A
paternity acknowledgement) is being filed by the Family Court of Nassau County
on . . . , docket No . . . concerning the petitioner and Respondent and the
child who is the subject of this proceeding. A true copy is annexed hereto.
Paragraph
14 states that:
It
would be in the best interest of the child(ren) to have (custody) (visitation)
awarded to the petitioner(s) for the following reasons:
IMG,
mother of child prior to separation, has . . . provided the majority of
nurturing and physical care since the child needs daily medical attention which
I have solely taken care of. My son will continue to have a good life and
undisrupted [sic] by staying with me.
The
petition ends:
Wherefore
petitioner(s) pray(s) for an order awarding custody/visitation of the child
named herein to the petitioner(s) and for such further and other relief as the
court may determine.
The
Defendant left the United States with H on 3 February 1997 and came to Ireland,
without informing the Plaintiff. Since her arrival in this jurisdiction, she
and H have been living with her parents and two sisters in Dublin. In the
meantime, the proceedings in the New York court had been adjourned. On 26
February 1997, at a hearing where both parties were represented by their
lawyers, it was ordered by consent of all the parties that H should be produced
before the court on 26 March 1997 and that any foreign police or other
applicable authority should be asked to assist in implementing that order.
The
circumstances in which the Defendant left for this jurisdiction are set out by
her as follows in an affidavit sworn by her in these proceedings:
I
say that I made an initial application to the court on 30 December 1996. I say
that, as I was unrepresented, the presiding judge advised me to engage a
lawyer. The matter was adjourned to 9 January 1997. The Plaintiff attended. I
was represented by a Mr Mosser through the legal aid system. Prior to that date
I had applied for custody and the Plaintiff had applied for visitation rights.
The judge said that there was no proof of paternity and the matter was
adjourned to 7 February. Paternity papers needed to be filed by the Plaintiff.
I
say that I firstly consulted a private lawyer in relation to family proceedings
who referred me to two specialist immigration lawyers with regard to my
position. I say that prior to the next scheduled court date of 7 February, as a
result of advice received from the said immigration lawyers and my own private
lawyer, I left the jurisdiction of the United States on 3 February 1997. I say
I did so in circumstances where I was under considerable emotional stress. The
relationship with the Plaintiff having broken down, my fear [sic] that he would
remove the child to Egypt and therefore my fear [sic] that substantial
psychological damage at the least could be caused to my child by reason of
being separated from me, his mother and of physical harm in that he would be
exposed to a less comfortable standard of living and in particular that his
medical needs, which are considerable, would not be met by the Plaintiff. I say
that I regret any discourtesy to the American court but I acted in the interest
of protecting the infant from the dangers I have referred to. I say at the time
I departed the jurisdiction there were no proceedings in being to my knowledge
taken on behalf of the Plaintiff apart from his visitation application. I
further say that I was never served with such proceedings. I say that I have no
knowledge of any application to court on 26 February 1997. In particular I say
that I was not contacted by the lawyers who indicated to the court on that day
that they appeared on my behalf nor did I instruct them to consent to any
orders on my behalf on that date. I say that I am a stranger as to what
occurred in court on that date.
The
advice from an immigration lawyer referred to in that affidavit states:
The
only way that [the Defendant] could legalise her status in the United States
would be if her United States citizen child were to petition for her. However,
the US citizen child must be at least 21 years old before the child can file
such a petition on behalf of his mother.
Unlike
the immigration laws enacted prior to September of 1996, the Immigration Act of
1996 mandates a very harsh penalty for overstaying [being out of status].
As
an illegal alien, one who is out of status, [the Defendant] has no right to
remain in the United States as the mother of a minor [under 2l] United States
citizen child.
It
is also my understanding that there was never a legal marriage between [the
Defendant] and the father of [H]. She also has no education or employment
background which would enable her to be granted lawful permanent residence
status or non-immigrant status.
Therefore,
it is my opinion that until such time as [the Defendant's] son reaches the age
of 21 years and can petition for his mother, there is no way that she would be
able to obtain lawful permanent resident status in the United States.
In
her affidavit, the Defendant also makes various allegations of misconduct
against the Plaintiff and similar allegations were made by her father and her
sister's partner in affidavits sworn by them in the proceedings. These
allegations were vehemently denied by the Plaintiff in an affidavit sworn by
him in the proceedings. Clearly, however, any conflicts of evidence arising
could not be, and were not, resolved by the High Court on affidavit only. In
any event, they would be relevant only to an issue arising under article 13 of
the convention or to a determination by either the court in New York or the
courts in this jurisdiction as to the future custody of H. It does not,
however, appear to be disputed that H suffers from partial epilepsy, most
probably as a result of a developmental brain disorder.
The
Plaintiff sent a request to the Department of Equality and Law Reform (as it
was then styled), the central authority in this jurisdiction for the purposes
of the convention, seeking the assistance of the department in having H
returned to the United States on 13 March 1997.
The
present proceedings were then issued pursuant to the Child Abduction and
Enforcement of Custody Orders Act 1991, (hereafter 'the 1991 Act') which gives
the convention the force of law in this jurisdiction. Some difficulty was
experienced by the Plaintiff's solicitors in effecting service of the
proceedings, but ultimately that was done, and the matter came on for hearing
in the High Court. On behalf of the Defendant, it was argued that the removal
of H had not been in breach of any right of custody of the Plaintiff, since he
would not have been entitled to such a right at the time of the removal, never
having been legally married to the Defendant and no declaration of paternity
having been made in respect of him. It was further claimed on behalf of the
Defendant that the return of H should not be ordered because he would be
exposed to 'physical or psychological harm' or placed in 'an intolerable
situation' within the meaning of article 13 of the convention.
It
was agreed between the parties and accepted by the learned High Court judge
that the question as to whether the removal of H was 'wrongful' within the
meaning of article 3 of the convention should be determined as a preliminary
issue. That issue having been resolved in favour of the Plaintiff by the trial
judge, this appeal was brought from her judgment and order on behalf of the
Defendant.
While
the procedure was one which was, accordingly, acquiesced in by all concerned, I
do not think that it was appropriate. Article 1(a) of the convention states
that one of its two objects is:
To
secure the prompt return of children wrongfully removed to or retained in any
contracting state.
In
the present case, the allegedly wrongful removal was effected on 3 February
1997. The proceedings were not, however, heard by the High Court until 28
October 1998. This Court cannot, of course, attribute responsibility to anyone
for that delay: it is sufficient to say that thereafter it was essential that
the proceedings be processed as rapidly as was consistent with their just
resolution. This pointed strongly, in turn, to the desirability of the entire
case being dealt with in the High Court at the same time: given the likelihood
of an appeal to this Court by either party from the determination by the High
Court of a novel and important issue which was not the subject of an
authoritative decision either in the High Court or this Court, the course
adopted was capable of producing further delay. Happily, the judgment of the
High Court was given with considerable expedition and the appeal to this Court
was also brought on for hearing within a relatively short time. In cases of
this nature, however, I do not think that this procedure should be adopted in
the future.
The
preliminary issue which was before the trial judge was whether the removal or
the retention of H was 'wrongful' within the meaning of Article 3 as being:
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 . . .
Evidence
on affidavit was given in the High Court by Timothy J Horgan and Paul O'Dwyer,
both of whom were accepted as being lawyers qualified to give evidence as to
the relevant law of the State of New York. The trial judge was understandably
concerned that, far from indicating any measure of agreement as to what the
relevant law was, they disclosed what she described as 'a welter of conflict'.
Mr Horgan, on behalf of the Plaintiff, said that New York law would recognise
the agreement of the parties to live as husband and wife and, in a case such as
the present where the parties had 'a long standing modus viventi on custodial
decisions affecting the child', legal effect would be given to those
arrangements. He concluded that:
It
is clear that the father had rights of custody at the time of the departure.
The fact that the child is illegitimate and his parents were not wedded in a
civil ceremony is irrelevant to the father's right of custody as the natural
father . . . it is equally clear under the laws of the State of New York that
those rights are continuing . . .
He
also said that in determining the issue of custody, the sole consideration was
'what is in the best interests of the child'.
Mr
Horgan's statement of the law was vigorously disputed by Mr O'Dwyer. He said
that, without an adjudication of paternity, the New York courts could not award
custody or visitation to an unmarried father, since it would violate the
principle that a parent may not be deprived of custody by a non-parent, absent
a showing of non-fitness. He concluded:
.
. . As a matter of practice, a New York state court will not entertain a
custody petition filed by an unmarried father unless a paternity petition is
filed at the same time, as the court could not grant the relief requested
absent an adjudication of paternity . . .
As
with petitions for custody, an unmarried father must not only plead, but also
prove, that he is the father of a child in order for a court to grant him
visitation rights. Again, as a matter of practice, a New York state court will
not entertain an application for visitation by an unmarried father unless a
petition for paternity is filed at the same time, absent a prior adjudication
of paternity.
In
New York a right of custody carries with it the right to determine the child's
place of residence. Absent any adjudication of paternity and either established
visitation or custody rights an unmarried father has no rights whatsoever to
determine the child's place of residence.
Mr
O'Dwyer said that there were two statutes in force in New York State dealing
with custody issues in relation to children, the Domestic Relations Law and the
Family Court Act. The first was concerned in general, although not exclusively,
with the dissolution of marriages. The second dealt generally, although again
not exclusively, with actions regarding the welfare of children. S 240.1 of the
Domestic Relations Law provides that:
In
any custody proceeding brought (1) to annul a marriage or to declare the
nullity of a void marriage or (2) for a separation or (3) for a divorce, or (4)
to obtain by a writ of habeas corpus or by petition in order to show cause, the
custody of or a right to visitation with any child of a marriage, the court
shall require verification of the status of any child of the marriage with
respect to such child's custody and support, including any prior orders, and
shall enter orders for custody and support as, in the court's discretion,
justice requires, having regard to the circumstances of the case and of the
respective parties and to the best interests of the child . . . [emphasis added]
S
549(a) of the Family Court Act provides that:
If
an order of filiation is made or if a paternity agreement or compromise is
approved by the court, in the absence of an order of custody or visitation
entered by the supreme court the family court may make an order of custody or
visitation, in accordance with [s 240.1] of the Domestic Relations Law,
requiring one parent to permit the other to visit the child or children at
stated periods.
Mr
O'Dwyer summarised the legal position as follows:
As
the Plaintiff in this action is not the child's father either as a result of
being married to the mother or as a result of an order of filiation having been
entered by the family court, the Plaintiff lacks standing to exercise any
rights of custody or visitation, and has no rights to determine the child's
place of residence. Any assertion to the contrary by Mr Horgan is simply
incorrect.
The
conclusion of the trial judge on these divergent views of the law was as
follows:
Having
considered the totality of the expert evidence on the applicable law of the
State of New York, I cannot be satisfied that the Plaintiff has established
that, as the natural father of a non-marital child who had not obtained any
order in his favour from the court of the habitual residence of the child, the
court of the State of New York, he had on 3 February 1997 established rights of
custody in respect of S under that law. Making up my own mind as best I can on
the basis of the evidence before me, it seems to me that the correct position
is that under the law of the State of New York the mother of a non-marital
child has sole right of custody of the child until such time as an order of
filiation is made or a paternity agreement or compromise is approved by the
court. That paragraph 10 of the Plaintiff's petition for visitation and the
same paragraph of the Defendant's petition for custody filed before the Family
Court of the State of New York so nearly mirrors the wording of s 549(a) of the
Family Court Act, as quoted by Mr O'Dwyer in his second affidavit, strongly
suggests that this is the correct interpretation of the evidence. The position
appears to be that once paternity is established by a filiation order or by a
court approved paternity acknowledgement or agreement, both parents have a
prima facie right to custody, gender constituting neither an advantage nor a
disadvantage and, where an issue arises between the parents, the entitlement to
custody is determined by the court applying the 'best interests' test.
It
was not suggested on behalf of the Plaintiff in either the written or oral
submissions to this Court that these findings by the trial judge were in any
way erroneous. It was, however, submitted on his behalf in the High Court and
again in this Court that, even accepting that the law of the State of New York
was as stated in this passage, the removal was nevertheless wrongful as being
in breach of what were described as inchoate rights of custody or access to
which the Plaintiff was entitled at the time of the removal, although not at
that time declared by the order of the competent court in New York. That
submission was accepted by the trial judge, but she rejected a further
submission on behalf of the Plaintiff that the removal was also in breach of a
right of custody vested in the New York court itself at the time of the removal.
The
Defendant has appealed from the High Court order. Notice was also given on
behalf of the Plaintiff that the court would be asked to vary that part of the
High Court judgment which found that the removal was not in breach of a right
of custody vested in the New York court.
On
behalf of the Defendant, Ms Clissmann SC, submitted that the trial judge had
erred in law in holding that the removal was in breach of inchoate rights of
the Plaintiff which, in the words of the judgment, 'would almost inevitably
have crystallised into established rights by court approval of the
acknowledgement of paternity . . .'.
She
urged that the proposition that the rights of custody referred to in article 3
of the convention extended to such 'inchoate rights' was not reconcilable with
the clear wording of article 3 and, if accepted, would introduce serious
uncertainty into the operation of the convention. She submitted that the
judgment of Waite LJ in In re B (a Minor) (Abduction) [1994] 2 FLR 249 which
had introduced the concept of inchoate rights into the construction of the
convention for the first time in England should not be followed in this
jurisdiction and was, in any event, difficult to reconcile with the decision of
the House of Lords in In re J (a Minor) (Abduction: Custody Rights) [1992] AC
562. She also cited in support the decision of Hale J in In re W; In re B
(Child Abduction: Unmarried Father) [1998] 2 FLR 146 in which the court
acknowledged having difficulty in reconciling the majority decision in In re B
with the decision in In re J
Ms
Clissmann further submitted that the courts in this jurisdiction should adopt
the same approach as that of Hale J in In re W; In re B namely, that the
classic case of abduction under the convention was the removal of children from
their primary carer. She submitted that, on the facts in this case, the
Defendant was the primary carer and, hence, her action in taking the child to
Ireland was not a typical case of abduction which the convention was intended
to prevent. Ms Clissmann further submitted that in this case the right of
custody, to which the Defendant was unarguably entitled, was being exercised by
her at the time of the removal and the Plaintiff had neither sought nor been
granted any right of custody: he had confined his application to the court to
access. His right to access to H remained and he was entitled under article 21
to apply to the central authority in this jurisdiction to make arrangements for
organising and securing its effective exercise.
Ms
Clissmann further submitted that the High Court judge was correct in law in
holding that no right of custody was vested in the New York court, since that
court had made no order as to custody, other than one granting temporary
custody to the Defendant, and had not imposed any restriction on the Defendant
establishing a residence with H outside the State of New York. She said that
the High Court judge, in this context, had properly attached significance to
the fact that the Plaintiff's application had not been made to the central
authority in the United States. Ms Clissmann referred in this connection to the
provisions of article 15 which enable an Applicant to obtain from the
authorities of the state of the habitual residence a decision that the removal
was wrongful. She submitted that the failure by the Plaintiff to operate that
provision could only be attributed to an apprehension on his part that such a
decision would not have supported his claim in this jurisdiction that the
removal was wrongful.
On
behalf of the Plaintiff, Mr Durcan SC submitted that the majority judgments of
the English Court of Appeal in In re B (a Minor) (Abduction) to the effect that
article 3 ought to be interpreted as applying to inchoate rights of custody,
should be followed in this jurisdiction. Given that the objective of the
convention was to spare children the adverse effects resulting from their
arbitrary removal by one parent from their settled environment to another
jurisdiction, the convention should be given a purposive interpretation and, in
particular, the expression 'rights of custody' should be construed as widely as
possible. He said that it was clear that, unless the expression was to be given
a narrow and literal construction, the Plaintiff in this case had rights of
custody which had been breached by the Defendant's actions.
Mr
Durcan further submitted that the judgment of Waite LJ in In re B (a Minor)
(Abduction) had been approved by the Australian Family Court in K v K 22 May
1996. The decision of the House of Lords in In re J with which, it had been
suggested, the majority judgments in In re B (a Minor) (Abduction) were
inconsistent, had been disapproved of by Barron J in K v K Supreme Court 1998
No 49, 6 May 1998.
Mr
Durcan further submitted that each case should be decided having regard to its
particular circumstances. In the present case, the New York court was actually
seized of proceedings in which the Defendant was seeking orders as to the
custody of the child; the Plaintiff had lived with the Defendant as her husband
for six years and he was the acknowledged father of H. To treat the Defendant
as not being entitled to any rights of custody, solely because of the absence
of the purely formal requirement of a declaration of paternity, would be
clearly irreconcilable with the objective of the convention. He cited, in
support, the observations of Madame Elisa Perez-Vera in the explanatory report
on the convention published by the Permanent Bureau of the Conference in The
Hague to the effect that article 3 should be interpreted in a flexible manner,
allowing the greatest number of cases to be brought within its scope. He urged
that the recognition of an inchoate right of custody in cases such as the
present was required in the interests of the children concerned, since any
other approach would mean having no regard to the relationship which existed
between a child and his or her father.
Mr
Durcan further submitted that the fact that the Plaintiff was seeking no more
than visitation rights was not material. Where such rights were granted by a
court, it followed that the child in respect of whom they were granted could
not be removed from the jurisdiction without the consent of the person to whom
they were granted.
Mr
Durcan submitted that the trial judge was in error in concluding that there
were no rights of custody vested in the New York court within the meaning of
article 3. Where a court granted a temporary order of custody, as it had done
here, it followed logically that it was vested with the power to determine the
place of residence of the child and that in itself was a right of custody.
Moreover where a court made such an order of interim custody, it was reserving
to itself the right to determine the ultimate custody. He cited in support the
English decisions in B v B [1993] 1 FLR 238; In re B (Abduction) [1997] 2 FLR
593 at p 600; and the decision of the Canadian Supreme Court in Thomson v
Thomson [1994] 3 SCR 551.
The
preamble to the convention recites that the signatory states wished:
.
. . 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 . . .
Article
1 of the convention states that its objects are:
(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 of access under the law of one contracting
state are effectively respected in the other contracting states.
The
convention then goes on to establish a mechanism for ensuring the prompt return
of children to the state of their habitual residence where they have been
wrongfully removed from that state to another contracting state or are
wrongfully retained in the other contracting state.
Article
3 sets out the circumstances in which a removal or retention is wrongful as
follows:
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.
The
rights of custody mentioned in subparagraph (a) above may arise in particular
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.
Article
5 provides:
For
the purposes of this convention --
(a)
'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.
It
has been pointed out that, since the convention is an international treaty
applying to states with different legal systems, it is desirable that it be
construed in the same manner by the courts of the various states who have
ratified or acceded to the convention: In re H (Minors) (Abduction:
Acquiescence)
[1997] 2 All ER 225 and the observations of Lynch J in K v K.
However,
since the convention has the force of law in this State solely by virtue of the
1991 Act and not by virtue of its being an international treaty, the first task
of the court must be to ascertain the meaning of the convention, as enacted, in
accordance with normal rules of statutory construction and, accordingly, to
ascertain the intention of the legislature as expressed in the statute,
considering it as a whole and in its context. To that general principle there
are two qualifications. First, the convention, being an international treaty to
which the State is a party, should, if possible, be given a construction which
accords with its expressed objectives and, secondly, the travaux preparatoires
which accompanied its adoption may legitimately be used as an aid to its
construction. (See the decision of this Court in Bourke v Attorney General
[1972] IR 36.)
The
objectives of the convention, as expressed in the preamble and article 1, are
clear and must be given due weight by the courts where, as here, a difficult
question of construction arises. Its adoption was prompted by the increasingly
frequent international abduction of children by their parents in an era of
fewer border controls and greater mobility. Such abductions were frequently
effected by a parent in the hope of obtaining a new decision on custody in
another jurisdiction which would be more favourable to the abductor.
To
trigger the mechanisms of the convention, there must have been a wrongful
removal of the child from the place where it was habitually resident and for
the removal to be wrongful within the meaning of the convention it must have
been in breach of a right of custody as defined in article 3. The article
specifies three possible legal origins of a right of custody: (a) the operation
of the law of the state of the habitual residence, (b) a judicial or
administrative decision or (c) an agreement having legal effect under the law
of the state of the habitual residence. Common to all three is the requirement
that the right should have been attributed to the person or body concerned
under the law of the state of the habitual residence.
A
person may be entitled to such a right of custody, although there is no order
of a competent court or legal agreement giving him or her such custody. Thus,
in the case of married parents in the State of New York, the parents are
equally entitled by virtue of the law of the state to the custody of their
children. The same is, of course, the position in Ireland and, one may surmise,
in many of the states which are parties to the convention. Married parents are,
accordingly, entitled to the custody of the children without any court order or
formal legal agreement to that effect and the removal by one parent of the
child or children to another jurisdiction without the consent of the other will
clearly constitute a wrongful removal within the meaning of article 3, unless
the rights were not being actually exercised at the time of the removal. (See
the decision of the English Court of Appeal in In re E (Child Abduction: Risk
if Returned) [1995] 2 FLR 31.)
The
language of the concluding paragraph of article 3 -- the use of the words 'may'
and 'in particular' -- would suggest that, while emphasis was laid on the three
specified sources, it was not intended to be an exhaustive statement of the
legal origin of rights of custody under the law of the state of habitual
residence. As Madam Elisa Perez-Vera pointed out:
.
. . In this regard, paragraph 2 of article 3 takes into consideration some --
no doubt the most important -- of those sources, while emphasising that the
list is not exhaustive. This paragraph provides that 'the rights of custody
mentioned in subparagraph (a) above may arise in particular', thus underlining
the fact that other sorts of rights may exist which are not contained within
the text itself . . . These sources cover a vast juridical area and the fact
that they are not exhaustively set out must be understood as favouring a
flexible interpretation of the terms used, which allows the greatest possible
number of cases to be brought into consideration.
[Explanatory
Report paragraph 67]
This
may be of particular importance where, as here, there is no right of custody
arising by agreement, judicial or administrative order or operation of law, but
it is claimed that the removal of the child by a person undeniably entitled to
custody was wrongful in the sense that it was calculated to frustrate
proceedings in being in the court of the child's habitual residence. Depending
on the circumstances of the particular case, it may be that the removal, in
such a case, would be a breach of a right of custody vested in the court
itself. If, for example, proceedings are actually pending before a court in the
state of the habitual residence and an interim order has been made restricting
a person entitled to lawful custody from removing the child from its
jurisdiction without the consent of another person or of the court, there would
be little difficulty in concluding that the child's removal without such
consent constituted a 'wrongful removal'. Clearly, in such a case, the court
could reasonably be regarded as having reserved to itself the right to
determine where the child should reside until such time as the proceedings were
finally disposed of and, having regard to the provisions of article 5(a) that,
in turn, could be regarded as a right of custody. Thus, in C v C (Minor:
Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 (CA), a consent order
had been made by an Australian family court directing that the father and
mother were to remain joint guardians of the child, that the mother was to have
day-to-day custody and that neither parent was to remove the child from
Australia without the consent of the other. The mother having removed the child
to England without the father's consent, it was held that this was a wrongful
removal. Neill LJ said:
I
am satisfied that this right to give or withhold consent to any removal of the
child from Australia, coupled with the implicit right to impose conditions, is
a right to determine the child's place of residence and thus a right of custody
within the meaning of articles 3 and 5 of the convention. I am further
satisfied that this conclusion is in accordance with the objects of the
convention . . .
That
approach was also adopted by the Supreme Court of Canada in Thomson v Thomson.
In
the present case, it is clear that the Plaintiff had no right of custody under
the law of New York by operation of law, since he was not entitled to custody
unless and until a declaration of paternity was made in respect of him by the
New York court. Nor was there any agreement having legal effect under the law
of New York between the Plaintiff and the Defendant giving him such a right.
Nor did the order of the New York court do any more than give the Defendant
interim custody. There was no order at any time requiring the Defendant to
obtain the consent of the Plaintiff or a further order of the court before
removing H from the State of New York. Accordingly, it might at first sight
seem that there is an insuperable obstacle to the submission that there were
any rights of custody vested in the Plaintiff at the time of the removal under
the law of New York. However, as already noted, it was held by the majority of
the English Court of Appeal in In re B (a Minor) (Abduction) that the concept
of 'rights' under the convention was not confined to rights established by law
or conferred by a court order, but extended to what were described as the
'inchoate rights' of persons carrying out duties and enjoying privileges of a
custodial or parental character which were not formally recognised by the law
but which a court should uphold, in a particular case, in the interests of the
child concerned. Since this case was understandably strongly relied upon on
behalf of the Plaintiff, it must be considered in some detail.
The
facts were as follows. The child, who was 61/2 years old at the time of the
appeal, was Australian. His parents were not married: his mother was English
but had emigrated to Australia in 1982, while the father was Australian born.
The relationship broke down and the parents separated in August of 1990. The
father remained in contact with his son, and when the mother wished to take
him, together with her own mother, to Britain in 1990 for a short holiday he
contributed a substantial sum to their expenses. Soon after their return to
Australia, it became apparent that the mother had become addicted to heroin.
The father again gave her a large sum to invest in a home for the son and
herself, but she did not apply the money for that purpose and for sometime
subsequently lived what was described as 'a chaotic existence' as a result of
her addiction.
Eventually
in April of 1992, the mother left Australia and returned to Britain. Her
departure was in breach of bail conditions imposed as a result of pending
charges for shoplifting. The son was left to be cared for by the maternal
grandmother, the father having access at weekends. From February of 1993, these
roles were reversed.
In
the summer of 1993, the grandmother had made a plan to return to Britain for a
long holiday and wished to take the son with her. The father was not willing to
allow the son to leave Australia for anything longer than a holiday of six
months, after which he would return with the grandmother. He insisted,
moreover, that the arrangements for the child's return should be established
with proper legal formality. As a result, the father and the grandmother
attended a meeting with the father's solicitor at which a reasonably elaborate
minute was drawn up by the father's solicitor, intended to represent the form
of a consent order to be made by the family court of Western Australia (the
'FCWA'). It provided inter alia for the father to have sole custody of the
child and contained detailed provisions to ensure that the child should be
returned to the father's custody in Australia, including the deposit of a bond
with the father or his solicitor. It was signed by the mother. The father was
persuaded by the mother's assurances and the deposit of the bond that they were
sincere in their undertaking to return the child to Australia by the agreed
date, but that undertaking was not honoured and the mother stayed in the United
Kingdom. Understandably, the finding of the trial judge that 'the mother,
assisted by her own mother, cruelly deceived the father, and she now seeks to
profit by her deceit', was not challenged in the subsequent proceedings under
the convention. The trial judge having ordered the return of the child to
Australia, the mother appealed.
One
might have expected that the appeal would have turned on the question of
whether the minute signed by the mother constituted 'an agreement having legal
effect under the law of [Western Australia]' within the meaning of article 3.
However, the evidence as to whether it would have that effect was, it would
seem, somewhat tentative and unsatisfactory. Waite LJ, with whom Staughton LJ
agreed, summed up his conclusions as follows:
The
purposes of The Hague Convention were, in part at least, humanitarian. The
objective is to spare children already suffering the effects of breakdown in
their parents' relationship the further disruption which is suffered when they
are taken arbitrarily by one parent from their settled environment and moved to
another country for the sake of finding there a supposedly more sympathetic
forum or a more congenial base. The expression 'rights of custody' when used in
the convention therefore needs to be construed in the sense that will best
accord with that objective. In most cases that will involve giving the term the
widest sense possible.
There
is no difficulty about giving a broad connotation to the word 'custody'.
Attention was drawn by Lord Donaldson in In re C to the width of its dictionary
meaning, and by Sachs LJ in Hewer v Bryant [1970] 1 QB 357 at p 373 to the
diversity of the 'bundle of rights' which it incorporates in legal terminology.
The same is no doubt true of the word 'garde' which (in the phrase 'droit de
garde') provides the translation for 'rights of custody' in the French language
version of the convention.
The
difficulty lies in fixing the limits of the concept of 'rights'. Is it to be
confined to what lawyers would instantly recognise as established rights --
that is to say those which are propounded by law or conferred by court order:
or is it capable of being applied in a convention context to describe the
inchoate rights of those who are carrying out duties and enjoying privileges of
a custodial or parental character which, though not yet formally recognised or
granted by law, a court would nevertheless be likely to uphold in the interests
of the child concerned
The
answer to that question must, in my judgment, depend upon the circumstances of
each case. If, before the child's abduction, the aggrieved parent was
exercising functions in the requesting state of a parental or custodial nature
without the benefit of any court order or official custodial status, it must in
every case be a question for the courts of the requested state to determine
whether those functions fall to be regarded as 'rights of custody' within the
terms of the convention. At one end of the scale is (for example) a transient
cohabitee of the sole legal custodian whose status and functions would be
unlikely to be regarded as qualifying for recognition as carrying convention
rights. The opposite would be true, at the other end of the scale, of a
relative or friend who had assumed the role of substitute parent in place of
the legal custodian.
He
went on to point out that the father was the child's primary carer, sharing his
upbringing with the maternal grandmother as his secondary carer. He described
this as 'a settled status' which the absent mother, the only parent with
'official' custodial rights, had expressly approved, and one which any court,
including the FCWA, would be bound to uphold. He, accordingly, was of the view
that the removal of the child was in breach of a right of custody within the
meaning of article 3.
Peter
Gibson LJ, who described the mother's behaviour as 'abhorrent', dissented.
Citing the decision of the House of Lords in In re J (A Minor) (Abduction:
Custody Rights), he said that the rights of custody referred to in article 3
must be more than de facto rights. In the light of the uncertain evidence as to
the legal status of the agreement, he concluded that it had not been
established that the father had rights of custody within the meaning of the
convention and concluded regretfully that the removal was not wrongful.
In
In re J (a Minor) (Abduction: Custody Rights), the legal status of an unmarried
father in the context of article 3 had also arisen. In that case, the unmarried
parents had cohabited in Australia. The mother, who, like the father, had been
born in England, brought their son to England with the intention of settling
down there permanently, at a stage when the relationship had broken down. There
were no proceedings in being at the time of the actual removal, but the father
was subsequently granted custody by the Australian court and thereafter made an
application under the convention in England. The trial judge refused the
application and this decision was unanimously upheld in the Court of Appeal and
the House of Lords. The argument that the removal was wrongful as being in
breach of rights of custody was dealt with in summary terms as follows by Lord
Donaldson MR in the Court of Appeal:
Since
articles 3, 4, and 5 of the convention are solely concerned with the rights of
custody, ie rights to care, custody, control or guardianship, and with rights
of access -- the precise terminology does not matter in any of these categories
-- and since the father had no such rights, for my part, I do not consider that
J's removal from Australia, reprehensible though it may have been in the way in
which the mother achieved it, could constitute a wrongful removal within the
meaning of the convention.
On
the hearing of the further appeal to the House of Lords, counsel withdrew the
submission that the removal by the mother was wrongful, but pursued an
alternative argument that had also been rejected in the Court of Appeal, ie
that, following the order of the Australian court, his retention by her was a
breach of the father's right of custody. However, although the first limb of
the father's case had been abandoned, Lord Brandon dealt with it, again
reasonably tersely, as follows:
So
far as legal rights of custody are concerned, however, these belonged to the
mother alone, and included in those rights was the right to decide where J
should reside. It follows, in my opinion, that the removal of J by the mother
was not wrongful within the meaning of article 3 of the convention.
This
decision was distinguished in In re B (a Minor) (Abduction), apparently on the
basis that the latter case was one of 'shared parenting' between the father and
the maternal grandmother in the complete absence from the country of the
custodial parent.
In
K v K Barron J said of the decision in In re J:
The
potential rights of the natural father in [In re J] should have been sufficient
to prevent a change in the habitual residence.
The
issue as to whether the removal of the child of unmarried parents in
circumstances such as occurred in the present case was wrongful was not,
however, under consideration in that case.
The
argument advanced in In re J to the effect that even if the removal was not
wrongful, the retention of the child in England after the Australian court had
made an order giving the father custody was 'wrongful', was rejected in the
House of Lords on the ground that the latter order was made at a stage when the
child was no longer habitually resident in Australia. In later cases, however,
a somewhat different approach has been taken to what have come to be called
'chasing orders', viz, that it was never intended that the convention should
apply in such cases. In Thomson v Thomson, La Forest J said that there was
nothing in the convention requiring the recognition of an ex post facto custody
order of a foreign jurisdiction. He cited in this connection the statement by
Madam Perez-Vera in the Explanatory Report that 'retention' essentially
consisted in a refusal to return the child after a sojourn abroad where the
sojourn has been made with the consent of the rightful custodian of the child's
person. Accordingly, on any view, the habeas corpus order made by the court of
New York in the present case did not, of itself, render either the original
removal or the continued retention of the minor wrongful in terms of the
convention.
Having
regard to the facts of the present case, the position as to rights of access
under the convention is of importance. It is clear from the wording of the
preamble that a distinction was being drawn between rights of custody and
rights of access and that is reflected in the different procedures provided for
in the body of the convention for the two situations. Rights of custody are
essentially protected under article 3, whereas the machinery for enabling
arrangements to be made for securing the effective exercise of rights of access
appears in article 21. That was also the view of Madam Perez-Vera in the
Explanatory Report in which she said:
Although
the problems which can arise from a breach of access rights, especially where
the child is taken abroad by its custodian, were raised during the 14th
session, the majority view was that such situations could not be put in the
same category as the wrongful removals which it is sought to prevent . . . A
questionable result would have been attained had the application of the
convention, by granting the same degree of protection to custody and access
rights, led ultimately to the substitution of the holders of one type of right
by those who held the other.
[Explanatory
Report, pp 444/5]
(See
also the decision of Hale J in S v H (Abduction: Access Rights) [1997] 1 FLR
971)
By
contrast, in C v C (Minors) (Child Abduction) [1992] 1 FLR 163, a case in
which, coincidentally, the habitual residence of the child at the time of the
allegedly wrongful removal was also New York, Bracewell J held that the removal
of the child from New York to England was in breach of rights of custody,
although the New York court had granted custody to the mother and rights or
access only to the father. Some features of that case should, however, be
noted: there was evidence from New York lawyers that the order granting access
rights to the father impliedly prohibited the mother from removing the children
from the court's jurisdiction without the father's consent. Secondly, there is
no reference in the judgment to the question dealt with subsequently by Hale J,
as to whether the approach adopted is reconcilable with the different
procedures prescribed by the convention in the case of rights of custody and
rights of access.
The
conduct of the Defendant in the present case in taking H to Ireland without
informing the Plaintiff or his lawyer cannot be condoned. At the same time, the
difficulties with which she was faced when her relationship with the Plaintiff
broke down should not be underestimated. Whatever course she adopted could
bring her into conflict with the law; if she remained in New York, she was
liable to be prosecuted and deported as an illegal alien and if she left for
Ireland she exposed herself to the danger of proceedings being brought such as
the present. It was also understandable that she would have preferred to bring
up her child, suffering as he was from some degree of disability, in this
country, where she would have the support of her parents and other family
members.
The
case must ultimately be decided, however, in accordance with law and not with
the respective merits of the parties. The issue essentially is as to whether
the removal, at the time it occurred, was in breach of rights of custody
attributed to the Defendant or any other institution or body under the law of
the State of New York.
Even
where the parent, or some other person or body concerned with the care of the
child, is not entitled to custody, whether by operation of law, judicial or
administrative decision or an agreement having legal effect, but there are
proceedings in being to which he or it is a party and he or it has sought the
custody of the child, the removal of the child to another jurisdiction while
the proceedings are pending would, absent any legally excusing circumstances,
be wrongful in terms of the convention. The position would be the same, even
where no order for custody was being sought by the dispossessed party, if the
court had made an order prohibiting the removal of the child without the
consent of the dispossessed party or a further order of the court itself. In
such cases, the removal would be in breach of rights of custody, not attributed
to the dispossessed party, but to the court itself, since its right to
determine the custody or to prohibit the removal of the child necessarily
involves a determination by the court that, at least until circumstances
change, the child's residence should continue to be in the requesting state.
It
could even be that an order by the court granting a right of access to the
dispossessed parent might, by implication, be treated as prohibiting the
removal of the child without the consent of the dispossessed parent or a
further order of the court. That would fall to be determined in accordance with
the law of the state of the habitual residence at the time of the removal. A
further question could then arise as to whether, in any event, the appropriate
machinery for enforcing the access rights in that case was that under article
21 rather than article 3, which is invoked in the present case. Since, however,
at the time of the allegedly wrongful removal in the present case, no rights of
access had been granted by the court in New York, it is unnecessary to express
any conclusive view on that question. It is sufficient to say, in the context
of the present proceedings, that, giving the convention the purposive and
flexible construction which it should be given, circumstances can arise in
which a removal can be 'wrongful' within the meaning of article 3 because it is
in breach of rights of custody, not vested in either of the parents but in the
court itself.
It
is going significantly further to say, however, that there exists, in addition,
an undefined hinterland of 'inchoate' rights of custody not attributed in any
sense by the law of the requesting state to the party asserting them or to the
court itself, but regarded by the court of the requested state as being capable
of protection under the terms of the convention. I am satisfied that the
decision of the majority of the English Court of Appeal in In re B (a Minor)
(Abduction) to that effect should not be followed.
In
this context, the decision of the Family Division of the English High Court
(Cazalet J) in In re O (Child Abduction: Custody Rights) [1997] 2 FLR 702 is
illuminating. In that case, the mother had moved from Germany to England with
her daughter and partner (who was not the father of the child). After her
departure, the child's maternal grandparents, with whom she had lived for some
16 months at a stage when the mother was (in the judge's words) 'off the
scene', made an application to a court in Germany for interim custody. There
had been no order as to custody in their favour at the time of the removal and
the only basis for holding that they had 'rights of custody' within the meaning
of article 3 was the sixteen month period during which, with the mother's
consent, they had looked after the child, a period which had expired about 10
months before the allegedly wrongful removal. The principles enunciated in In
re B (a Minor) (Abduction) were invoked to support a finding that, even in
those circumstances, the grandparents could be said to have 'rights of custody'
within the meaning of the convention. It is, with respect, difficult to accept
that such a result can have been contemplated by the framers of the convention.
It
is clear from the facts of the present case, and from the various authorities
which have been discussed in the course of this judgment, that the rights of
unmarried fathers under the convention present particular difficulties, given
the unique relationship of the natural father to his children and the fact that
in a number of jurisdictions, including our own, they do not have any automatic
rights to custody equivalent to those of married parents. However, the
appropriate method of addressing difficulties of that nature which may arise in
the operation of conventions on private international law is through the
machinery of Special Commissions in The Hague which regularly monitor and
review the operation of conventions in the contracting states, rather than by
innovative judicial responses to admittedly difficult cases in which upholding
the convention as enacted may give rise to what seems a harsh or inequitable
result.
I
turn again to the facts of the present case. On the unchallenged findings of
the trial judge, the removal of H was not, at that time, in breach of any right
of custody to which the Plaintiff was entitled under the law of the State of
New York, whether arising by operation of law, judicial or administrative
decision or an agreement having legal effect under that law. Nor was it in
breach of any right of custody vested in the Family Court in the County of
Nassau, New York in proceedings then in being or of any order prohibiting the
Defendant from removing the child to another jurisdiction, whether in the
United States or abroad, without the consent of the Plaintiff or under a
further order of the court. Nor was it in breach of any such order which might
have been implicit in an order actually granting the Plaintiff visitation
rights.
I
am, accordingly, satisfied that the decision of the learned High Court judge
that the removal was in breach of rights of custody within the meaning of
article 3 was erroneous. The Plaintiff is, of course, entitled to seek an order
for custody or access in this jurisdiction pursuant to the provisions of the
Guardianship of Infants Act 1964 or to invoke the machinery of article 21 in
order to secure the effective exercise of the rights of access to the child to
which he may be entitled.
I
would allow the appeal.
Barron
J
The
parties to these proceedings are the parents of HI, the minor in the title
hereof ('H') who was born in New York on 13 July 1991. They met in New York in
July of 1989. They lived together there from February of 1990 until the events
giving rise to these proceedings. They did not marry in accordance with the
civil law, but went through a ceremony of marriage in New York on 5 March 1991
in accordance with the rites of the Moslem faith. Following the birth of H they
remained at the same address with him until 30 December 1996. On that date the
Defendant left the family home with H. She remained in the State of New York
until 3 February 1997 when she left for this country where she has since
remained.
Prior
to her leaving the jurisdiction of the State of New York the Defendant applied
ex parte to the Family Court of the County of Nassau for a protection order --
the equivalent of a barring order in this jurisdiction. She obtained this order
as well as an order giving her temporary custody of H until 30 June 1997. On 3
January 1997 the Plaintiff issued proceedings in the same court seeking
visitation rights to H. Before any hearing of the claims and counterclaims
could be held the Defendant left the jurisdiction of New York with H on 3
February 1997. Subsequently the orders in her favour were discharged on 25
February 1997 and on the following day an order was made directing the
Defendant to produce H before the court before 26 March 1997. That order was
not complied with.
Proceedings
under the Hague Convention were commenced by the Plaintiff in this jurisdiction
on 20 March 1997. An affidavit of New York law was sworn on behalf of the
Defendant to the effect that an unmarried father had no legal rights to the
custody of his child without a declaration of paternity in his favour, but that
once such a declaration had been made an unmarried father had the same rights
as a married father.
This
legal position was contested by an affidavit of New York law sworn on behalf of
the Plaintiff deposing to the opinion of the deponent that New York law would
give legal effect to the de facto arrangement between the parties for the care
of H arising from their domestic situation.
A
second affidavit of law on behalf of the Defendant disagreed with this opinion
and reiterated that until a declaration of paternity an unmarried father would
be treated as a stranger to his child.
The
learned trial judge accepted this latter opinion as being the appropriate law
of New York. Since no such declaration had been made at the date of the
removal, the Plaintiff had at that date no rights of custody within the meaning
of the convention. Nevertheless although she found that no rights of custody
had vested in the Plaintiff she took the view that the inchoate rights of the
Plaintiff to custody which would almost inevitably have crystallised into
established rights by court approval of the acknowledgement of paternity were
rights of custody within the meaning of article 3 of the Hague Convention. In
arriving at this conclusion, she was influenced by the fact that the Defendant
did not contest the Plaintiff's paternity and also by the fact that the order
of the Family Court on 26 February 1997 was made in the absence of any
declaration of paternity. Accordingly, she held on a preliminary issue that the
Plaintiff was entitled to raise the convention and that a full hearing should
follow to consider such issues as might be applicable at such hearing. From
this ruling the Defendant has appealed to this Court.
The
Defendant submits that to allow the convention to apply in the case of persons
with inchoate rights is to introduce into the operation of the convention a
degree of uncertainty which is unnecessary and which will prevent speedy return
and involve lengthy litigation in the requested state. It is submitted on her
behalf that the test of the application of the convention should depend upon
the nature of the legal right to the custody of the child at the date of its
removal.
The
case for the Plaintiff is based upon the proposition that inchoate rights are
sufficient to bring the convention into force. In so submitting the Plaintiff
relied strongly upon In re B (a Minor) (Abduction) [1994] 2 FLR 249, and the
manner in which the convention was construed in that case.
In
my view, the facts of this case must be considered in the light of the proper
construction of the relevant articles of the convention having regard both to
the preamble and to the objects of the convention as set out in article 1. The
preamble to the convention is as follows:
.
. . -- firmly convinced that the interests of children are of paramount
importance in matters relating to their custody,
Desiring
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 . . .
Article
1 of the convention repeats these matters as follows:
The
objects of the present convention are --
(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 of access under the law of one contracting
state are effectively respected in the other contracting states.
Other
relevant provisions are contained in articles 3, 4 and 5 which are as follows:
Article
3
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.
The
rights of custody mentioned in subparagraph (a) above, may arise in particular
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.
Article
4
The
convention shall apply to any child who was habitually resident in a
contracting state immediately before any breach of custody or access rights.
The convention shall cease to apply when the child attains the age of sixteen
years.
Article
5
For
the purposes of this convention:
(a)
'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;
(b)
'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.
In
construing the convention very considerable assistance is to be found in an
explanatory report ('the Report') by Elisa Perez-Vera dealing with
recommendations adopted by the Fourteenth Session in 1980 leading to the
Convention on the Civil Aspects of International Child Abduction.
In
re B (a Minor) (Abduction) [1994] 2 FLR 249, the father was Australian born and
the mother had emigrated to Australia from the United Kingdom. The parties had
not married. At the date of the proceedings they had one son aged six years.
The mother had left the father and returned to the United Kingdom. The child
remained in Australia where its primary carer was its father with assistance at
weekends from the maternal grandmother. The father allowed his son to be
brought by his grandmother to the United Kingdom only upon written undertakings
by the grandmother and by the mother that his son would be returned at the end
of six months. The father had no legal rights under the law of Western
Australia without applying to the court which he had not done. In the event the
mother refused to return the child and applied in the United Kingdom to have
the child made a ward of court. The father then applied under the convention
for the child to be returned to Australia. The High Court made the order
sought. This was upheld by the Court of Appeal on appeal to that court.
In
the Court of Appeal, it was agreed, inter alia, by counsel that: 'the
convention is to be construed broadly as an international agreement according
to its general tenor and purpose, without attributing to any of its terms a
specialist meaning which the word or words in question may have acquired under
the domestic law of England.'
Dealing
with this principle Waite LJ said at p 260:
The
purposes of the Hague Convention were, in part at least, humanitarian. The
objective is to spare children already suffering the effects of breakdown in
their parents' relationship the further disruption which is suffered when they
are taken arbitrarily by one parent from their settled environment and moved to
another country for the sake of finding there a supposedly more sympathetic
forum or a more congenial base. The expression 'rights of custody' when used in
the convention therefore needs to be construed in the sense that would best
accord with that objective. In most cases, that will involve giving the term
the widest sense possible.
Then
dealing with how to construe those words he said at p 261:
The
difficulty lies in fixing the limits of the concept of 'rights'. Is it to be
confined to what lawyers would instantly recognise as established rights --
that is to say those which are propounded by law or conferred by court order;
or is it capable of being applied in a convention context to describe the
inchoate rights of those who are carrying out duties and enjoying privileges of
a custodial or parental character which, though not yet formally recognised or
granted by law, a court would nevertheless be likely to uphold in the interests
of the child concerned
The
answer to that question must, in my judgment, depend upon the circumstances of
each case. If, before the child's abduction, the aggrieved parent was
exercising functions in the requesting state of a parental or custodial nature
without the benefit of any court order or official custodial status, it must in
every case be a question for the courts of the requested state to determine
whether those functions fall to be regarded as 'rights of custody' within the
terms of the convention. At one end of the scale is (for example) a transient
co-habitee of the sole legal custodian whose status and functions would be
unlikely to be regarded as qualifying for recognition as carrying convention
rights. The opposite would be true, at the other end of the scale, of a
relative or friend who has assumed the role of a substitute parent in place of
the legal custodian.
In
considering this judgment it is important to realise that the House of Lords
had previously in the case of In re J (a Minor) (Abduction: Custody Rights)
[1990] 2 AC 562 decided that de facto rights were not sufficient for the
purposes of the convention. And although the majority in In re B (a Minor)
(Abduction) held in favour of inchoate rights, the third member of the court
Peter Gibson LJ dissented upon the ground that rights of custody under the
convention must be more than de facto rights, and in so doing he followed In re
J (a Minor) (Abduction: Custody Rights).
In
the passage from the judgment of Waite LJ which I have cited, it is clear that
he regards the convention as applying not only to persons with actual legal
rights under the law of the requesting state, but also to those who would not
in the ordinary way have such rights. At the end of the passage he instances
classes of such persons who might have greater or lesser entitlement to come
within the provisions of the convention.
I
agree with Waite LJ that the right to invoke the convention should not be
limited to those with established legal rights. However, I do not think it
necessary to regard 'rights' as being legally enforceable rights. Waite LJ
sought to protect those who were carrying out duties and enjoying privileges of
a custodial or parental character which a court would be likely to uphold. He
was prepared to uphold such rights on the basis that they would subsequently be
given enforceability and that 'rights of custody' as properly construed include
such rights.
He
was restrained by the decision in In re J from holding in favour of de facto
rights. He recognised that persons who would be unlikely without a court order
to obtain legal rights might still be entitled to invoke the convention. But
that involves construing 'arise' as will arise. The convention requires the
present position at the date of removal to be considered, ie under what
entitlement were rights of custody actually being exercised This entitlement
while dependent upon the law of the requesting state must be an entitlement
arising in one of the ways provided for by article 3. The rights do not have to
be legal rights. They must be present rights the basis of which can be
recognised by the law of the state of habitual residence.
This
is the interpretation placed upon the words 'having legal effect under the law
of that state', in paragraph 70 of the report where the author says:
Lastly,
custody rights may arise according to article 3 'by reason of an agreement
having legal effect under the law of that state'. In principle, the agreements
in question may be simple private transactions between the parties concerning
the custody of their children. The condition that they have 'legal effect'
according to the law of the state of habitual residence was inserted during the
Fourteenth Session in place of a requirement that it would have the 'force of
law', as stated in the preliminary draft. The change was made in response to a
desire that the conditions imposed upon the acceptance of agreements governing
matters of custody which the convention seeks to protect should be made as
clear and as flexible as possible. As regards the definition of an agreement
which has 'legal effect' in terms of a particular law, it seems that there must
be included within it any sort of agreement which is not prohibited by such a
law and which may provide a basis for presenting a legal claim to the competent
authorities.
This
is an interpretation to be expected. The convention is an international
convention and as such should be expected to apply in the same way in the same
circumstances regardless of which convention state or states are involved.
Nevertheless, there would be no point in returning a child to a state on the
basis of a claim arising in circumstances which that state does not recognise.
The
reality is that the convention is not concerned with legal rights under the law
of habitual residence but with rights which were actually being exercised and
which the courts of that state would not totally disregard as having no legal
effect within that state.
The
law of England and Wales accepts that the question is a matter of construction
of the convention. In S v H (Abduction: Access Rights) [1997] 1 FLR 971 at p
974 Hale J said:
But
what is the significance of all this for the purpose of the convention The
Court of Appeal has made it clear In re F (a Minor) (Child Abduction: Rights of
Custody Abroad) [1995] FAM 224 . . . that whether a removal or retention is in
breach of rights of custody has to be decided by reference to convention law as
applied in these courts. Hence even if the removal was not prohibited in
Italian law, it could still be wrongful under the convention.
In
re B was followed in In re O (Child Abduction: Custody Rights) [1997] 2 FLR
702. In that case an application was made by maternal grandparents for a return
of the child. The child who was a German national was four years old at the
date of its removal and had for some time been living with its maternal
grandparents who were also German nationals. The mother who was a German
national had taken the child to live in England with her and her partner who
was a United Kingdom national.
Cazalet
J held that the grandparents were exercising joint rights of custody with the
mother. He followed the decision in In re B (a Minor) (Abduction) and accepted
the test propounded by Waite LJ in that case as being 'whether the individual
concerned was exercising functions of a parental or custodial nature without
the benefit of any of official custodial status.' He did not accept that there
was a need for a legal agreement to bring the case within the provisions of
article 3 of the convention. Dealing with that issue he said at p 708:
.
. . it is important, in addition to what I have said, to bear in mind that the
word 'may' is used (in article 3). The paragraph starts, 'The rights of custody
mentioned in subparagraph (a) above may arise . . .'. Accordingly, rights of
custody, in my view, are not confined solely to the specific situations set out
in the article; the court may step beyond them, as the court did in In re B.
This
passage does not rely upon any subsequent confirmation or conferring of legally
enforceable rights. In my view, it recognises what is at the heart of the
convention which is the actual exercise of appropriate rights. It then also
recognises that the agreement or arrangement under which such rights are
exercised need not have the force of law, only that it should not be
prohibited; should not be contrary to law. There is nothing inchoate about such
rights. Again, such a construction is appropriate where Claimants need not be
parents of the child concerned and are unlikely to be considering strict legal
rights. Unless there have been legal proceedings which would be unusual,
persons other than the parents would have rights of custody by virtue of
informal agreements and almost certainly would not have them protected by legal
rights.
Applying
these principles, I would regard the Plaintiff as coming within the convention.
H was habitually resident within the State of New York at the time of his
removal. His father, his mother and he lived together in circumstances akin to
that of a legal family and de facto the care of H's person was exercised
jointly by the parties. The right to do so on the part of the Plaintiff
certainly arose through acquiescence or implied agreement between the parties.
That arrangement was not contrary to the law of New York. That the type of
unilateral action by the mother in cases like the present should come within
the convention is supported by paragraph 71 of the report where the author says:
Joint
custody is, moreover, not always custody ex lege, in as much as courts are
increasingly showing themselves to be in favour, where circumstances permit, of
dividing the responsibilities inherent in custody rights between both parents.
Now, from the convention standpoint, the removal of a child by one of the joint
holders without the consent of the other, is equally wrongful and the
wrongfulness derives in this particular case, not from some action in breach of
a particular law, but from the fact that such action has disregarded the rights
of the other parent which are also protected by law, and has interfered with
their normal exercise. 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.
I
am however by no means satisfied that under the law of New York, the Plaintiff
did not exercise those rights as the father of H. Admittedly the rights of a
natural father cannot be enforced without a declaration of paternity.
Nevertheless it seems clear from the affidavits that from a practical point of
view an unmarried father has the same rights before the courts as a married
father. The only actual difference is that as well as seeking whatever relief
he requires he must also seek a declaration of paternity. This places upon him
the burden of proof of such paternity, but there is no suggestion in the
affidavits of law that this obligation in any way affects the timing of his
remedy.
The
need to prove paternity may appear to prevent enforcement of his rights, but in
practice it can be seen not to be so. But whichever way it is looked at those
rights were always there. The declaration of paternity does not confer those
rights on the father as the learned trial judge seems to have found; they exist
by reason of the fact of paternity and always existed. The absence of a
declaration of paternity affects the enforcement, and then only in a very
technical sense, rather than their existence.
It
is not the law as it is in Western Australia that an unmarried father has no
rights until they are granted by the court. The argument against is further
weakened by the Defendant's acknowledgment of the Plaintiff's paternity.
Further, the affidavit of law avers the priority of the mother's right as being
based upon constitutional grounds a parent against a stranger. But if the
matter ever came to court, that ground would immediately be dissolved by the
mother's admission.
In
any event, a lawful removal under the law of the state of habitual residence
must yield to a wrongful removal under the convention.
While
legal rights must be the basis of any claim under the convention in that the
title of the person seeking the return of the child must have its origins in a
legal right to custody either actual or derived, it is not in my view the
appropriate starting point. If the nature of the legal rights upon which an
application for return under the convention is to be founded or if the manner
in which they arise is to be determined first, this would create rigidity.
Since the convention deals with situations which by their nature will have
infinite variations, it is more appropriate as each case evolves to determine
first what rights were actually being exercised at the date of the removal and
then to decide whether such rights amount to rights of custody within the
meaning of that expression as defined by article 4. Such an approach provides
the necessary flexibility. Only then would it be necessary to consider the
legal position.
What
rights were actually being exercised at the date of removal is a question of
fact. Whether they are rights of custody is a question of law and it is in
answering this question that courts are likely to find the greatest difficulty.
See S v H (Abduction: Access Rights) [1997] 1 FLR 971 where Hale J found on the
facts that the rights being exercised by the unmarried father were rights of
access and not rights of custody.
In
considering what rights are rights of custody it is important to note that the
convention distinguishes between rights of custody -- which are enforced by
speedy return -- and rights of access which are not so enforced but for which
the provision made is to ensure that such rights can be exercised in the place
to which the child has been removed (the requested state).
But
it is not every right which will be affected by removal which must be a right
of custody. The definition includes the right to determine the child's place of
residence. This implies that where it is necessary to protect the child's place
of residence the right being exercised will be a right of custody. Accordingly,
it is a question of fact whether the place of residence requires to be
protected for the exercise of the rights which it is claimed were actually
being exercised. Since the convention of necessity will give rise to a
multitude of cases each with its own facts each must be decided individually.
In
the present instance the rights of custody which are claimed are those of a
parent who has been taking care of the child jointly with its mother ever since
its birth. Those rights are rights of custody within the convention. They were
possessed by or attributed to the Plaintiff at the time of the wrongful
removal. The real issue in this case is whether those rights arose in a manner
acceptable to the final paragraph of article 3. In my view they did.
It
was submitted on behalf of the Defendant that since the Plaintiff only sought
visitation rights in the proceedings before the courts of New York that the
convention does not apply. In answer the Plaintiff sought to establish that
under the law of New York visitation rights included the right to determine the
place of the child's residence. In my view nothing can be decided upon this
basis. What happens once the break-up occurs is dependent upon the
circumstances which have then arisen. In the present case the Defendant sought
the protection of the courts of New York and the application of visitation
rights was in answer to that application. What he may or may not have sought is
immaterial to what rights he may or may not have been exercising at the
relevant date.
But
in any event, it is not what rights the father is claiming which is material,
but in which forum they should be determined. This in turn is governed by what
rights were actually being exercised at the date of wrongful removal or which
would have been so exercised but for such wrongful removal. In this context,
'wrongful' must mean in breach of the rights then actually being exercised.
Whether the removal was justified or not is a matter for the custody court. In
the present case, the actual removal from New York took place some six weeks
after removal from the home where the parties had been living. It was just as
much a removal contrary to the convention as removal from the home since the
rights of custody would have continued to have been exercised otherwise.
Admittedly, it is not the norm for the removal to be a two step affair, the
result of which in the present case is that at the date of removal from New
York the father was prevented from exercising his rights of custody not by that
removal, but by the earlier removal from the home. The reality however is that
he was prevented from exercising such rights by the conduct of the mother
culminating in the removal from the state. Following the removal from the home,
justification for leaving and the issues of custody and access were for the
courts of New York and not those of this jurisdiction. This jurisdiction which
was actually invoked by the mother in the instant case should not be ousted by
the further removal from the state.
It
has been submitted on behalf of the Plaintiff that since at the date the
Defendant left the jurisdiction of the courts of New York proceedings were in
being under which the place of residence of the child could be determined by
the court, that therefore at that date the court was exercising custody rights
within the meaning of the convention and that it followed that the removal of
the child being in breach of these rights of custody was a wrongful removal
within the meaning of the convention. Upon the view which I take of the need
for an actual exercise of the rights of custody and in the manner in which
those rights may arise, this is a fallback issue to be considered only if the
person seeking the return fails on the primary issue, which is not the case
here. I do not consider it necessary to deal with this issue fully in the
instant case. Nevertheless, once the jurisdiction of a family court is invoked,
this must amount to a submission to the full jurisdiction of such court. This
involves all aspects of the welfare of the child concerned. In convention
terms, it seems to me that this submission is an acknowledgment that the court
has rights of custody in that it has power to determine the child's place of
residence.
In
re W; In re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146, is a case
in which Hale J was dealing with the position of unmarried fathers both in
English law and under the convention. In a very full and comprehensive judgment
she indicated that removal by the mother of a child who is habitually resident
in the United Kingdom will be wrongful under the Hague Convention if:
(a)
the father has parental responsibility either by agreement or court order; or
(b)
there is a court order in force prohibiting it; or
(c)
there are relevant proceedings pending in a court in England and Wales; or
(d)
where the father is currently the primary carer for the child, at least if the
mother has delegated such care to him.
She
was not prepared to equate the positions of married and unmarried fathers. She
recognised that the children had the same rights whether their parents were
married or not, but that parliament had not done the same for the parents and
'did not intend that unmarried fathers should be in exactly the same position
in relation to their children as married fathers.'
This
case dealt with two separate and distinct relationships. In neither case was
the father living in the same household as his child. Hale J did refer to
paragraph 70 of the report, but was unable to find the existence of any such
agreement as contemplated by that paragraph. In one of the cases, she held that
the removal was not wrongful. In the other, she held that it was upon the
ground that the father had applied for parental responsibility to be granted.
The history of these proceedings was particularly strong in favour of the
father and suggested that the mother had deliberately delayed them in order to
be able to remove the child before they came on for a final determination. The
proceedings had been commenced in March of 1976 after which there had been
interim orders and interim agreements between the parties. Ultimately 15
September 1997 was fixed for the making of the final order which did in fact
grant parental responsibility -- in this jurisdiction custody -- to the father.
Meanwhile the mother and her partner had left the jurisdiction on 5 September
1997.
In
so holding that the child in that latter case was wrongfully removed, Hale J
clearly accepted that the exercise of custodial rights 'which, though not yet
formally recognised or granted by law, a court would nevertheless be likely to
uphold in the interest of the child concerned' was a convention matter. The
quotation is taken from the passage from the judgment of Waite LJ in In re
already cited. This judgment gives further support for the proposition that the
paramount consideration is the nature of the rights actually being exercised.
The
Oireachtas has also taken the same position in relation to the rights of
unmarried fathers as is apparent as being the position in the United Kingdom.
Nevertheless it seems to me that the convention is more interested in the
rights of the children than in the rights of the parents. Our courts in custody
matters are well used to the proposition that the decision of the court is
dependent upon the welfare of the children and not upon the rights or wrongs of
the situation between the parents. In like manner, the proper construction of
the convention should not be based upon the rights of the unmarried father
alone where those rights conflict with the rights of the child. In that
situation the rights of the child should predominate.
I
am quite satisfied that the purpose of the convention is to protect the
interest of the child from harmful effects of an improper removal or retention.
There can be no doubt but that to take a child of five from the only home he
has ever known in which he has lived with his mother and father and to deprive
him both of the security of that home and the presence of his father is a
failure to protect the very interest of the child which the convention is
designed to protect. A removal in such circumstances defeats the purpose of the
convention. In my view, unless the convention is coercive to the contrary,
which it is not, it should be construed to apply to that child.
Legal
rights should not and cannot be ignored. But when the party entitled to the
legal rights enters into an agreement whether by words or conduct whereby the
de facto exercise of those rights is passed to another whether solely or
jointly with the possessor of the rights, such rights so passed arise within
the meaning of article 3 of the convention.
In
those circumstances, the real issue which arises is what rights were exercised
and were they passed That is the present case. There is no need in my view for
the further refinement that the person to whom those rights have been passed
and by whom they were being exercised was entitled legally to such rights or
would at the same time have been entitled to obtain such rights upon a legal
footing.
The
first question to be determined is what rights, if any, were actually being
exercised by the party seeking the return of the child at the date of its
removal. Secondly, did such rights amount to rights of custody within the
meaning of that expression as used in the convention. If the answer to the
latter question is no, then the convention does not apply. If the answer is
yes, then further questions follow. Next, were those rights being exercised
whether solely or jointly with the consent of the person or persons entitled to
the legal right to custody Consent in this context may exist through
acquiescence or any arrangement the purpose of which is and which results in
the actual exercise of such rights by another. If so, then the remaining
question is whether the de facto situation so created is contrary to the law of
habitual residence The answers to these two questions in the instant case are
'yes' and 'no' respectively.
In
indicating this approach, I make no comment on whether independently the
convention should be applied because of the existence of legal proceedings in
the state of habitual residence.
One
of the submissions on behalf of the Defendant was that inchoate rights are
uncertain. For the reasons which I have given there is no reason to consider
this submission. There is no need for a legal title under the law of the state
of habitual residence provided that the right to custody arises in a manner
within the meaning of article 3. If, which in my view is not the case, legal
status can be given subsequently, that would create an uncertainty, but not as
to what rights would receive such status but as to whether the known rights
which were being exercised would be so treated.
Too
often in cases of this nature this Court has had to comment on the delay taken
in the matter reaching the courts. This case is no exception save perhaps in
the sense that the delay here is much longer than usual. It is unfortunate that
the matter was dealt with by way of a preliminary point of law in the High
Court rather than the entire case being decided. That in itself is calculated
to add considerably to the length of time proceedings will take.
The
delay in this case will bring this jurisdiction into disrepute. It is in breach
of three separate articles of the convention. Article 2 provides as follows:
Contracting
states shall take all appropriate measures to secure within their territories
the implementation of the objects of the convention. For this purpose they
shall use the most expeditious procedures available.
Article
11 provides inter alia:
The
judicial or administrative authorities of contracting states shall act
expeditiously in proceedings for the return of children. If the judicial or
administrative authority concerned has not reached a decision within six weeks
from the date of commencement of the proceedings, the Applicant or the central
authority of the requested state, on its own initiative or if asked by the
central authority of the requesting state, shall have the right to request a
statement of the reasons for the delay.
Article
16 provides:
After
receiving notice of a wrongful removal or retention of a child in the sense of
article 3, the judicial or administrative authorities of a contracting state to
which the child has been removed or in which it has been retained shall not
decide on the merits of rights of custody until it has been determined that the
child is not to be returned under this convention or unless an application
under this convention is not lodged within a reasonable time following receipt
of the notice.
From
these provisions it is quite clear that this jurisdiction is in breach of its
obligations within the terms of the convention. Those breaches have serious
consequences for H. It is now over two years since he was taken from his home.
Yet during the entire of that period no court has had the authority to make a
firm order as to his custody. Such uncertainty for such a period of time is to
be deplored.
The
right contained in article 11 should not be totally ignored as it has been in
the present case. Had the right given by that article been exercised the delay
in the present case could not have taken as long as it has. In this regard it
is significant that Cazalet J in In re O apologised for the fact that the
matter had not reached his court for a period of 21/2 months.
In
the circumstances I would reject this appeal and return the matter to the High
Court for a speedy resolution of the convention issues involved.
