36 THE TIMES LAW REPORT WMH FN-1
26 Jan 1993
Court of Appeal
In re G (a Minor)(Convention on the Civil Aspects of
International Child Abduction: Access)
Before:
Sir Thomas Bingham, Master of the rolls;
Lord Justice Butler-Sloss;
Lord Justice Hoffmann
(Judgment: 09 Dec 1992)
A child who was habitually resident with her mother in England
and whose father had access rights granted by the Ontario court,
was a child to whom the Convention on the Civil Aspects of
International Child Abduction applied.
Article 21 of that Convention provides:
An application to make arrangements for organizing or,
securing the effective exercise of rights of access may
be presented to the Central Authorities of the
Contracting States in the same way as an application
for the return of a child.
The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to
promote the peaceful enjoyment of access rights and the
fulfillment of any conditions to which the exercise of
those rights may be subject. The Central Authorities
shall take steps to remove, as far as possible, all
obstacles to the exercise of such rights. The Central
Authorities, either directly or through intermediaries,
may initiate or assist in the institution of
proceedings with a view to organizing or protecting
these rights and securing respect for the conditions to
which the exercise of these rights may be subject.
However, any breach of such access rights would be
considered by the English court under its domestic law.
Article 21 of the Convention, which had administrative
effect but imposed no direct obligation on judicial authorities,
required the Lord Chancellor's Department, as the central
authority for the purpose of the Convention, to assist the father
by introduction to local legal services and where necessary by
the provision of legal aid.
The Court of Appeal so stated dismissing an appeal by the
father from Mr. Justice Cazalet who had (i) held that although
weight should be given to a consent order made by Judge Nevins in
the Ontario Court, Provincial Division sitting in Toronto, the
English court should have regard to the welfare of the child and
(ii) ordered specific access arrangements to the father initially
to take place in England.
G's parents who had married in England in 1985 had
subsequently lived in Canada where G was born in 1989. Following
the break up of their marriage the judge in Canadian proceedings
had permitted the mother to return with G to live in England but
had directed specific access to the father to take place in
Canada. On the mother's refusal to comply with the access
arrangements the father had initiated proceedings under the
Convention for the protection of his access rights through the
central authority in England.
Mr James Turner for the father, Mr Andrew McFarlane for the
mother.
LORD JUSTICE BUTLER-SLOSS said that the first issue, not
argued before the judge, was whether on the present facts the
Convention applied.
Her Ladyship referred to Article 7 which enjoined
co-operation between competent authorities of the contracting
states to achieve the objects of the Convention and Article 4
which provided:
The Convention shall apply to any child who was
habitually resident in a Contracting State immediately
before any breach of custody or access rights.
Referring to the effect of the consent order, her Ladyship
said that G had become habitually resident in England before the
potential breach of access rights was known. On an application
in respect of such rights the relevant jurisdiction under Article
4 was the English, not the Canadian, court.
The effect of Judge Nevins' order was to transfer the
primary control by a court over G from Ontario to England and to
put the English court in the driving seat. The question then
arose whether the Convention applied at all.
The Convention focused both on co-operation between central
authorities and the enforcement of the return of the child
wrongfully removed or retained outside the state of its habitual
residence. The Convention did not visualize that orders from a
state which was not the state of habitual residence would
continue to govern the affairs and welfare of a child living
permanently elsewhere.
Her Ladyship adopted Lord Justice Hoffmann's the
construction of Article 4 and rejected that of Mr Justice
Waterhouse in B v B [(1988) 1 WLR 526, 532]. Article 21 did
apply to the case. The Convention's approach to access rights
was more flexible than its approach to wrongful removal or
retention.
Her Ladyship agreed with the explanation of Article 21 given
by Dr John Eekeler in his "Explanatory Documentation" prepared
for the Commonwealth Jurisdictions in February 1981 that it
allowed a party resident outside the contracting state to present
to that state's central authority an application for making
arrangements for organizing or securing the effective exercise of
rights of access.
Central authorities were not placed under mandatory duties
with respect to such applications other than generally to promote
co-operation, and in practice that could be achieved by passing
the matter onto a local lawyer who might either negotiate
agreement between the parties or institute whatever proceedings
might be necessary in the local court on behalf of the party
living abroad.
There was a distinction between the duties of the central
authority and the jurisdiction of the court. Article 21 applied
at the administrative level to bring the application to the
attention of the contracting state.
The authority complied there-after with its obligation under
Article 21 by making appropriate arrangements for the applicant
and in the present case by providing for legal aid and
instructing English lawyers to act on his behalf.
A dissatisfied parent's remedy for enforcing any failure by
the Lord Chancellor's Department, as the central authority, would
be by way of judicial review.
Where the child was habitually resident in the contracting
state, being England, before the breach, the Convention did not
directly affect the jurisdiction of the English court.
No teeth were to be found in Article 21 and its provisions
had no part to play in the decision to be made by the judge.
The father's application should have been made for a section
8 order under the Children Act 1989 and would therefore be
governed by the provisions of section 1(a) of the 1989 Act, the
child's welfare being paramount.
The court's discretion was accordingly not fettered by the
Convention, although the existence of the earlier order, where
the child was then habitually resident, was crucially important
and a factor to be given the greatest weight consistent with the
over-riding consideration that the child's welfare was paramount.
The judge's exercise of his discretion here had been impeccable
and the appeal would be dismissed. WMH FN-2
LORD JUSTICE HOFFMAN, agreeing, said that the "contracting
state" in Article 4 did not meant the state under whose law the
rights of access existed. His lordship reached his conclusion
for a number of reasons:
1. A contrary meaning, which would disapply the Convention in
the present case, since the right of access existed under the law
of Canada but the contracting state in which G was habitually
resident immediately before the breach of that right was England,
was too narrow and involved reading wording into the Convention.
G was habitually resident in a contracting state.
The Article did not say that it had to be the state under
which the access right arose.
2. While it was true that the provisions for the return of
children were intended to protect rights of custody under the law
of the contracting state where the child was habitually resident,
that was expressly spelled out in Article 3. It did not require
in addition a narrow interpretation of Article 4.
3. Rights of access had normally to be enforced in the country
where the child was habitually resident. It was unusual for a
breach of access rights to occur when the child was away from
home.
It followed that if Article 21 did not apply to the
enforcement of a foreign access right in the country of the
child's habitual residence it would seldom achieve its object of
ensuring that rights of access under the law of one contracting
state were effectively respected in the other contracting states.
4. A restrictive interpretation of Article 4 was not needed to
prevent the Convention from applying to cases which were purely
domestic. There was no difficulty in construing Article 21 as
confined to cases which gave effect to the relevant purpose of
the Convention, namely to ensure that foreign access rights were
respected.
5. While it was part of the rationale of the child abduction
provisions of the Convention that the foreign custody right
should be enforced to the extent of returning the child to the
jurisdiction from which it had been abducted without regard to
the merits, the same was not true of access rights.
His Lordship referred to and adopted the comments of the
chairman of the conference which drafted the Convention ((1981)
30 International and Comparative Law Quarterly 537, 554-555) WMH
FN-3 that the Convention contained no comparable mandatory
provisions for the support of access rights, that the effective
exercise of access rights depended in the long run more on the
goodwill, or at least the restraint of the parties than the
existence of formal rules and that Article 21 therefore
established open-textured rules for assisting parties to secure
the effective exercise of access rights by seeking the
intervention of central authorities. WMH FN-4
The Master of the Rolls delivered a judgment concurring with
both judgments.
Solicitors: Mischon de Reya; Salmons, Newcastlte under
Lime.
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1. This decision was copied from a photo copy of the above
publication.
2. While this appears to be consistent with McKee v McKee [1951]
A.C. 352; [1951] 1 All E.R. 942, P.C., it may have the effect
of limiting the removal of children from the original forum.
While this decison does not say, it is implied that the
Canadian court allowed the removal of the child on the
conditions that certain access be had in Canada. Since this
decision, as does McKee, states that while some effect is to
be given to the foreign decree, the court of the Habitual
Residence can always vary the foreign order, making it
worthless. Compare, however, the practice in those
jurisdictions that follow the Uniform Child Custody
Jurisdiction Act (UCCJA) which leaves exclusive jurisdiction
to vary the original order with the original court so long as
one party remains in the original jurisdiction. In practice
this has often meant that the left behind parent's rights of
access are protected by the court that originally made those
orders. See Pieri v Superior Court (Pieri) (Cal.App. 1 Dist.
1991) 1 Cal.App.4th 114 [1 Cal.Rptr.2d 742] and In re
Marriage of Arnold (Cal.App. 1 Dist. 1990) 222 Cal.App.3d 499
[271 Cal.Rptr. 624] for two examples of this policy.
3. THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION By A.
E. ANTON
4. See, however, the Report of Meeting No. 7, Special Commission
of January 1993, Item 32 where this limitation of powers is
regreted and that in the future these powers may be the
subject of a Protocol to The Convention.