Court: Family Division
Number: 3 W.L.R. 825 (1989)
Applicant: Father
and
Respondent: Mother
Date: 24 & 25 May and 19 Jun 1989
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In re J. (Abduction: Ward of Court)
3 W.L.R. 825 (1989)
[1989] 3 All ER 590
[1989] Fam. 85
Minor--Removal from Jurisdiction--Ward of court--"Rights of
custody"--Mother removing ward from jurisdiction--Father seeking
assistance of foreign court for return of ward--Father's
application in wardship for declaration that removal of ward
wrongful--Whether custodial rights vested in wardship
court--Whether jurisdiction to grant declaration--Child Abduction
and Custody Act 1985 (c. 60) s. 8, Sch. 1, arts. 3, 81
M.,aged five, was made a ward of court a few days after her birth.
The court granted care and control of the ward to her mother and
granted the father weekly access. In April 1989, the mother took
the ward to the United States of America without the leave of the
court and remained outside the court's jurisdiction. The father
sought the assistance of the Central Authority, under the
provisions of the Child Abduction and Custody Act 1985 and the
Convention on the Civil Aspects of International Child Abduction
scheduled to the Act, to institute proceedings in America for the
return of the ward. The Central Authority indicated that a
declaration was required that the ward had been wrongly removed
from the jurisdiction.
On the father's application for a declaration that the removal of
the child and her retention outside the United Kingdom was
wrongful within the meaning of article 3 of the Convention
Held, granting the application, (1) that, where a minor was a ward
of court, the court had the right to determine the ward's place of
residence and could refuse permission for the ward to leave the
jurisdiction; that the court had "rights of custody" and was "a
person, an institution or any other body" within the meaning of
articles 3 and 8 of the Convention; and that, accordingly, a court
of a contracting state could be asked to recognize and enforce
orders of the court made in wardship proceedings under article 8
of the Convention (post, pp. 830F--831B, 832G--H,833B--D
C. v. C. (Abduction: Rights of Custody) [1989] 1 W.L.R. 654, C.A.
applied.
(2) That, although the power of the High Court to make a
declaration under section 8 of the Act of 1985 that the removal of
a child had been wrongful was confined to a request for such a
declaration by a court of the state to which the child had been
taken, the section was permissive and placed no limit on the
court's exercise of its jurisdiction to make a declaration; and
that, therefore, the applicant would be granted a declaration that
the removal of the ward from the jurisdiction was wrongful (post,
p. 834A--B).
The following cases are referred to in the judgment:
B v B (Minors: Enforcement of Access Abroad) [1988] 1 W.LR. 526;
[1988] 2 All E.R. 652
C v C [Abduction: Rights of Custody) [1989] 1 W.L.R. 654; [1989] 2
All E.R. 465, C.A.
Reg. v Gygnall [1893] 2 Q.B. 232, C.A.
In re S (Infants) [1967] 1 W.L.R. 396; [1967] 1 All. E.R. 202
In re W (An Infant) [1964] Ch. 202; [1963] 3 W.L.r. 789; [1963] 3
All E.R. 459, C.A.
The following additional cases, supplied by the courtesy of
counsel, were cited in argument:
In re E (S.A.) (A Minor) (Wardship; Court's Duty), [1984] 1 W.L.R.
156; [1984] 1 All E.R. 289 H.L. (E.)
Evans v Evans (unreported), 20 Jul 1988; Court of Appeal (Civil
Division), Transcript No. 630 of 1988, C.A.
Hadkinson v Hadkinson [1952] P. 285; [1952] 2 All E.R. 567, C.A.
SUMMONS
By originating summons, M.J.,born on 19 April 1984, was made a
ward of court on 25 April 1984. On 18 June 1984, in the wardship
proceedings, interim care and control of the ward was granted to
the mother and, on 29 April 1987, Waite,J. granted weekly access
during the day to the father. In April 1989, the mother took the
ward to the United States of America and they remained in that
country.
On 8 May 1989, the father issued a summons in the wardship
proceedings seeking a declaration that the removal of the ward and
her retention outside the United Kingdom was wrongful within the
meaning of article 3 of the Convention on the Civil Aspects of
International Child Abduction scheduled to the Child Abduction and
Custody Act 1985. The father also issued a further summons seeking
care and control of the ward.
The summons was heard and judgment delivered in chambers. The
judgment is reported with the permission of the judge.
The fact's are stated in the judgment.
Heather MacGregor for the father.
Susan Maidment for the mother.
E. James Holman for the guardian ad litem.
Cur. adv. vult2
19 June. Swinton Thomas J. read the following judgment. These
proceedings concern a young girl, M., aged five, who was born on
19 April 1984. There are two sets of proceedings. (1) The first
set of Proceedings, in which the father of the child is the
plaintiff and the mother is the defendant, are brought pursuant to
the Convention on the Civil Aspects of International Child
Abduction and the Child Abduction and Custody Act 1985. The father
applies for a declaration that the removal of the child and her
retention outside the United Kingdom are wrongful within the
meaning of article 3 of the Convention. (2) The second set of
proceedings are current wardship proceedings, in which the mother
is the plaintiff and the father is the defendant. The father
applies that he be granted the care and control of the child. It
was conceded by Mrs McGregor on behalf of the father that that
application is a procedural device aimed at bringing the father
within the provisions of the Convention and of the Child Abduction
and Custody Act 1985. This application was not pursued by Mrs.
McGregor for the father with any great enthusiasm. It was also
conceded that the application that the father be granted the care
and control of the child had not been served on the mother.
M. is represented by the Official Solicitor and she has been made
a party to each set of proceedings. I am grateful to the Official
Solicitor for the assistance I have received in this case.
The primary point which arises is whether in the circumstances
which arise in this case a child who is a ward of court properly
falls within the provisions of the Convention and the Act of 1985,
with the result that the courts of a contracting state can be
asked to recognise and enforce orders made by the courts of this
country and, in this case, order that the child be returned to the
jurisdiction of the courts of England and Wales.
The mother and the father where married in January 1983. M became
a ward of court by originating summons of 25 April 1984. A decree
nisi of divorce was pronounced on 21 March 1985 and was made
absolute on 15 April 1986. The father subsequently remarried. On
18 June 1984 the mother was granted the interim care and control
of the child. The father subsequently applied for access and a
number of different orders have been made granting him access. On
29 April 1987 Waite J. ordered that he should have access each
week during the day and that order remains in force. The child
remained a ward of court, with the result that she could not be
removed from the jurisdiction of the court without leave being
granted. Nonetheless on 22 December 1987, the mother took M. out
of the jurisdiction and did not return until 3 March 1988. A
number of court orders were made in consequence of that action. In
April 1989, the mother left the jurisdiction again together with
M. On the evidence which I have heard it is overwhelmingly
probable that she has gone to the United States of America and is
still there. The father made an application to the Lord
Chancellor, pursuant to article 8 of the Convention, asking for
assistance in securing the return of the child to this country.
The Lord Chancellor's Department replied that they were unable to
take the action requested unless and until the court made the
declaration sought by the father in these proceedings.
The preamble to the Convention is in these terms:
"The states signatory to the present Convention, firmly
convinced that the interests of children are of paramount
importance in matters relating to their custody, desire 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, have resolved to conclude a Convention to
this effect, and have agreed upon the following provisions."
The relevant articles for the purposes of this part of this
application are:
"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 sub-paragraph (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
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.
ARTICLE 6
A Contracting State shall designate a Central Authority to
discharge the duties which are imposed by the Convention upon
such authorities.
ARTICLE 8
Any person, institution or other body claiming that a child
has been removed or retained in breach of custody rights may
apply either to the Central Authority of the child's habitual
residence or to the Central Authority of any other
Contracting State for assistance in securing the return of
the child.
The application shall contain--(a) information concerning the
identity of the applicant, of the child and of the person
alleged to have removed or retained the child;...(c) the
grounds on which the applicant's claim for return of the
child is based;...The application may be accompanied or
supplemented by -(e) an authenticated copy of any relevant
decision or agreement; (f) a certificate or an affidavit
emanating from a Central Authority, or other competent
authority of the State of the child's habitual residence, or
from a qualified person, concerning the relevant law of that
State;..."
The father in this case has access rights only. Clearly he does
not himself have any custody rights to establish that the removal
of the child is to be considered wrongful under article 3.
However, pursuant to article 8, he does not himself have to have
custody rights in order to rely on the provisions of the
Convention. He must show that the child has been removed in breach
of custody rights attributed to a person, institution or other
body and, if he shows that, he is then a person who may apply for
assistance in securing the return of the child pursuant to article
8. It is submitted on behalf of the father that custodial rights
are vested in the court within the wardship proceedings and that
the removal of the child is to be considered wrongful because it
is in breach of the rights of custody attributed to the court.
The Official Solicitor through Mr. Holman told me that, acting on
behalf of the child, he would wish the child to be returned to the
jurisdiction of this court and thought that should be done, but,
assisting the court as though amicus curiae, he submitted that it
is doubtful whether the court has power to make the order under
the Act of 1985. Much depends on the interpretation of the
relevant provisions of the Convention and the Act itself. The
central issue is whether the removal of the child is to be
considered wrongful within article 3 of the Convention when the
child is a ward of court and the father, who in this case is the
applicant, does not himself have rights of custody. Clearly the
point in issue is an important one.
It is of course clear and vital to this application that the
person, institution or other body claiming that a child has been
removed or retained in breach of custody rights under article 8
does not himself have to have custody rights but has to show that
the removal 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."
The Central Authority in this country for the purposes of article
6 is the Lord Chancellor. Th father, through his solicitor made
the appropriate application to the Lord Chancellor, who replied by
letter, through one of his officers, on 8 May 1989. In the course
of that letter this appears:
"You say the children are wards of court and argue their
removal overseas has breached the court's `rights of
custody.' Whilst I can imagine the difficulty the American
court would have in recognising the concept of wardship and
considering an application to return a ward to the court I
can see the logic of the argument. In any event given that my
authority to refuse to accept applications, which is set out
in article 27, is extremely limited I would be bound to
present the argument to the U.S.A. Department of State in
Washington, D.C., if the court were minded to claim, in terms
of article 3, that there had been a wrongful removal or
retention."
Accordingly, the applicant, before he can start proceedings at
all, requires a declaration that there has been a wrongful
removal.
Mrs. MacGregor conceded at the outset that the father does not
have any custodial rights which would entitle him to rely upon
article 3. He has rights to access, but they do not bring him
within the phrase "custodial rights" for the purposes of the
Convention. Accordingly, it is submitted that the custodial rights
breached are the rights vested in the court by reason of the
court's wardship jurisdiction. It is submitted that the court
itself has "rights of custody attributed to a person, an
institution or any other body" and "at the time of the removal or
retention those rights were actually exercised, either jointly or
alone, or would have been so exercised but for the removal or
retention." It is further submitted, pursuant to article 5, that
the court has "rights relating to the care of the person of the
child and, in particular, the right to determine the child's place
of residence." The Official Solicitor and the mother submit "that
the "Convention must be construed purposively and that so to
construe the Act would be to blur or even obliterate the
distinction between rights of custody and rights of access. In
those circumstances it is necessary for me to consider the nature
of the wardship jurisdiction.
In Regina v Gyngall [1893] 2 Q.B. 233, 239, Lord Esher M.R.
said in relation to wardship:
"That was not a jurisdiction to determine rights as between a
parent and a stranger, or as between parent and a child. It
was a paternal jurisdiction, a judicially administrative
jurisdiction, in virtue of which the Chancery Court was put
to act on behalf of the Crown, as being the guardian of all
infants, in the place of a parent, and as if it were the
parent of the child, thus superseding the natural
guardianship of the parent."
Then, at p. 24O, quoting Lord Cottenham, L.C.:
"'This court interferes for the protection of infants, qua
infants, by virtue of the prerogative which belongs to the
Crown as parens patrie, and the exercise of which is
delegated to the Great Seal.'"
In In re W. (An Infant) [1964] Ch. 202, 210, Ormerod L.J. said:
"It may properly be said, I think, although there may be some
doubt about the history of the matter, that in a wardship
case the court retains the custody of the infant and only
makes such orders in relation to that custody as may amount
to a delegation of certain parts of its duties. That may be a
real distinction between orders made in the exercise of an
inherent jurisdiction and orders made in the exercise of a
statutory jurisdiction of this kind."
In In re S. (Infants) [1967] 1 W.L.R. 396, 407; Cross J. said:
"When a child is made a ward no important step in the child's life
can be taken without the court's consent."
As I have indicated, Mr. Holman and Mrs. Maidment submitted that
the scheme of the Convention is to draw a firm distinction between
rights of custody and rights of access and drew my attention to
passages in the Explanatory Report annexed to the Convention
itself, to an article by A. E. Anton in The International and
Comparative Law Quarterly (1981), vol. 30, p. 537, and to the
decision of Waterhouse J. in B. v. B. (Minors: Enforcement of
Access Abroad) [1988] 1 W.L.R. 526. There is no doubt at all that
the proposition itself is correct and that the Convention draws a
clear distinction between rights of custody and rights of access.
That proposition does not, however, answer the point as to whether
rights of custody in a case where a child is a ward of court are
attributed to the court and whether those rights were actually
exercised.
Even without the assistance of the recent decision of the Court of
Appeal in C. v. C. (Abduction: Rights of Custody) [1989] 1 W.L.R.
654 in which judgment was given on 14 December 1988, to which l
will refer in a moment, I would have no hesitation in finding that
in a case where a child has been made a ward of court the removal
of that child is to be considered wrongful as in breach of the
rights of custody attributed to the court, and that those rights
were actually exercised at the time of removal. As I have said,
article 5 provides that rights of custody should 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. As Cross J. said in In re S. (Infants) [1967] W.L.R.
396, 407, "no important step in a child's life may be taken
without the court's consent," and when the child is a ward, as
Ormerod L.J. said in In re W. [1964] Ch. 202, 210, "the court
retains the custody of the infant." It is a breach of the court's
rights if the child is removed from the jurisdiction. Every
important aspect of the child's life, whilst he or she remains a
ward of court, comes within the court's jurisdiction. In a real
sense the court itself has the custody of the court's ward and
does exercise those rights. In my judgment there could be no
argument but that the court has the right to determine the child's
place of residence.
It was next submitted on behalf of the mother and by the Official
Solicitor that the court itself is not "a person, an institution
or any other body" within articles 3 and 8 of the Convention. It
was submitted that the court is merely "a judicial authority."
Again, without the considerable assistance that I received from C
v. C. I would have no difficulty as a matter of construction and
common sense in holding that the court itself is "a person, an
institution or any other body" within articles 3 and 8 of the
Convention.
I turn then to C. v. C. (Abduction: Rights of Custody) [1989] 1
W.L.R. 654. That was a case in which the mother of a child had
removed him from his home in Sydney, Australia. The father applied
for his return under the provisions of the Child Abduction and
Custody Act 1985. The judge at first instance refused that
application and the case went to the Court of Appeal.
The leading judgment was given by Butler-Sloss L.J. She recited
the relevant order in Australia, at p. 656:
"On 4 November 1986 the deputy registrar in Sydney made a
consent order including "the following words: '(1) The
[mother] to have custody of ... the child of the marriage and
the [father] and the [mother] to remain joint guardians of
the said child. (2) Neither the [father] nor the [mother]
shall remove the child from Australia without the consent of
the other."
Butler-Sloss L.J. set out the preamble and article 1 of the
Convention, and then went on to say, at p. 657, that three
questions arose in the case:
"(1) Was the removal of the child wrongful? (2) Is the
retention of the child wrongful? (3) If the answer to either
or both of the first two is `yes', does article 13 apply to
stop the return of the child?"
She then set out articles 3 and 5 and continued, at pp: 657-658:
"In respect of my first question-was the removal wrongful?-
Latey J. heard argument as to the effect of the order of
November 1986 and in particular the effect of joint
guardianship. He had before him the written opinion and oral
evidence of an Australian Queen's Counsel. The judge's
attention does not appear to have been sufficiently drawn to
the effect on the definition in article 5 of the Convention
of clause 2 of the November 1986 order, that neither parent
should remove the child from Australia without the
consent of the other. Accordingly, the judge's attention was
not drawn specifically to the question whether under
Australian law clause 2 was capable of constituting a right
of custody within the Convention. In the absence of
sufficient expert evidence on that point, this court must do
its best to consider whether clause 2 comes within the
definition given in article 5.
"By clause 2 the father had, in my judgment, the right to
determine that the child should reside in Australia or
outside the jurisdiction at the request of the mother. In
1987 he gave his consent to the child coming to England for a
specified holiday. One might consider the example of a
parent wishing to leave the jurisdiction with the child for a
longer period, say 12 months. The other parent, with clause
2 in the order, would have some control over not only the
child leaving the jurisdiction but also as a place to '
which the child was going, and not only the country; for
instance, to live in London in suitable circumstances. If the
child was retained under such an arrangement beyond the
agreed date of return, it seems inconceivable to me that the
Convention could not effect the return of the child. But if
the argument so attractively advanced by Mr. Connell is
right, there would be no instant redress by the justifiably
aggrieved parent. The words of article 5 must, in my view, be
read into article 3 and may in certain circumstances extend
the concept of custody beyond the ordinarily understood
domestic approach. Therefore in the present case there would
be the general right of the mother to determine the place of
residence within the Commonwealth of Australia, but a more
limited right, subject to the father's consent, outside the
jurisdiction of the Australian Family Court. The father does
not have "the right to determine the child's place of
residence within Australia but has the right to ensure the
child remains in Australia or lives anywhere outside
Australia only with his approval. Such limited rights and
joint rights are by no means unknown to English family law
and no doubt to Australian family law. Indeed, in article 3
rights of custody are specifically recognised as held jointly
or alone. The Convention must be interpreted so that within
its scope it is to be effective. For my part I consider that
the child was wrongfully removed from the jurisdiction in
breach of clause 2 of the order of 4 November 1986."
Neill L.J. said, at p. 663:
"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 and of the Act of 1985.
Until last August this child was habitually resident in
Australia. In 1986 the Family Court of Australia made orders
relating to his custody, which included an agreed provision
that he should not be removed from Australia without the
father's consent. In my judgment, the enforcement of that
provision falls plainly within the objects which the
Convention and the Act of 1985 are seeking to achieve."
Lord Donaldson of Lymington M.R. said, at pp.663-664:
"'Custody,' as a matter of non-technical English, means `safe
keeping, protection, charge, care, guardianship' (I take that
from the Shorter Oxford English Dictionary, 3rd ed. rev.
(1973)); but 'rights of custody' as defined in the Convention
includes a much more precise meaning which will, I apprehend,
usually be decisive of most applications under the
Convention. This is 'the right to determine the child's place
of residence.' This right may be in the court, the mother,
the father, some caretaking institution, such as a local
authority, or it may, as in this case, be a divided right-in
so far as the child is to reside in Australia, the right
being that of the mother; but, in so far as any question
arises as to the child residing outside Australia, it being a
joint right subject always, of course, to the overriding
rights of the court. If anyone, be it an individual or the
court or other institution or a body, has a right-to object,
and either is not consulted or refuses consent, the removal
will be wrongful within the meaning of the Convention. I
will add for completeness that a `right to determine the
child's place of residence' (using the phrase in the
Convention) may be specific-the right to decide that it shall
live at a particular address or it may be general, `within
the Commonwealth of Australia.'"
It was submitted that that passage from the judgment of Lord
Donaldson of Lymington M.R. is obiter. That may well be correct.
However, with the greatest respect, I entirely agree with it, and,
in any event, it must have very great persuasive effect. There can
be no doubt that the "safe keeping, protection, charge, care,
guardianship" of a ward of court lie in the court. Lord Donaldson
M.R. then continued to say that rights of custody as defined in
the Convention include a much more precise meaning which will
usually be decisive, that is, the right to determine the child's
place of residence. He then continues: "This right may be in the
court, the mother, the father, some caretaking institution, such
as the local authority or it may be divided right." Then a little
later Lord Donaldson M.R. says that if the court or other
institution or a body has the right to object and either is not
consulted or refuses consent the removal will be wrongful within
the meaning of the Convention. In my view, that judgment is
decisive of both the first two points that have been raised on
this application, namely, whether the removal from the
jurisdiction of a ward of court is to be considered wrongful and
whether a court is a person, institution or other body.
The Official Solicitor and the mother submitted that, by reason of
section 8 of the Child Abduction and Custody Act 1985 and article
15 of the Convention, I have no power to make the declaration
sought. Section 8 provides:
The high Court or Court of Session may, on an application
made for the purposes of article 15 of the Convention by any
person appearing to the court to have an interest in the
matter, make a declaration or declarator that the removal of
any child from, or his retention outside, the United Kingdom
was wrongful within the meaning of article 3 of the
Convention."
Article 15 of the Convention provides:
"The judicial or administrative authorities of a contracting
state may, prior to the making of an order for the return of
the child, request that the applicant obtain from the
authorities of the state of the habitual residence of the
child a decision or other determination that the removal or
retention was wrongful within the meaning of article 3 of the
Convention, where such a decision or determination may be
obtained in that state. The Central Authorities of the
contracting states shall so far as practicable assist
applicants to obtain such a decision or determination."
To my mind those provisions apply to particular circumstances, and
to particular circumstances only, that is to say when a
contracting state to which the child has been taken wishes to
obtain information from the authorities of the State of the
habitual residence of the child. That is not the position here.
The position in this case is that the father and his advisers have
not arrived at that situation. They wish to provide the Lord
Chancellor's Department, and not the judicial or administrative
authorities of a contracting state, with the information that the
removal of the child was wrongful. Section 8 of the Child
Abduction and Custody Act 1985 is, in my judgment, permissive and
not restrictive, permitting the courts to make declarations in the
particular circumstances envisaged by the section and article 3 of
the Convention but the section does not in any way preclude the
court from making a declaration in the circumstances which arise
here. It was suggested that I should deal with this problem by
making a finding of fact and not by making a declaration. That
seems to me to be a distinction without a difference. I have no !i
doubt that the court is empowered to make the declaration sought.
Accordingly I will grant the declaration sought, namely, that the
removal of the child, M., from the United Kingdom is wrongful
within the meaning of article 3 of the Convention.
I will deal with the father's application to be granted care and
control within the wardship proceedings very shortly. Quite apart
from the point relating to service, on the facts of the case as
known to me at the moment, I would not think it right to commit
the care and control of the child to the father and that
application is refused.
Declaration granted.
Father's application for care and control refused.
No order for costs save legal aid taxation
Solicitors: Rosenbers & Jack Friend; Kay & Co.; Judith Walker,
Tayer and Co.; Official Solicitor.
M.B.D.
=================================================================
Counsel:
Applicant: Respondent
Heather MacGregor Susan Maidment
--------------------
1. Child Abduction and Custody Act 1985, s. 8: see post, p 833e;
Sch. 1, art 3: see post, pp 872h-828a; Art 8: see post, p.
828c-e
2. Editing Note: Curia advisari vult: A phrase frequently found
in the reports, signifying the resolution of the court to
suspend judgment in a cause, after the argument, until they
have deliberated upon the question, as where there is a new or
difficult point involved.