Court: House Of Lords
Number: 3 W.L.R. 492 [1990]
Applicant: Currie
and
Respondent: Slade
Date: 26 Jul 1990
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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[1990] 2 All ER 449; [1990] 2 FLR 442
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE DOUGLAS BROWN)
Royal Courts of Justice
Thursday 17th May 1990
Before
THE MASTER OF THE ROLLS
(Lord Donaldson)
LORD JUSTICE STAUGHTON
SIR ROGER ORMROD
C
V.
S
(Transcript of the Shorthand Notes of the Association of Official
Shorthandwriters Limited, Room 392, Royal Courts of Justice, and
2 New Square, Lincoln's Inn, London, WC2A 3RV
Mr. I. G. F. KARSTEN Q.C. and LORD MESTON (instructed by Messers.
Reynolds Porter Chamberlain) appeared for the Appellant Father.
Mr. A. T. H. KIRKWOOD Q.C and MISS S. J. COOPER (instructed by
Messers. Alfred Newton & Co., Stockport, Cheshire) appeared for
the Respondent Mother.
JUDGMENT
(Revised)
Page No. 1
IN RE J.(A MINOR) (ABDUCTION: CUSTODY RIGHTS)
Minor--Custody--Eforcement--Parents unmarried British citizes
resident in Western Australia--Sole right of custody vesting in
mother under local law--Removal by mother wihtout father's
knowledge--Subsequent Wester Australian court order conferring
sole custodial rights on father--Whether removal
wrongful--Whether retention after order of Western Australian
court wrongful--Child Abduction and Custody Act 1985 (c. 60),
Sch. I, arts. 3,14, 15
J. was born in 1987, the child of unmarried parents who were
citizens of the United Kingdom resident in Western Australia. On
21 March 1990 the mother, having decided to return permanently to
England, left Western Australia with J., without the father's
knowledge, and subsequently brought him to the United Kingdom.
Under the law of Western Australia the custody and guardianship
of a chiid of unmarried parents vested solely in the mother
unless a court ordered otherwise. On 26 March the father issued
an originating summons, and on 12 April a judge sitting in the
Family Court of Westem Australia, finding that both parents had
exercised joint custody over J. although only the mother had the
right to do so, made an order vesting sole custodial rights in
the father and declared that J.'s removal was wrongful within the
meaning of article 3 of the 1980 Hague Convention on the Civil
Aspects of International Child Abduction. [FN 1] The father
applied by originating summons in the Family Division in England
under the Child Abduction and Custody Act 1985 which gave effect
to the Convention for the return of the child. The judge
concluded that neither the removal on 21 March nor the retention
after the order of 12 April were wrongful under the Convention,
and dismissed the application. The Court of Appeal dismissed the
father's appeal.
-----------------------Foot Note 1-------------------------------
Convention of the Civil Aspects of International Child Abduction,
art. 3; see post p. 502D-F.
-----------------------------------------------------------------
On appeal by the father:-
Held, dismissing the appeal, (1) that since section 35 of
the Family Law Act 1975 of Westem Australia (as amended) gave an
unmarried mother soie custody and guardianship of her child
unless there was an order to the contrary and as there was no
order of the court giving the father custody rights at the time
when the child was removed from Western Australia, the child's
removal could not be wrongful within article 3 of the Convention
on the Civil Aspects of International Child Abduction (post, PP-
503c-B, E).
(2) That giving the expression "habitually resident," as used in
article 3 of the Convention its ordinary and natural meaning,
such residence of a person in particular country was a question
of fact and it could be lost in a single day by that person
leaving the country with a settled intention not to return; that
the habitual residence of a child would be that of the parent in
whose sole custody he was, and that accordingly, the child's
retention in England after the making of the order on 12 April
1990 was not wrongful since he had ceased to be habitually
resident in Western Australia when he left on 21 March with his
mother whose settled intention was not to retum (post, pp.
503F-H, 504B-H).
Page No. 2
Decision of the Court of Appeal, post, pp. 494C et seq.; [1990] 2
All E.R. 449 affirmed.
No cases are referred to in their Lordships' opinions.
The following cases were cited in argument in the House of Lords:
A. (A Minor) (Abduction), In re [1988] 1 F.L.R. 365, C.A.
Buchanan (James) & Co. Ltd. v. Babco Forwarding & Shipping (U.K.)
Ltd. [1978] A.C. 141; [1977] 3 W.L.R. 907; [1977] 3 All E.R.
1048, H.L. (E.)
C. v. C. (Abduction: Rights of Custody) [1989] 1 W.L.R.
654;[1989] 2 All E.R. 465, C.A.
E. (A Minor) (Abduction), In re [1989] 1 F.L.R. 135, C.A.
P. (G.E.) (An Infant), In re [1965] Ch. 568; [1985] 2 W.L.R. 1;
[1964] 3 All E.R. 977, C.A.
The following case is referred to in the judgment of Lord
Donaldson of Lymington M.R.:
Kapur v. Kapur [1984] F.L.R. 920
The following additional cases were cited in argument in the
Court of Appeal:
C. v. C. (Abduction: Rights of Custody) [1989] 1 W.L.R. 654;
[1989] 2 All E.R. 465, C.A.
E. (A Minor) (Abduction), In re [1989] 1 F.L.R. 135, C.A.
APPEAL from Douglas Brown J.
On 30 April 1990 Douglas Brown J. dismissed the father's
application that J. be returned to the jurisdiction of the
Commonwealth of Australia pursuant to Part 1 of the Child
Abduction and Custody Act 1985. By a notice of appeal dated 2 May
the father appealed on the grounds that (1) the judge erred in
holding that the unilateral removal of the child from Australia
by the rother was not wrongful nor in breach of the rights of
custody attributed to the father within the meaning of the 1980
Hague Convention on the Civil Aspects of Intemational Child
Abduction (Cmnd. 8281) set out in Schedule 1 to the Child
Abduction and Custody Act 1985; (2) the judge erred in holding
that the father did not have rights of custody at the time of the
child's removal; (3) altematively, the judge erred in holding
that the mother's rights of custody attritiuted under the law of
Western Australia were excisable outside Western Australia and/or
the Commonwealth of Australia; alternatively in holding that
those rights included an unfettered right to remove the child
without the prior knowledge of the father, and in so holding the
judge failed to take account of the fact that there was no
evidence that the mother's rights of custody within the meaning
of article 5 of the Convention included a right to determine the
child's place of residence outside Western Australia or the
Commonwealth of Australia; (4) the judge erred in holding that he
was not bound by the declaration of the Family Court of Westrn
Australia made on 12 April 1990 that the child had been
wrongfully removed by the mother from the Commonwealth of
Australia, and in so holding the judge failed to pay sufficient
regard to article 15 of the Convention; (5) the judge erred in
holding taht the retention by the mother contrary to the order of
Page No. 3
12 April 1990 was not a wrongful retention within the meaning of
article 3 of the Convention.
The facts are stated in the judgment of Lord Donaldson of
Lymington M.R.
Ian Karsten Q.C. and Lord Meston for the father.
Andrew Kirkwood Q.C. and Susan Cooper for the mother.
Lord Donaldson of Lymington M.R. This appeal raises a new
point on the Child Abduction and Custody Act 1985, which was
passed in order to implement this country's obligations under an
international Convention on the civil aspects of international
child abduction. In this case the countries concerned are the
Commonwealth of Australia, which is also a party to this
Convention, and this country.
The material facts are not in dispute. Both mother and
father were born in England and are United Kingdom citizens. The
father emigrated to Australia in 1969 and the mother in 1978.
They met and began cohabiting in May 1987, their son James being
born on 6th December 1987. Both father and mother are registered
as his parents on James' birth certificate and James had dual
nationality.
The relationship between father and mother had its ups and
its downs, its separations and its reconciliations. One such
separation occurred in January 1989 when the wife (sic) left the
jointly owned home, taking James with her. Both parties then
consulted solicitors and the father contemplated making an
application for custody, but in the event did not do so. The
mother's solicitors in correspondence made it quite clear that
any such application, if made, would be strenuously resisted but,
on behalf of their client, they offered an olive branch in the
form of inviting proposals for access by the father, subject to
th father delivering up his passport to the Family Court of
Western Australia for safekeeping, the object of that particular
exercise being in order to allay any fears on the part of the
mother that James would be removed from Australia by his father.
In the light of later events, this fear, if indeed it existed, is
somewhat ironic.
In or about May 1989 there was a reconciliation and the
parties resumed co-habitation. In January 1990 the mother's
parents, who lived in England, flew to Australia to visit her and
to see their grandchild. This may well have had an unsettling
effect upon the mother but, however that may be, she determined
to return to England, taking James with her. Meanwhile, she took
considerable care to ensure that the father was unaware of her
intentions. On 21st March the mother, grandmother and James flew
to England, grandfather having returned earlier.
It is quite clear in the context that the mother's intention
was to remain with James in England permanently thereafter.
There was no question of it being a temporary visit to the
grandparents or anything of that sort.
This is the moment - that is to say in March 1990 - at which
i is said that there was a wrongful removal of James within the
meaning of Article 3 of the Convention which is reproduced in
Schedule 1 to the 1985 Act.
Page No. 4
On or about 26th March the father applied to the Australian
courts for custody of James and other relief, and on 12th April
1990 Mr. Justice Anderson, sitting in the Family Court of Western
Australia, made an ex parte order granting sole guardianship and
custody of James to his father. He also gave directions for the
service of the order on the mother in England and this was
effected shortly afterwards. Finally, by an amendment to his
judgment he made a declaration hat the removal of James from
Australia was wrongful.
Once the mother had been served with this order and had
failed to give effect to the father's right of guardianship and
custody by returning James to Australia, she was, it is said,
guilty of a wrongful retention of James within the meaning of
Article 3 of the Convention.
On 19th April of this year the Australian authorities
requested the return of James pursuant to the provisions of the
convention, and an appropriate originating summons was issued.
Th matter came before Mr. Justice Douglas Brown in the Family
Division of the High Court on 30th April 1990. He concluded
that,on the facts of this case, the mother had not been guilty of
a wrongful removal or of a wrongful retention of James within the
meaning of the Convention, and the father now appeals.
Let it be said at once that the English courts attach the
greatest possible importance to giving very speedy effect to
applications under the Convention and to Convention Rights.
Accordingly, this appeal has been expedited (and we are
considering the matter less than four weeks after the return was
requested).
The mischief at which the Convention and the 1985 Act are
directed - and it is a very serious mischief - is the wrongful
removal of a child from, or its wrongful retention outside, the
territorial jurisdiction of the courts of a Convention country.
Where this occurs, it is the duty of the courts of any other
Convention country where the child may be to order it return.
Furthermore, this duty is almost absolute. However the operative
word is "wrongful" and this depends in part upon the wording of
the Convention as incorporated in the 1985 Act and in part, in
this case, upon the law of Western Australia.
Let me turn first to the material articles of the
Convention. I start with Article 3, which is in these terms:
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.
Page No. 5
Article 4 provides:
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 16 years.
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;
(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 14 is potentially relevant, as is Article 15. Article 14
provides:
In ascertaining whether there has been a wrongful removal or
retention within the meaning of Article 3, the judicial or
administrative authorities of the requested State may take
notice directly of the law of, and of judicial or
administrative decisions, formally recognized or not in the
State of the habitual residence of the child, without
recourse to the specific procedures for the proof of that
law or for the recognition of foreign decisions which would
otherwise be applicable.
Article 15 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.
In my judgment, Article 15 and, indeed, Article 14 were
intended to assist a court which is asked to order the return of
a child to ascertain the law of the other contracting state, in
so far as that law is relevant to whether the removal or
retention was wrongful within the meaning of Article 3. It
cannot, as I see it, have been the intention that the courts of
the other contracting state should be asked to determine the
issue of the applicability of Article 3 in so far as it turns on
the meaning of the Convention itself, because that is something
which the courts of both countries are equally able to determine.
Indeed, they would be expected to arrive at similar
determinations. If, unhappily, this did not occur, the court
which is being asked to order the return of the child would be
bound to apply its own view of the Convention, particularly
where, as here, the Convention only takes effect by virtue of a
domestic Act of Parliament.
In this case we have the advantage of the reasons for his
Page No. 6
judgment which were give by Mr. Justice Anderson when making his
ex parte order on the father's application for custody and
guardianship. These reasons cover not only the law of Western
Australia in relation to custody, but also, I think, on a fair
reading, his view of the applicability of the Convention on the
facts as he knew them. The learned judge's views on Western
Australian law I, of course, accept unreservedly. The latter
are in a slightly different category in that, as I say, I think
that we are under an obligation to form our own view, albeit it
must be one which takes the fullest possible account of the views
which have been expressed by the learned judge.
So I turn to Mr. Justice Anderson's judgment. He refers to
a letter from the mother making it quite clear that she is
intending to leave Western Australia permanently and in which she
said:
"I've no intention of returning to Australia but if you want
to live in the UK I won't stop you from seeing the little
man. If you decide to stay in Australia I will keep my
promise and write about James."
Then he says this:
"It would seem to me that this is very much a case of a
child being removed from Australia without the consent of a
person who, while not at law up to the present time being
entitled to the custody of the child, is nonetheless a
person who is the natural father of the child and who has,
throughout his life, enjoyed de facto joint custody of the
child. I state that the plaintiff is not entitled at law to
the custody of the child because in Western Australia,
although the plaintiff is registered as the natural father
of the child, the Family Court Act provides that the natural
mother is at law the guardian and custodian of the child.
That is not to say, however, than an order of the court
cannot alter that situation."
The learned judge was quite clearly referring to section 35 of
the Family Court Act of 1975 of Western Australia, which
provides:
"Subject to the Adoption of Children Act 1895 and any order
made pursuant to this Division: [which, I take it, means
part of the Act] "where the parents of a child who has not
attained the age of 18 years were not married at the time of
the birth of the child or subsequently, the mother of the
child has the custody and guardianship of the child."
I think he was probably, but not necessarily since I have not
seen the whole Act, referring to section 36 when he said that
that was the situation which could be altered, because that
section begins by saying:
"An application to the Court for an order with respect to
the custody or guardianship of, access to, or welfare of, a
child may be made by -
(a) either parent; ..."
Reverting to the learned judge's judgment, he went on to say
this:
"It seems to me in the circumstances that it would be
Page No. 7
appropriate to facilitate the exercise by the plaintiff of
th rights that he claims that I should make an order
granting to him sole guardianship and custody of the child
with reasonable access to the defendant.
The orders that I am making are orders that will be sought
to be enforced under what is known as the Hague Convention.
I look at the opening words of that convention I have no
difficulty in following them in this case, and that is:
'The States signatory to the present Convention, 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, have resolved to conclude a
convention.'
It is clear, particularly reading the letters that the
defendant has written to the plaintiff, that without any
warning to the plaintiff this child was removed from the
state of his habitual residence. Whether the plaintiff is
ultimately the custodian or is merely granted access he
would be in a situation with the child living in the United
Kingdom and his living in Australia where, it he was granted
custody, the child would have to be returned to Australia
and where if he is granted access his opportunities for
exercising access would be severely limited both in terms of
costs and available time."
Then he deals with the question of service and went on to say:
"I declare that the removal of the child from Australia was
wrongful, that until further order the plaintiff be granted
sole guardianship and custody of the child with reasonable
access to the defendant ..."
and then he goes on to deal with questions of service on the
mother.
So far as "custody" is concerned, the learned judge was, as
I understand him, finding that the father and mother exercised
joint custody over James until the mother removed him to England,
but that only the mother had any right to custody, until the
order was made vesting that right in the father. That, of
course, occurred after James had arrive in England.
Since Articles 3, 4 and 5 of the Convention are solely
concerned with the rights of custody, i.e., 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 James' removal from Australia, reprehensible though
it may have been in the way in which the mother achieve it, could
constitute a wrongful removal within the meaning of the
Convention.
That brings me to the other limb of the application which is
based upon an alleged wrongful retention of James. Mr. Justice
Douglas Brown considered this in the following passage of his
judgment:
Page No. 8
"So far as wrongful retention is concerned, counsel were not
able to refer me to any case where the concept of retention
has been considered in any detail. In the case of C. v C.,
the Court of Appeals, having decided the question of
wrongful removal in favour of the father, did not go on to
decide what Butler-Sloss L.J. described as the 'difficult'
question of wrongful retention. In that case, unlike the
instant case, there was a post-removal order by the
Australian court for the return of the child. It is a very
strange omission from the order of the judge, although he
was apparently asked from as far as one can tell the
originating the application to grant an an injunction, that
the was no order ordering the mother to return the children
within the jurisdiction. In my view retention in Article 3
means retention after a period of lawful possession, which
would usually be access or contract. It does not mean
remaining in possession of the child after lawful removal
from the jurisdiction without consent, and I agree with the
way the matter was put by Balcombe, L.J. in Re E. (a minor)
(Abduction) [1989] 1 F.L.R. 135 were, at p. 142, he said
this:
'. . . the whole purpose of this Convention . . . it is to
ensure that parties do not gain adventitious advantage by
either removing a child wrongfully from the country of its
usual residence, or, having taken the child with the
agreement any other party who has custodial rights to
another jurisdiction, then wrongfully to retain that child.'
If that approach is right, as I think it is, it avoids
artificial assessments as to the date on which retention
becomes wrongful."
For my part, I entirely agree with the learned judge that
retention after a period of lawful possession - by which I think
h was quire plainly addressing his mind to a limited period of
possession such as commonly occurs when access rights are
exercised or where both parents agree to a child going abroad,
perhaps to visit grandparents or something of that sort, but the
intention being merely that it should be a temporary visit - is
the situation at which this provision is primarily addressed.
However, I am bound to say that, if the wording of the Convention
has a wider effect and sweeps up other situations, then, as I see
it, it would be our duty to give effect to it.
It seems quite clear that the father did obtain rights of
custody and of access at the moment when Mr. Justice Anderson
made his order on 12th April and, equally clearly in my judgment,
those rights have been breached by the mother keeping James in
this country. It is true that there has been no order for return
as such, but it must be apparent to the mother that, if she does
not return the child, she will at least fail to give the father
the rights of access to which he is entitled under the Western
Australian court order.
However, retention is only wrongful in terms of the
Convention if, to quote Article 3, "it is in breach of rights of
custody . . . under the law of the State in which the child was
habitually resident immediately before the removal or retention".
So, if the father is to make good his claim for wrongful
retention within the meaning of the convention, he has to show
that James was habitually resident in Western Australia on 12th
April or some later date.
Page No. 9
That has given rise to considerable discussion and we were
urged by Mr. Kersten to accept the view that habitual residence
is a question of fact. For my part, I would accept that. There
is authority in the case Kapur v Kapur [1984] F.L.R. 922 for the
proposition that habitual residence must have an element of
voluntariness and of residence for settled purposes. I would
accept that too. I think it is a very interesting question
whether James and his mother could establish habitual residence
in this country as at the moment when they arrived in this
country in circumstances in which they had every intention of
staying here indefinitely and of settling here.
But I do not think, with respect to the argument, that that
is the point. The question is: Did James' habitual residence in
Australia, which certainly existed up to 21st March, continue
thereafter? It may take time - I do not say it does - to
establish habitual residence, but I cannot see that it takes any
time to terminate it. James' intentions must, of course, be
those of his mother since he is two and a half, and there is no
doubt at all in my mind that the mother ceased to be habitually
resident in Western Australia from the moment when she left
Western Australia bound for England, with the intention of
remaining permanently in this country.
It follows, as I see it, that, while her conduct may well be
(and I think is) a breach of the father's rights of custody under
Western Australian law, the child James was not habitually
resident immediately before his retention. It follows that his
retention is not wrongful within the meaning of Article 3 of the
Convention.
I am aware that there may be some anxiety as a result of
this judgment lest mothers or fathers, where the couples are
married, can terminate habitual residence by one parent removing
th child from the country of habitual residence.
It must be pointed out that the case with which we are
concerned is unusual in that the mother is an unmarried mother
and, under the law of Western Australia, the father has no rights
whatever until the court gives them to him. But, in the ordinary
case of a married couple, in my judgment, it would not be
possible for one parent unilaterally to terminate the habitual
residence of the child by removing the child from the
jurisdiction wrongfully and in breach of the other parent's
rights. So that I do not anticipate - in fact, I am sure - that
this decision cannot be applied to the ordinary case of the
married couple.
The last thing I wish to say is that I regret having to
decide the case in this way in the sense that I think that the
father has been hardly done by on the part of the mother.
Nevertheless, we are concerned to apply the Convention in its
term and in the way in which I think it was intended to be
applied. On that basis I think that this appeal must be
dismissed.
LORD JUSTICE STAUGHTON: I agree.
SIR ROGER ORMROD: I agree.
MR KIRKWOOD: My Lord, I think no question of costs arises. My
client is assisted. I would ask you to say no order, but a
provision in the order for taxation.
Page No. 10
LORD MESTON: And also for my client who is legally aided, my
Lord.
THE MASTER OF THE ROLLS: And, of course, the usual restrictions
on identification apply. It May be that the easiest thing to do
is to refer to this as C. v. S..
LORD MESTON; Would your Lordships consider an application for
leave to appeal, this being, as your Lordship said, a new point?
THE MASTER OF THE ROLLS: We will certainly consider it. How
long do you want us to consider it for?
LORD MESTON: Immediately, my Lord!
THE MASTER OF THE ROLLS: We have considered it. No.
LORD MESTON: I am obliged.
_______
CURRIE
and
SLADE
_____________
JOINT OPINION
_____________
1. The facts of this case emerge clearly from the judgment of
Lord Donaldson MR of 17th May 1990, a copy of which should
be annexed to this Joint Opinion, and we therefore se no
virtue in repeating them.
2. The major difficulty which faced the father was that at the
time of the removal of James from Australia, he had no
custody rights at all within the meaning of the Hague
Convention, and there were dicta in previous cases
suggesting that a subsequent custody order vesting such
rights in him could not convert a lawful removal into a
wrongful detention. The father's success on this point made
new law, and in succeeding on it the father overcame what
appeared to us to have been the greatest hurdle in the way
of his appeal.
3. Having got over that hurdle, the father then failed on a
somewhat surprising point. The Court of Appeal held that
despite the fact that the Australian custody proceedings
were instituted within a week of James removal from
Australia and the order made within about 3 weeks of the
removal, James was not habitually resident in Australia at
the date of the order, and had indeed lost his habitual
residence the moment his mother had departed from that
country with him. It is well established that habitual
residence is not lost by mere temporary absences (see Kapur
v Kapur [1984] FLR 920, and the authorities there cited),
and the Court of Appeal accepted in the present case that
habitual residence is a question of fact. It is therefore
difficult to see how as a matter of fact James lost his
habitual residence in Australia (the only place in which he
had ever lived) the moment his mother left Australia, and
indeed the consequence would be that James would thereafter
Page No. 11
have been without a habitual residence until such time as a
new habitual residence would have been established for him
(itself a somewhat surprising outcome). Not only that, but
if habitual residence is a question of fact, as accepted by
the Court of Appeal, it is hard to see why the result should
be any different in a case where both parents are married,
as suggested by the Court of Appeal: in factual terms,
there is no difference between the two types of cases.
Furthermore, the effect of the decision is that the
abducting mother benefited from her own wrong in
unilaterally removing the child from his place of habitual
residence, thereby (if the Court of Appeal was correct)
depriving the courts of this country of jurisdiction to
order his return under the Convention.
4. It seems to us that in concluding that James lost his
habitual residence as soon as he left Australia, the Court
of Appeal came close to treating habitual residence as
something akin to domicile, which it is not, and in so doing
produced an outcome which on the face of it is contrary to
the intention of the Hague Convention. Quite apart from the
artificiality of distinguishing between the habitual
residence of a child of unmarried parents and that of a
child of married parents, there is the practical consequence
that the decision opens the way to unmarried mothers to
remove their children from the country of their habitual
residence even during the closing stages of a pending
custody proceedings between the parents, thereby forcing the
father to start fresh proceedings in the country to which
the children have been removed. There may be a further
deficiency in the judgment in the present case in that it
fails to give any consideration to the question of the basis
upon which the Australian court could have taken
jurisdiction to make its custody order, if, as the Court of
Appeal held, the child wa not habitually resident in
Australia at the time when the proceedings in Australia
started.
5. In our view, the decision of the Court of Appeal on the loss
of habitual residence was probably wrong, and it raises
issues of sufficient importance to justify an application to
the House of Lords for leave to appeal. The matter is
obviously very urgent, and we hope that the Legal Aid
authorities will treat it accordingly.
/s/ Ian Karsten
IAN KARSTEN Q.C.
Meston
MESTON
Queen Elizabeth Building
Temple
London
EC4
5 June 1990
Appeal from the Court of Appeal.
The father appealed with leave of the Appeal Committee (Lord
Bridge of Harwich, Lord Brandon of Oakbrook and Lord Goff of
Chieveley) granted on 3 Jul 1990.
Page No. 12
The facts are stated in the opinion of Lord Brandon of Oakbrook.
Their Lordships took time for consideration.
Judgment: 26.7.90
HOUSE OF LORDS
IN RE J. (A MINOR)
(ABDUCTION: CUSTODY RIGHTS)
26 Jul LORD BRIDGE OF HARWICH. My Lords, I have the advantage of
reading in draft the speech of my nobel and learned friend Lord
Brandon of Oakbrook. I agree with i and for the reasons he fives
I would dismiss the appeal.
LORD BRANDON OF OAKBROOK. My Lords, This appeal concerns the
interpretation and application to somewhat special facts of the
Convention on the Civil Aspects of International Child Abduction,
done at the Hague on 25 Oct 1980 ("the Convention"). Both
Australia and the United Kingdom are parties to the Convention,
which was given, with immaterial exceptions, the force of law in
the United Kingdom by the Child Abduction and Custody Act of
1985.
The material facts are these. Both the appellant ("the
father") and the respondent ("the mother") were born in England
and are citizens of the United Kingdom. The father is 38 and the
mother 32. In 1969 the father and in 1978 the mother went to
live and work in Australia. They met and in May 1987 began
living together at a home in Western Australia. They did not
marry, then or later. On 6 December 1987 the mother gave birth
to a boy whom I shall call "J." Both the mother and the father
were registered as J.'s parents and J. has dual Australian and
British nationality.
The relationship between the mother and the father,
following the birth of J., was not an harmonious one. In 1988
thee was a short separation between them when the mother left the
joint home taking J. with her. In about January 1989 there was a
second and longer separation when the mother again left the joint
home taking J. with her. during this second separation both the
mother and the father consulted solicitors. The father was made
aware that under the law of Western Australia, since he and the
mother were not married, the mother was entitled to the sole
custody and guardianship of J., unless he applied to a court and
obtained an order to the contrary. The father at one time
indicated an intention to make such an application but did not do
so. In May 1989 the mother and the father were reconciled and
she went back to live with him bringing J. with her.
In January 1990 the mother's parents, who live in Stockport,
went out to Australia for a holiday. They stayed with the mother
and the father at their jointly owned home in Western Australia.
The mother made a decision to leave the father and return to
England with J. to live there, initially at any rate at her
parents' home. In February 1990 the mother's father returned to
England, leave his wife behind. At the beginning of March 1990
th mother, with financial assistance from her father, bought
tickets for herself and J. to travel on the same flight to
England as that on which her mother was due to return. She
succeeded by various subterfuges in concealing her intention from
the father and on 21 March 1990 flew with J. and her mother to
Page No. 13
England, arriving there on 22 March 1990. It was then, and has
remained ever since, the settled intention of the mother not to
return to Australia but to make a long-term home for herself and
J. in England.
On or about 26 march 1990 the father applied to Supreme
Court of Western Australia for the custody of J. and other
relief. His application was supported by two affidavits sworn by
him. On 3 April 1990 Walsh J. ordered the application to be
transferred to the Family Court of Western Australia. On 12
April 1990 Anderson J. in the Family Court heard the application
on ex parte basis and made an order giving the father sole
guardianship and custody of J. He also gave directions for the
service of the order on the mother in england and this was
effected shortly afterwards. Finally by an amendment to his
order dated 26 April 1990 he made a declaration that the removal
of J. from Australia by the mother had been wrongful. It will be
necessary to consider later whether this declaration was rightly
made.
On 19 April 1990 the Australian authorities requested form
th authorities in the United Kingdom the return of J. to
Australia pursuant to the provisions of the Convention, and
solicitors action for the father made an application to that end
in the Family Division of the High Court. On 20 April 1990 the
application was heard on an inter partes basis by Douglas Brown
J. He concluded that, on the special facts of the case, the
mother had not been guilty of a wrongful removal or of a wrongful
detention of of J. within the meaning of the Convention and
dismissed the application The father appealed and on 17 May
1990 the Court of Appeal (Lord Donaldson of Lymington M.R.,
Staughton L.J. and Sir Roger Ormrod) dismissed the appeal. The
father now brings a further appeal to your Lordship's House with
the leave of the House.
The crucial feature of this case is that the mother was not
married to the father, either when J. was born or at any time
afterwards. In that situation section 35 of the Family Court Act
1975 of Western Australia as added by the Family Court Act
Amendment and Acts Repeal Act 1979, section 23, governed the
rights of the parties in relation to J. That section provides:
"Subject to the Adoption of Children Act 1986 and any order
made pursuant to this Division (i.e. this part of the Act),
where the parents op a child who has not attained the age of
18 were not married at the time of the birth of the child,
or subsequently, the mother of the child has the custody and
guardianship of the child."
The relevant provisions of the Convention 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
sub-paragraph (a) above, may arise in particular by
operation of law or by reason of a judicial or
Page No. 14
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. . .
"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 12
"Where a child has been wrongfully removed or retained
in terms of Article 3 and, at the date of the commencement
of the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a
period of less than one year has elapsed from the date of
the wrongful removal or retention, the authority concerned
shall order the return of the child forthwith.
The mandatory provisions of article 12 are qualified by
further provisions in article 13. These qualifications, however,
are not relevant to the present case.
The father's case is that the mother's removal of J. from
Australia to England, or alternatively her retention of J. in
England after such removal, was wrongful within the meaning of
article 3 of the Convention. The mother's case is that neighter
her removal of J. to England, nor her subsequent retention of him
there, was wrongful in that sense.
I consider first the question whether the removal of J. from
Australia to England by the mother was wrongful within the
meaning of article 3 of the Convention. Having regard to the
terms of article 3 the removal could only be wrongful if it was
in breach of rights of custody attributed to, i.e., possed by,
the father at the time when it took place. It seems to me,
however, that since section 35 of the Family Law Act of 1975 of
Western Australia gave the mother alone the custody and
guardianship of J., and no order of a court to the contrary had
been obtained by the father before the removal took place, the
father had no custody rights relating to J. of which the removal
of J. by the mother could be a breach. It is no doubt true that,
while the mother and father were living together with J. in their
jointly owned home in Western Australia, the de facto custody of
J. was exercised by them jointly. 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 when
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. I recognize that Anderson J. thought fit to
make a declaration that J. had been wrongfully removed from
Australia. I pay to his decision the respect which comity
requires, but the courts of the United Kingdom are not bound by
Page No. 15
it and for the reasons which I have given I do not consider that
it was rightly made.
I consider secondly the question whether the retention of J.
in England by the mother following his removal was wrongful
within the meaning of article 3 of the Convention. Having regard
to the terms of article 3 such retention could only be wrongful
if, immediately before it took place, it was in breach of rights
of custody possessed by the father. In order to decide that
question it is necessary to take account of the sequence in time
of the relevant events. The first relevant event was the
retention of J. by the mother after his arrival in England. That
began on 22 Mar 1990 and continued thereafter. The second
relevant event was the order of Anderson J. giving to the father
for the first time guardianship and custody of J. That order was
made on 12 April 1990, three weeks after the mother's retention
of J. began. There may be some doubt whether Anderson J. had
jurisdiction to make such an order but I shall assume for present
purposes that he had. The result was that it was not until 12
April 1990, or such later date as that on which the order was
made known to the mother, that her retention of J. in England
first became in breach of the right of custody newly conferred on
the father by Anderson J. The question then arises whether,
immediately before that breach occurred, J. was habitually
resident in Western Australia within the meaning of article 3 of
the Convention.
It is not in dispute that, immediately before his removal,
J. was habitually resident in Western Australia. It was argued
for the father that J. remained habitually resident in Western
Australia despite his removal to and retention in England by the
mother with the settled intention that he should reside there
with her on a long-term basis. It was argued for the mother
that, once she reached England with J. on 22 March 1990 and
retained him there with the settled intention to which I have
just referred, J. ceased to be habitually resident in Western
Australia and in particular ceased to be so resident well before
the date of the order of Anderson J.
In considering this issue it seems to me to be helpful to
deal first with a number of preliminary points. The first point
is that the expression "habitually resident," as used in article
3 of the Convention, is nowhere defined. It follows, I think,
that the expression is not to be treated as a term of art with
some special meaning, but is rather to be understood according to
the ordinary and natural meaning of the two words which it
contains. The second point is that the question whether a person
is or is not habitually resident in a specified country is a
question of fact to be decided by reference to all the
circumstances of any particular case. The third point is that
there is a significant difference between a person ceasing to be
habitually resident in country A, and his subsequently becoming
habitually resident in country B. A person may cease to be
habitually resident in country A in a single day if he or she
leaves it with a settled intention not to return to it but to
take up long-term residence in Country B instead. Such a person
cannot, however, become habitually resident in country B in a
single day. An appreciable period of time and a settled
intention will be necessary to enable him or her to become so.
During that appreciable period of time the person will have
ceased to be habitually resident in country A but not yet have
become habitually resident in country B. The fourth point is
that, where a child of J.'s age is in the sole lawful custody of
the mother, his situation with regard to habitual residence will
Page No. 16
necessarily be the same as hers.
In the light of these points the question which has to be
posed and answered is not whether, immediately before the
continued retention of J. because a breach of the father's rights
of custody under the order of Anderson J., J. had become
habitually resident in England. It is rather whether immediately
before that time J. had already ceased to be habitually resident
in Western Australia. to that second question it seems to me
that, on the special facts of this particular case, only an
affirmative answer can sensibly be given. The mother had left
Western Australia with a settled intention that neither she nor
J. should continue to be habitually resident there. It follows
that immediately before 22 Mar 1990, when the retention of J. in
England by the mother began, both she and J. had ceased to be
habitually resident in Western Australia. A fortiori they had
ceased to be habitually resident there by 12 Apr 1990, the date o
th order of Anderson J. The consequence is that the continued
retention of J. in England by the mother was never at any time a
wrongful retention within the meaning of article 3 of the
Convention.
On the basis that neither the removal of J. on the one hand,
nor his retention on the other, was wrongful within the meaning
of article 3 of the Convention the father's case cannot succeed.
It follows that I agree with the decisions of both the courts
below and would dismiss the appeal.
LORD ACKNER
My Lords,
For the reasons given in the speech of my noble and learned
friend, Lord Brandon of Oakbrook, I would dismiss the appeal.
LORD OLIVER OF AYLMERTON
My Lords,
I have the advantage of reading in draft the speech of my
noble and learned friend Lord Brandon of Oakbrook. I agree with
it and for the reasons he gives I would dismiss the appeal.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading in draft the speech
prepare by noble and learned friend Lord Brandon of Oakbrook. I
agree with it, and for the reasons he gives I, too, would dismiss
the appeal.
Page No. 17