OPINION OF LORD PROSSER in petition of:
MURRAY SINCLAIR KILGOUR Petitioner,
against
JOANNE KILGOUR, Respondent
Act: Sir Crispen Agnew
McClure Naismith
Anderson & Gardiner
Alt: Mcfadyen QC
Brodies
24th Dec 1986
The petitioner and the respondent are husband and wife.
There are two children of the marriage, a boy and a girl born on
26th July 1983 and 13th September 1985 respectively. The parties
were married in Canada in 1981. Both children were born in Canada
and they are Canadian Nationals. Prior to the events which are the
subject matter of this petition the children lived with the
parties in Ontario. On or about 24th January 1986 the respondent
left the family home in Ontario. She took both children with her
and came to Scotland where she herself had formerly lived. Since
coming to Scotland she and the children have evidently remained in
Scotland although their exact whereabouts have been concealed.
The petitioner seeks an order "in terms of Article 12 or the
Convention on the Civil Aspects of International Child Abduction
as given the force of law in Scotland by the Child Abduction and
Custody Act 1985" inter alia for delivery of the children into the
custody or the petitioner. Answers having been lodged and a plea
having been taken by the respondent to the competency or the
petition in so far as seeking orders in terms or the 1985 Act I
heard counsel for the parties on that issue.
On behalf of the petitioner Sir Crispen Agnew drew my
attention to the terms or an Ontario statute, the Children's Law
Reform Act 1982, and in particular section 20(1) to (5) of that
Act. I was provided with a photocopy of what bears to be that
provision, according to which section 20(1) provides that except
as otherwise provided in this Part the rather and the mother or a
child are equally entitled to custody of the child. The statute
was said to apply to the parties and their children and to show
that as at 24th January 1986 the petitioner was a person entitled
(jointly with the respondent) to the custody of the two children.
I was also referred to a photocopy bearing to show the terms or
Clause 250.2(1) of the Canadian Criminal Code providing that
"Everyone who, being the parent. . .or a person under the age of
14 years, takes, entices away, conceals, detains, receives or
harbours that person in relation to whom no custody order has been
made by a court anywhere in Canada, with intent to deprive a
parent or guardian...of the possession of that person is guilty
or...an indictable offence." The 1982 Ontario Act, it was
contended, showed that the petitioner had rights of custody at
civil law, these were fortified by the Criminal Code and the
respondent had breached both the petitioner's civil rights and the
criminal law by her removal of the children from the family home.
In addition to his general right to joint custody under the 1982
Ontario Act the petitioner had subsequently obtained orders from
the Canadian Courts giving him sole custody of the children. He
had been granted such custody on an interim basis on 16th May 1986
and on a final basis on 25th August 1986. Productions 11 and 12
bear to be copies of these Court orders.
Mr Macfadyen for the respondent accepted that I could take
notice of these copy orders as showing the terms or the relevant
orders. Moreover while he was unable normally to concede that the
law applicable was as set out in the copies of section 20 or the
1982 Ontario Statute and Clause 250.2 of the Criminal Code he was
content that in the argument on competency I could proceed on the
basis that it was so. Reference was made to Article 14 of the
Convention on the Civil Aspects of International Child Abduction
(which hereinafter I refer to as "the Convention") which Article
is set out in Schedule 1 to the Child Abduction and Custody Act
1985 ("the 1985 Act"). I am satisfied that it is right for me in
relation to any issue concerning the Convention to proceed on the
basis of the documents which I have mentioned and to deal with
matters on the hypothesis that under the relevant Canadian law
the petitioner had indeed joint rights of custody as at 24th
January and a sole right or custody from 16th May onwards, that
sole right being made final on 25th August 1986.
I turn to the provisions or the 1985 Act and the provisions
of the Convention set out in Schedule 1 to that Act. By section 1
of the Act it is provided that subject to the provisions or Part 1
of the Act the provisions or the Convention set out in Schedule 1
shall have the force of law in the United Kingdom. By section 2
provision is made for the coming into force state or territory
specified in an Order in Council. In terms of the Child Abduction
and Custody (Parties to Conventions) Order S.I. 1159/1986, the
date or the coming into force or the Convention as between the
United Kingdom and Ontario is 1st August 1986. There being no
other provisions the Convention applies as between the United
Kingdom and Ontario "only in relation to wrongful removals or
retentions occurring on or after" 1st August 1986 (see section
212) of the 1985 Act). In terms or Article 3 or the Convention as
set out in Schedule 1 to the 1985 Act the removal or retention or
a child is to be considered wrongful where "(a) it is in breach of
rights of custody attributed to a person...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 or removal or retention those rights were
actually exercised, either jointly or alone, or would have been so
exercised but for the removal or retention." Article 3 further
provides that the rights of custody mentioned in sub-paragraph
(a) may arise in particular by operation of law or by reason of a
judicial or administrative decision. Article 4 provides that the
Convention shall apply to any child who was habitually resident in
a Contracting State immediately before any breach of custody or
access rights and that the Convention shall cease to apply when
the child for the purposes of the Convention "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.
By Chapter III of the Convention provisions are made for the
return of children in certain circumstances. In particular Article
8 provides inter alia that any person claiming that a child has
been removed or retained in breach of custody rights may apply
either to a 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 relevant
Central Authority in the United Kingdom in the present case is the
Secretary of State for Scotland. By Article 11 it is provided that
the judicial or administrative authorities of contracting states
shall act expeditiously in proceedings for the return of children
and if the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement
of proceedings various steps may be taken to request a statement
of the reasons for the delay.
Article 12 contains the following provision: "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." It is
further provided in Article 12 that the judicial or administrative
authority even where the proceedings have been commenced after the
expiration of the period of one year referred to in the preceding
paragraph shall also order the return of the child "unless it is
demonstrated that the child is now settled in its new
environment". By Article 13 it is provided that notwithstanding
the provisions of Article 12 the judicial or administrative
authority is not bound to order the return of the child if the
person...which opposes its return establishes that "(a) the
person...having the care of the person or the child was not
actually exercising the custody rights at the time of removal or
retention, or had consented to or subsequently acquiesced in the
removal or retention" or "(b) there is a grave risk that his or
her return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable situation."
The parties were at one in proceeding on the basis that the
relevant removal for the purposes of the Convention is a removal
in breach of custody rights rather than a removal from the country
where the child previously lived. The need for the remedies of the
Convention will only arise when the child has been thus removed
from that country but the relevant removal is the prior one in
breach of the custody rights of the parent. There was no real
dispute in the present case that the respondent's departure from
the family home on 24th January 1986 constituted a wrongful
removal for the purposes of the Convention. It was however common
ground that at the date of that removal the convention was not in
force as between the United Kingdom and Ontario and that having
regard to the provisions of section 2(2) of the 1985 Act the
remedies provided by the Convention were not available in respect
of that wrongful removal in January 1986. The issue between the
parties as to the applicability of the Convention thus turned not
on "removal" but on the meaning of "retention" and in particular
the meaning of the references in the Convention to the date or
time of wrongful retention.
On behalf of the petitioner Sir Crispen Agnew contended that
while "removal" was a single event occurring at a particular time
or on a particular date "retention" was something different in
kind. "Retention" was something continuous, it occurred not merely
when it began but so long as there was a retention of the children
in breach of custody rights. A wrongful removal at a date prior to
the coming into force of the Convention as between the United
Kingdom and Ontario would not be caught by the Convention's
provisions. A wrongful retention commencing before the Convention
thus came into force would not initially be caught but would be
caught upon the Convention coming into effect, as a retention
which then became a wrongful retention. Further and in any event
in the present case there was a new wrongful retention which
commenced on 26th August 1986 (after the Convention had come into
force) when the petitioner was granted the order for full custody.
This was a new event which constituted a new disobedience on the
part of the respondent since on that date for the first time she
was in breach of new rights then conferred on the petitioner in
respect of the children's custody. In these circumstances while
the Convention did not apply to the original removal or to the
original retention it could and did apply to the retention which
became wrongful as at 1st August or in any event to the retention
in breach of the petitioner's full custody rights on 25th Aug
1986. In these circumstances the Convention applied to the present
case and the present application was accordingly competent. I
should so determine and having done so should put the case out By
Order at an early date so that the further procedure could then be
determined. Counsel further moved me ad interim to suspend a
Sheriff Court action which has been raised by the respondent and
in which an interim interdict has been pronounced against the
petitioner. I should further interdict the respondent ad interim
from removing the children from the Scottish jurisdiction having
regard to the history of concealment and changes of addresses. I
should moreover grant such suspension and interdict at common law
if I were not satisfied that the Convention applied and that I had
the requisite powers by virtue of the 1985 Act and the Convention.
On behalf of the respondent Mr Macfadyen contended that on a
proper construction of the 1985 Act this was not a case to which
the Convention applied. In so far as the petition founded upon the
Convention it was therefore incompetent. The question was whether
the petitioner could point either to a wrongful removal or to a
wrongful retention "occurring on or after" 1st August 1986 for the
purposes of section 2(2) of the 1985 Act. Any question in relation
to "removal" could be set aside as irrelevant since the only
removal was in January and that was plainly not within the terms
of section 2(2). It was unsurprising that for an individual act
such as removal the procedures of the Convention were not applied
retrospectively to catch an act before the law in question came
into force but in the present case the whole issue turned on
questions relating not to "removal" but to "retention".
Mr Macfadyen considered first whether the word "retention" as
used in the Convention could have any sensible content other than
the "continuing" meaning which had been contended for on behalf of
the petitioner. He submitted that it was not difficult to think of
situations where wrongfulness arose during rightful possession.
Obvious examples were the case where a parent exercising
residential access fails to return a child. In such cases there is
nothing that can properly be described as a removal. What occurs
is rightly described as retention not in any continuing sense but
in a sense which can be regarded as a single event analogous to
removal as a denial of the other parent's rights. The presence of
the word "retention" along with the word "removal" was thus
sensible and understandable to cover such cases where wrongfulness
arises without removal. There was no need for any notion of
continuity in relation to retention any more than in relation to
removal.
Mr Macfadyen acknowledged that this was not enough for the
respondent to succeed. It might be that retention was intended to
mean some continuing state of affairs rather than or as well as
such a single event of emerging wrongfulness. There were however,
according to Mr Macfadyen, various indications that in the
Convention wrongful retention was indeed seen as a single event
occurring at a specific point in time rather than as a continuing
state of affairs. Counsel drew attention in particular to the
provisions of Article 12. It was plain having regard to those
provisions that retention, like removal, was seen as having a
particular date since a period of twelve months had to be measured
from that date. If retention was regarded as a continuing wrong it
would never have such a specific date. Indeed it could never be
that twelve months would have elapsed since the wrongful retention
so as to give rise to the change provided for in Article 12 as to
the criteria for return. Mr Macfadyen maintained that this concept
of retention as a single wrongful act or event found further
support in Article 13(a) of the Convention which refers to a
person "not actually exercising the custody rights at the time of
removal or retention" and which moreover refers to that person
having consented to or "subsequently acquiesced in the removal or
retention". These provisions demonstrated that while retention
like removal would produce a state of affairs which continued it
was like removal seen as a single event occurring at a particular
time and with a period after its occurrence ("subsequently") in
which an acquiescence in that prior event and its consequences
might occur. Counsel also referred to the terms of section 2(2)
itself. The concept of wrongful removals or retentions "occurring"
on or after the date when the Convention came into force between
two States suggested that retention like removal was an occurrence
which would arise identifiably after after that date rather than
consist in a mere continuance of a retention or wrongful retention
which was already in existence. In reply counsel for the
petitioner accepted that in Article 12 "the date of the
wrongful... retention" must mean a specific date. He maintained
however that these words could be read as meaning the date when
the retention started. He contrasted the use or the word "date" in
Article 12 with the use of broader expressions such as "at the
time of" in Article 13. He contended that this contrast showed
that while in Article 12 the reference was to a specific start
date elsewhere the concept of retention had its natural continuing
sense.
I do not consider that the Convention is as unambiguously
drafted as it might have been. I have however come to the view
that the contentions for the respondent are well-founded. As
counsel for the respondent submitted the emphasis in the statute
and the convention is upon abduction. It seems plain to me that
any Act dealing with abduction in the sense of removal would
sensibly attempt to regulate in the same way as it regulates
removal those cases where there is an act of omission or
commission which achieves the same result as removal and
constitutes an inversion of existing custody rights. There will be
a variety of situations in which one has such an equivalent of
abduction by removal. There is perhaps no one word which is
ideally suited to describing all such equivalents. However the
word "retention" appears to me to be quite naturally used and a
quite accurate expression to use in such a context and for such a
purpose. After any such initial act (whether by positive removal
or by some failure to hand over or return a child) there will be a
state of affairs which can appropriately be described as
"retention". In that sense it has the continuing meaning which was
emphasised by counsel for the petitioner. I would accept that that
is a natural meaning for the word. I do not however consider that
it is an unnatural use of the word "retention" to use it for an
initial act of omission or commission. Having regard to the way in
which the word is coupled with removal throughout the Act I would
be disposed to think that the word was used in this sense of an
original act even if there were no more positive indications that
that is its intended sense. Having regard to the terms of Article
13 one is in my view given a very firm indication indeed that the
retention in question is an initial act of retention comparable in
its effects to the act of removal, and that the Convention is not
primarily concerned (either in cases where the initial act is one
of removal or in cases where the initial act is one of retention)
with the new state of affairs which will follow on such initial
acts and which might also be described as retention. The
submission by counsel for the petitioner that Article 13 could be
read as referring to the date of the start of retention needs very
little-rephrasing to amount to a concession that in speaking of
the date of retention that article is speaking of an initial
retention without regard to continuance. If in Article 12 use of
the word "retention" thus refers to initial intention it should in
my view be so understood elsewhere in the Convention and in the
Act unless there was some very firm indication to the contrary.
Even in Article 13 reading the article as a whole it seems to me
that the references to "the time of" retention and to events
occurring "subsequently" positively bear out the construction
which I have suggested is appropriate for Article 12.
Moreover in the present case we are concerned primarily with
the construction of Section 2(2) of the Act which regulates the
coming into force of the Convention as between the United Kingdom
and Ontario. That sub-section like Article 13 uses the word "date"
and is plainly referring to a specific date for the coming into
force of the Convention. In referring to wrongful removals or
retentions "occurring" on or after that date the sub-section in my
view plainly envisages that removals or retentions will indeed
occur on a specific date be it the date when the Convention comes
into force or a date thereafter. I would add too that if retention
is to be given its continuous meaning, then in any case where it
is necessary to invoke the Convention after it has come into force
there would almost necessarily be a continuing retention at the
time when proceedings under the Convention were raised. If that
was all that was required it would not apparently be necessary to
exclude from the scope of the Convention wrongful removals prior
to its coming into force since the retention which follows on the
removal would give a sufficient ground for action. In my opinion
there is a contrast in the Act and in the Convention between
"removal" cases and "retention" cases and section 2(2) is
excluding from the scope of the Convention both categories of case
if the original wrongful act occurred prior to the Convention
coming into force. It will thus be of no avail in relation to
either type of case that there is a continuing retention at the
date when the Convention comes into force between any two States.
In relation to the alternative submission by counsel for the
petitioner that there was a new wrongful act on 25th August when
full custody rights were granted to the petitioner I have come to
the view that there is no real force in this submission. The
Convention is not concerned with the basis of custody rights but
with their existence regardless of basis. The closing words of
Article 3 make it plain that the relevant rights of custody may
"arise" in a variety of ways. In the present case the petitioner's
rights of custody "arose" initially by statute jointly with the
respondent and may be seen as having "arisen" in the form of a
sole right of custody when the interim order was obtained in May.
I do not require to consider whether a petitioner who had joint
rights before the Convention came into force and had obtained his
first grant of sole custody rights after that date could claim
that this latter event was a new "retention". My impression is
that he could not do so. In any event I do not consider that a
person who already has sole rights on an interim basis before the
coming into force of the Convention can validly claim that the
final decree making those rights permanent is an event upon which
his rights of custody can be said to arise or to give some new
basis for alleging a new "retention". Quite apart from the
ordinary meaning of the language it appears to me (as was
submitted by counsel for the respondent) that it would produce
very strange results in the operation of Article 12 if a person
whose rights of custody had been breached long before could obtain
a grant of custody from the Court for the first time and thus
provide himself with a new base date for the running of the year
which determines the criteria for return of a child. That
consideration would apply quite apart from the particular problems
which arise in relation to the coming into force of the
Convention. I should mention finally that counsel for the
petitioner contended that the very fact that the fact that the
Canadian Central Authority had issued a request under the
Convention was an indication that there had been a wrongful
removal or retention. It does not appear to me that an executive
act of this kind carries any particular weight when one comes to
construing the Convention. If there had been a determination under
Article 15 that would be a different matter. I do not however see
any need in the present case to seek such a determination.
On the whole matter I have considerable sympathy with the
petitioner. The respondent's actions in January appear to be
precisely the type of wrong, which the Convention is designed to
control. I do not however consider that those actions or their
consequences are controlled by the Convention in the present case,
having regard to the date from which the Convention came to have
the force of law in the United Kingdom. I accordingly uphold the
contentions for the respondent, I sustain the plea to competency
and dismiss the petition in so far as it is founded upon the
Convention. In the circumstances I see no requirement for interim
orders.