P (A Child), Re [2004] EWCA Civ 971

Case No B1/2004/0659[2004] EWCA Civ 971
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION PRINCIPAL REGISTRY
Mr Justice Johnson
Venue Royal Courts of JusticeDate Wednesday 28 th July 2004
Strand,
London, WC2A 2LL
Before
THE RT. HON. LORD JUSTICE WARDTHE RT. HON. LORD JUSTICE SCOTT BAKERTHE HON. MR JUSTICE LAWRENCE COLLINS
Between
Appellant FatherAppellantRespondent MotherRespondent
P (A CHILD)
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Mr Andrew McFarlane Q.C. and Mr James Roberts (instructed by Messrs Lyons Davidson) for the Appellant Father
Mr Michael Nicholls (instructed by Messrs Hartnell Chanot & Partners) for the Respondent Mother
Judgment
[1]On 11th March 2004 Johnson J. ordered that the father’s application for the return of his 10 year old daughter to the United States of America pursuant to the provisions of Article 12 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction be dismissed. He also dismissed his application for her return under the inherent jurisdiction of the High Court. The father sought permission to appeal which Thorpe L.J. directed be heard on notice to the respondent with the appeal to follow if permission were granted. We give that permission. This is the judgment of the court on the appeal to which each member of the court has contributed.[2]The parents of this child are citizens of the United States. They met in 1988 or 1989 and began to live together a year later. They never married. Their daughter was born on 7th December 1993.[3]Their relationship broke down in 1999. In the summer of 1999 the mother removed herself from the home they shared and travelled to Tennessee to meet a man with whom she had become acquainted through the internet. Whilst she was away the father obtained an order in the Family Court of the State of New York held in and for the County of Yates on 6th August 1999 that the temporary placement of the child should be with the father, the mother to have visitation rights. That was later amended by consent on 18th October 1999 when the mother was granted sole and exclusive custody, the father granted visitation and an order was made that the child might not be removed from the State of New York without prior court order or written agreement of the parties, except for temporary vacations. The parties finally separated in November 1999. There were some difficulties over contact and the matter returned to the court on 19th January 2001 when the court confirmed the order that the child be in the mother’s custody, that the father had visitation rights and the court again ordered:- “That neither party shall remove the child from the State of New York except for temporary vacations without the prior written consent of the other party or prior court order.”[4]Soon thereafter the mother met and married an Englishman temporarily working in the United States of America. He suffers from a thyroid condition which necessitated his returning to Devon where his parents live for treatment on the National Health Service, the cost of that treatment in America being beyond his means. He later returned to the United States. In July 2002 it was necessary for him to come back to England to undergo an operation here.[5]It seems to be common ground that the mother and child visited England over the Christmas period of 2002 and returned to the United States in January 2003. She made that visit with the father’s consent which was given in writing. It is an odd feature of the case that that document has not been produced by the mother.[6]Her case is that she wished to return to Exeter to support her husband in trying times. Again there is some common ground. It is agreed that initially the mother made arrangements with the father that he would look after the child whilst she was in England. It must have been contemplated that she would be away for some considerable time because arrangements were also made that the child would visit the mother in England during her summer and Christmas vacation. The mother’s case is that as the time drew nearer for her departure, the child began to show more and more signs of distress at her going and she felt she had no option but to approach the father and ask if he would agree to the child accompanying her to England. She says his principal concern was with the length of her stay which she made clear to him would be for a minimum of eighteen months if not somewhere between two and three years. She had booked her own flights on 29th January. She reserved a flight for the child on 11th February 2003, the father by then, she avers, having consented to her departure for England. They were to fly on 17th February 2003. In her witness statement she says that being aware of the court’s requirement that removal for anything a temporary vacation had to be agreed in writing, she asked the father to come and see her in order to sign the necessary written consent. She says he visited on the afternoon of 16th February and signed a note written in her hand in these terms:- I, (A.P., the father), am aware that (A.H., the mother) is taking our daughter. I also agree with this visit and give my permission. The father asked for it to be dated and she wrote the date, “2/12/03”, on it. He then signed it in her presence. She explained:- “Because I had confirmed with him that we were likely to spend a minimum of eighteen months in England and that I could not be more specific as to the duration of our stay, and because it was not a holiday, I termed this trip a “visit” in the note. So when I wrote the note I knew that the father understood that, because I had been explicit in my instructions with him, the proposed visit would be for a minimum of eighteen months and possibly for as long as two or three years. I therefore believe that he consented to (the child) staying for that period of time.”[7]His account is different. He says that shortly after the mother’s return from England in January she telephoned to say she wanted to go back to England for about nine months as her husband was undergoing more treatment for his thyroid condition. She asked if the child could go with her but he refused. After several other discussions to the same effect where he made it clear he was not prepared to give her permission to remove the child from New York, the mother agreed their daughter should live with him and his new wife and stepchildren during school terms but travel to England during school holidays at a cost to be shared between them. He was to collect the child on 19th February, the day before the mother had said she was flying to England.[8]On 19th February he went to the mother’s home but found it empty. He made various attempts to find the mother but without success. He returned the following day but the house was still empty. It was the home in which they had lived together. He was able to gain access and found that “it had been trashed”, but he did discover her address in England.[9]He immediately telephoned the City Sheriff’s Department at Rochester Airport and their enquiries revealed that the mother and child had left the jurisdiction on 18th February. He then contacted his lawyer. On telephoning the mother in England, she told him that she would not return the child to him.[10]On the advice of his lawyers he took proceedings in the New York courts and on 12th November 2003 obtained an order that he be granted the sole legal and physical custody of the child who was to be returned to the United States. Sadly it was only then that he sought return under the Hague Convention.[11]In the light of the interesting submissions advanced on the mother’s behalf by Mr Michael Nicholls, it is necessary to set out a number of provisions in the Convention, some less well known than others. “Article 1. The objects of the present Convention are:-(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 3. The removal or 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-para. (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision … 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 7. Central Authorities shall co-operate with each other … In particular, either directly or through any intermediary, they shall take all appropriate measures: … (e) to provide information of a general character as to the law of their State in connection with the application of the Convention. 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 … for assistance in securing the return of the child. … The application may be accompanied or supplemented by: (f) a certificate or affidavit emanating from a Central Authority, … or from a qualified person, concerning the relevant law of that State. Article 12. Where a child has been wrongfully removed or retained in terms of Article 3 … the authority concerned shall order the return of the child forthwith. … Article 13. Notwithstanding the provisions of the preceding Article the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (a) the person, institution or other body having the care of the person of the child … had consented to or subsequently acquiesced in the removal or retention; … Article 14. 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 recognised 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. 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 a 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.” (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. (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. (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. (e) to provide information of a general character as to the law of their State in connection with the application of the Convention. (f) a certificate or affidavit emanating from a Central Authority, … or from a qualified person, concerning the relevant law of that State. (a) the person, institution or other body having the care of the person of the child … had consented to or subsequently acquiesced in the removal or retention; …[12]The two stark issues for the judge to resolve were first, whether or not the father had consented to the removal of the child from the United States of America, and secondly, whether or not he had a right of custody. He resolved both issues in the mother’s favour.[13]As the first, the judge recorded:- “As is customary, before me there has been no oral evidence by the parents themselves. The mother is present in court, the father remains in the United States.” Not surprisingly, no application was made by either side for oral evidence to be given.[14]In the light of the father’s steadfast denial that he had signed the note which on the face of it gave permission for the child’s visit, directions had been given at an earlier stage for each side to file reports from handwriting experts. The judge dealt with that in this way:- “14. … I have evidence from Mr Baxendale and from Mrs Ward-Gandy. Neither has given oral evidence and I base myself on my reading of their reports. Each of them has set out a detailed account of their qualifications and relevant experience. It would seem that, at least on paper, Mr Baxendale’s opinion merits greater weight than that of Mrs Ward-Gandy, but I am of course acutely conscious that had they given evidence orally my conclusion might have been to the contrary. However I have sought to base myself not upon the respective qualifications and experience as portrayed in writing, but upon the substance and the analysis which each has deployed in written opinion.15. I think I need not burden this judgment with a detailed review of the technicalities of what is involved. The conclusion of Dr. Baxendale is, “There is strong evidence that the signature is a genuine signature written by the father. I consider it most unlikely that it is a forgery”. Mrs Ward-Gandy concludes that the father, … most probably did not sign the disputed document of 16th February 2003. It appears to be a simulation by (the mother) … Doing the best I can to resolve the issues on the basis of the written evidence, I have preferred the opinion of Dr. Baxendale to that of Mrs Ward-Gandy.16. There is nothing of significance in the written evidence of the parents upon which either counsel has sought to suggest that one account is more likely than the other. However, it is odd that the document prepared by the mother for the father’s signature referred to “a visit”, that it did not suggest the children would be going to England for a lengthy period, and indeed that it did not specify any period. Had the mother intended to deceive by creating a forgery, one might have supposed that she would have drafted the document very differently and in terms which would purport to suggest that the father had in effect consented to (the child’s) permanent removal.17. As between counsel a nice point was said to arise relating to the onus of proof. It is of course the case that where consent is relied upon, it is for the supposed abducting parent – here the mother – to establish that the consent was given. Equally, where there is an allegation of forgery, there is an evidential burden that where such a serious allegation is made the balance of probability can be tipped in favour of the allegation only if the evidence is appropriately cogent. I have not found it necessary to decide the weight to be attached to these seemingly conflicting considerations. On the evidence that I have heard I am entirely satisfied that the document of 16th February 2003 was, in truth, signed by the father.”[15]He then dealt with the effect of that finding and held:- “18. The consequence of such a finding seems usually to prompt a reference to Article 13 of the Hague Convention, a submission by counsel with which I agree. The consequence of a finding that consent was given does of course give rise under Article 13 to a discretion … 19. Reliance upon a finding of consent under Article 13 does at least create a risk that the discretion then arising will be exercised to the opposite effect of the consent. However, it has seemed to me in considering this question on other occasions, and it is now submitted by Mr Nicholls on behalf of the mother, that a finding of consent has significance not only under Article 13 but under Article 3:
“A removal is to be considered wrongful where it is in breach of rights of custody of the other parent”
. A finding that the removal was consensual makes it impossible to argue that it was in breach of the rights of custody of which he or she who gave consent to the removal. Thus used, the consent does not give rise to a discretion but to a fundamental flaw in the application for return. In a sentence, a parent cannot consent and then assert that the removal was in breach of his or her rights of custody. Such an assertion is a nonsense.”[16]He did however consider what rights of custody were conferred upon this father under the law of New York and he held:- “20. … Here I have the advantage of written evidence from Professor Spector and Miss Marjorie Fields. Professor Spector has, since 1980, been Professor of Family Law in the University of Oklahoma, where he has developed a particular interest in international family law, and indeed has been a member of the United States delegation to one of the several Hague Conferences. Miss Marjorie Fields is an attorney licenced to practise law in the state of New York and is presently in private practice with a firm of solicitors in London. However, for thirteen years she was a judge of the Family Court in New York City and for three years until August 2002 an acting justice of the Supreme Court of New York State assigned to preside in matrimonial matters. Neither has given evidence orally but, by happy chance, Professor Spector has attended this hearing as he passes through London, and I hope that he will be tolerant of the inadequacies of my ex temporare judgment.21. There are three possible bases upon which this father might have had rights of custody under the law of New York at the time of (the child’s) removal. The first is based on the prohibition against removal from New York in the order of 19th January 2001. Both Professor Spector and Miss Marjorie Fields agree that such prohibition did not confer rights of custody under the law of New York. Secondly, it might have been possible that the rights of custody vested not in the father but in the family court in New York. Again, it is agreed that that does not arise. The third possibility is in issue between Professor Spector and Miss Fields. Miss Fields asserts that the visitation provision in the order of 19th November 2001 constitutes a right of custody under the law of New York. Professor Spector disagrees. It is an unattractive task for any judge to have to choose between conflicting opinions of two such distinguished experts in their own law, but having considered their two opinions, I prefer that of Professor Spector, albeit, having decided the father’s application under the Hague Convention on the basis of his having given consent, my finding is of no significance in these proceedings.22. Mr Roberts (counsel for the father) … was not able to point me to any English authority in which the English court had held that there was a right of custody for the purpose of the Convention here in England where there was no right of custody in the state of habitual residence. That does not seem to me to be, by any means, surprising.23. Article 3 requires there to have been a breach of a right of custody which existed under the law of the child’s habitual residence. If there was no right of custody arising under that foreign law then there could be no thought of the English court deciding that there was, nonetheless, a right of custody recognised in England for the purpose of the Convention. Indeed, Article 15 gives a judge in doubt about the matter the opportunity of requesting a determination by the authorities of the state of habitual residence, whether or not the removal or retention was wrongful; not wrongful at large but wrongful within the meaning of Article 3.24. Accordingly, had it been necessary for my decision, I would have concluded that in bringing (the child) to England, the mother did not act in breach of rights of custody attributable to the father or indeed any institution in the United States. I therefore dismiss the father’s application under the Hague Convention – the removal was by consent and the father had no rights of custody.”[17]He did, however, go on to consider the father’s alternative application made under the inherent jurisdiction of the English court. He referred to the practice of the court usually to return children unilaterally removed from a foreign jurisdiction if the application is made promptly enough. He indicated that that predisposition on his part “was the stronger because of the order made by my brother judge in New York in September 2003”. He concluded:- “However, in the light of the personal circumstances of the child and of the mother, … my strong predisposition is outweighed by the disadvantage, as I see it, to (the child) of my ordering a summary return.” He accordingly dismissed that application.[18]There are three broad issues: i) Consent: did the judge err in finding that the father had consented to the child’s removal from the United States of America? ii) Consent and Article 3: if the father did give permission, does that consent lead to the conclusion that the mother’s removal was not wrongful because it could not be said to be in breach of the father’s rights of custody, or does his consent operate only under Article 13 to give the court a discretion not to order an immediate return of the child? iii) Rights of custody: is the presence or absence of a right of custody to be judged as a matter of English law or New York law? Does the father have rights of custody?[19]Three sub-issues arise: i) what is the proper approach for the court to adopt when having to resolve disputed matters of fact; ii) upon whom is the burden of proof; and iii) how closely reasoned does the judgment have to be?[20]The law is well settled. In Re F (A Minor) (Child Abduction) [1992] 1 F.L.R. 548, 553 Butler-Sloss L.J. said:- “If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before a judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.” In Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam. 224, 232 she added:- “Admission of oral evidence in Convention cases should be allowed sparingly. If the issues between the parties cannot be resolved on affidavit the Article 13(b) criteria will not have been established. The child is returned pursuant to Article 12 and it will be for the court of habitual residence to determine the disputed issues with the opportunity to hear oral evidence and the parties cross-examined.”[21]He who asserts invariably carries the burden of proving his case. That is made explicit in Article 13 – “The requested state is not bound to order the return of the child if the person (who) opposes its return establishes that … (the other person) had consented to … the removal”. If authority is needed for that proposition one can find it in the judgment of Balcombe L.J. in Re E (A Minor) (Abduction) [1989] 1 F.L.R. 135, 143b and it is implicit in Butler-Sloss L.J.’s judgment in In Re F [1992] which we have just set out.[22]For reasons we give later in this judgment, we have decided that consent does not fall to be considered for the purpose of establishing the wrongfulness of the removal or a breach of rights of custody pursuant to Article 3 but only for the purpose of invoking an exercise of the court’s discretion pursuant to Article 13. It is thus unnecessary to decide where the onus of proof lies if, contrary our views, consent is relevant under Article 3. Our provisional view is that the claimant has to establish that he or she has rights of custody and that there is a prima facie breach. The burden would then shift to the defendant to establish consent. It would be wrong to require the claimant to prove a negative, the absence of consent, as a prerequisite to his entitlement to relief.[23]In English v Emery Reinbold & Strick Ltd. [2002] EWCA Civ. 605, [2002] 1 W.L.R. 249 the Court of Appeal said:- “16. We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost. 17. As to the adequacy of reasons, as has been said many times, this depends on the nature of the case: …19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. …20. The first two appeals with which we are concerned involved conflicts of expert evidence. In Flannery’s case [2000] 1 W.L.R. 377 Henry L.J. quoted from the judgment of Bingham L.J. in Eckersley v Binnie (1988) 18 Con LR 1, 77-78 in which he said that “A coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal”. … He (the judge) should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another. It may be that the evidence of one or the other accorded more satisfactorily with facts found by the judge. It may be that the explanation of one was more inherently credible than that of the other. It may simply be that one was better qualified, or manifestly more objective, than the other. Whatever the explanation may be it should be apparent from the judgment.”[24]Reasons for the judge’s preference for the opinion of Dr. Baxendale are sadly lacking. We simply do not know why he preferred his opinion and why he rejected Mrs Ward-Gandy’s. The judgment is flawed for that reason.[25]We do not think that the court should have allowed each side to file a report from a handwriting expert. This is a child abduction case and as Article 1 of the Hague Convention makes clear its underlying objectives are the prompt return of a wrongfully removed child and the protection of the rights of custody and access in the state from which the removal has taken place. As Butler-Sloss L.J. pointed out in Re F it is very much the exception for oral evidence to be permitted in Convention cases. These are cases in which, quintessentially, summary decisions are required to resolve in which of two states the child’s future is to be decided. Once there were going to be two handwriting experts the possibility that there would be a conflict of expert evidence that could only be resolved by the judge hearing the witnesses and seeing them cross-examined was greatly increased. A better course would have been for the court to have appointed its own expert.

Can we resolve the conflict ourselves?

[26]There has to be compelling reason to prefer one side’s evidence. There simply is no compelling reason to accept Dr. Baxendale’s opinion and reject that of Mrs Ward-Gandy judging that issue merely from a reading of their respective reports. As the judge himself was acutely aware, had they given evidence orally the conclusion might be very different.[27]When judging the written evidence of the parents the judge observed that neither counsel was able to point to anything of significance to suggest that one account was more likely than the other. The judge made a valid point that a fraudulent mother might have created a more convincing document. It is true the reference to a “visit” is hard to explain. Indeed, were it not for the date on the document, one might have thought that the consent there being given was the consent for the December visit, that particular document never having been produced. But nothing in those points can supply a convincing reason to believe one or the other. Counsel for the appellant did identify in skeleton arguments here and below and in submissions to us some features of the case which tended to support their client’s accounts. It was strange, they submitted, that the father should immediately call in the sheriff to investigate and then begin proceedings in New York if he had but two days previously given his written consent to the removal. Also the mother had at an earlier stage forged the father’s signature in order to obtain a joint credit card and spend on it. That may well be so but there is nothing in the evidence so convincing one way or the other which enables us to come to any conclusion on this issue. It follows that in our judgment the mother has failed to establish that the father consented to the removal of this child. Any other conclusion would be surprising because the issues joined involved serious dishonesty by one party or the other and every court should shrink from finding dishonest conduct without having enjoyed the advantage of hearing oral evidence and giving careful scrutiny of the demeanour of the witnesses as they give their evidence.

Is consent relevant for Article 3 or only for Article 13?

[28]This raises a question which has caused some divergence of view among judges of the Family Division. The argument advanced is that if a child is removed with the consent of the other party then it is difficult to characterise that removal as “wrongful” or “in breach of rights of custody”, the prerequisites for Article 3. Consequently if there is consent, then there is no wrongful removal at all and the exercise of discretion under Article 13 does not arise. At first blush one can see that the argument has some superficial attraction.[29]In Re C (Abduction: Consent) [1996] 1 F.L.R. 416, 417, however, Holman J. gave this answer to it:- “There is much force in this argument, but it ignores the fact that the Convention specifically places the issue of consent firmly within Art. 13. So far as is material Art. 13 reads:
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – (a) the person, institution or other body having the care of the person of 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; …”
It is quite clear from both the English and French texts that the word “subsequently” in Art. 13(a) only qualifies the word “acquiesced”, and that the words “had consented to” clearly refer to a consent before the act of removal or retention. It is also to be observed that although the issue of whether rights of custody were actually being exercised also forms part of the definition of “wrongful removal” within Art. 3 itself, that issue, too, is also specifically placed within Art. 13(a). This must have been done deliberately, and proper force must be given to it. The Convention clearly intends that once it has been shown that: (i) there has been a removal from or retention away from the state of habitual residence; and (ii) that is prima facie in breach of rights of custody; and (iii) consent is put in issue, then the onus shifts firmly onto the person or body which opposes the return of the child to prove that the removal or retention was by consent. Further, even if that is proved the court still has, and must exercise, a discretion.” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – (a) the person, institution or other body having the care of the person of 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; …” (i) there has been a removal from or retention away from the state of habitual residence; and (ii) that is prima facie in breach of rights of custody; and (iii) consent is put in issue,[30]In Re O (Abduction: Consent and Acquiescence) [1997] 1 F.L.R. 924, 940 Bennett J. observed that if Holman J. was stating a principle that consent must always come within Article 13(a), then he respectfully disagreed with him. He concluded that a concession made by Mr Everall Q.C. that there must be some cases of consent which fall to be dealt with under Article 3 was rightly made. Bennett J. held:- “In my judgment, whether consent comes within Art. 3 or Art. 13(a) will depend on the facts of each case. If the non-removing parent asserts or effectively has to concede that on the face of it he gave consent, but asserts that it is vitiated by deceit or threats or some other vitiating factor, which he must raise in order to establish that his consent was no true consent, then the matter falls to be dealt with under Art. 3. If, on the other hand, the very fact of consent is in issue, as it was in Re C, then the matter comes within Art. 13(a) and the burden falls upon the person who asserts consent to prove it.”[31]Charles J. entered the fray in T v T (Abduction: Consent) [1999] 2 F.L.R. 912, 918 saying:- “(a) I agree with the conclusion reached by Holman J. in Re C … and thus that the Convention must be construed as a whole and when this is done the existence or otherwise of consent to a removal or retention falls to be decided under Art. 13 because this issue is expressly referred to therein. …. (c) If it had been necessary for me to do so I would have declined to follow the reasoning and conclusion of Bennett J. in Re O.”[32]The Irish Supreme Court has also rejected Bennett J.’s analysis – see B v D (Child Abduction) [1998] 1 I.R. 219, 312-313.[33]We prefer the views expressed by that majority of opinion. If the giving of consent prior to the removal had the effect that the removal could never be classified as wrongful or in breach of the right of custody, then there would be no need for Article 13 at all. Whereas acquiescence is expressly recognised to be acquiescence subsequent to the removal, consent is not so limited in Article 13 and must, therefore, include permission which is given before the removal. If clear unequivocal and informed consent is given to the removal of a child, then it is difficult to see why the court should not exercise the discretion conferred by Article 13 to permit the child to remain in the country to which it was agreed he or she should go. The policy of the Convention is to protect children internationally from the harmful effects of their wrongful removal or retention. If a child is removed in prima facie breach of a right of custody, then it makes better sense to require the removing parent to justify the removal and establish that the removal was with consent rather than require the claimant, asserting the wrongfulness of the removal, to prove that he or she did not consent. Article 3 should govern the whole Convention and Article 13 should take its place as the exception to the general duty to secure the return of the child which is, after all, the basic principle of the Convention. Mr Nicholls cannot be entirely surprised that we reach this conclusion because it coincides with views expressed in paragraph 17.44 of the excellent textbook International Movement of Children written by him, Professor Nigel Lowe and Mr Mark Everall Q.C.[34]Mr Nicholls is, however, a spirited advocate. He submits that Article 13(a) can have no application in this case because it is confined to consent being given by “the person, institution or other body having the care of the person of the child” and this father never had the care of the person of the child. All he had, he submits, was a right of access. We reject that argument. As will be seen, we conclude that this father did have rights of custody. Pursuant to Article 5 those rights “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.” Where there is an order in force that the child should not be removed from New York without the father’s consent (or order of the court) he has the right to determine that the child should not reside outside New York unless the court orders otherwise. The right to determine the child’s place of residence is included within and is part of the rights relating to the care of the person of the child. That phrase in Article 13 must be given a wide meaning in order that the purpose of the Convention to protect rights of custody be fulfilled.[35]Mr Michael Nicholls argued that(1) Article 3 of the Convention, when it speaks of a “breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident”, provides a choice of law rule;(2) accordingly, whether a parent has rights of custody depends on the law of the state of the child’s habitual residence;(3) that state was New York;(4) under New York law (as determined by the federal court in Croll v Croll, 229 F. 3d 133 (2d Cir. 2000)) the order does not give custody rights;(5) accordingly there has been no wrongful removal for the purposes of Article 3(a);(6) decisions such as C v C (abduction: Rights of Custody) [1989] 1 W.L.R. 654 which hold that a ne exeat clause may have the effect of giving a right of custody for the purposes of the Convention were wrongly decided, and need not be followed by this court because they were decided per incuriam, having overlooked the choice of law provision in the Convention.[36]Mr Nicholls puts up the interesting argument that the underlying structure of the Convention forces the adjudicating state to defer to the law of the state of the child’s habitual residence. To support that argument he draws attention to matters such as the following:- i) Article 1(b) states the object of the Convention to be to ensure that the rights of custody under the law of one Contracting State are “effectively respected” in the other Contracting State. ii) Article 3 itself defines wrongful removal as being a breach of the rights of custody “under the law of the state in which the child was habitually resident”. iii) Article 7 requires co-operation between the Central Authorities and that requires the taking of appropriate measures to provide information “of a general character as to the law of their state in connection with the application of the Convention”. iv) Article 8 allows the application to be accompanied or supplemented by evidence “concerning the relevant law” of the state of habitual residence. v) Article 14 provides that in ascertaining whether there has been a wrongful removal, the requested state may take notice directly of the law of the state of habitual residence. vi) Under Article 15 the authorities may request from the authorities of the state of habitual residence a decision or other determination that the removal was wrongful within the meaning of Article 3.[37]Professor Robert Spector, a specialist on international family law who has been a member of the United States delegation at the Hague Conference, made an affidavit on behalf of the mother in which he referred to the decision of the United States Courts of Appeals for the Second Circuit in Croll v Croll, 229 F. 3d 133 (2d Cir. 2000) in which it was held that a ne exeat clause in a Hong Kong order did not constitute a “right of custody” for the purposes of the Convention. That interpretation was binding in New York which forms part of the Second Circuit. In his opinion, the ne exeat clause in the New York order did not confer a right of custody under New York law.[38]Ms Marjorie Fields, a New York lawyer practising in international family law in London, and who had been for 16 years a New York family court judge or acting justice dealing with matrimonial matters, made an affidavit for the father. Her opinion was that the ne exeat clause in the New York order was procedural, and gave no rights of custody under New York law: but New York custody law provides that rights of access are custody determinations to be enforced equally with rights of custody. Nevertheless under New York law (because of the federal decision in Croll v Croll) the order does not give rise to rights of custody.[39]The opinions are primarily directed to the question whether under New York law the ne exeat clause gives rights of custody for the purposes of the Convention, and Ms Fields appears to be saying that for domestic purposes New York law does regard the order as having granted rights of custody. But in any event, even if the experts were agreed that under New York law the order did not give rights of custody, we consider that the argument for the mother is ill-founded both as a matter of principle and of authority.[40]A very common problem in international conventions dealing with issues of private law is the interpretation of terms which have different meanings in the domestic laws of Contracting States. In such cases it is very important that the interpretation of the convention should be the same, as far as possible, in all Contracting States. Lord Browne-Wilkinson said in Re H (Abduction: Acquiescence) [1998] A.C. 72, 87:
“An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all Contracting States”
. The consequence is that normally terms which have different meanings under the laws of Contracting States will be given an autonomous Convention interpretation.[41]Where (as is usually the case in international conventions on private law) there is no international tribunal which can give definitive rulings, there will inevitably be differences of approach to interpretation. The report of the second Special Commission meeting to review the operation of the Convention in January 1993 discussed the divergence in national case law on the effect of ne exeat clauses, and its conclusion (which was referred to in Re V-B) was (Part 2, Conclusion 2): “The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system. Thus the expression “rights of custody”, for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention”.[42]Article 5(a) of the Convention provides a definition, albeit not exclusive, of “rights of custody”, which are to “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”.[43]In line with the general approach to international conventions on private law, there are several decisions of this court in which the view has been expressed that the task of the court is to construe “rights of custody” in the light of the Convention and not by reference to the domestic or conflicts rules of the law of the child’s habitual residence. In C v C (Abduction: Rights of Custody) [1989] 1 W.L.R. 654 Lord Donaldson M.R. said (at 663):
“We are necessarily concerned with Australian law because we are bidden by article 3 to decide whether the removal of the child was in breach of “rights of custody” attributed by the father either jointly or alone under the law, but it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the Convention definition of “rights of custody”
. Equally, it matters not in the least whether those rights would be regarded as rights of custody under English law, if they fall within the definition.”[44]Neill L.J.’s judgment is consistent with this approach, although at pages 657-658 Butler-Sloss L.J. said that the judge’s attention had not been drawn to the question whether under Australian law the ne exeat clause was capable of constituting a right of custody within the Hague Convention and that “in the absence of sufficient expert evidence on that point” the Court of Appeal had to do its best to consider whether the clause came within the definition of Article 5. This judgment is a minority view on the relevance of foreign law on this question.[45]In Re J (A minor) (Abduction) [1990] 2 A.C. 562, 568 Lord Donaldson M.R. said:- “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 insofar 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.”[46]In Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam. 224 Butler-Sloss L.J. said (at 229) that “having established the rights of the parent according to Colorado law it is for the English court to apply English law as to whether those rights are “rights to custody” within the Convention. Equally it is a matter of English and not Colorado law whether there is a breach of those rights”.[47]In that case the experts on the law of Colorado agreed that the statutes and the case law of Colorado did not contemplate “custody rights” absent the filing of a case requesting their determination. Millett L.J. said (at 236) “In my judgment the Colorado lawyers were asked the wrong questions. They should not have been asked whether the mother’s conduct in removing the child from Colorado was wrongful by the law of Colorado, whether at the time of the child’s removal the father had what a Colorado court would describe as “rights of custody”, or whether the child’s removal would be regarded by a Colorado court as being in breach of those rights. All these questions depend in part on the meaning attributed to expressions in the Convention; and these must be construed in accordance with English law as the law of the court whose jurisdiction under the Convention has been invoked. The Convention is an international convention and it is to be hoped that its terms will receive a similar interpretation in all the contracting states. It is to be construed broadly and in accordance with its purpose without attributing to any of its terms a specialist meaning which it may have acquired under domestic law: see In Re B (A Minor) (Abduction) [1994] 2 F.L.R. 249, 257, per Waite L.J. I take that purpose to include the summary return of a child who has been removed from the country of his habitual residence by the unilateral act of one parent where the other has an equal right under the law of that country to decide where the child shall live and does not agree to his removal. In my judgment the only question which the Colorado lawyers should have been asked what rights, if any, were possessed by the father in relation to his child at the time of his removal from Colorado.”[48]In Re V-B (Abduction: Custody rights) [1999] 2 F.L.R. 192 Ward L.J. said (at 196) that the starting point was to establish on the evidence before it what rights, if any, the father had under the foreign law in relation to his children at the time of their removal; and then to resolve, as a matter of English law, that being the law of the forum where the Convention has been invoked, whether those rights amount to “rights of custody” within Article 5. See also Re B (A Minor) (Abduction) [1994] 2 F.L.R. 249, at 260, per Waite L.J.; Re W (Minors) (Abduction: Father’s rights) [1999] Fam. 1, at 7-8 per Hale J.; Lowe et al, International Movement of Children (2004), paras. 14.37 et seq.[49]As one of the members of this court pointed out in argument, the cases which establish that a court may be “an institution or other body” with rights of custody under Article 3 are also inconsistent with the submission that the law of the child’s habitual residence determines what are rights of custody for Convention purposes. In the leading case, Re H (Abduction: Rights of Custody) [2000] 2 A.C. 291, there was no consideration given to the question whether under Irish law the Irish court had rights of custody. The question was, rightly, treated exclusively as a question of interpretation of the Convention, just as it was in the leading Canadian case on the same issue. In Thomson v Thomson (1994) 119 DLR (4th) 253, the Supreme Court of Canada plainly proceeded on the basis that the question was one of the interpretation of the expression “rights of custody” in the Convention. So also in W (V) v S (D) [1996] 2 SCR 108, at para. 22, the Supreme Court of Canada accepted the view of Mr Eekelaar, who was a delegate at the Hague Conference, that what the Convention means by rights of custody must be determined independently of the domestic law of the jurisdiction to which it applies.[50]In the United States Courts of Appeals for different Circuits have reached divergent views on whether a ne exeat clause confers rights of custody on a father, but they agree that the question is one of interpretation of the Convention, and is not to be determined by the law of the foreign country. In Croll v Croll, 229 F. 3d. 133 (2d Cir. 2000) and Furnes v Reeves, 362 F. 3d. 702 (11th Cir. 2004) the courts plainly proceeded on that basis. In the latter case the court said that in applying the Hague Convention the court must look to the definition of “rights of custody” in the Convention and not allow the somewhat different American concepts of custody to cloud the application of the terms of the Convention.[51]The issue whether a ne exeat clause confers rights of custody arose in the discussions at the Hague Conference prior to the adoption of the Convention, but the discussions appear to have been inconclusive: Beaumont and McEleavy, The Hague Convention on International Child Abduction (1999), pp. 76-77; Silberman (2003) Tex. J Int L 41, at 46, and n. 34. The practice of the courts of the Contracting States is not uniform, but this court has held that a ne exeat clause is capable of giving rise to rights of custody: C v C (Abduction: Rights of Custody) [1989] 1 W.L.R. 654. Following divorce proceedings in Australia, the Deputy Registrar in Sydney made a consent order which provided that the mother would have custody of the child, the father and the mother were to remain joint guardians, and neither the mother nor the father was to remove the child from Australia without the consent of the other.[52]The father had the right to determine that the child should reside in Australia or outside the jurisdiction at the request of the mother. He did not have the right to determine the place of residence in Australia but had the right to ensure that the child remained in Australia or lived anywhere outside Australia only with his approval. Neill L.J. said (at 663) that the right to give or withhold consent to any removal of the child from Australia, coupled with the implicit right to impose conditions, was a right to determine the child’s place of residence, and thus a right of custody within the meaning of Articles 3 and 5.[53]The decision was extended to Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam. 224 to a case where the prohibition on removal was implicit. It was distinguished in Re V-B (Abduction: Custody Rights) [1999] 2 F.L.R. 192, where the father’s right to be consulted was held not to be sufficient to give him a right of custody. See Also C v C (Minors) (Child Abduction) [1992] 1 F.L.R. 163.[54]In Re W (Minors (Abduction: Father’s Rights) [1999] Fam. 1, at 8, Hale J. referred to the doubts expressed by the Supreme Court of Canada as to whether, once a final custody order had been made, a right to veto which merely protected another person’s right of access would amount to rights of custody. But she recorded (at page 9) that Mr Michael Nicholls (who was then with the office of the Official Solicitor, the Central Authority for England and Wales under the Convention), and who appeared as amicus curiae, had informed the court that at the third meeting at the Hague Conference (in 1997) to discuss the operation of the Convention the C v C approach was commonly held amongst the Contracting States.[55]C v C and the subsequent decisions are of course binding on us unless we are satisfied that they were reached per incuriam. Even if those courts had had the benefit of Mr Nicholls’ researches and industry, they would, for reasons we have given, have been driven ineluctably to reject them. We are abundantly satisfied that the earlier decisions were not demonstrably wrong and were not given per incuriam. On the contrary, they were right.[56]For completeness we mention the more important recent decisions on this question in other countries, since some of them were canvassed before us. In Thomson v Thomson (1994) 119 DLR (4th) 253, the Supreme Court of Canada cast doubt on the view of the English courts that a ne exeat clause in a permanent custody itself gave a right of custody to the other parent. See also W (V) v S (D) [1996] 2 SCR 108, para. 38.[57]In Croll v Croll, 229 F. 3d 133 (2d Cir. 2000) the Court of Appeals for the Second Circuit decided by a majority that a ne exeat clause under a Hong Kong custody order did not grant a right of custody for the purposes of the Convention. Rights of custody were distinguished from rights of access. The ne exeat clause limited the mother’s custodial power to expatriate the child, but did not suggest that the power to determine the child’s place of residence was also the father’s. Article 3 required that for the removal to be wrongful the removal must be in breach of custodial rights which were actually exercised or would have been so exercised but for the removal. The right conferred by the ne exeat clause was not one which the father actually exercised, and it was circular to say that he would have exercised it but for the child’s removal. A ne exeat provision protected parental rights of custody and access, but it did not transmute one right into the other. The decision of the Second Circuit has been followed by the Fourth and Ninth Circuits: Fawcett v McRoberts, 326 F. 3d. 191 (4th Cir. 2003); Gonzalez v Gutierrez, 311 F. 3d 942 (9th Cir. 2002).[58]In Croll v Croll there was a forceful dissenting opinion by Circuit Judge Sotomayor. Because the mother had deprived the father and the court of the opportunity to exercise their veto power by surreptitiously removing the child from Hong Kong without first seeking consent, the veto power was one that “would have been so exercised” but for the unlawful removal. Article 3(b) therefore posed no barrier.[59]The dissenting opinion in Croll v Croll was preferred by the Constitutional Court of South Africa in Sonderup v Tondelli, 2001 (1) SA 1171 (CC). It was also preferred by the Court of Appeals for the Eleventh Circuit in Furnes v Reeves, 362 F. 3d 702 (112th Cir. 2004). Norwegian law provided that both parents must consent to the child moving abroad, and if the parents disagreed, the child must not move abroad until the matter had been decided. After consideration of the international case law and the academic literature the court concluded that the effect of Norwegian law was to give the father a right of custody under the Convention. The ne exeat right amounted to the right to determine the child’s place of residence for the purposes of Article 5. It as not a mere limitation on the mother’s custody rights. The father had shown that his rights were actually exercised or would have been so exercised but for the removal as required by Article 3(b).[60]Accordingly on this aspect of the case, we conclude that(1) the Convention requires the court to give the expression “rights of custody” an autonomous interpretation;(2) the reference in Article 3 to “rights of custody attributed to a person under the law” of the child’s habitual residence is not a choice of law of that state in the sense that if the domestic law (still less the conflict of laws rule) does not characterise the right as a right of custody, then it will not be such a right for Convention purposes;(3) the task of the court is to establish the rights of the parents under the law of that state and then to consider whether those rights are rights of custody for Convention purposes;(4) in considering whether those rights are rights of custody, the court is entitled and bound to give a purposive and effective interpretation to the Convention;(5) the rights given by the New York order to the father are rights of custody for Convention purposes, whether or not New York state or federal law so regards them either for domestic purposes or Convention purposes.[61]We are satisfied that this father has rights of custody, that the mother’s removal was wrongful and in breach of those rights and that she failed to establish his consent to that removal. It follows that pursuant to Article 12 the court must order the immediate return of this child to New York. If counsel are unable to agree on the form of the order to give effect to that immediate return, and we very much hope they will be able to agree, then the court will hear further submissions preferably in writing so that the court can rule thereon without the expense of a further oral hearing. The appeal is allowed accordingly.

Order

Appeal allowed; any further application to enforce order to come before a judge of the Family division; further orders as per agreed draft minute of order. (Order does not form part of the approved judgment)

Cited in 25 later judgments

and 16 more of the most senior