UNITED KINGDOM - ENGLAND AND WALES
House of Lords
Superior Appellate Court
22 October 2008
Appeal allowed, return refused
The House of Lords held that the Court of Appeal had misapplied the core test, for there was no distinction to be drawn between a "flagrant or gross violation" of a right and its "complete denial or nullification". The expressions were to be assimilated, although the fact remained that the test was a very hard one to satisfy.
On the facts of the present case the standard had been achieved, for not only would the mother and child's right to respect to their family life be flagrantly violated on their return to Lebanon, but it would be completely denied and nullified.
Giving the leading opinion, Lord Bingham held that in no meaningful sense could occasional supervised contact visits, outside of the mother's home, be described as family life. The effect of return would be to destroy the family life of mother and child as it currently existed.
In reaching this conclusion particular attention was given by the House of Lords to the nature of family life which existed in Lebanon prior to the move to the United Kingdom. It was noted that there had been no familial contact between mother and father since the birth of the child, the father had not seen the child since the day he was born, and there had been no contact with any members of the paternal family.
The only family life wthat existed, and had existed for at least for the last five years, was that of mother and son. This family life could not be replaced by a new relationship between father and son. In this Lord Bingham recalled the actions of the father towards the mother, the father's imprisonment for failing to support the son, and the son's hostile attitude in respect of the father.
Drawing a contrast with the context which would ordinarily prevail in cases of child abduction, Baroness Hale noted that in the present case it was not the wrongful removal which had interfered with family life for there was no family life between the child and father or the paternal family. There was unanimity on the finding that Article 8 would be breached were a return to be enforced. The Law Lords also discussed Shari'a law as applied in Lebanon.
Lord Bingham noted that whilst the family law applied in Lebanon would fall foul of both Article 8 and Article 14 of the ECHR, Lebanon was not a party to the European Convention. He acknowledged that Lebanese family law reflected a religious and cultural tradition which was respected and observed throughout much of the world.
He therefore questioned whether it would have availed the mother to have tried to rely on the arbitrary and discriminatory character of the Lebanese custody regime had she not shown that the return would have nullified her and her son's Art 8 right to family life.
Lord Hope was more definite in his assessment, he stated: "The return of a woman who arrives here with her child simply to escape from the system of family law of her own country, however objectionable that system may seem in comparison with our own, will not violate article 8 read with article 14. Domestic violence and family breakdown occur in Muslim countries just as they do elsewhere.
So the inevitable result under Shari'a law that the separated mother will lose custody of her child when he reaches the age of custodial transfer ought, in itself, to make no difference. On a purely pragmatic basis the Contracting States cannot be expected to return aliens only to a country whose family law is compatible with the principle of non-discrimination assumed by the Convention." Lord Carswell expressed his support for both views.
Lord Brown did likewise and added: "It is certainly not the arbitrary and discriminatory character of the rule of Shari'a law dictating that at the age of seven a child's physical custody automatically passes from the mother to the father (or another male member of his family)-wholly incompatible though such a rule is with certain of the basic principles underlying the Convention-which, uniquely thus far in the jurisprudence both of Strasbourg and the UK courts, qualifies this particular "foreign" case as one for protection under article 8."
Baroness Hale however did not endorse such a standpoint. In her comments she remarked that the discriminatory laws of Lebanon were the reason why there was a real risk the child would be deprived of the only family life he had or had ever had. They were also the reason why the interference could not be justified. Nevertheless she recognised that it was the effect upon the essence of the child's right which was central in the instant case.
As regards the application of the ECHR where the return of a child to a non Council of Europe State is at issue see also: Eskinazi and Chelouche v. Turkey (Application No 14600/05) [INCADAT Reference: HC/E/ 742].
Preparation of INCADAT commentary in progress.
Preparation of INCADAT commentary in progress.
When a parent seeks the return of a child outside the scope of the Hague Convention, or another international or regional instrument, the court seised will have to decide how to balance the interests of the child with the general international policy of combating the illicit transfer and non-return of children abroad (Art. 11(1) UNCRC 1990).
Shortridge-Tsuchiya v. Tsuchiya, 2009 BCSC 541,  B.C.W.L.D. 4138, [INCADAT cite: HC/E/CA 1109].
United Kingdom - England & Wales
Appellate courts have struggled to agree on the appropriate balance to be struck.
An internationalist interpretation, favouring an approach mirrored on that of Hague Convention, was adopted by the Court of Appeal in:
Re E. (Abduction: Non-Convention Country)  2 FLR 642 [INCADAT cite: HC/E/UKe 589];
Re J. (Child Returned Abroad: Human Rights)  EWCA Civ. 417,  2 FLR 85 [INCADAT cite: HC/E/UKe 586].
However, in the earlier case Re J.A. (Child Abduction: Non-Convention Country)  1 FLR 231 [INCADAT cite: HC/E/UKe 588] a return order was not made, there being concerns as to whether the legal system in the foreign jurisdiction would be able to act in the best interests of the child. A factor in that case was that the abducting mother, who was British, would not be entitled to relocate from the child's State of habitual residence unless she had the consent of the father.
In Re J. (A Child) (Return to Foreign Jurisdiction: Convention Rights),  UKHL 40,  1 AC 80, [INCADAT cite: HC/E/UKe 801] the House of Lords expressly stated that the approach of the Court of Appeal in Re J.A. (Child Abduction: Non-Convention Country)  1 FLR 231 [INCADAT cite: HC/E/UKe 588] was the one to be preferred.
The House of Lords held that the rationale of the Hague Convention necessarily meant that the State of refuge might on occasion have to do something which was not in the best interests of the individual child involved. States parties had accepted this disadvantage to some individual children for the sake of the greater advantage to children in general. However, there was no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which were not parties to it. In a non-Convention case the court must act in accordance with the welfare of the individual child. Whilst there was no ‘strong presumption' in favour of return on the facts of an individual case a summary return may very well be in the best interests of the individual child.
It may be noted that in Re F. (Children) (Abduction: Removal Outside Jurisdiction)  EWCA Civ. 854,  2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982] a trial judge who felt compelled to discharge his original order for return in the light, inter alia, of the ruling in Re M. had his judgment overturned. The Court of Appeal did not, however, comment on the ruling of the House of Lords and the case ostensibly turned on the existence of new evidence, pointing to the inevitability of the mother's deportation.
In E.M. (Lebanon) v. Secretary of State for the Home Department  UKHL 64,  1 A.C. 1198 [INCADAT cite: HC/E/UKe 994] an immigration case centred around the wrongful removal of a child from a non-Convention country, the House of Lords ruled that a return would lead to a violation of the child's and his mother's right to family life under Article 8 of the European Convention on Human Rights (ECHR). However, it must be noted that on the facts the child's only ‘family life' was with the mother, the father having had no contact with the child since the day of his birth. A majority of the panel (4:1) held that the discriminatory nature of Lebanese family law, which would have led to the automatic transfer of care for the child being passed from mother to father, upon the child reaching his 7th birthday, would not have led to a breach of the ECHR.