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Recherche de décisions
Nouvelle rechercheAFFAIRE
Nom de l'affaire
Re B. (A Minor) (Abduction: Father's Rights) [1999] Fam 1
Référence INCADAT
HC/E/IE 504
Juridiction
Royaume-Uni - Angleterre et Pays de Galles
High Court (Angleterre et Pays de Galles)
Première instance
États concernés
Royaume-Uni - Angleterre et Pays de Galles
Irlande
Décision
25 March 1998
Définitif
Droit de garde - art. 3
Déclaration d'illicéité en application de l'article 15 refusée
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INCADAT commentaire
Mécanisme de retour
Décision ou attestation selon l'article 15
Droit de garde implicite
Droit de garde confié à un tribunal
La notion de droit de garde au sens de la Convention
RÉSUMÉ
Résumé disponible en
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Facts
On 8 January 1997 the father obtained an ex parte order prohibiting the mother from removing the child from the jurisdiction. At the first inter partes hearing on 15 January both parents were prohibited from doing so. However, at a conciliation appointment on 18 February 1997 they agreed that there would be a residence order in favour of the mother and an order for reasonable contact with the father. The prohibited steps orders were discharged.
In September, with the father's knowledge, the mother went to visit her family in Ireland. After she returned, there was a further domestic incident in mid-October, which was reported to the police. Soon afterwards the mother returned to Ireland, she then told the father that she did not intend to return.
Ruling
Grounds
Rights of Custody - Art. 3
Although the mother alone had parental responsibility in respect of the children, the father argued that the removal was in breach of rights of custody. This led the court to make a detailed examination of the meaning of rights of custody for Convention purposes. The Court noted that there appeared to be a consensus among most contracting states which would stretch "rights of custody" to include a right to veto leaving the country. In English law under section 1 of the Child Abduction Act 1984, the fact of having parental responsibility brings with it a right of veto, even if there is no court order in force prohibiting removal. The Court stated that there was no consensus to stretch the concept of ‘rights of custody’ beyond a right of veto. The Court considered the ruling of the Court of Appeal in Re B (A Minor) (Abduction) [1994] 2 FLR 249 [INCADAT cite: HC/E/UKe 4] where the concept of inchoate rights of custody was accepted. The Court held that this and subsequent case law was an example of the courts doing their utmost to protect children from being taken away from their primary carers. In the instant case however the mother had always been the child’s primary carer. She had not abandoned the care of her child to the father or to anyone else. Moreover the father was not even living in the same household as the child at the time when she was removed. Consequently it could not be said that the father possessed any inchoate rights of custody. As to whether the removal was in breach of rights of custody attributable to the court, the Court noted that the proceedings between the parents had been concluded and a final determination of the mother's custody rights had been made. Therefore it could not be said that the court possessed custody rights. It was further argued on behalf of the father that there was an agreement between the parties that the mother would not take the child out of the jurisdiction except for short periods. On the evidence the Court ruled that there had been no such agreement. Nevertheless the trial judge held that even if she had found such evidence she would have found it difficult to bring within the Convention understanding of custody rights. She noted that English common law did not permit parents to surrender their parental responsibilities (see also section 2(9) of the Children Act 1989) nor did it recognise or enforce private agreements about the upbringing of children. Rather, it regards such agreements as contrary to public policy: see Barnardo v. McHugh [1891] A.C. 388. It could not therefore be suggested that any such agreement could be enforced. It was further argued that the court should take the widest possible approach to the concept of "rights of custody" because there are good policy reasons to give the children of unmarried parents the same protection as those of married parents. The Court noted that the law had not so far given unmarried fathers exactly the same rights as married fathers, although it enabled them to acquire these and otherwise to seek orders or be involved in proceedings about their children's lives. Considering case law of the ECHR on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms the trial judge held that no case had yet ruled that all differences between mothers and fathers, or between married and unmarried fathers, were contrary to the Convention of 1953.
INCADAT comment
Article 15 Decision or Determination
The Role and Interpretation of Article 15
Article 15 is an innovative mechanism which reflects the cooperation which is central to the 1980 Hague Convention. It provides that the authorities of a Contracting State may, prior to making a return order, request that the applicant obtain from the authorities of the child's State of habitual residence 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.
Scope of the Article 15 Decision or Determination Mechanism
Common law jurisdictions are divided as to the role to be played by the Article 15 mechanism, in particular whether the court in the child's State of habitual residence should make a finding as to the wrongfulness of the removal or retention, or, whether it should limit its decision to the extent to which the applicant possesses custody rights under its own law. This division cannot be dissociated from the autonomous nature of custody rights for Convention purposes as well as that of 'wrongfulness' i.e. when rights of custody are to be deemed to have been breached.
United Kingdom - England & Wales
The Court of Appeal favoured a very strict position with regard to the scope of Article 15:
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT Reference: HC/E/UKe 809].
The Court held that where the question for determination in the requested State turned on a point of autonomous Convention law (e.g. wrongfulness) then it would be difficult to envisage any circumstances in which an Article 15 request would be worthwhile.
Deak v. Deak [2006] EWCA Civ 830 [INCADAT Reference: HC/E/UKe 866].
This position was however reversed by the House of Lords in the Deak case:
Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].
Whilst there was unanimity as to the utility and binding nature of a ruling of a foreign court as to the content of the rights held by an applicant, Baroness Hale, with whom Lord Hope and Lord Brown agreed, further specified that the foreign court would additionally be much better placed than the English court to understand the true meaning and effect of its own laws in Convention terms.
New Zealand
Fairfax v. Ireton [2009] NZFLR 433 (NZ CA), [INCADAT cite: HC/E/NZ 1018].
A majority in the Court of Appeal, approving of the position adopted by the English Court of Appeal in Hunter v. Morrow, held that a court seised of an Article 15 decision or determination should restrict itself to reporting on matters of national law and not stray into the classification of a removal as being wrongful or not; the latter was exclusively a matter for the court in the State of refuge in the light of its assessment of the autonomous law of the Convention.
Status of an Article 15 Decision or Determination
The status to be accorded to an Article 15 decision or determination has equally generated controversy, in particular the extent to which a foreign ruling should be determinative as regards the existence, or inexistence, of custody rights and in relation to the issue of wrongfulness.
Australia
In the Marriage of R. v. R., 22 May 1991, transcript, Full Court of the Family Court of Australia (Perth), [INCADAT cite: HC/E/AU 257];
The court noted that a decision or determination under Article 15 was persuasive only and that it was ultimately a matter for the French courts to decide whether there had been a wrongful removal.
United Kingdom - England & Wales
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].
The Court of Appeal held that an Article 15 decision or determination was not binding and it rejected the determination of wrongfulness made by the New Zealand High Court: M. v. H. [Custody] [2006] NZFLR 623 (HC), [INCADAT cite: HC/E/UKe 1021]. In so doing it noted that New Zealand courts did not recognise the sharp distinction between rights of custody and rights of access which had been accepted in the United Kingdom.
Deak v. Deak [2006] EWCA Civ 830, [INCADAT cite: HC/E/UKe 866].
The Court of Appeal declined to accept the finding of the Romanian courts that the father did not have rights of custody for the purposes of the Convention.
This position was however reversed by the House of Lords in the Deak case:
Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].
The House of Lords held unanimously that where an Article 15 decision or determination was sought the ruling of the foreign court as to the content of the rights held by the applicant must be treated as conclusive, save in exceptional cases where, for example, the ruling had been obtained by fraud or in breach of the rules of natural justice. Such circumstances were absent in the present case, therefore the trial court and the Court of Appeal had erred in disregarding the decision of the Bucharest Court of Appeal and in allowing fresh evidence to be adduced.
As regards the characterisation of the parent's rights, Baroness Hale, with whom Lord Hope and Lord Brown agreed, held that it would only be where this was clearly out of line with the international understanding of the Convention's terms, as might well have been the case in Hunter v. Murrow, should the court in the requested state decline to follow it. For his part Lord Brown affirmed that the determination of content and classification by the foreign court should almost invariably be treated as conclusive.
Switzerland
5A_479/2007/frs, Tribunal fédéral, IIè cour civile, 17 octobre 2007, [INCADAT cite: HC/E/CH 953].
The Swiss supreme court held that a finding on custody rights would in principle bind the authorities in the requested State. As regards an Article 15 decision or determination, the court noted that commentators were divided as to the effect in the requested State and it declined to make a finding on the issue.
Practical Implications of Seeking an Article 15 Decision or Determination
Recourse to the Article 15 mechanism will inevitably lead to delay in the conduct of a return petition, particularly should there happen to be an appeal against the original determination by the authorities in the State of habitual residence. See for example:
Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].
This practical reality has in turn generated a wide range of judicial views.
In Re D. a variety of opinions were canvassed. Lord Carswell affirmed that resort to the procedure should be kept to a minimum. Lord Brown noted that it would only be used on rare occasions. Lord Hope counselled against seeking perfection in ascertaining whether a removal or retention was wrongful, rather a balance had to be struck between acting on too little information and searching for too much. Baroness Hale noted that when a country first acceded to the Convention Article 15 might be useful in cases of doubt to obtain an authoritative ruling on the content and effect of the local law.
New Zealand
Fairfax v. Ireton [2009] NZFLR 433 (NZ CA), [INCADAT cite: HC/E/NZ 1018].
The majority in the Court of Appeal, suggested that Article 15 requests should only rarely be made as between Australia and New Zealand, given the similarities of the legal systems.
Alternatives to Seeking an Article 15 Decision or Determination
Whilst courts may simply wish to determine the foreign law in the light of the available information, an alternative is to seek expert evidence. Experience in England and Wales has shown that this is far from fool-proof and does not necessarily result in time being saved, see:
Re F. (A Child) (Abduction: Refusal to Order Summary Return) [2009] EWCA Civ 416, [2009] 2 F.L.R. 1023, [INCADAT cite: HC/E/UKe 1020].
In the latter case Thorpe L.J. suggested that greater recourse could be made to the European Judicial Network, through the International Family Law Office at the Royal Courts of Justice. Pragmatic advice could be offered as to the best route to follow in a particular case: whether to go for a single joint expert; whether to go for an Article 15 decision or determination; or whether to go for an opinion from the liaison judge as to the law of his own country, an opinion that would not be binding but which would perhaps help the parties and the trial court to see the weight, or want of weight, in the challenge to the plaintiff's ability to cross the Article 3 threshold.
Inchoate Rights of Custody
The reliance on 'inchoate custody rights', to afford a Convention remedy to applicants who have actively cared for removed or retained children, but who do not possess legal custody rights, was first identified in the English decision:
Re B. (A Minor) (Abduction) [1994] 2 FLR 249 [INCADAT cite: HC/E/UKe 4],
and has subsequently been followed in that jurisdiction in:
Re O. (Child Abduction: Custody Rights) [1997] 2 FLR 702, [1997] Fam Law 781 [INCADAT cite: HC/E/UKe 5];
Re G. (Abduction: Rights of Custody) [2002] 2 FLR 703 [INCADAT cite: HC/E/UKe 505].
The concept has been the subject of judicial consideration in:
Re W. (Minors) (Abduction: Father's Rights) [1999] Fam 1 [INCADAT cite: HC/E/Uke 503];
Re B. (A Minor) (Abduction: Father's Rights) [1999] Fam 1 [INCADAT cite: HC/E/UKe 504];
Re G. (Child Abduction) (Unmarried Father: Rights of Custody) [2002] EWHC 2219 (Fam); [2002] ALL ER (D) 79 (Nov), [2003] 1 FLR 252 [INCADAT cite: HC/E/UKe 506].
In one English first instance decision: Re J. (Abduction: Declaration of Wrongful Removal) [1999] 2 FLR 653 [INCADAT cite: HC/E/UKe 265], it was questioned whether the concept was in accordance with the decision of the House of Lords in Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT cite: HC/E/UKe 2] where it was held that de facto custody was not sufficient to amount to rights of custody for the purposes of the Convention.
The concept of 'inchoate custody rights', has attracted support and opposition in other Contracting States.
The concept has attracted support in a New Zealand first instance case: Anderson v. Paterson [2002] NZFLR 641 [INCADAT cite: HC/E/NZ 471].
However, the concept was specifically rejected by the majority of the Irish Supreme Court in the decision of: H.I. v. M.G. [1999] 2 ILRM 1; [2000] 1 IR 110 [INCADAT cite: HC/E/IE 284].
Keane J. stated that it would go too far to accept that there was 'an undefined hinterland of inchoate rights of custody not attributed in any sense by the law of the requesting state to the party asserting them or to the court itself, but regard by the court of the requested state as being capable of protection under the terms of the Convention.'
The Court of Justice of the European Union has subsequently upheld the position adopted by the Irish Courts:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].
In its ruling the European Court noted that the attribution of rights of custody, which were not accorded to an unmarried father under national law, would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the mother.
This formulation leaves open the status of ‘incohate rights’ in a EU Member State where the concept had become part of national law. The United Kingdom (England & Wales) would fall into this category, but it must be recalled that pursuant to the terms of Protocol (No. 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom (OJ C 115/313, 9 May 2008), the CJEU could not in any event make a finding of inconsistency with regard to UK law vis-a-vis Charter rights.
For academic criticism of the concept of inchoate rights see: Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' Oxford, OUP, 1999, at p. 60.
Rights of Custody held by a Court
Preparation of INCADAT commentary in progress.
What is a Right of Custody for Convention Purposes?
Courts in an overwhelming majority of Contracting States have accepted that a right of veto over the removal of the child from the jurisdiction amounts to a right of custody for Convention purposes, see:
Australia
In the Marriage of Resina [1991] FamCA 33, [INCADAT cite: HC/E/AU 257];
State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232];
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU 294];
Austria
2 Ob 596/91, OGH, 05 February 1992, Oberster Gerichtshof [INCADAT cite: HC/E/AT 375];
Canada
Thomson v. Thomson [1994] 3 SCR 551, 6 RFL (4th) 290 [INCADAT cite: HC/E/CA 11].
The Supreme Court did draw a distinction between a non-removal clause in an interim custody order and in a final order. It suggested that were a non-removal clause in a final custody order to be regarded as a custody right for Convention purposes, that could have serious implications for the mobility rights of the primary carer.
Thorne v. Dryden-Hall, (1997) 28 RFL (4th) 297 [INCADAT cite: HC/E/CA 12];
Decision of 15 December 1998, [1999] R.J.Q. 248 [INCADAT cite: HC/E/CA 334];
United Kingdom - England & Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465, [1989] 1 FLR 403, [1989] Fam Law 228 [INCADAT cite: HC/E/UKe 34];
Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [INCADAT cite: HC/E/UKe 880];
France
Ministère Public c. M.B. 79 Rev. crit. 1990, 529, note Y. Lequette [INCADAT cite: HC/E/FR 62];
Germany
2 BvR 1126/97, Bundesverfassungsgericht, (Federal Constitutional Court), [INCADAT cite: HC/E/DE 338];
10 UF 753/01, Oberlandesgericht Dresden, [INCADAT cite: HC/E/DE 486];
United Kingdom - Scotland
Bordera v. Bordera 1995 SLT 1176 [INCADAT cite: HC/E/UKs 183];
A.J. v. F.J. [2005] CSIH 36, 2005 1 SC 428 [INCADAT cite: HC/E/UKs 803];
South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];
Switzerland
5P.1/1999, Tribunal fédéral suisse, (Swiss Supreme Court), 29 March 1999, [INCADAT cite: HC/E/CH 427].
United States of America
In the United States, the Federal Courts of Appeals were divided on the appropriate interpretation to give between 2000 and 2010.
A majority followed the 2nd Circuit in adopting a narrow interpretation, see:
Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313];
Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493];
Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494];
Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008), [INCADAT cite: HC/E/USf 989].
The 11th Circuit however endorsed the standard international interpretation.
Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT cite: HC/E/USf 578].
The matter was settled, at least where an applicant parent has a right to decide the child's country of residence, or the court in the State of habitual residence is seeking to protect its own jurisdiction pending further decrees, by the US Supreme Court endorsing the standard international interpretation.
Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].
The standard international interpretation has equally been accepted by the European Court of Human Rights, see:
Neulinger & Shuruk v. Switzerland, No. 41615/07, 8 January 2009 [INCADAT cite: HC/E/ 1001].
Confirmed by the Grand Chamber: Neulinger & Shuruk v. Switzerland, No 41615/07, 6 July 2010 [INCADAT cite: HC/E/ 1323].
Right to Object to a Removal
Where an individual does not have a right of veto over the removal of a child from the jurisdiction, but merely a right to object and to apply to a court to prevent such a removal, it has been held in several jurisdictions that this is not enough to amount to a custody right for Convention purposes:
Canada
W.(V.) v. S.(D.), 134 DLR 4th 481 (1996), [INCADAT cite: HC/E/CA17];
Ireland
W.P.P. v. S.R.W. [2001] ILRM 371, [INCADAT cite: HC/E/IE 271];
United Kingdom - England & Wales
Re V.-B. (Abduction: Custody Rights) [1999] 2 FLR 192, [INCADAT cite: HC/E/UKe 261];
S. v. H. (Abduction: Access Rights) [1998] Fam 49 [INCADAT cite: HC/E/UKe 36];
United Kingdom - Scotland
Pirrie v. Sawacki 1997 SLT 1160, [INCADAT cite: HC/E/UKs 188].
This interpretation has also been upheld by the Court of Justice of the European Union:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].
The European Court held that to find otherwise would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the sole custodian.
For academic commentary see:
P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford, OUP, 1999, p. 75 et seq.;
M. Bailey The Right of a Non-Custodial Parent to an Order for Return of a Child Under the Hague Convention; Canadian Journal of Family Law, 1996, p. 287;
C. Whitman 'Croll v Croll: The Second Circuit Limits 'Custody Rights' Under the Hague Convention on the Civil Aspects of International Child Abduction' 2001 Tulane Journal of International and Comparative Law 605.