S (A Minor), In re [1997] UKHL 32; [1998] AC 750; [1997] 4 All ER 251; [1997] 3 WLR 597; [1998] 1 FLR 122; [1997] Fam Law 782; [1997] 3 FCR 293 (24th July, 1997)

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> S (A Minor), In re [1997] UKHL 32; [1998] AC 750; [1997] 4 All ER 251; [1997] 3 WLR 597; [1998] 1 FLR 122; [1997] Fam Law 782; [1997] 3 FCR 293 (24th July, 1997) URL: http://www.bailii.org/uk/cases/UKHL/1997/32.html Cite as: [1998] 1 FLR 122, [1998] AC 750, [1997] Fam Law 782, [1997] 3 WLR 597, [1997] 3 FCR 293, [1997] 4 All ER 251, [1997] UKHL 32

I have had the advantage of reading a draft of the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons he has given, I would dismiss this appeal.

First, whether the English High Court had jurisdiction on 13 March 1996 to make an order giving interim care and control to the father of an infant E. and subsequently to order that E. remain a ward of court;

Second, whether taking E. on 11 March 1996 from England to Ireland and subsequently keeping him there constituted the wrongful removal or retention of a child within the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention") as given the force of law in the United Kingdom by section 1(2) of and Schedule 1 to the Child Abduction and Custody Act 1985;

Third, whether such taking and keeping of E. constituted an unlawful removal of E. within the meaning of Article 12 of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children ("the European Convention") (as given the force of law in the United Kingdom by section 12(2) of and Schedule 2 to the Act of 1985) and of section 23 of that Act.

E. was born on 21 January 1995. His mother was an Irish national, his father Moroccan. They were not then, or subsequently, married and it is common ground that as an unmarried father, under English law prior to orders of the English court in his favour, the father had no parental rights in respect of E. It is also common ground that prior to her death E.'s habitual residence was that of his mother so that the question is what was the mother's habitual residence at the relevant times.

She had lived in England with the father from 1990 to July 1995 when she obtained from the Willesden County Court an ex parte interim order for the residence of E. and an interim prohibited steps order. From 3 to 16 August 1995, when she returned to England, E. and his mother stayed with her mother (the first appellant in this case) on holiday in Ireland. Thereafter she stayed in England until the 4 September when she returned to Ireland intending to come back to England in January 1996. In fact she went to England alone from 2 to 7 November 1995 when she returned to Ireland; she went to England again with E. on 16 January 1996 and remained there until she was admitted to hospital in London on 4 March and died there from a brain haemorrhage on 10 March 1997.

E.'s father had looked after him for part of the time whilst the mother was in hospital but on 5 March and 6 March the grandmother and another daughter (the second appellant) respectively came to London and helped to look after E.

On 11 March the two appellants took E. to Ireland where he has lived since. It is at this stage that the maternal family and the father resorted to the courts, they in Ireland, he in England. On the same day, 13 March 1996, the Dublin Circuit Court made an order granting guardianship and care and control of E. to the second appellant, his aunt, and an hour or so later the English High Court made an order granting interim care and control of E. to the father, ordering that the grandmother return E. to the jurisdiction of the English Court. To this end an originating summons to make E. a ward of court, dated 12 March 1996, was issued on 14 March 1996. On 17 April the aunt was joined as a second defendant to the proceedings brought by the father and the wardship was continued.

The High Court's jurisdiction in respect of children so far as relevant is to be found in the Family Law Act 1986. Section 1 of that Act specifies the orders to which Part I applies and includes:

The condition in section 3 of the Act is that on the relevant date the child concerned --

Since E. was not present in England and Wales at the time that the order was made by the English High Court the question is whether E. was habitually resident in England and Wales on the relevant date, which, by virtue of section 7 of the Act, is the date when an application is made for an order.

The trial judge, Mr. Lionel Swift Q.C., after a hearing lasting eight days and a careful consideration of the authorities as to what constituted "habitual residence" recorded that there was no dispute that the mother was habitually resident in England until 3 September 1995. He then examined extensive evidence as to the movements of, and the relationship between, the parents in the subsequent period and said:

Again after examining in detail the evidence as to the period between January and 10 March 1996 he concluded that at the date of her death the mother was habitually resident in England.

In the Court of Appeal and before your Lordships' House the appellants, though contending that E. and his mother were habitually resident in Ireland between 4 September 1995 and 16 January 1996, accepted, so that it is now common ground, that at the date of her death the mother, and therefore E., were habitually resident in England. It is accordingly unnecessary to examine in detail the evidence upon which this finding of the judge was based.

The critical question is thus whether, since he had left England on 11 March, E. was still habitually resident in England on 13 March when Wall J. made his order in the High Court. Had he become habitually resident in Ireland, or at any rate lost his habitual residence here even if he had not acquired an habitual residence in Ireland?

The learned trial judge found that the appellants intended to take E. to Ireland without the father's knowledge and that they did in fact take E. without the father's consent or knowledge. Indeed it is said that the father was ignored or brushed aside by the mother's family after her death. The judge was prepared to accept that "there may be circumstances in which physical possession or care may determine a child's habitual residence," which is a question of fact, and that where a parent takes a child away a new habitual residence may be acquired very quickly. But he continued:

In the Court of Appeal Butler-Sloss L.J., with whom the other members of the court agreed, took the same view as the trial judge. In considering the appellants' contention that E. lost his habitual residence in England either when the appellants took over his de facto care on 10 March or when they took him to Ireland on 11 March she said:

She rejected two further contentions of the appellants--first that a person having care of, but not having parental responsibility for, a child who did what was reasonable for the purpose of safeguarding or promoting the child's welfare pursuant to section 3(5) of the Children Act 1989 was enabled to change the child's habitual residence; and second that, because the Dublin Circuit Court had made an order on an ex parte application giving the custody of E. to his aunt who was made guardian, and prohibiting the father from moving E. from Ireland, first in time, the English court could not make the order which it did make in respect of E.

There were thus concurrent findings of fact by the trial judge and by the Court of Appeal that E. was habitually resident in England at the time of the court order on 13 March. By the fact of being taken out of England by his grandmother and his aunt, who had no parental rights over him, he had not lost his habitual residence in England or acquired an habitual residence in Ireland. It is only in exceptional circumstances that your Lordships' House will reject concurrent findings of fact, particularly where the finding of the trial judge is based on a substantial amount of oral evidence and where the judge's assessment of the truthfulness of the witnesses is crucial to his findings of fact. In the present case I can see no justification for rejecting the concurrent findings of fact even if I had thought that they might possibly be wrong. I consider however that the judge not only came to a conclusion to which he was entitled to come but that he came to the right conclusion, on his primary findings on fact as to the events over the relevant period, that E.'s habitual residence remained in England.

Although it seems to me that the appellants were wrong to take E. away clandestinely without the consent of the father, even without telling the father, and without the consent of the court (as Budd J. put it in the Irish proceedings on the Convention the rule should be "apply, don't fly"), it is fully understandable that, in the distressing circumstances of the mother's death, the grandmother should wish to have with her the baby who had spent several months at her house in Ireland in the latter part of 1995. This desire, however, and the need for someone to look after the child cannot, in my view, mean that by merely taking E. out of the jurisdiction during a period of two days they had ipso facto brought about a change in his habitual residence. Neither appellant had parental rights over the child, who was too young to form any intention as to his own future residence, and two days with the appellants in Ireland is not sufficient of itself to result in his existing habitual residence being lost and a new one gained. The position is quite different in the case of a mother, with parental rights and on whose habitual residence the child's habitual residence depends. If she leaves one country to go to another with the established intention of settling there permanently her habitual residence and that of the child may change very quickly. Such is not the present case where no parental rights were involved and where E.'s habitual residence did not depend on and automatically change with those of the appellants.

I agree with Butler-Sloss L.J. that the powers conferred by section 3(5) of the Children Act 1989 on a person, who has care of a child but without parental responsibility, to do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child's welfare do not include the power to change the child's habitual residence merely by taking him out of the jurisdiction. Whether it was reasonable in all the circumstances of the case to take E. out of the jurisdiction for the purpose of safeguarding or promoting his welfare, quite apart from any question of a change in his habitual residence, does not fall to be decided on the present appeal.

I also agree with Butler-Sloss L.J. that the English court's order was not made without jurisdiction just because a little earlier on the same day the Dublin Circuit Court had given the aunt custody of E. and made her his guardian. Whether or not it is right to regard both orders as taking effect at the beginning of the day upon which they were made, it is clear that, at the time the interim order of care and control was made by the English court, E. was in fact still habitually resident in England. The ex parte orders giving custody to the aunt did not change E.'s habitual residence so as to deprive the English court of jurisdiction.

The appellants contended before the Court of Appeal and before your Lordships that it was in any event inappropriate for Wall J. to have made an order in relation to an alien child who was at the time living in the country of his nationality. In In re P. (G.E.) (An Infant) [1975] Ch. 568 a child was taken by his father away from the mother in England to Israel. The Court of Appeal held that the parens patriae jurisdiction of the English court could be exercised in respect of the child who was ordinarily resident within the jurisdiction, although not present there, when the proceedings were begun. Lord Denning M.R. said, at p. 584:

In that case, however, the child was stateless whereas here E. was an Irish national. It is submitted by the appellants that that is a crucial distinction and that since allegiance was owed to the Irish Republic and not to the Crown the parens patriae powers could or should not be exercised by the Crown. In In re B.-M. (Wardship: Jurisdiction) [1993] 1 F.L.R. 979 Eastham J. had to consider the case of a child who was a German national. He was taken by his mother out of England where they had been living and where the judge found that they had their habitual residence. The mother was sole custodian of the child. On the application of the father the child was made a ward of court and the father applied for a declaration under the Hague Convention that the retention by the mother was wrongful. Eastham J. said, at p. 984:

He approved the statement in Lowe and White "Wards of Court" 2nd ed. p. 24 (1986), para. 2-11, that although it was arguable that the decision in In re P. (G.E.) (An Infant) only applies if the minor is stateless:

Whilst it is correct that in In re P. (G.E.) (An Infant) the child in question was stateless, I do not read the statements of principle as to the court's jurisdiction by the three members of the Court of Appeal as being based on, or limited to, that fact. In particular the statement of Lord Denning M.R., at p. 584, already quoted is in general terms. I can see no reason why as a matter of principle the court's jurisdiction should not be available to protect any child who is habitually resident here or within the jurisdiction from being "kidnapped" and "spirited" out of the realm. Whether it is appropriate for that jurisdiction to be exercised will depend on the facts of the case, but in my opinion Eastham J. in In re B.-M. (Wardship: Jurisdiction) was right to hold that the jurisdiction was not limited to stateless children and to approve the view expressed in Lowe and White that this jurisdiction goes beyond the protection of stateless children but "extends to any alien minor who can be said to be ordinarily [habitually] resident in England." I agree with Butler-Sloss L.J. that it is habitual residence and not allegiance or citizenship which is determinative of the court's jurisdiction.

Accordingly, in my opinion, on the findings of the learned trial judge and the Court of Appeal that E. was habitually resident in England at the date of his order, Wall J. had jurisdiction to make the order which he made on 13 March 1996.

As to the second question the trial judge rejected, but the Court of Appeal accepted, that on the facts of the case there had been a breach of Article 3 of the Hague Convention.

The rights of custody referred to may arise, inter alia, by operation of law or by reason of a judicial decision, and, by Article 4, the Convention is to apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. "Rights of custody" are by Article 5 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."

A person claiming that a child has been removed or retained in breach of custody rights may apply to the Central Authority of the child's habitual residence, or of any other Contracting State, for assistance in securing the return of the child. Where a child has been wrongfully removed or retained in terms of Article 3 the judicial or administering authority of the Contracting State where the child is shall order the return of the child if, at the date of the commencement of the proceedings before such authority, a period of less than one year has elapsed from the date of the wrongful removal or retention (Article 12). Exceptions to the obligation of the requested State in that Article are contained in Article 13. They are not relevant to this case.

A child must, thus, be returned pursuant to Article 12 if there has been either a wrongful removal or a wrongful retention within the meaning of Article 3. These are separate events occurring on specific occasions and were said in In re H. (Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476 to be mutually exclusive concepts. Lord Brandon of Oakbrook said, at p. 500B:

In In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562 at p. 578 Lord Brandon gave guidance as to a number of preliminary points relevant to the application of Article 3.

The preamble to and Article 1 of the Hague Convention are not set out in the Schedule to the Act but it is useful to recall them. The preamble expresses the desire of the States signing the Convention:

Your Lordships have been referred to a valuable Explanatory Report on the Hague Convention by Professor Elisa Pérez-Vera, Reporter to the First Commission of the Hague Conference. It is not possible to set out long extracts from that Report, helpful though they are, but I draw attention to a number of points which are made in it. First, the situations envisaged by the Convention are "those which derive from the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child." (Paragraph 11) Resorting to this expedient "an individual can change the applicable law and obtain a judicial decision favourable to him." (Paragraph 15)

The route adopted by the Convention "will tend in most cases to allow a final decision on custody to be taken by the authorities of the child's habitual residence prior to its removal." (Paragraph 16) In Paragraph 19 it is said:

The Convention is not concerned with the law applicable to the custody of children and reference is made to the law of the State of the child's habitual residence "only so as to establish the wrongful nature of the removal." (Paragraph 36)

The father does not contend, and has not contended, that there was here a wrongful removal when the child was taken out of the jurisdiction on 11 March. In this he was right. It is plain that when the appellants removed E. from London to Ireland the father had no rights of custody over E. by operation or law or by reason of any judicial or administrative decision or by any binding agreement. There was therefore no wrongful removal within the meaning of Article 3.

The appellants say that this in fact was a removal case and not a retention case and if the removal was lawful that is the end of the matter, but alternatively that, if this is to be treated also as a retention case, the retention was equally lawful.

I do not agree that this case is to be treated only as a "removal" case. Even though the two are separate and mutually exclusive both can occur on the facts in relation to the same child at different times. It must, however, be necessary to point specifically to the event which constitutes the removal or the retention. This is necessarily so because of the provision of Article 12 that for an order for the return of the child to be made at the date of commencement of the proceedings, a period of less than one year has elapsed "from the date" of the wrongful removal or retention.

The appellants contend that E. was retained in Dublin on his arrival there from England. That was on 11 March and they say that this was the only relevant date since his continuing retention there is not relevant for the purpose of calculating the period of one year. It follows that since the father had no rights of custody on 11 or 12 March the retention following the removal was no more unlawful than was the removal.

This argument ignores the possibility that the nature of the retention may change and may change with effect from a specific date so as to permit the calculation of one year to be made. That this can happen is in my view plain. Thus a parent or parents having rights of custody may agree that a child shall go on 1 January to stay with a friend abroad for a period of six months. The friend takes the child abroad. That is clearly not a wrongful removal. The friend keeps the child abroad until 30 June: that is clearly not a wrongful retention. On 1 July the friend keeps the child and refuses to return him. The parent's consent has gone and the retention becomes wrongful. The time runs from that date. The flaw in the appellants' argument is that it looks only at the date of retention whereas what has to be considered is the date of wrongful retention: see In re H. (Minors) (Abduction: Custody Rights) [1991] 2 A.C. 476, 499.

This example is only one way in which a lawful retention may become a wrongful retention. The same in my opinion can happen where a parent had no parental rights when a child was removed and initially retained in a way which was not unlawful. If subsequently he acquires such rights and demands the return of the child then the retention may become wrongful.

That in my opinion happened in the present case. On the basis of the finding of the trial judge that on 13 March E. was habitually resident, even if not actually present, in England, when Wall J. made his order giving interim care and control of E. to the father and ordering that E. be returned to the care and control of the father in the jurisdiction of the High Court, the father acquired rights of custody within the meaning of Articles 3 and 5 of the Convention. The retention of E. contrary to that order and to the father's wishes thereupon became wrongful. Since no question of the limitation provision in Article 12 arises it is unnecessary to decide whether the relevant date is the making of that order (13 March) or its service on the appellants (apparently 16 March). It was on any view wrongful within the meaning of the Convention by the later date and was not prevented from being so by virtue of the order of the Dublin Circuit Court on the same day. Such a result is not in any way inconsistent (as the appellants argue it is) with the decision of your Lordships' House in In re H. (Minors) (Abduction: Custody Rights) (supra) that removal and retention are single events occurring on a specific occasion and mutually exclusive concepts.

The appellants contend, however, that on the basis of the decision of your Lordships' House in In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562 the retention of E. was not wrongful. In that case a mother and child were habitually resident in Western Australia, the mother having sole parental rights over the child. They left Western Australia on 21 March 1990 and arrived in England on 22 March 1990 when it was found that retention of the child began. On 12 April 1990 the court of Western Australia granted sole guardianship and custody of the child to the father and declared that the removal from Australia was wrongful. In your Lordships' House it was held that the removal of the child was not in breach of any custody rights of the father nor was the retention in England during the three weeks before the Western Australia court's order in itself wrongful. The essential difference between that case and the present was, however, that the mother had left Western Australia, as Lord Brandon said, at p. 579:

The critical difference between In re J. (A Minor) (Abduction: Custody Rights) and the present case is that E. was habitually resident in England at the time of Wall J.'s order. The same difference arose in In re B.-M. (Wardship: Jurisdiction) [1993] 1 F.L.R. 979 where an unmarried mother took her child to Germany on or about 3 September and on 4 September the father obtained a wardship order which was served on the mother on 11 September. It was held by Eastham J. that even if the removal was not unlawful because there was no court order in existence yet the retention was wrongful with effect from 11 September when the mother kept the child out of the jurisdiction and failed to return her in accordance with the orders of the English court, the child having been habitually resident in England at the time the wardship proceedings began.

Because the child's habitual residence at the date of the court's order in the present case remained England I do not consider that the result indicated in the present case is inconsistent with the decision of your Lordships' House in In re J. (A Minor) (Abduction: Custody Rights) (supra); it is consistent with the judgment of Eastham J. in In re B.-M. (Wardship: Jurisdiction) which on this point also was rightly decided.

I consider therefore that the Court of Appeal was right to hold that the retention by the second appellant was wrongful within the meaning of the Hague Convention.

As to the third question the trial judge held that there had not, the Court of Appeal held that there had, been an unlawful removal of E. from the jurisdiction contrary to Article 12 of the European Convention.

The purpose and structure of the European Convention is different from that of the Hague Convention and it does not follow, though it may be, that what constitutes, or does not constitute, an "unlawful removal" for the Hague Convention, is, or conversely is not, an "unlawful removal" for the European Convention.

The procedure of applying through the central authority of a Contracting State is prescribed by Articles 4 and 5 of the Convention and expanded in sections 14-22 of the Act of 1985. Recognition and enforcement may be refused in the circumstances specified in Articles 9 and 10 of the Convention including that in Article 10(1)(d):

The appellants accept that where a child is removed from the jurisdiction with the consent of the person having the right to determine the child's place of residence and subsequently to that removal the child is "kept out" of the jurisdiction in contravention of any provision for the child's return the removal will be deemed to have been unlawful. They contend, however, that in section 23 the only person who can make an application or whose consent was relevant was that of E.'s mother and that Article 12 cannot create rights for the person seeking the declaration which were not in being prior to the removal. The father could only be entitled to a declaration under section 12 if he had the right on 11 March 1996 to determine E.'s place of residence and the court had no right to determine (with retrospective effect so as to confer rights on the father) E.'s place of residence prior to the removal.

The definition in Article 1(d) of the Convention is of "improper removal," a phrase which occurs only in Article 10 whereas in Article 12 the reference is to a declaration of "the removal to be unlawful". The definition, however, includes in (ii) a removal which "is subsequently declared unlawful" and it is clear that an improper removal includes an unlawful removal. By virtue of Article 1(d) a removal is improper in two different situations--first if it is in breach of a decision relating to the child's custody "which has been given." This I understand to mean that the removal of the child across an international frontier was improper at the time it was effected in that it was in breach of an existing decision. Secondly it may also be an "improper removal" if there is a failure to return the child at the end of the period during which the child had been properly or lawfully outside the jurisdiction. This is not described in the Convention as an unlawful or improper "retention" but for the purposes of the Convention it makes retrospectively "the removal" unlawful.

For the purposes of Article 12 there must have been at the time of the child's removal across an international frontier no enforceable decision given in a Contracting State relating to his custody. That was satisfied here as at 11 March 1996. For the Convention to apply to any subsequent decision it must be one "relating to the custody of that child and declaring the removal to be unlawful, given in a Contracting State at the request of any interested person." The decision of Wall J. on the 13 March was a subsequent decision given in a Contracting State relating to the custody of the child. The father was plainly an interested person. But was the decision one "declaring the removal to be unlawful."? On the face of it, that decision does not declare, and for the purposes of its jurisdiction in making the order of care and control and for E.'s return it did not need to declare, that the initial taking of E. to Ireland in itself was unlawful.

The respondent contends that the removal was unlawful since removal of a child out of the jurisdiction is unlawful if there is no consent to the child's removal, even if there is no one who has the right to consent other than the court. I am not satisfied that this is right in the broad terms in which it is put or that the initial taking to her home of E. by a near relative was necessarily unlawful, even if it was unwise without the consent of the court and even if the lawfulness of E.'s retention in Ireland could be ended by an order giving care and control to the father.

It seems to me, however, that after the making (or at the latest the service) of Wall J.'s order giving care and control to the father the retention of E. in Ireland and the failure to return him to England became unlawful and improper and for the purposes of the Convention constituted an improper removal within the meaning of Article 1(d).

This result is reflected in section 23(2) of the Act of 1985 which I have already quoted. In the present case it is clear that these were custody proceedings relating to a child who had been removed from the United Kingdom and in respect of whom, before the judge, an order was sought pursuant to the European Convention that his removal was improper and unlawful within the meaning of Articles 1 and 12 of the Convention. The court is, by section 23(2), empowered to declare the removal to have been unlawful if it is satisfied that the applicant has an interest in the matter and that

The father had such an interest; E. was habitually resident in England before, at and from 13 March 1996; the father from 13 March had the right to determine E.'s place of residence under English law; E. was kept out of the United Kingdom without his father's consent from that date, if not earlier.

It follows in my opinion that section 23(2) is satisfied and that the court is empowered to declare for the purposes of the Convention that E.'s removal was unlawful.

I would, accordingly, uphold the decision of the Court of Appeal that E. was at the relevant time habitually resident in England and declare that E. had been wrongfully retained out of the jurisdiction contrary to Article 3 of the Hague Convention and further declare, for the purposes of section 23(2) of and Articles 1 and 12 of Schedule 2 to the Child Abduction and Custody Act 1985, the removal of E. from the jurisdiction to have been unlawful.

I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he has given, I too would dismiss this appeal.

I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he has given I too would dismiss this appeal.

United Kingdom House of Lords Decisions

S (A Minor), In re [1997] UKHL 32; [1998] AC 750; [1997] 4 All ER 251; [1997] 3 WLR 597; [1998] 1 FLR 122; [1997] Fam Law 782; [1997] 3 FCR 293 (24th July, 1997)