Cross border children's cases 2
Decisions on cross border child cases continue to occupy the courts as they attempt to balance the welfare principle with the human rights of parents and the need to respect the legal systems of other nations. The following cases illustrate these dilemmas.
Non Hague Convention Cases
In Non Hague Convention cases i.e. where the country of habitual residence is not a signatory to the Hague Convention, the governing principle is that the welfare of the child is paramount and that in such cases, unless there is good reason to the contrary, the Court best placed to determine the child's future is the Court of his or her habitual residence - (Re Z) (Abduction: Non Hague Convention Country) [1999] 1FLR1270.
The recent case of Re J (a child) [2004] EWCA CIV 417 involved an appeal against the judgment of Mr Justice Hughes by a father who had his application under Section 8 of The Children Act 1989 for an Order for the peremptory return of his son F refused. The facts were that the mother had dual Saudi Arabian and British nationality and that the father was a Saudi Arabian national. The parties had been married twice, once in 1999 and again in January 2002. The child ('F') was born in 2000. In July 2002 M travelled to England with F. In May 2003 M issued a divorce petition in England and the father applied for the peremptory return of F to Saudi Arabia.
At first instance peremptory return was refused on the basis that the Judge was concerned the father may raise assertions about the mother's sexual misconduct, the danger being that if such allegations were repeated in the Shari'ah Court in Saudi Arabia, they would have serious consequences for the mother and as a result impact upon the child's care.
The father appealed. On appeal the mother also raised further arguments which included that returning the child to Saudi Arabia would be contrary to her rights under the European Convention of Human Rights ('ECHR') and in particular articles 6, 8 and 14.
The Court of Appeal found that although Mr Justice Hughes had conducted a welfare enquiry, that enquiry had been dominated by his concern as to the consequences were the father to raise the allegations of sexual misconduct against the mother in a Shari'ah Court. The concern was that the relationship between the child and his mother would be destroyed. The Court of Appeal felt the weight given to this factor was excessive particularly as Mr Justice Hughes had stated that were this factor absent 'the balance of the welfare considerations would be in favour of a return'.
The mother's counsel asserted that under the Human Rights Act 1998 and the ECHR article 6, (right to fair trial); article 8 (the right to respect for private and family life) taken with article 14 and article 14 (prohibition of discrimination) would be breached by an Order of peremptory return. It was argued that the mother's inability as primary carer of F to apply for permission to relocate back to the UK engaged article 6 rights and article 14 rights taken with article 6. Counsel further argued that article 14 taken with article 8 was engaged because the mother had a family life with F and that as a woman she would be treated differently from the father in Saudi Arabia.
The Court of Appeal rejected the arguments that article 6, 8 and 14 were engaged in a 'extra-territorial' sense on the facts. Their reasoning was that the ECHR rights are only applicable to those who are within the UK Jurisdiction. At paragraph 34 of his judgment Lord Justice Thorpe stated:
'…the fact that the mother in this case may experience in Saudi Arabia what in England would be regarded as breaches of her rights under articles 6, 8 and 14 of the ECHR does not render the English Court in breach of those articles if it returns F to Saudi Arabia.'
The Court of Appeal based this view partially on the earlier Court of Appeal ruling in Ahsan Ullah and Thi Lien Do v Secretary State of the Home Department [2002]. However, that case has since been heard on appeal by the House of Lords who came to a quite different conclusion. The House of Lords examined whether any article of the European Convention of Human Rights other than article 3 could be engaged in relation to the removal of an individual from the UK where the anticipated treatment of the receiving state would be in breach of the requirements of the Convention but that such treatment does not meet the minimum requirements of article 3 of the Convention. In layman's terms, could an article other than article 3 justify preventing the removal of an individual from the jurisdiction?
The House of Lords decided that it was possible for articles other than article 3 to engage the responsibility of a contracting state. Of particular interest to family lawyers is whether articles 6, 8 and 14 can be engaged. The court indicated that article 8 could be engaged on its own merits and this was further supported in the case of R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27. However, the Court did emphasise that cases which seek to invoke qualified rights such as article 8 will be subject to stringent tests. Furthermore, qualified rights will have to be balanced against the interests of the wider community. Therefore it is likely to be necessary for any applicant to show on the facts that his or her rights would be completely denied or nullified.
Where do these House of Lords cases leave matters relating to cross border child abduction? There can be little doubt that the ability to use article 8 to resist removal will have some significance and that there may be more parents like the mother in Re J who attempt to use the ECHR in this way. Nevertheless, there are important distinctions to be drawn between these cases and Re J. In particular, in Re J the mother was not subject to being deported or expelled from the UK jurisdiction. Her case would therefore be regarded, in terms of deciding her Convention rights, as what Lord Bingham would term a 'domestic case'. This was similarly recognised by Lord Justice Thorpe in the Court of Appeal who acknowledged that her Convention rights under articles 6 and 14 were engaged but that she had received a fair hearing in the English Courts and had not been discriminated against. In Non Hague Convention child abduction cases, a parent may well seek to balance their own ECHR rights against the rights of the child, but there can be little doubt that the courts will continue to regard the child's welfare as paramount and may well consider the child's Convention rights to be bound up with his welfare. Despite the fact that Re J was decided before the House of Lords cases, Lord Justice Thorpe had the foresight to recognise the importance of the Convention arguments and dealt with them in paragraphs 55 to 58 of his judgment. In particular, at paragraph at 58, Lord Justice Thorpe states:
'…the principal reason we take this view is that the welfare equation in any Non Hague Convention abduction is multi factorial and highly facts specific. Thus it would, for example, be open to an English Judge, as the law currently stands to refuse to return a child if the evidence was that his welfare was likely to be compromised by factors such as those identified in Ullah. Welfare is paramount: the fact that return may or may not breach the article 6, 8, 9 or 14 rights of the abducting parent is secondary.'
Recent Developments in Hague Convention Cases
In the case of Re W (abduction; domestic violence) [2004] EWHC 1247 (Fam) Mrs Justice Baron expressed concern that in a situation where an article 13(b) defence of domestic violence is raised, the Court of first instance was not able to make directions for the appropriate psychological assessments to be made of the parties and the child, before sending a child back to a potentially abusive situation. She pointed out that the law may be failing in such cases because a judge is not given the opportunity to consider evidence on the long term psychological effects on a wife and child having lived in violent and traumatic circumstances who are being returned to the country of origin. She went on to say that she regarded the article 13(b) defence as an unrealistically high threshold which cannot be met unless there has been violence or abuse against the child in person. She further criticised it for failing to allow consideration of the interdependent relationship between mother and child, particularly where the child was living in an environment where the mother is a victim of violence.
In the case of Re W the child was not separately represented. However, in another recent case involving domestic violence Re J (Children) [2004] EWCA CIV 428, a child S, aged 11, was joined as a second Defendant to his mother's appeal against an order to return S and his younger brother to Croatia. Initially, the mother's application for permission to appeal was refused by Lord Justice Thorpe. Subsequently S instructed his own solicitor and a stay was granted and S was given permission to appeal out of time on new evidence that he objected to being returned to Croatia. The Court of Appeal set aside the original order and dismissed the originating summons under the Child Abduction and Custody Act 1985. It was satisfied that the defence had been made out by S under Article 13 of the Hague Convention. Namely that S was of sufficient age and maturity to have his views taken into account and accordingly it was open to the Court to exercise its discretion not to return him. The court was further satisfied that S was acting independently and not under the influence of his mother and that his views were consistent with the evidence before the Court. The Court was also influenced by the delay in this case which had meant that the children had been in the jurisdiction for 2¾ years and inevitably had established themselves. The Court found that it would be wholly inappropriate not to take this into account.
Re P (A Child) (Abduction : Consent) [2004] EWCA Civ 971. This Hague Convention case focused on the issue of consent to a child's removal. The mother alleged that the father had signed a letter of consent allowing the child P to accompany the mother on a visit to England for 18 months. The father denied any such consent was given and appealed against the decision at first instance. The Court of Appeal held that:
(1) The judgment at first instance was flawed because the Judge failed to give reasons for accepting the evidence of the mother's handwriting expert and the Court should have appointed its own independent expert. It followed that the mother had not established that the father consented to the removal.
(2) Consent did not have to be considered by the Court when establishing the wrongfulness of a removal. It only had to be considered by the Court when exercising their discretion under Article 13 to return the child. It is for the removing parent to justify their removal and to establish it was done with consent. If clear unequivocal consent has been given by a parent then the Court should exercise its discretion under Article 13 to permit the child to remain in the agreed country.
(3) The Court had to decide whether the custody rights given to the father under a New York Order were custody rights in the eyes of the Convention. It was found that they were and the mother's removal breached those rights.
Accordingly, the Appeal was allowed.
In the case of Re C (Abduction : Settlement) Sub Nom In the Matter of Inherent Jurisdiction [2004] EWHC 1245 (Fam) the father was an American citizen and the mother an Irish citizen. They married in 1994 and in the same year S was born. The family lived in America until December 1998 when the mother took S on holiday to Ireland and failed to return her. In July 1999 a Consent Order was made for S's return to the U.S. Shortly after returning to the U.S. the mother re-abducted S and took her back to England. The mother changed her name and that of S and the father was unable to locate them until four years later.
The first issue the Court had to decide was whether it had discretion under Article 12(2) of the Hague Convention to order the return of S even if it was demonstrated that S had become settled in her new environment. The Court held that once it was satisfied that the settlement had taken place then the Convention was no longer applicable and the Court had no discretionary power to order a return. It was further found that Article 18 created no residual jurisdiction to make a return order and that deliberate concealment did not stop the one year period from starting to run under 12(2), although it would be a material consideration when deciding whether the child was settled.
Relocation
Finally, Re Y (Leave to remove from jurisdiction) [2004] 2 FLR is an exceptional relocation case because it resulted in a shared care agreement between the mother and father. The mother was a US citizen who met the father whilst studying in Wales. The father, although English, was an authority on Welsh culture and language. The couple married and had Y. The couple later divorced and Y was subject to an informal shared care arrangement and lived with the parents on an almost equal basis. Y would spend four nights with his mother and three nights with his father. Y was bilingual, although his preferred language was Welsh. The mother felt increasingly isolated in Wales and wished to return to Texas in the US with Y. The father applied for a residence order in response to the mother's application for leave to remove. Mr Justice Hedley refused the mother's application to remove the child from the jurisdiction. He reiterated Section 1(1) of the Children's Act 1989, that in respect of the upbringing of a child, the child's welfare is paramount. On balance, Mr Justice Hedley decided the cost to the child of such a move was too high. He was settled at school, had friends and interests in Wales and was both bilingual and bicultural. A move to Texas would cause too great a loss to Y and that the least detrimental course of action was to refuse the application.
|
