Court: High Court of Justice, Family Division, United Kingdom Number: CA 1223/87 Applicant: Father and Respondent: Mother Date: 13 Jan 1988 ================================================================= IN THE HIGH COURT OF JUSTICE FAMILY DIVISION Royal Courts of Justice Wednesday, 13th January. l988 Before: Mr. Justice Ewbank RE ARTHUR (a minor) (Transcribed from the official court tape recording by Harry Counsell G Co., 61, Carey Street. London. WC2A 2JG.) MISS P.J. SCOTLAND (instructed by Messrs. Malkin, Cullis G Sumption) appeared on behalf of the Plaintiff. MR. M.J. POINTER (instructed by Messrs. Akerman & Co. of Worthing) appeared on behalf of the Defendant. JUDGMENT As approved MR. JUSTICE EWBANK: Simon is 2 3/4 and he is an Australian boy. He was brought here to England by his mother in March, 1987. The father now applies under The Hague Convention for the return of the child to Australia. The father and mother were married in January, 1984, and Simon was born on the 17th April, 1985. The father is 28 and he is a teacher. He was born in Australia and has lived all his life there. The mother is 24. She went to Australia with her family when they emigrated there in 1974. Her mother died in 1980. Until that time she and her two brothers and her sister lived as a family in Australia. Her father and her brothers and sister still live there. The father has a three-bedroom house which was the family home. After her mother died there were difficulties in the home. She was about 16 and because of the difficulties she went to live with a foster-mother, Miss Doneta Medway. The foster-mother had other children living there. The mother did not get on with those children, in particular did not get on with Sue Owen. who still lives with her foster-mother in Australia. After the marriage the mother and father bought a house on mortgage and lived together in a suburb of Sydney in New South Wales. The marriage was unhappy, and in November or December of 1985 the father left. He says that the mother had told him to go. Simon was seven months old at that time, and since then has remained in the sole care of the mother, although the father had contact with Simon. There have been no divorce proceedings as yet between the father and the mother. The mother and the child lived in the matrimonial home after the father left, and the father paid the mortgage for the first few months, but he asserts that he was having financial difficulties, and in May of 1986 he stopped paying the mortgage. This made the bank to whom the money was owed restive. Access was not entirely satisfactory and the father applied for access to the local court at Camden in New South Wales, and a consent order was made on the 6th June, 1986 under the Family Law Act, 1975. The consent order provided that the mother should have custody of Simon and provided for access to the father every Sunday. The father earned at that time something under $30,000 per year. and he offered the mother $30 per week maintenance for Simon. This is equivalent to about 12 pounds per week. The mother regarded that as insufficient and refused to accept that figure. The father accordingly paid this amount into a bank account for Simon. In November of 1986 the bank called in the loan secured on the house, and at about the same time the father made an application, on the 5th November, in the Family Court of Australia at Parramatta probably for the sale of the house, although the application that he made is not before the Court. On the 22nd December, 1986 the bank issued a notice of foreclosure in relation to the mortgage. Meanwhile, on the l9th December the mother had issued a cross-application in the Family Court of Australia for variation of the father's access. The two applications came before the Court on the 27th January, 1987, and on the same day an application appears to have been filed with the Court by the father, asking that Simon should not be removed from New South Wales by his mother. He filed an affidavit saying that he had learnt that the mother might be coming to England. On the hearing on the 27th January various directions were given by the Judge. There was an order for the sale of the house by consent, and the case was stood over for a date to be fixed. By this time the account which the father had opened for Simon was in credit in the sum of about $900. and the mother accepted that figure and took the money. As far as the home was concerned the mother was contending that when the house was sold she should have 80 per cent of the proceeds of sale and the father should have 20 per cent. The father was suggesting a 50 per cent split. That was one of the issues which was going to be decided at the next hearing. The mother filed an affidavit on the 9th February, 1987 dealing with the father's suggestion that she might be going to England, and asserting that it would be for Simon's benefit for him to go with her to England, so it must have been clear to both the mother and the father that the issue whether Simon should go to England was an issue which was going to be before the Court. The mother, however, decided not to wait for any Court decision and she decided on unilateral action. Using the $900 which she had taken out of Simon's account and some other funds she bought air tickets and on the l7th March, 1987 she left Australia and came to England and went to live with Simon at her grandmother's in Worthing. She decided to buy a return ticket for herself, but this was not, she told me, because she thought she might go back, it was merely that it is cheaper, she says, to buy a return ticket and then cash in the other half later. So she still has the other half of the return ticket and is still available to be used. She has not cashed it. When she left she did not tell the father and she left a letter to be posted to him. The letter is dated 5th March, 1987 and is said to have been received on the 1st April, 1987. She starts off by saying that she is sorry for those things which she did wrong during the marriage, and she points out some of the defects of the father, and she says, "I hope that you understand why Simon and I are going away for a while. You have forced us in an unloving manner into this situation and given us little or no - other choice." The fact that the mother took a return ticket and in this letter talks about going away for a short while gave the impression that she might have been thinking of returning to Australia, but she assures me that that impression is quite wrong, she never intended to come back, and when she wrote that she was going away for a while this was eyewash to deceive the father. The mother explains her leaving Australia in this way. She says that she had asked her solicitor in the summer of 1986 whether she could go to England. This was at a time before there had been proceedings in the Family Court of Australia, and that he had said yes, it would be all right. And then she says that in 1987 she applied for a passport and it was issued to her and she took this to indicate that she could leave the country with Simon. She did not check with her solicitor who had been acting for her in the Family Court, and she says she telephoned the solicitor's secretary to let her know of her departure on the day of departure. I have considerable doubt whether the mother is being honest in saying that she did not realise that she should not have taken this unilateral action. The father took the case back to the Family Court and it came before Mr. Justice Purdie on the 9th April, 1987. The father asked for an order for custody in his favour, having regard to the mother's departure with the boy, but the Judge refused that application and adjourned it for further consideration. But he ordered a sale of the house in accordance with the contributions of the parties in the proportions of 80 per cent to the father and 20 per cent to the mother. The father said he spent the next months trying to negotiate with the mother and trying to persuade her to return with Simon from England. The mother, however, had clearly decided that she was not going to return to Australia, and the indications are that she had decided at a fairly early stage that she wished to cut the father and his family off from contact with Simon. I have a number of letters which were written in 1987. On the 21st June, 1987 the mother wrote to the father, ending her letter by saying, "Any further correspondence from you will either be ignored, returned or destroyed". On the 31st August, 1987 the mother wrote to the father's parents who are in Australia saying. "I suggest you do not bother to send any further gifts, letters, cards. etc. to Simon or me", and in the body of the letter she says. "Rather than worry when or if you will see Simon again you should divert your attention towards your sons and correcting the many mistakes and shortcomings in relation to them. Simon's welfare is my concern and my responsibility. so I feel that to send photos of and letters from Simon would be out of the question. since maintenance has not been forthcoming." And then an ugly letter of the 24th September, 1987 was sent to the father's mother by the grandmother with whom Simon now lives, saying, "I have spelt out to Michael" - that is the father - "that he will not be welcome here at any time, but I know an address or two on the Phillips side where we can muster up a few burly fellows who can't wait to meet him. Think on it." The father's hope of achieving a negotiated arrangement was hopeless, and in those circumstances he issued an originating summons under The Hague Convention on the 18th December, 1987, asking for the return of the child. The summons is on the face of it a summons asserting a breach of his access rights, but I have given leave to amend the summons to allege breach of custody rights, and in due course before the case finishes I hope that amendment will be available. The mother's present position is that she lives in Worthing with the grandmother in what appears to be a satisfactory home. Surprisingly she still receives social security from Australia, and she receives about 90 pounds a fortnight. If she goes back to Australia she will still continue to receive the social security there. If the Court decides that Simon has to go back to Australia then the mother says that she will go with him, and of course she has a custody order, at any rate at present, in the Australian Court. The house in Australia has been sold. There is some 1,000 pounds representing her 20 per cent interest in the house available for her in an account. There is some question as to whether the legal aid authorities in Australia may have a lien over that in the same way as the legal aid authorities would in England. The mother certainly thinks that they have such a lien. The mother accordingly would have difficulties about accommodation because the house she left is no longer there. Possibilities put forward by the father are that she should go back to live with her father. One brother and one sister are still in the former family home. Another alternative suggested by the father is that she should go to live with the foster-mother. She herself does not put forward any suggestions as to how she would manage. She says it would be extremely difficult. The father has been on a sabbatical year from his school mastering, and returns to work at the beginning of next term, - which starts on the 1st February. He shares a house and he says he would be in a position to care for Simon, or at any rate for his parents to care for Simon. That is not a matter for this Court to decide, of course. It has to be said in thinking about the possibility of the father caring for Simon that on the l3th March, 1987, just before the mother left and not knowing that she was about to leave, the father wrote a letter saying, "I continue to see Simon every Sunday afternoon and he is thriving. I think the mother is an exceptional mother in her caring for his needs and making sure of his stimulation and development." So it is likely that if the mother and child return to Australia that the mother will continue to have custody of the child. He now says that if the mother were to return to Australia he would pay maintenance at the rate of about $100 per week. The application by the father is under The Hague Convention, which has been given the force of law in England under the Child Abduction and Custody Act of 1985. The mother takes the point that when the originating summons was issued certain documents which should have accompanied it were not provided and still have not been provided. Article 8 of The Hague Convention provides that the application to the central authority should contain various items of information, and it goes on to say that the application may be accompanied by a series of documents which are specified. The Hague Convention is given force of law under Section 1 (2) of the Act. Under Section 10 of the Act rules of court are authorised. The appropriate rule of court is Order 90, Rule 34, and this rule provides that the originating summons shall be accompanied by all the relevant documents, including but not limited to documents specified in Article 8 of The Hague Convention. One of the documents which is referred to in The Hague Convention is a certificate or affidavit emanating from a central authority or other competent authority of the state of the child's habitual residence or from a qualified person concerning the relevant law of the state, and it is said that such a document has not been provided and therefore that the application is defective. Article 8, as I have pointed out, says that the application may be accompanied by these documents. The order says that the documents which are to be provided are--to be all the relevant documents and include the documents in Article 8. In my judgment the fact that there is a discretion under Article 8 to include the various documents mentioned in that article governs the rule of court, and the discretion passes from The Hague Convention into that rule of court. And the fact that one document which might have accompanied the application under The Hague Convention is not accompanying the originating summons is not fatal to the application. The fact that such a document could be provided draws attention to the need for the relevant law of Australia to be carefully considered in this case. But the fact that the consideration does not arise from an affidavit in my judgment is not vital. As I said earlier the originating summons as issued refers to a breach of the rights of access. This would not give rise to an order of this Court returning the child to Australia. The amendment of the originating summons will refer to a breach of the rights of custody, and it is such a breach that gives rise under The Hague Convention to an order for the return of a child. The operative order of the Australian Court in this case is the order of the 6th June, 1986 by the local court in Camden. This was a consent order giving custody to the mother, and on the face of it there would not appear to be a breach of the father's custody rights in bringing the child to England. But the law of Australia appears to be different from the law of England as far as custody is concerned. It might have been more helpful to have had the evidence of an Australian lawyer specifically on this point, but the material I have is in my judgment sufficient for me to come to a proper conclusion as to the law of Australia on the question as I am entitled to do under Article 14. The law of Australia is set out in the Family Law Act of 1975 as amended, and distinguishes between guardianship and custody. Section 60A (1) provides that a guardian of a child has responsibility for the long-term welfare of the child and has all the other powers, rights and duties that are apart from the Act vested by law or custom in the guardian of a child other than a right to possession of the child and the responsibility of the daily care and control of the child; whereas under sub section (2) the person who has custody of the child has the right to possession of the child and the responsibility for the custody in the local court of Camden is closer in English law to an order for care and control than an order for custody, and it is apparent from reading Section 60A that with a mother and father who are married and not divorced an order for custody will give care and control to one party, but both parties will continue to have all the rights of a guardian, which would be equivalent to an order for joint custody in an English Court. If there was any doubt about this aspect of the case it is resolved by a declaration which has been made in the Australian Court. Under Article 15 of The Hague Convention the authorities may request a decision from the state of the habitual residence of the child that the removal of the child is wrongful within the meaning of Article 3 of The Hague Convention. Article 3 of The Hague Convention provides that the removal of a child is to be considered wrongful if it is in breach of a right of custody of a person. An application was made under Article 15 to the Court in Australia for such a declaration, and a declaration has been provided dated 18th December, 1987. It is a declaration of a Family Court of Australia at Parramatta duly signed by the Deputy Registrar of the Court, and it reads, "Upon an application to the Court this day it is ordered ex parte (1) that it be declared that the removal to the United Kingdom on or about the l7th March, 1987 of Simon David Arthur. the child of the marriage, was wrongful within the meaning of Article 3 of The Hague Convention. (2) That the wife as soon as reasonably practicable return the child to the jurisdiction of the Court." Under Article 16 of The Hague Convention after receiving a notice of a wrongful removal of a child in the sense of Article 3 the judicial authorities of the contracting state to which the child has been removed shall not decide on the merits of the rights of custody until it has been determined that the child is not to be returned under this Convention. So that my duty is not to decide what is in the best interests of the child, unless I decide that the child ought not to be returned. The grounds on which I may decide the child should not be returned to Australia are contained in Articles 12 and 13 of the Convention. Article 12 says that where a child has been wrongfully removed in terms of Article 3 and a period of less than a year has elapsed from the date of the wrongful removal the authority concerned shall order the return of the child forthwith, and the exceptions are contained in Article 13, which says that notwithstanding the provisions of Article 12 the judicial authority is not bound to order the return of the child if the person who opposes the return establishes one of two things. It is not suggested that Article 13(a) applies. It is suggested that Article 13(b) applies. Article 13(b) provides that the child should not be returned if the mother in this case establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position. It is not suggested in this case that the child would be exposed to a grave risk of psychological harm. That is because the mother says that she would return to Australia if she had to with the child and because of the decision of the Court of Appeal in the case of Re A, transcript dated 10th June. 1987. What is said in this case is that the child would be placed in an intolerable situation if the Court ordered him to be returned to Australia. Enquiries were made during the course of the proceedings on behalf of the Lord Chancellor in Australia and this morning an application was made after the close of the mother's case that I should see a note written by an official of the Lord Chancellor's department concerning the enquiries which were made yesterday in Australia. This application was opposed. but I decided to see the note. The note says that on behalf of the Lord Chancellor Miss Thornbey telephoned Miss Doneta Medway, who was a senior officer in the Department of Youth and Community Services in New South Wales, and she is also the former foster mother of the mother. Miss Medway has said that the mother will be entitled to social security in Australia at what appears to be about the rate of the social security she is getting from Australia at the moment. And she has also said that there is a system for housing homeless people, but suggested that as an interim measure the mother and Simon could go back to live with her, although for only a short period. The mother would not he prepared to go to live with the foster mother, having regard to the difficulties which I mentioned earlier on. The difficulties that the mother would have in Australia are probably substantial, in the first instance in getting housing, but so far as I can assess them they could not be said to be insuperable, and taking the mother's situation and her assessment I could not say that the situation that Simon would find himself in if the mother were to return him to Australia could be said to be intolerable or that in some way the situation could not be endured. The mother has her return ticket. She is a naturalised Australian. The father is Australian by birth and the child Simon is Australian. Australia is clearly the former home of the family. There is some money available. There is an offer of some money from the father for maintenance, and having considered carefully the mother's evidence I am not in any way satisfied that she has established that there would be a grave risk that the child would be placed in an intolerable situation if the child returned to Australia. In those circumstances, under Article 16 and Article 12. I order the child to be returned to Australia. MR. POINTER: In your Lordship's judgment in Re A your Lordship having come to the same decision made an order for return of the child forthwith, which is the wording used in Article 12, and included a provision which can be found at page 10 of the judgment of the Court of Appeal. postponing the operation of that order provided that the mother there as it was returned to Canada with the child within six weeks. I would ask your Lordship to make a similar provision here. In relation to the actual period I do not think my client has the ticket here but she believes that her ticket has on it a return date of 11th March or thereabouts. that is actually eight weeks and two days. My instructing solicitor and I believe that she would probably be able to change the date on the ticket. but obviously that is something she will have to make enquiries about. and she would also have to acquire a ticket for Simon. Therefore if your Lordship thinks it a reasonably appropriate period I am not going to seek to extend that, but I mention it ... MR. JUSTICE EWBANK: You say the l2th March is the date? MR. POINTER: 11th March, my Lord. MR. JUSTICE EWBANK: I will say on or before the 11th March. MR. POINTER: If your Lordship were to say that and then if there were some slight query about the date no doubt that can be dealt with without any difficulty. MR. JUSTICE EWBANK: I am quite prepared to do that. Miss Scotland, on or before 11th March? MISS SCOTLAND: If your Lordship would say the mother should return with Simon as soon as practicable and in any event before because it may be that she could change the date. MR. JUSTICE EWBANK: I do not think it adds anything really to say that. I say forthwith suspended provided she returns the child on or before 11th March. MR. POINTER: If it turns out that the ticket actually says the 13th or l4th March and my client has misremembered obviously we will notify my learned friend's instructing solicitors and I do not imagine there will be any problem. MR. JUSTICE EWBANK: You can adjust the order. MR. POINTER: One other matter. I do not know what my client's instructions afterwards will be, but it may be that she will seek to test your Lordship's judgment. MR. JUSTICE EWBANK: I do not think you need leave to appeal. MR. POINTER: I was not going to ask for that, my Lord. What I was going to ask for was a stay of execution. I do not imagine it will cause any problems because of the timescale your Lordship has provided. MR. JUSTICE EWBANK: If you want any further stay you will have to go to the Court of Appeal, that is the best was to deal with it. MR. POINTER: I imagine, my Lord, within that time anyway that any appeal will be heard MR. JUSTICE EWBANK: Certainly, and the Registrar at the Court of Appeal would sort that out for you. MR. POINTER: So that I know precisely where I stand. my Lord, do I take it that your Lordship is saying no stay. MR. JUSTICE EWBANK: I do not give you a stay. Any stay you require you will get from the Court of Appeal. I do not think you will need one, because the whole essence of The Hague Convention is speed. MR. POINTER: I appreciate that, my Lord, but I just wish to cover every possibility. My Lord, I have been asked about what is to happen during the intervening period. I do not know what date the father will now go back to Australia, but a question arises as to what access should take place in the interim. I am a bit doubtful as to your Lordship's jurisdiction to deal with that at all. I do not know whether your Lordship had the order of Mr. Justice Reeve of the 21st December, which is the order which provides for interim access. It has only been referred to in passing. As I understand it it provides for access from ten to three on Wednesdays and ten to six on Saturdays, and that has been taking place in the way that your Lordship has heard. My client is content for that to continue subject to this, that she prefers the Saturdays also to be from ten to three because she has found ten to six is rather too long a period for Simon. MR. JUSTICE EWBANK: When is the father going back? MISS SCOTLAND: The father is going back on the 24th January. MR. JUSTICE EWBANK: So it is only ten days. MR. POINTER: In those circumstances it is difficult for me to press that point. MISS SCOTLAND: I wonder whether your Lord Ship would say substitute for this day Thursday, that is tomorrow. MR. JUSTICE EWBANK: Is there any objection to that? He is only here for another ten days. MR. POINTER: Equally my client has not seen him for two days because she has been here. MR. JUSTICE EWBANK: The order is suspended on terms that the father has access twice a week as arranged. MISS SCOTLAND: There is only one other matter. By virtue of Mr. Justice Reeve's orders I understand that the solicitor instructed by the mother has retained the passports. I wonder whether your Lordship would say that that order should continue until such time as she should leave. and that her passport be not released to her before the date of her departure to Australia. The father is very anxious. MR. JUSTICE EWBANK: What does he fear? MISS SCOTLAND: That she will take the child and go somewhere else. MR. JUSTICE EWBANK: Where? MISS SCOTLAND: Well, my Lord. MR. JUSTICE EWBANK: She has nowhere to go. Suppose the solicitor gives her the passport and she goes off to London Airport and jumps on a plane to Egypt or gets off the plane in Egypt she would have nowhere to go, so she is not going to do that. She would not be here if she was going to skip out of the country. Has she family anywhere else? MISS SCOTLAND: My Lord, no. But certainly the behaviour has been such that it has led to the father genuinely fearing that she might make some effort to leave the jurisdiction. MR. JUSTICE EWBANK: There is no particular reason why she should have her passport I suppose, it will not matter to her one way or the other. I do not really think it is necessary but let us leave it with the solicitor to hand it over at the appropriate time. MR. POINTER: I expect he will do that, my Lord. I do not imagine it would be the day of departure but a few days before for convenience. I have no doubt that both my client and my instructing solicitor are agreeable to that arrangement. MR. JUSTICE EWBANK: She doesn't want to go anywhere else. does she? MR. POINTER: I have not asked her. my Lord, but I am sure the answer is no. In relation to her travel back my learned friend said in the course of her cross-examination this morning that the husband would assist in the passage of Simon back to Australia. and I have no doubt that an application to him for that purpose will be made by the mother. I do not think that is anything which your Lordship is going to be concerned with, unless your Lordship wished to make that a condition of your Lordship's order. MR. JUSTICE EWBANK: You cannot get it out of the Lord Chancellor's department. MR. POINTER: I do not think I can, my Lord. MISS SCOTLAND: I am pleased to say that in fact in Australia there is a fund specifically for the purpose of funding the return of children who have been wrongfully removed under the Convention. So that fund can be called upon. MR. POINTER: As long as we are pointed in the right direction I am sure that can all be dealt with. MR. JUSTICE EWBANK: If there is a problem you can come back and I will deal with it. The father has offered, and if funds are not available then the father will have to pay. And if he does not pay I will have to make an order that the order be continued to be suspended until the father pays. It is not necessary at this stage. MR. POINTER: I do not think it is, no. MR. JUSTICE EWBANK: The father knows that I will continue to suspend the order if the funds are not available. Then he will know what he has to do. MISS SCOTLAND: My Lord. it is right to say that the Lord Chancellor can make efforts to obtain the money from the appropriate authority. The only other matter is in relation to efforts in Australia, because as I understand the matter from the officer from the Lord Chancellor's department it will take hopefully a very short time for the mother to be rehoused, but if she were to take steps now to get that process into being very quickly it is thought by the youth worker that provision will be made for her when she returns, if something can be organised. MR. JUSTICE EWBANK: She has heard that. Do you know what she has to do? MISS SCOTLAND: Certainly the father on behalf of the mother if he had her authority would be willing to make the arrangements in respect of the welfare services from the homeless unit. I understand from the officer of the Lord Chancellor's department that there is a priority listing. MR. JUSTICE EWBANK: Can you discuss this outside and provided you come to an agreement you need not come back. If you need further help come back at two o'clock. MR. POINTER: I do not see how the mother can be required to take any step of this kind. MR. JUSTICE EWBANK: She is just asking if she would agree to it, if she wishes to. MR. POINTER: Yes. and obviously all the information that has been provided will be passed on to her and then she must make application. MR. JUSTICE EWBANK: This is the time to do it when everybody is here. MR. POINTER: I am not resisting that. It is just the way that my learned friend threw it in at the end of her comments. that the mother should be giving undertaking to this Court. MR. JUSTICE EWBANK: There will be no undertaking. MISS SCOTLAND: The last matter is legal aid. Although the Lord Chancellor acts on behalf of --- MR. JUSTICE EWBANK: Do you want legal aid taxation? MISS SCOTLAND: I do, my Lord. MR. JUSTICE EWBANK: There will be legal aid taxation. MR. POINTER: Ditto, my Lord. MR. JUSTICE EWBANK: Yes.