Court: High Court of Justice, Family Division, United Kingdom Number: CA 522 of 1987. Applicant: Mother and Respondent: Stephen Robert Duncan Date: 29 Jan 1988 ================================================================= THE HIGH COURT OF JUSTICE, Case No: CA 522 of 1987. FAMILY DIVISION Royal Courts of Justice Friday, 29th January, 1988. Before: MR. JUSTICE WOOD Re: DUNCAN (minor) (CHILD ABDUCTION and CUSTODY ACT, 1985). Transcribed from the Official Court Tape by Barnett, Lenton & Co., 46/47 Chancery Lane, London, W.C.2). Mr. EVERALL (instructed by Messrs. Hatchett Jones & Kidgell) appeared as Counsel on behalf of the Plaintiffs. MR. M. TAYLOR appeared on behalf of the First Defendant. MISS L.G. PARKER, the Second Defendant, appeared in Person. JUDGMENT (As approved by the Judge) Mr. JUSTICE WOOD: I have before me two applications -- the one is by an originating summons dated l6th June 1987, issued under the provisions of the Child Abduction and Custody Act, 1985, and the second is a summons within the summons to commit the grandparents of the child involved, a little boy called Andrew, born on 27th September 1983. It is important to notice at once that the jurisdiction which I am exercising is under that 1985 Act and not, as so often in the past in these abduction cases, under a wardship jurisdiction. The government department responsible for acting at the request of a foreign government in seeking to find a child who has been abducted, is the Lord Chancellor's Department, and it is felt that there is a need for the public to realise the seriousness of these abduction cases; it is for that reason in the main that I give this judgment in open court. The plaintiff to the summons is the mother of Andrew and the Defendant is the father. When the summons was issued his whereabouts was not known, but it was suspected that he was within this jurisdiction. The marriage of the parents took place on 23rd July 1983 and separation took place during 1985. The family were living in British Columbia in Canada, and, until the abduction at the end of May of last year, the child was living with his mother. There were a number of orders in the Courts of British Columbia. The first was on 28th May 1985, when by consent it was ordered by the Provincial Court of British Columbia, sitting at West Vancouver, that the mother should have Andrew's custody and that father should have access. On 24th September 1986 there was a variation in access, and on 13th April 1987 the Supreme Court in British Columbia gave custody of Andrew to his mother, defined access and ordered that an access report should be made. Access in fact took place to the father (the Defendant), on the and, the 9th and the 30th May 1987, but on that latter date the child was not returned and disappeared with his father. Investigations were made by the Royal Canadian Mounted Police and information was gathered that the Defendant father had gone to England; that was clearly in breach of the order in existence. On 1st July 1987 the Supreme Court of British Columbia ordered that the child be returned to his mother immediately and made an order (by then it was probably too late) restraining the father from removing Andrew from the jurisdiction, and then made, what we would call in this country, a "seek and find order." As a result of that the matters were reported by the relevant Canadian government to the Lord Chancellor's Department and a request arrived very early in June. The Lord Chancellor's Department has a panel of solicitors who are prepared to act in these cases, and he instructed those who act in this case, who have instructed Mr. Everall. The proceedings after the issue of the summons are material. The next day, on 17th June 1987, Mr. Justice Hollis made a seek and find order, and he also made an order requiring the paternal grandfather and the paternal uncles of young Andrew to give information about the child. The wording of the order, so far as it concerns the uncles, is not material but that concerning the grandfather is important, and the order was to the grandfather and, indeed, the grandmother, and that I will read: "Do forthwith, upon service of this order upon them, or either of them, disclose to the Plaintiff's solicitors, Messrs. Hatchett Jones & Kidgell, of 8 Crescent, London. EC3, all information possessed by them---" and here are the important words "--- as to the whereabouts of the child Andrew Edward Duncan and the Defendant Stephen Robert Duncan." That order was served upon the grandparents on 23rd June and they were in touch with the solicitors by telephone. The result, however, was not effective and on 28th July 1987, Mr. Justice Swinton Thomas made an order for publicity, and also made a further order against the grandparents and the uncles, and the additional phrasing in the order was requiring them, in the event of any such information coming into their possession thereafter, to inform the solicitors. The widest publicity was given and the Press were most helpful, but despite that, there was no result. The order of 28th July was served on the grandfather only and, on 29th October, the grandparents were brought before Mr. Justice Swinton Thomas on bench warrants. The grandfather was cross-examined -- I have seen a transcript of the evidence which he gave -- but the learned Judge felt that although the evidence was not satisfactory, it was impossible to make any positive finding that the grandfather was in breach of the order. The learned Judge, Mr. Justice Swinton Thomas, made a new seek and find order and released the grandparents. The order of 28th July was served on each of the uncles (Nicholas and Andrew) on, respectively, the 30th and 31st October, and as a result of information and an application made to me on 20th January of this year, I directed that the grandparents and the two uncles should attend before me for cross-examination, and that cross-examination started two days ago, on the 27th. Let me make one thing clear right away. The grandmother was unable to attend, unfortunately she is in hospital having had a major operation, and she is discharged and has been discharged from any consideration of contempt. On Wednesday, at the end of the day, grandfather had been cross-examined, the two uncles had been shortly cross-examined, and as a result of further information which was placed before me (to which I do not intend to refer) I joined Miss Parker as a defendant, so that she became the subject of a seek and find order together with the father, and it was clear, albeit not to the Defendants, but to the Plaintiff and the court, that the likelihood of discovering Andrew's whereabouts was increasing hourly. However, on the morning of Thursday 18th, Andrew and his father and Miss Parker -- who is his co-habitee as I understand it -- were produced at court. Grandfather told me that during the night, the father of Andrew (the Defendant) had 'phoned asking about his mother's health, as a result of which he had been advised to give himself up and, after deliberation, he had decided so to do. Let me deal with one or two matters. The father (the Defendant) has not given evidence before me, and now that Andrew has been found it is not entirely clear whether the court has power to direct him so to do. It occurs to me, as a matter of comment, that both the foreign governments who make the request to the Lord Chancellor's Department and the authorities in this country, would be interested to know the details of an abduction and what has happened up until the time when the child is found. When one looks at Section 24(a) of the Child Abduction and Custody Act, 1985, which has been added by amendment, there is a power there to require witnesses to attend and give information about the whereabouts of the child. That power has been placed in statutory form, but it is a power inherent to the court in wardship proceedings and it was clearly thought that in the absence of the statutory provision there was no power in the court in such proceedings as the present to order witnesses to attend and give such evidence. Bearing that in mind, it seems to me that there is no power at present to order a defendant to give evidence after the child has been found and surrendered to the authorities, and it may be that the Lord Chancellor's Department will give consideration to the desirability of such a power to be introduced by further amendment. I turn to the application for committal of the grandfather. The form of the order, which I have already indicated, is perhaps not as tightly drawn as would be desirable. The evidence which he gave was clouded with precautionary comments and it may be that he saw the Defendant and Andrew before that order was made. The order, as drawn, requires him to give evidence of "the whereabouts," and it is possible that a layman, looking at that order, would think that he is required to say whether he knows where the child Andrew "is." I would suggest that thought be given to rephrasing these orders in the future, so that the order might read: "All information possessed by them as to the past movements and the present whereabouts of the child or of the Defendant." It might be advisable to put a date for the past movements, so as to provide some limitation. Phrased like that, there is absolutely no doubt whatsoever that this grandfather was in contempt of the order. But the form of the order as it was drawn does leave an element of doubt, and whilst I do not accept that he has told me the whole truth about the matter, and I was unimpressed by him, nevertheless he has made an apology and I do not think it right in the circumstances to make any order committing him to imprisonment for contempt. The 1985 Act came into existence after much deliberation internationally to seek co-operation between governments for the return of children wrongly abducted. There has, over the years, as anyone experienced in the jurisdiction concerning children and international abduction is aware, been an increase in its incidence, with the upset and consequential unnecessary trauma to many of the children involved. After international deliberation and consultation, two conventions were brought into being -- the Hague Convention and the European Convention -- and the 1985 Act gives effect to the provisions of those Conventions to which the United Kingdom government is a signatory. Part I deals with the Hague Convention; Part II of the Act, with the European Convention and Part III adds some supplementary provisions. I am here concerned with the first part of the Act, and British Columbia are a party to that Convention. The central authority -- namely the authority to whom the request is made by the foreign government -- is the Lord Chancellor in the Act is the High Court. Section 5 reads as follows: Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application." As I read it, that gives the court power to deal with interlocutory matters such as injunctions, seek and find orders and publicity, in the same way as it has inherent powers in wardship. The additional section, section 24(a), to which I have already referred, deals with the power to order disclosure of the child's whereabouts, and it applies to both Part I and Part II of the Act. Subsection (2) is the one to which I would refer. It reads: A person should not be excused from complying with an order under subsection (1) above by reason that to do so may incriminate him or his spouse of an offence. But a statement or admission made in compliance with such an order, shall not be admissible in evidence against either of them in proceedings for any offence----" and I stress "---- other than perjury." The Convention has many detailed provisions. Article 3 deals with the wrongful removal and is clear here. Article 7 provides that "Central Authorities shall co-operate... to secure the prompt return of children and to achieve the other objects of this Convention." And, "In particular, either directly or through any intermediary, they shall take all appropriate measures - " and I intend to refer to four of them: (a) to discover the whereabouts of a child who has been wrongfully removed or retained; . . . . . (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; . . . . . (g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child." The importance of expedition is emphasized in Article 11, which provides that "The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of [the child]." And the power which this court has, is defined by Article 12, and I read the first part only: "Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracted State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith." The only provision which allows any discretion in the court is that in Article 13, which provides that "Notwithstanding the provisions of the preceding Article,--- (that is Article 12) the Judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposed its return establishes that - " and then I look at (b) 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 situation." Now it seems to me that that provision is likely to apply only in the most extreme cases, where evidence of the exposure to physical or psychological harm, or intolerable situation, is both obvious and incontrovertible: it is not applicable here. Article 16 makes it clear that unless and until the final order is made deciding not to return the child, or unless there is unreasonable delay, no other proceedings to decide the merits of the rights of custody of the child shall take place in this country. Section 9 of the Act makes it clear that a custody order -- which by section 27 of the Third Schedule includes wardship and many others -- shall not be effective in any attempt to defeat the provisions of the Convention. I do not think I need refer to those in detail. The result of that short review of my jurisdiction is clear, that I must make (and I have made) an order here for the return of Andrew to his mother, and she is flying over to this country, due to arrive today. In order to meet my duties under Article 7, sub-paragraphs (c) and (h), arrangements were made for the wife of the solicitor involved, instructed by the Lord Chancellor's Department, to look after Andrew for last night, possibly also for tonight, and I adjourned and ask the Court Welfare Officer to assist in smoothing out the arrangements for that to take place. I have seen this volunteer (who has given evidence before me) and she is a highly suitable person; I am grateful to her for assisting the court. However, it may be that volunteers of this calibre are not available; and, as another general comment, I would suggest that perhaps the Lord Chancellor's Department, and the Embassies or High Commissions involved, should give some thought to the handling of children who have been recovered, discovered and placed in the hands of the court, and where the court needs to make some temporary provision for their safe accommodation and happy accommodation pending the arrival of a parent from overseas. The father here (the Defendant) has never been served with the order and no question applies therefore. nor is there any suggestion that it came to his notice by publicity, and no-one has sought to commit him. But there is a question here of costs. In the circumstances, and perhaps taking a lenient view, I do not propose to order that the grandfather should pay any costs. But there is an application for costs against the Defendant father. The provision as to costs is contained in section 11 of the Act, and in Article 26 of the Convention, and it is, I think, only necessary for me to say that I have power to order the Defendant to pay the costs and also -- and I am quoting now from the end of Article 26 -- ". . . to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child." The mother, the Plaintiff (the Applicant) has, by arrangement through the authorities here, a nil contribution and a Legal Aid certificate, but there is no good reason why she, in the ordinary way, should not be treated as a perfectly normal litigant and, in the circumstances, I can see absolutely no reason why this father, who has caused all these proceedings and this anxiety and trauma to the mother, should not pay the costs, both the legal costs and the costs involved in that phrase which I read out from Article 26 of the Hague Convention. It is clear therefore, turning now in general terms, that despite the assistance of the Press, this child Andrew has been carefully hidden in this country since June of last year. As yet, the provisions of this Act and of the relevant Conventions may not be well known publicly, and it so happens that in my judgment, due to the particular circumstances of this case, including the fact that the child was ultimately produced voluntarily, I have been able to take a lenient view of what has occurred. One can, of course, understand the strength of emotional feeling in a parent, and the supportive approach of the family unit. But it must be recognised that although adults are locked in battle, children are not to be moved around as pawns on a chess board and in defiance of valid court orders in this or some other relevant jurisdiction. It must be realised that every possible avenue of enquiry will be persistently and relentlessly pursued, and witnesses may be required to attend the court, if necessary, on more than one occasion. In these cases, any failure (even the slightest) to comply strictly with an order of the court, is likely to be regarded as a matter so serious as to merit a custodial penalty if the breach (and therefore the contempt) is established. Moreover, it is to be noted that the immunity in section 24(a)(2) specifically excludes prosecution for the offence of perjury, from which it is reasonable to suppose that such is the importance placed upon finding children who have been abducted, that any evidence ultimately found to have been perjured, is likely to result in serious consideration being given to a prosecution. In my judgment the importance of the provisions of this legislation must be made clear to all. I have indicated and made an order last night and I shall now hear submissions as to any variation that is necessary. MR. EVERALL: My Lord, I do not think any variation of the order is necessary. My Lord, I can tell you that the mother and the maternal grandmother arrived here at about 8.30 or 9 o'clock -- by "here" I mean the United Kingdom -- so they are on their way to the home of those instructing me, and it is hoped that they will be able to fly off to Canada either today or tomorrow. JUSTICE WOOD: Very well. MR. EVERALL: My lord, I know that my learned friend's instructing solicitors hold the First and Second Defendants' passports, to the order of the court -- they have given an undertaking. My Lord, I do not know if I might respectfully submit if that undertaking could be varied, so that they could release the passports to the Defendants when those solicitors have been notified by my solicitors that the child has left the United Kingdom. MR. JUSTICE WOOD: Yes. I see no reason why not. Mr. Taylor, that is---- MR. TAYLOR: My Lord, yes, that is in fact---- MR. JUSTICE WOOD: If your instructing solicitor would like a limitation on the period of time, ---- MR. TAYLOR: My Lord, it was indeed my intention to make an application in those terms. MR. JUSTICE WOOD: Yes. MR. TAYLOR: (Inaudible). MR. JUSTICE WOOD: Certainly. Well, let us say that, 1 think, simply on being notified by the Plaintiff's solicitors that the child has returned to British Columbia and has arrived in British Columbia. MR. EVERAL: My Lord, yes. MR. TAYLOR: My Lord, I am very grateful. MR. JUSTICE WOOD: Yes. Very well. MR. TAYLOR: My Lord, on the question of costs, your Lordship has ordered the First Defendant to pay the costs. My Lord, yesterday your Lordship considered if the order for costs ought to be only up to the time that the Defendat was legally aided, ---- MR. JUSTICE WOOD: You are quite right. So far as the legal costs are concerned, ---- MR. TAYLOR: My Lord, yes. MR. JUSTICE WOOD: ---- up to, let us say, the short adjournment yesterday. MR. TAYLOR: My Lord, yes. MR. JUSTICE WOOD: But the rests of the costs are not (inaudible). MR. TAYLOR: My Lord, yes. I am obliged. MR. JUSTICE WOOD: That is all the outside costs -- you know, non legal costs. MR. TAYLOR: My Lord, yes. MR. JUSTICE WOOD: That means all her tickets and so on, he must pay for. MR. TAYLOR: My Lord, yes. MR. JUSTICE WOOD: Yes, so be it. Now, Mr. Duncan, stand up. MR. DUNCAN: Yes, my Lord. MR. JUSTICE WOOD: It has been an unhappy history, this episode in your family. I hope nothing like this will ever happen again. MR. DUNCAN: I hope not, my Lord. MR. JUSTICE WOOD: You are the head of the family. MR. DUNCAN: I hope not, my Lord. MR. JUSTICE WOOD: Yes, very well. COUNSEL: My Lord, one thing. May I ask for legal aid taxation? MR. JUSTICE WOOD: Yes, of course; both sides. COUNSEL: I am obliged. MR. JUSTICE WOOD: That will be added in the order.