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International Children Law Update - July 2010

In the first of a regular series Jacqueline Renton of 4 Paper Buildings reviews the latest key developments in international children law.


Jacqueline Renton, barrister, 4 Paper Buildings

In this review I shall focus on recent international children law cases, excluding leave to remove cases as those shall be dealt with in the Private Law Update. In this update, I shall cover the key decisions in the following areas:-

1) Hague Convention 1980 proceedings
(a) Rights of Custody
(b) Article 12 settlement defence
(c) Article 13(b) child's objections defence
(d) Procedure

2) Jurisdiction
(a) The impact of the Brussels II Revised Regulation 2003
(b) The use of s.100 of the Children Act 1989

As this is my first Update, I have selected case law from the last 12 months in order to provide some form of back catalogue.

1) Hague Convention 1980 Proceedings

(a) Rights of Custody

The decision of the Supreme Court of the United States of America in Abbott v Abbott [2010] is a seminal case on the interpretation of "Rights of Custody", pursuant to article 3 of the Hague Convention 1980 in the context of international jurisprudence. The decision in Abbott v Abbott confirms the international consensus that already existed in respect of "Rights of Custody" – as exampled by the House of Lords decision of Re D (Abduction: Rights of Custody) [2006] UKHL 51

The facts were as follows:- The parties were married in England in 1992 and subsequently moved to Hawaii, USA where their child was born in 1995. The parties then moved to Chile in 2002 and separated in March 2003. The Chilean court ordered that the child should reside with the mother and have direct contact with the father. Chilean law also conferred upon the Father a ne exeat right – the right to consent before the mother removed the child from Chile. In August 2005, the mother removed the child from Chile without the father's consent. The mother was subsequently traced to Texas, USA. In May 2006, the father issued Hague Convention 1980 proceedings seeking the summary return of the child to Chile.

At first instance, the United States District Court for the Western District of Texas refused the father's application on the ground that his ne exeat right did not constitute a Right of Custody, pursuant to article 3 of the Hague Convention 1980 and therefore he had no locus to bring Hague Convention 1980 proceedings. On appeal, the United States Court of Appeals for the Fifth Court affirmed the judgment at first instance, expressing agreement with the majority of the Court of Appeal for the Second Circuit in Croll v Croll 229 F. 3d 133 [2000]. The Supreme Court then granted certiorari to the father. The Supreme Court of the United States of America overturned the decisions of the lower courts, having found by a majority of 6 – 3 that the father's ne exeat right was a "Right of Custody" within the meaning of article 3 of the Hague Convention 1980. Accordingly, the father had locus standi to pursue his Hague Convention 1980 application and the proceedings were therefore returned to the Untied States Court of Appeals for the Fifth Court for determination of the said application.
The lead opinion was delivered by Justice Kennedy. Justice Sotomayor, who had delivered the dissenting judgement in Croll v Croll [2000], accorded with the majority. In summary, the majority held that:

• A "Right of Custody" is not a "Right of Access" – there is a clear distinction between these two principles in the Hague Convention 1980.

• The Hague Convention 1980 would be rendered useless in many cases if a ne exeat right were not interpreted as a "Right of Custody". By accepting a wide interpretation of "Rights of Custody" the court found that such an interpretation ensures that the fundamental principle underlining the Hague Convention 1980 can be upheld – namely, that a child's state of habitual residence is best placed to determine that child's best interests, it being presumed that courts in the state of habitual residence will act responsibly in their decision making.

• The interpretation of a ne exeat right as a "Right of Custody", pursuant to article 3 of the Hague Convention 1980 accords with the international interpretation of article 3. The majority accepted that international case law confirms a broad acceptance of a ne exeat right being a "Right of Custody." – in this regard, the majority looked to the English decisions of C v C [1989] 1 WLR 654 and Re D [2006], together with decisions from the Supreme Court of Israel, and the High Courts of Austria, South Africa and Germany. The court also took the view that the Perez-Vera Report 1982 (the explanatory report on the Hague Convention 1980) made clear that at a ne exeat right was a "Right of Custody". It is helpful to note that the court had before it amicus curiae briefs from Reunite and the Centre for Family Law and Policy, the US State Department and the Permanent Bureau of the Hague Conference.

The dissenting opinion was given by Justice Stevens. In summary, the dissent commented that the majority's decision obliterated the distinction in the Hague Convention 1980 between "Rights of Custody" and "Rights of Access", and also did not accept that there was an international consensus on the interpretation of "Rights of Custody".

In this jurisdiction, the following recent cases are of interest:-

Firstly, the decision of Re K (Rights of Custody: Spain) [2010] 1 FLR 57. The Defendant mother had wrongfully removed the children, aged 7 and 5 at the time of the hearing, from Spain. The Plaintiff father sought the children's summary return to Spain. The mother questioned whether the father had "Rights of Custody" pursuant to article 3 and also pleaded an article 13(b) harm defence.

The article 3 point was the central issue at trial. At an early directions hearing, the parties agreed that, given the difficulties in interpreting Spanish law in relation to an issue of Spanish public policy, an article 15 declaration should be used. However, upon consultation with Lord Justice Thorpe's Office, the article 15 route was reconsidered – a timescale for a first instance decision was unclear, and an appeal from a first instance decision would take a further 6-9 months as a minimum. Further, an article 15 declaration could only take place within a custody / contact hearing, something which neither party desired at that juncture. Accordingly, Mrs Justice King refused to order an article 15 declaration. At the final hearing, the then President (Sir Mark Potter) did not criticise Mrs Justice King's decision, but made clear that he found it a wholly unsatisfactory state of affairs that an English judge had to interpret and determine the meaning of Spanish law.

The then President determined that the father had "Rights of Custody" within the meaning of article 3, having considered the 'domestic question' in respect of Spanish law and then the 'Convention question'.

The decision was appealed and is reported as Kennedy v Kennedy [2010] 1 FLR 782. The Court of Appeal upheld the Learned Judge's article 3 determination, commenting that he had been faced with a difficult decision and that his preference for one expert over the other was perfectly proper and well reasoned. The proceedings were then returned to the High court for consideration of the mother's article 13(b) harm defence. The High Court then found that an article 13(b) defence was established and the court exercised its discretion in favour of a non-return.

Secondly, X County Council v B (Abduction: Rights of Custody in the Court) [2010] 1 FLR 1197. The parents and two children, aged 8 and 4 at the time of the final hearing, had been involved with the Local Authority. The children had been placed in foster care, pursuant to s.20 of the Children Act 1989, but when the parents revoked their consent to this placement the children returned home. The Local Authority then issued care proceedings, and sought an Interim Supervision Order. The mother was served with the proceedings, and subsequently the parents took the children to the Republic of Ireland. The children were located and placed in the care of an Irish Local Authority. The English Local Authority then issued Hague Convention 1980 proceedings seeking the summary return of the children to England. The Local Authority stated that the English Court (not the Local Authority) had Rights of Custody at the time of the removal. The Irish Court requested an article 15 declaration from the English court.

Mrs Justice Macur found that the English court had "Rights of Custody" at the time of the removal as a result of being seised with an application that afforded the court with the right to determine the children's place of residence. The Learned Judge stated at [26 – 28]:

"The court is, undoubtedly, a legal entity, person, institution or other body, within the meaning of Art 3 capable of holding rights of custody: see Re J (Abduction: Ward of Court) [1989] Fam 85, [1989] 3 WLR 825 [1990] 1 FLR 276. The defendant's argue that whilst parental responsibility can be held without holding physical custody of the child, physical custody or parental responsibility are necessary in order to engage rights of custody. In fact neither 'physical custody' of nor 'parental responsibility' for a child necessarily convey the right to determine the child's place of residence as is amply demonstrated by the circumstances of a child living at home but subject to a care order. In that the court will never acquire either physical custody or, save in wardship, parental responsibility for children subject of the applications before it, it may acquire 'rights of custody' as defined by Art 5 if called upon legitimately to determine the child's place of residence. That is, the authorities conclusively establish that upon the court being 'seised' of an application which involves the court's discretion and jurisdiction to determine the child's place of residence, then it is seised of rights of custody in respect of the child or children to which the application relates."

(b) Settlement
In Re H and L [2010], the Plaintiff father sought the summary return of the children to Italy. The children were aged 9 and 7 at the time of the final hearing and had been in this jurisdiction prior to the issuing of the Hague Convention 1980 proceedings for approximately 6 ½ years. The children had moved from Swansea to London during the said time period. The Defendant mother pleaded the defences of article 13(a) acquiescence and article 12 settlement. Peter Jackson QC (sitting as a Deputy High Court Judge) found that both defences were established, and then exercised the court's discretion in favour of a non-return.

The Learned Judge held that:

• "new environment" means the total physical, social, emotional and psychological experience of the children. This experience was not affected by their move from Swansea to London. The factual matrix of the case was different from that of Re N (Minors) (Abduction) [1991] 1 FLR 413.

• The mother had not concealed the children from the father, hence the mother being able to establish an article 13(a) acquiescence defence. Accordingly, it was unnecessary to consider whether settlement was undermined by virtue of concealment.

• The absence of any meaningful links with Italy doesn't in of itself establish settlement, but this point was a "dog that does not bark."

• The children's immigration status was not relevant to the question of settlement, even though the father had made clear that he would report the mother to the Home Office (if the court did not do so.) The father could not rely on his intention as a way of undermining the mother's settlement defence. The court stated that it should be "very slow indeed to hold that a litigant can advance his case by means of voluntary actions carried out without regard for the welfare of his children. A defendant cannot normally benefit from concealing children, and…the same underlying principles apply to a plaintiff in the position of this father."

(c) Child's objections defence
In DE L v H [2010] 1 FLR 1229, the court was concerned with a child who was 13 ½ years old at the time of the final hearing. These proceedings were the third set of Hague Convention 1980 proceedings concerning the child. The Defendant father had lawfully removed the child from Portugal to this jurisdiction for the purposes of a holiday, but had failed to return the child at the conclusion of the holiday. The father pleaded that there was no wrongful retention as he had tried to return the child at the end of the holiday. In the alternative, the father pleaded the defences of article 13(a) acquiescence, article 13(b) objections and article 13(b) harm.

The then President (Sir Mark Potter) held that there was a wrongful retention from the time that the father had stopped attempting to return the child and the mother had not acquiesced. The court rejected the article 13(b) harm defence, but found that an article 13(b) objections defence was established and then exercised the court's discretion in favour of a non-return.

In light of the article 13(b) objections defence, the court had heard evidence from the CAFCASS Officer who had filed a report, and the child's Guardian (the child having been joined to the proceedings) who had filed two affidavits. The Learned Judge also took the unusual step (as he so accepted it to be) of seeing the child in chambers, in the presence of the CAFCASS Officer. The Learned Judge took this view given the child's age and maturity, and the child's expressed wish to the Guardian to tell the Judge his views. In seeing the child in chambers, the procedural guidance set down in JPC v SLM and SMW (Abduction) [2007] EWHC 1349, [2007] 2 FLR 900 was followed. 

It will be interesting to see the impact, if any, on children's rights in Hague Convention 1980 proceedings in light of the recent Supreme Court decision of Re W (Children) [2010] UKSC 12 which considered the appropriateness of children giving evidence in family proceedings.

W v W [2010] EWHC 332 (Fam) is an important decision in respect of the development of the child's voice in Hague Convention 1980 proceedings. In this case, the children were 8, 6 and 3 at the time of the final hearing. The Defendant mother secretly and wrongfully removed the children from Ireland. The parents' relationship had broken down; there was a background of incidents of violence and alcohol problems. The mother pleaded the defences of article 13(a) acquiescence, article 13(b) harm and article 13(b) child's objections. The first two defences were rejected by Mrs Justice Black, but the third defence was successfully established in respect of the 8 and 6 year old, and the court then exercised its discretion in favour of a non-return in respect of all three children.

Mrs Justice Black held that:
• The CAFCASS Officer's report was clear. Both the 8 year old and 6 year old objected to returning to Ireland, and had reached an age and degree of maturity at which it was appropriate to take account of their views.

• Neither the wording of the Hague Convention 1980, nor English jurisprudence to date stipulates an age below which it is inappropriate to canvass a child's views. Every child's age and maturity has to be assessed on a case-by-case basis. The court relied upon the words of Baroness Hale of Richmond in the House of Lords case of Re D (Abduction: Rights of Custody) [2006] UKHL 51 where she commented at [57]:

"As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child's views and doing what he wants. Especially in Hague Convention cases, the relevance of the child's views to the issues in the case may be limited. But there is now a growing understanding of the importance of listening to the children involved in children's cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to the children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own rights. Just as the adults may have to do what the court decides whether they like it or not, so is the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents' views."

• Were the youngest child to be returned, in circumstances where the eldest two children objected to the return and on the basis that the mother may reasonably decide not to return in the circumstances, there would be a grave risk of the youngest child being exposed to physical or psychological harm (article 13(b)).

The Plaintiff father appealed the court's determination in respect of the 8 and 6 year old, albeit that if the appeal was successful then the position of the 3 year old was also altered and thus ultimately all three children would be returned. The Court of Appeal refused the father leave to appeal. At the leave hearing, the Court of Appeal had five grounds of appeal to consider, but I will focus on the first ground – namely, that an article 13(b) objections defence, should not or could not apply to a 6 year old child.

The Court of Appeal made clear that:
• Although the original thinking behind article 13(b) was an "escape route for mature adolescents only slightly younger than the age of 16", international thinking had moved on – see article 12 of the UN Convention on the Rights of the Child 1989, article 11(2) of Brussels II Revised Regulation 2003 ("BIIR") and the words of Baroness Hale in Re D [2006] (quoted above) which were not age dependent. Accordingly, the age of the child did not per se prevent a Defendant successfully establishing a child's objections defence.

• Any potential erosion of the Hague Convention 1980 as a result of taking into account the objections of a child so young is mitigated by virtue of the court's discretion to order a summary return, despite an article 13(b) objections defence having been established. This was the approach taken by the court in Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716.

d) Procedure
W v W [2009] EWHC 3288 (Fam), deals with an interim application in Hague Convention 1980 proceedings. The child who was 11 years old at the time of this application had been wrongfully removed from Australia by the Defendant mother. The mother was pleading an article 13(b) harm on the basis of the domestic violence that she had allegedly suffered at the hands of the Plaintiff father in Australia.  The subject child's sister, aged 17 years old applied successfully to be joined as a party to the Hague Convention 1980 proceedings. The subject child's sister made clear she was the subject child's critical protective factor in the family home against the father's alleged domestic violence, and that her role in the family home therefore impacted on the subject child's welfare.

Mr Justice Baker held that:
• The test to be applied to a joinder application of a non-subject child to Hague Convention 1980 proceedings is to be found under rule 6.5(e) of the Family Proceedings Rules 1991.

• Rule 6.5(e) makes clear that an applicant must "establish that they have (1) provided for the child and/or (2) have a continuing or potential interesting in the provision of care for the child, or (3) have some legal or practical responsibility for the child's welfare."

• The then President's obiter dicta definitional comments of rule 6.5(e) in S v B (Abduction: Human Rights) [2005] EWHC 773 (Fam) were highly persuasive, albeit not binding, and the definition of an applicant under rule 6.5(3) is wide:

"the President's definition is capable of encompassing everyone, or nearly everyone, who is likely to be able to demonstrate an interest in the welfare of the child sufficient to be heard on the question whether to order a return of the child to the country from which he has allegedly been wrongfully removed": [28].

• The rule 6.5(e) joinder criterion is expressed in mandatory terms; the court does not have a discretion to join an applicant who fulfils the said criterion.

• A decision as to who should be joined as a defendant needs to be taken in an expeditious fashion given the summary nature of Hague Convention 1980 proceedings. However, in most cases, the key issue/s in the case can be deployed by the Plaintiff and defendant, thus preventing the need for the proliferation of parties.

(a) The impact of Brussels II Revised
Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, [2010] 1 FLR 361 is an important decision on the application of BIIR to states that are not signatories to BIIR.

The facts are as follows:- From November 2001 – May 2003, the parents were involved in care proceedings. Those proceedings concluded with a residence order being granted to the father, a supervised contact order to the mother and an interim supervision order to the Local Authority. In mid-2004, the father obtained leave to take the child to live with his mother and sister in Pakistan, on the basis of an undertaking that he would return the child to this jurisdiction if ordered to do so. The mother was granted a contact order, which she eventually applied to the English court to enforce. Contact was then sorted out between the parties at a conciliation hearing, but the mother subsequently made a second contact application to enforce and vary the original contact order. On 17th June 2008, the matter came before Mr Justice Hedley who ordered, inter alia, that the child should be returned this jurisdiction in June and July 2009. The father then applied to set aside Mr Justice Hedley's return order.

The issue of jurisdiction then reared its head. It is important to note at this stage that from December 2004 to the conclusion of the proceedings in December 2009, the children resided in Pakistan. In May 2009, HHJ Barnett (sitting as a Deputy High Court Judge) found that the court did not have jurisdiction under the Family Law Act 1986, but that if the court had jurisdiction he would not have granted a stay on the grounds of forum conveniens. The mother appealed and adduced fresh argument by stating that article 12 of BIIR applied. The Court of Appeal upheld the first instance judgment. The House of Lords (as it was then called) granted permission to appeal and the case became the first family law case before the English Supreme Court.

The Supreme Court upheld the mother's appeal, determining that the English court had jurisdiction, pursuant to article 12(3) of BIIR. The key points are as follows:

• Articles 12(1) and 12(3) apply to cases where a child is lawfully resident outside of the European Union. The wording of articles 12(1) and 12(3) does not limit the application of BIIR to children who are resident within the EU. This view is confirmed by the court's determination that the references in article 12(4) and article 61 to "third state" refer to states outside of the EU.

• Accordingly, the court had to apply the jurisdictional provision of article 12 BIIR, before it turned (if necessary) to the jurisdictional provisions of the Family Law Act 1986. Article 12(3)(a) was simple to establish – the child had a "substantial connection" with England in light of the fact that the parents were habitually resident in England and the child was a British national.

• In respect of article 12(3)(b), more complicated issues arose as to the way in which the language of the Regulation should be interpreted. The court held that:

The court ultimately determined that it was in the "best interests of the child" for the English court to be seised of issues in respect of contact, pursuant to article 12(3)(b) for two reasons:- Firstly, there would be no provision for recognition and enforcement of a contact order if made in a Pakistani court as Pakistan is not an EU state nor a signatory to the Hague Convention 1996 (the Regulation and the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children). Secondly, the risks that may be associated with contact are better assessed in England. It is important to note that the court did not take the view that any difficulties with enforcement would outweigh these two reasons.

(b) The use of s.100 of the Children Act 1989
In Re S (A Child) [2010] EWCA 465, the parents appealed an order of HHJ Hughes QC that warded the child and ordered her return from Spain. The child concerned was 7 years old at the time of the hearing, The Local Authority had been involved with the family, and a Police Protection Order had been obtained. The Local Authority then applied for an Emergency Protection Order but failed in that application. The parents refused for the child to be accommodated under Part III of the Children Act 1989, and the mother then took the child to Spain. The father was already living in Spain. The Local Authority issued care proceedings and attempted to obtain an order warding the child in the High Court. Mr Justice Ryder declined to intervene on the basis that the issue should be dealt with within the interim care proceedings. Later the same day, the matter came before HHJ Hughes QC who warded the child, and ordered a return of the child. On appeal to the Court of Appeal, the parents argued that the court had no jurisdiction to make any orders in respect of the child as the child was habitually resident in Spain, and in any event the court should not have granted leave to the Local Authority under s.100(4) of the Children Act 1989 to apply for the orders so granted.

The Court of Appeal court held that:

• The court was able to proceed on an emergency basis because the child was habitually resident in this jurisdiction and thus there was an exercisable jurisdiction of the English court. (Accordingly, the court did not make a declaration in respect of habitual residence.)

• The Local Authority had satisfied the criteria under s.100(2)(4), namely: there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm", in light of the concerns raised by the Local Authority, as supported by the child's Guardian.

It is worthy of note that the Local Authority's plan for the child on an interim basis was likely to be a foster placement. The court also had an eye on BIIR and the remedies that the parents could take in Spain – it being easier to utilise such remedies if there were no English proceedings afoot.

• The return order should be stayed. A peremptory return was not in the child's best interests given that this was not a "conventional kidnap". Accordingly, an Interim Care Order hearing was to be listed in no later than 14 days time, and evidence as to the child's welfare and circumstances in Spain should be adduced so as to determine the appropriate way forward in the care proceedings.