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Hunter v Murrow [2005] EWCA Civ 976

Whether removal of child from New Zealand to England was wrongful under Hague Convention, arts 3 and 5, as being in breach of a father’s rights of custody, where a request for a determination under Hague Convention, art 15, had been made.

Hunter v Murrow [2005] EWCA Civ 976

Court of Appeal (Civil Division): Thorpe, Dyson & Lloyd LJJ (28 July 2005)

Summary
Whether removal of child from New Zealand to England was wrongful under Hague Convention, arts 3 and 5, as being in breach of a father's rights of custody, where a request for a determination under Hague Convention, art 15, had been made.

Background
This case concerned a boy ('X') born in November 2000 to the respondent mother ('M'), whose relationship with the appellant father ('H') had ended before X's birth. Both M and H were New Zealand citizens. H had visiting contact with X each week until, in September 2004, M removed X from New Zealand to England, where M told H she was seeking permanent employment.

In October 2004 H filed an application for the return of X to New Zealand and authorised the Central Authorities in New Zealand and England to take steps to secure X's return under the Hague Convention.

In November 2004 H issued an originating summons in London seeking a return order under the Hague Convention or alternatively under the court's inherent jurisdiction. In December 2004 Hedley J ordered by consent that, pursuant to Hague Convention, art 15, H obtain from a New Zealand court (i) a description of any rights he enjoyed in relation to X, and (ii) a decision whether X's removal was wrongful under Hague Convention, arts 3 and 5, as being in breach of H's rights of custody.

In February and March 2005, the New Zealand Family Court and, on M's appeal, High Court both held that X's removal had been wrongful.

In April 2005 Singer J held that, under the law of this jurisdiction, at the date of removal H was enjoying rights of contact as defined by Hague Convention, art 5(b), and not rights of custody as defined by art 5(a), and that on this jurisdiction's construction of arts 3 and 5, the removal had not been wrongful. H's application under the inherent jurisdiction remained to be decided. H appealed against Singer J's decision.

Judgment
Held, dismissing H's appeal, that when determining whether the removal or retention of a child was wrongful within the meaning of Hague Convention, art 3, the first task was to establish what rights, if any, the applicant had under the law of the state in which the child was habitually resident immediately before his or her removal or retention ('the domestic law question'). This question was determined in accordance with the domestic law of that state, and involved deciding what rights were recognised by that law, not how those rights were characterised.

Whether it was right to request a determination on the domestic law question under art 15 depended on the circumstances of the case, including (i) the nature of the dispute raised by the question, (ii) whether the parties intended to adduce expert evidence, (iii) whether the question could be satisfactorily answered by a certificate or affidavit under art 8(f) or by taking notice under art 14, and (iv) what delay was likely to be caused by the request. In many cases, the court was likely to conclude that the domestic law question could be resolved without recourse to a request under art 15.

The next question was whether those rights were properly to be characterised as 'rights of custody' within the meaning of arts 3 and 5(b) of the Convention ('the Convention question'). This was a matter of international law and depended on the application of the autonomous meaning of the phrase 'rights of custody'. Where, as in the instant case, an application was made in the courts of England and Wales, the autonomous meaning was determined in accordance with English law as the law of the court whose jurisdiction had been invoked under the Convention. In doing so, the court applied not English law but the English perception of the autonomous law of the Convention. In any case involving the construction or interpretation of an article of the Hague Convention the answer was to be found in the International Jurisprudence of the Contracting States.

In the instant case, H exercised no more than a few hours of visiting contact each week, which, according to this jurisdiction's construction of arts 3 and 5, could not have amounted to 'rights of custody'.

No useful purpose was served in asking for a determination solely on the Convention question. The courts of New Zealand were no better placed than the courts of this country to decide whether the rights enjoyed by H in relation to the child according to New Zealand law amounted to rights of custody within the autonomous meaning of arts 3 and 5 of the Convention.

Read the full text of the judgment here