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D (A Child) [2006] EWCA Civ 830

Mother’s appeal against summary return of a child to Hague Convention country, dismissed.

Court of Appeal: Thorpe LJ, Moses LJ, Hedley LJ (25 May 2006)

Mother's appeal against summary return of a child to Hague Convention country, dismissed.

The parents of A, aged 8, were married in Romania, their homeland. The marriage was short and a divorce was pronounced after 2 years. Under the terms of Romanian law the Mother was granted the primary role of residence or care of A and the Father had an entitlement to contact. The Mother met a man in this jurisdiction who she subsequently married and started a degree course here. On 24 December 2002 the Mother removed A to this jurisdiction without the Father's knowledge or consent. An application for return was made through the central authorities. 3 months lapsed until the case was listed. The case was then adjourned in order to obtain evidence as to the respective parental rights within Romanian law. The Court made an Article 15 request to Romania. 12 months after issue of the request the Bucharest court answered with declaration that the Father had only rights of access. The Father appealed against the judgment but the Court of Appeal of Bucharest upheld the decision 13 months later. The Father applied in this jurisdiction for an expert opinion as to the law of Romania to clarify or supercede the judgment of the Bucharest courts. A joint instruction was ordered. The consequence of these developments was a lapse of 3 years and 2 weeks between the date of issue and final hearing. In that time the Mother had developed a career in this jurisdiction and recently established the child in good school.

At final hearing the Mother's resistance to return was founded on Articles 3 and 13(b). She argued that the extraordinary passage of time resulted in risk to child of psychological harm or creation of an intolerable situation.

At first instance Hogg J found for the Father and ordered the peremptory return of A. She noted that there was no precedent declaring rights of custody where the courts of habitual residence had declared none.

The Mother applied for permission to appeal which was granted.

The Mother, following Hogg J's judgment, applied in Romania for permission to relocate. The Court granted temporary leave until A had finished the school term. The substantive hearing in Bucharest was to be heard a week after appeal hearing.

Held, dismissing the appeal, that the Judge was fully entitled to conclude that the rights enjoyed by the father in his homeland went well beyond mere rights of contact and amounted to rights of custody within the autonomous meaning of the Convention. In addition to a right to contact the Father also had a "right to watch over his growth, upbringing, education and professional training" and a general duty to raise the child. This amounted to rights of custody.

The emergence of the evidence during the hearing that the Mother had engaged the Romanian courts to tackle the difficult issue of A's future residence, education and contact was fatal to her argument that the lapse of time required the court to review A's welfare considerations. Once it was revealed that the proper courts had been seized and were dealing effectively and expeditiously with the issue it became impossible for the court to review A's welfare.

The Court observed there was no precedent in international case law for the requested state to disregard a negative answer to an article 15 request and neither was there a precedent for making an order after an extraordinary and unforgivable lapse of time.

Thorpe LJ confirmed the existing misgivings as to the utility of the article 15 procedure. He emphasised that the obligation on the requested state to ensure the expeditious determination of the application is not relieved or temporarily suspended by delay in the return of the article 15 request. If the court is not getting a sufficiently or swift response then the court has a duty to proceed on evidence before it. The judgment highlighted the value of liaison judges.

The Court had to respect the temporary leave granted by court in Bucharest and therefore allowed the child to stay in the jurisdiction until the end of the school term. Appeal dismissed.

Digest prepared by Lynsey Cade-Davies

Read the full text of the judgment here