ABDUCTION: Re D (Abduction: Rights of Custody) [2006] UKHL 51

16 NOV 2006

(House of Lords; Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood; 16 November 2006) [2006] The Times November 17

The mother and father were divorced, the child, then 1-year-old, remaining with the mother. When the child was 4 years old, the mother removed the child from Romania to England without the father's knowledge or consent; the father then sought the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention). The mother's case was that the removal had not been wrongful, in that the father had no custody rights which had been breached by the removal. The English court sought determination of the issue from Romania. The final ruling from the Romanian courts was that the removal had not been wrongful, because the father's rights had not amounted to rights of custody: joint-custody ended on divorce, and none of the rights that the father had been granted on divorce gave him a right of veto or to decide the child's place of residence. The English court did not consider itself bound by that ruling, and ordered jointly-instructed expert evidence on the issue. In the event the expert concluded that the father had held rights of custody, and the English court ordered the immediate return of the child under the Hague Convention. The Court of Appeal refused the application of the child, now 8 years old, to be joined as a party to the proceedings, but ordered an interview with a Children and Family Court Advisory and Support Service (CAFCASS) officer, in which the child expressed very strong objections to returning to Romania. The child was given leave to intervene in the mother's appeal to the House of Lords.

Where the requesting State had been asked to determine whether a removal had been wrongful, under Art 15 of the Hague Convention, the ruling of the requesting State was to be treated as determinative unless it was clearly out of line with international understanding of the Hague Convention's terms. There was no good reason to distinguish the court's right of veto from a parental right of veto, whether the latter arose by court order, agreement or operation of law, and therefore the right to veto the removal of a child from the country of habitual residence did amount to rights of custody. However, that was not necessarily true of a parent's potential right of veto; if all that the non-resident parent had was the right to go to the court and ask for an order about some aspect of the child's upbringing, including relocation abroad, that did not amount to rights of custody under the Hague Convention. A delay of this magnitude in securing the return of the child had to be one of the factors in deciding whether the child's summary return, without any investigation of the facts, would place the child in a situation which he should not be expected to have to tolerate. It was inconceivable that a court which had reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm, or otherwise place him in an intolerable situation, would nevertheless return him. While the policy of the Hague Convention was, of course, a reason for giving a restrictive application to the Art 13 defences", those defences could be made out on the facts of the individual case, regardless of the court's view of the morality of the abductor's actions; moral condemnation was both unnecessary and superfluous. The court had heard none of the evidence which would enable it to make a moral evaluation of the abductor's actions, was not in a position to judge and should refrain from doing so. Children ought to be heard far more frequently in Hague Convention cases than had been the practice hitherto. In most cases an interview with a CAFCASS officer would be sufficient, but in other cases it might also be necessary for the judge to hear the child. Whenever it seemed likely that the child's views and interests might not be properly presented to the court, in particular if there were legal arguments which the adult parties were not putting forward, the child should be separately represented.

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