THE JURIDICAL REVIEW The Law Journal of Scottish Universities 1992 Part 2 -- June Special Issue: The Law on Children and Child Care in Scotland "HABITUAL RESIDENCE OF THE CHILD" AS THE CONNECTING FACTOR IN CHILD ABDUCTION CASES: A CONSIDERATION OF RECENT CASES Pages 177 through 194 ELIZABETH B. CRAWFORD Lecturer in Private Law, University of Glasgow. In the increasingly important area of international child abduction, we are accustomed to hear that little can be done in cases where a child has been taken to a country (especially a Middle Eastern country) which is outside the reach of the Hague and European Conventions (to both of which the United Kingdom is a party: Child Abduction and Custody Act 1985); conversely, we are encouraged to think that within the net of Convention countries (USA, Canada, Australia, many European countries) FN1 great improvements, practical and legal, have been made. What we have now in this area is the choice of the connecting factor of "habitual residence of the child" in place of the older Scots preference for domicile (of the father: in the era of unity of domicile, the domicile of the father was the domicile of the family) or (later) court of closest connection, keeping in view the best interests of the child, or of the English preference for residence/nationality and judicial discretion, bearing at the forefront of the mind the best interests of the child. FN2 After years of deliberation, "habitual residence of the child" emerged as the factor upon which we all could agree, although, it is to be hoped they we all realise that the criterion sounds more equitable than in fact it is, because a child has little say in in the matter of habitual residence, his life and finances being in the hands of the adult upon whom he is dependent, and rest upon that person's conduct, (mis-understandings, whims, machinations, prejudices and wishes). That this should be so is inevitable; one merely points out that the connecting factor identified by the conflict rule for such cases is <* page 178> subject always to the realities of life. FN3 This obvious warning about the new criterion arises before any note is taken of the edifice of authority which the courts are building here (and no doubt in all Convention countries) upon the meaning of "habitual residence" in general (it being a late entrant in the competition for the choice of the personal law, to be found now in various areas of family conflict of laws, e.g. in divorce recognition, and in discussions upon harmonisation internationally of conflict rules of succession), and upon its interpretation in the particular context of child abduction and the 1985 Act. Let us consider, in relation to two cases in detail; and to certain other recent authorities by shorter reference, how the new choice of law is working in practice. It is disturbing to find that, as a result of interpretation of the terms of the Convention and the Act, the original decision, or general rule of family law, of the legal system which might reasonably be thought to be the natural forum, can be supplanted. In Re H. FN4 the problem essentially was one relating to transitional provisions. In Dickson v Dickson FN5 the court was concerned with the interpretation of the key connecting factor, "habitual residence of the child" at the time of wrongful retention; much depended in this case upon the judicial view of the facts of a chain of events, as elicited from the conflicting evidence of the two principal actors and antagonists. Neither case discloses an unusual tale, but many may think that each reveals an unfortunate outcome, and one which, it may be surmised, would not please those who drafted the new child abduction "code." There may be a wry lifting of the eyebrow at the operation in practice of the much welcomed criterion of habitual residence of the child. Re H. [1991] 3 All E.R. 230 In Re H. the parents between whom battle was joined were both born in India, and were of the Sikh religion. The mother was later converted to Christianity. The marriage took place in Canada, where two sons were born. It was a stormy marriage, and in 1984 the wife <* page 179> left the matrimonial home and went to a women's refuge in Toronto. She obtained immediately ex parte order Mom the Toronto court for interim custody, confirmed in 1985 by the Supreme Court of Ontario, which awarded Custody to the mother and access to the father. The date of the crucial event was March 15, 1986, when the father should have returned the children to the mother after an access visit but instead (how often does this happen!) took the children away, first to England, and then to India, to his "ancestral hone" in the Punjab where he enrolled them at school. Subsequently he began divorce and custody proceedings in an Indian court. The wife was informed of the Indian proceedings, but not, in her argument, of the precise date. She sent a copy of the Ontarian order to the Indian court and requested the return of the children. The Father was granted a divorce, remarried, and had two children by his second wife. When all the circumstances become known to the first wife, she sought her ex-husband's extradition from India. The judge of the Supreme Court in Ontario, who earlier had found for the wife, now gave to the wife authority, in effect, to seek to enforce that order. Four days later the Indian court, in awareness of the Canadian judgment, awarded custody of the boys to the father. In 1988, the mother remained and went to live in IndianapoLis. By June 1989, she had located the children who were now with the father in England, and in June 1990 extradition proceedings were begun in England. By that date, too, the existence of the Hague Convention on the Civil Aspects of International Child Abduction had cone to the notice of the wife and her advisers, and she applied to Anthony Lincoln J for the return of the children to Canada, under the terms of the scheme for location and return of abducted children provided by that Convention, as set out in Schedule 1 to the Child Abduction and Custody Act 1985 FN6 The Hague Convention came into force between the United Kingdom and Ontario on August 1, 1986. Points of interpretation: wrongful removal/wrongful retention/habitual residence The principal point here is that, in the view of the House of Lords, and all below, no use could be made of the provisions of the 1985 Act because the father's act in taking the children to India from Canada was a wrongful removal which had occurred <* page 180> before August 1, l986, and therefore the Convention had no application. By August 1, 1986, it could no longer be said that Ontario was the legal system of habitual residence of the child immediately before the removal or retention. However, the Court of Appeal rejected the father's argument that for this reason the Convention did not apply, since the court took the view that the child's habitual residence could not be changed by wrongful act by the father, No view of this appears in the House of Lords judgment (the argument commencing at the subtler point concerns wronged retention, discussed below), but in the Court of Appeal Lord Donaldson (at p. 841) refers to this approach as the "now accepted" view, and such a view is fair, reassuring, and in harmony with the attempts made in the Convention to offset the advantage which at common law the passage of times gives to the abductor. FN7 A lawful act by a parent may cause a change in the habitual residence of the child. FN8 Instead, the Court of Appeal considered (1) that the children were victims of a wrongful removal (Lord Donaldson, Sir Roger Ormrod), or wrongful retention (Stuart-Smith L.J.), but that the removal took place before the coming into effect of the Convention between the two relevant countries; (2) that wrongful retention is to be seen as an identifiable act at an identifiable time, and not as a continuing state, which, continuing after the relevant commencement date, would have permitted the Convention and the Act to apply. There was a suggestion by counsel, which failed to persuade, that since the Act could not take cognisance of conduct taking place before the relevant date, the wrongful retention must be regarded as having taken place on that date (being the date on which, for the first time, the situation fell within the ken of the (new) law). Cases falling in a transitional period are often hard, and perhaps it is a pity that this argument advancing the concept of wrongful retention deemed FN9 to take place at the date of commencement was not supported. It should not be thought that a "hard-outcome transitional <* page 181> case" should be of little significance, because the House of Lords has confirmed the view of the court below on these subtle and difficult points of interpretation concerning removal and retention, and the matters raised are of importance generally. The leading judgment was delivered by Lord Brandon, and the salient points are these: (1) Removal and retention (out of the State of the child's habitual residence) are mutually exclusive events, which, on a proper construction of the new rules, cannot overlap or follow upon one another. Moreover, (2) "Retention" is to be regarded as an act which occurs once and for all on a specific occasion, and not as a state of affairs begun on that particular day, and continuing from day to day thereafter. It is likely that the judicial view and pronouncement on these points is slightly different from the view which might be taken by the lay onlooker (or parent); Lord Brandon admitted that the word "retention" usually connotes a continuing state of affairs, but he said that it might bear the other interpretation, and that that latter interpretation was the one intended to be used by flee Convention (since Article 12, in its "one year" provision, seems to envisage a definite terminus a quo). If that be so, it follows that removal and retention are mutually exclusive concepts. Although experience might suggest that both are aspects of a continuing story, the interpretation of events which is handed down in Re H. means that we must regard the initial act by the father in this case (and in the conjoined case of Re S., which was decided at the same time, in the same way, on the ground that the essential facts could not be distinguished, and that the two appeals must succeed or (as it turned out) fail together) as wrongful, but affording no remedy under the Convention and the Act, because it occurred when the Convention had no application in the countries concerned. The "retention," then, must also be "pre-Act" FN10 and non-cognisable. The Convention directs its attention to the law of the habitual residence of the child immediately before removal or retention, and it is true that its approach suggests that a particular date of act of retention is envisaged: indeed, were it not so, one can <* page 182> easily see that counsel for the "abductor" would choose further to complicate matters by arguing that, with every day that passes, the case for the child's habitual residence in the new country becomes stronger (cf. Dickson, below). Had the Convention been permitted to apply, we should have had the prompt return of the boys to Toronto unless any of the Articles 12/13 defences were held to apply. At common law, the forum must act in the best interests of the child (not always the same thing as the line which is to be taken in giving effect to Article 13 FN11 ). In fact, in these cases of H. and S. the children had been made wards of the English court, and orders had been made allowing the mothers in each case to have care and control of the children and to take them out of the jurisdiction to America, provided that they undertook to return to the English jurisdiction if called upon to do so. These orders and safeguards will remain in place now, whereas, had the mothers been successful in the House of Lords, they Would have had to have been discharged. Lord Brandon's explanatory note on this aspect of, or background to, an abduction case in England, is interesting. Dickson v Dickson, 1990 S.C.L.R. 693 This is a case in which habitual residence, its cessation and possible re-establishment is of the greatest importance. To present the end before the beginning, consider the proposition, finally accepted, it seems, by the Court of Session, that habitual residence may be lost without proof of aquisition of a new habitual residence to fill the gap. This is a novel idea; an equivalent rule is not part of the rules of domicile, current or proposed. We have an Australian mise-en-scene of a young married couple and infant son (born in 1988). The marriage became difficult, and in 1989 the husband, with the agreement of the wife, took the son to Swindon, to the home of his sister. (Later, at the time that the wife began to intimate through solicitors that she wished to have the child returned to Australia, the husband took the child to the home of his mother in Edinburgh.) The background was of Scottish stock on both sides, a connection with England by residence before the marriage by the wife and inter-<* page 183>mittently after marriage by both, emigration to Australia when the child was 10 months old, and finally (i.e. at the time of the litigation in question), residence by the father and child in Scotland. There is a Scottish forum, but one which confined its decision to the particular points raised about the application of the Hague Convention ("return of children" principles), and no opinion was expressed on the wider question of the ultimate custody of the child. The petitioner sought return of the child under the 1985 Act. The spouses gave irreconcilably different versions of the facts of the child's departure from Australia on October 21, 1989. According to the wife, the father had taken the child to Britain for a holiday in order to give the wife "a chance to sort herself out." She expected them to return in mid-December and when this did not happen, she set in train Australian legal proceedings to secure the return of the child. The alternative version of the story (as told by the respondent father) is that the parties had decided to leave Australia and that for convenience he and the child left first, expecting the wile to follow. The Lord Ordinary (Caplan) preferred the evidence of the father. It may be that initially the wife was in an uncertain state of mind. According to the respondent, the petitioner informed him by telephone in November 1989 that she would not be returning to Britain. This is a variant on a set of circumstances commonly presented, and there is no difficulty in seeing how such facts are open to different interpretations The interpretation here is vital because it was not disputed that the child was habitually resident in Australia in October 1989, and that the relevant "Australian" law gives custody rights to both parents (at least if married). FN12 Hence, if the husband's actings be regarded as wrongful removal, the child should be returned forthwith unless it be an exceptional case (e.g. Article 13), and there was no serious suggestion by the father that such (Article 13) harm would result were the child to be returned to the mother in Australia. There is <* page 184> no doubt that had the father taken the child to Britain for a holiday, the habitual residence of the child, that cornerstone of his protection, would not have changed, and the wife's petition would have been granted. "The position therefore is that had I been able to accept the petitioner's version of events, I should have had no difficulty in granting the petition" (Lord Ordinary (Caplan) at p. 698). Preferring the other narrative, the most that could be said in favour of the wife was that the father had wrongfully retained the child. In such a case, the rights of the petitioner must be determined by the law of the state in which the child was habitually resident immediately before his retention; this law "must be- ascertainable by a reference to a fixed point of time" (Lord Caplan, ibid.), the relevant time being that when the retention complained of can be said to have begun. FN13 If the husband believed the wife would follow, he could not be said to have retained the child wrongfully until the petitioner made it dear she would not return to Britain, and she wanted the child to return to Australia. The concept of retention only becomes relevant if it is known to be an act contrary to the will of the person against whom retention operates (Lord Caplan, ibid.). His Lordship chose to place that time as the date when the husband received a letter from the wife's Australian solicitors in mid January 1990 (not the date of the telephone call in November 1989: then, it seems, according to the respondent's evidence, she said she was not coming to Britain, and that she had formed an association with another man. She did not ask about the child). The significance of loss of habitual residence In the Lord Ordinary opinion, in order for the petitioner to succeed it was necessary to show that the child was habitually resident in Australia at the time of the wrongful retention (Hague Schcd. I, Art. 3: removal or retention is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person . . . either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention). His Lordship then discussed <* page 185> habitual residence in a manner which brought its meaning close to ordinary residence, likening it to "customary" or "normal" residence. He referred with approval to Kapur v. Kapur per Bush J., FN14 who found the distinction between "habitual residence" and "ordinary residence" elusive. As Lord Caplan said: : "The child had lived for two months in England . . . a considerable period in the life of a young child . . . It is difficult to see where else could be described as his normal home during that period . . . However, as I have said, the critical question is not where he had established the habitual home but whether he bad retained his residence in Australia." FN15 This is indeed the critical issue: but is this the right approach? Might it not be said that the two matters are linked? "Habitual residence" is a relatively new tool in the conflict of laws, and there is not a wealth of authoritative definitions. A well-known definition is that it denotes "a regular physical presence which must endure for some time." FN16 However, on appeal to the Inner House, the Lord President (Hope) FN17 opined that: "In our opinion a habitual residence is one which is being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time, The concept is the same for all practical purposes as that of ordinary residence as described by Lord Scarman in R v. Barnet London Borough Council-ex p. Shah [1983] 2 A.C. 309 at pp. 342 and 343." This should be contrasted with the approach of Lane J. in Cruse v Chitum, who took the view that ordinary residence is different from habitual residence in that the latter is something more than the former and is similar to the residence normally required as part of domicile, without the animus element necessary in domicile In this context of child custody, it may be reasonable to suggest that the new connecting factor has been chosen with care, and in preference to other factors earlier used, and that it may well have <* page 186> been anticipated that "habitual" would be given due (i.e. heavy) weight. FN18 In any event, the crucial point is whether the child had lost his habitual residence in Australia, and whether or not such a loss could occur if no replacement habitual residence had been established. The Lord Ordinary (Caplan) bad little doubt: "However long it may take a person to establish a residence sufficiently settled to be described habitual, it, in my view, does not take any length of time to abandon habitual residence." FN19 Since he took the view that both parents had agreed upon permanent residence in the United Kingdom, it could not be said that the child resided in Australia immediately before the mother made it clear that she had changed her mind. Accordingly her case foundered as the child's habitual residence in Australia was lost. While Lord Caplan's approach is a possible interpretation of the rules of habitual residence, there is, as always on difficult points of construction, an alterative argument. If an analogy were to be taken with the rules of domicile, a different result would emerge (in the general case; in the particular case, we encounter difficulties in that the child has his home with the emigrant father now returned to Britain) or, if, to take a wider context, the court had sought to find the legal centre of gravity of the child or the law of most real and close connection, it is arguable that AustraLia would have been the natural forum. Certainly in this case there are links both with Britain and with Australia and there was no long term Australian residence (by the husband), but the principle of requiring that one link can be superseded only by the clear adoption of another link remains good. On appeal, Lord President Hope said that the main interest of the case was whether the child must be taken to have retained his last habitual residence until the clear establishment of a new habitual residence. Only if the child had retained his Australian habitual residence at the time he was said to have been improperly retained by the father, could the mother succeed. <* page 187> Unfortunately for her, the Lord President held that, in the circumstances, the child must be taken to have abandoned his habitual residence in Australia and that that residence, once abandoned, could not revive simply upon the mother's change of mind. This conclusion runs counter to the rule of survival of domicile by origin contained in the important domicile case of Bell v Kennedy FN20 If the domicile rules (current or proposed) be applied by analogy, one habitual residence would remain until clearly replaced by another. Therefore it could be argued that, since the parents had no settled intention to settle in England (a home might well have been established in Scotland) or Scotland (for they might well have chosen England), the habitual residence in New South Wales should remain. Moreover, the residence in the United Kingdom was yet short in duration. Additional weight, of a factual nature, for this approach, would be provided by the fact that the resolution of the doubt about the manner of the departure (final or temporary) of the child from Australia rested supply upon the credibility of witnesses. It is upon such matters of interpretation that so much depends. These matters are more than usually important in custody cases where the result is so keenly felt. It is regrettable, but perhaps inevitable, that the introduction of a code to regulate custody issues should lead the court into difficulties of construction: ironically, at common law there would have been room for a wider discretion on the whole question of most suitable forum. In Dickson, the lord President said that a person can have only one habitual residence at a time (as is the general case with domicile) However (unlike the rules of domicile), the Lord President appears to accept that a person can be without a habitual residence, for in this case it may be argued that while the child had lost his Australian residence, he had forged no strong links with Scotland: he was "between" habitual residences. This, then, must be taken to be the current Scottish view on the nature of habitual residence in this context. However a different view has been advanced above, which it is argued is a respectable approach in principle and one which it is submitted is more likely to select, as <* page 188> the pivotal law, the legal system which would have emerged at common law as the natural forum. The decision in Dickson, therefore, decided that habitual residence is not to be held to be retained, as a necessity of law, until a new habitual residence is clearly established. Rather the rule appears to be that habitual residence may be abandoned without a new habitual residence having been put in its place. Thus it seems that the Lord President (Hope) has created a new rule. It is fair to say, though, that the interpretation outcome in Dickson is in sympathy with the line taken in C. v. S. (1990), FN21 both in the Court of Appeal by Lord Donaldson M.R. and later in the House of Lords. Lord Brandon, in a part of his judgment germane to our purpose here, noted that "there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention Will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B." FN22 On the other hand, in the court below, Lord Donaldson appears amenable to the possibility that habitual residence could be established immediately upon arrival in the new country. FN23 "It may take time (I do not say it does) to establish habitual residence, but I cannot see that it takes any time to terrminate it." FN24 Since the latter point was the crucial one, the other "interesting question" must be regarded as prompting musings obiter only. Hard though the result must be for the father in C. v S., the case of Dickson is the more difficult, perhaps, given the allegedly <* page 189> different understandings of the situation entertained by the parties. These are authoritative cases, and it must be accepted then that (i) habitual residence takes no time to lose, (ii) habitual residence may take an appreciable period of time, or, if intention be present, no time at all to establish, and (iii) (Lord President Hope) absence of a new habitual residence does not preclude loss of existing habitual residence. FN25 This must mean, on occasion, that the natural forum is lost (through the actings of one party). Lord Donaldson tells us not to worry about this unduly, because, normally, habitual residence cannot be lost through unilateral wrongful actings. Nevertheless, a short perusal of recent cases will demonstrate that there is a price to be paid in loss of judicial discretion and flexibility, when a legal system, with the best of motives, accedes to a Convention which was drawn up with the best of motives (and which, in general, effect an improvement on the earlier situation). The practical importance of these interpretations ties in their probable effect in the future. The result is likely to be the down grading of a rule or court order of the erstwhile habitual residence (which may still have a claim to be the natural forum) and the clothing with jurisdiction of a new court in a new place with new views. Such an outcome might be a matter of concern, add could be said, perhaps, to favour the "abductor," an outcome which is the opposite of that intended by the legislation. GENERAL DEVELOPMENT OF THIS AREA OF THE LAW: INDICATIONS FROM OTHER NEW CASES. The cases considered above may be regard as part of the "second wave" -- i.e. -- as concerned with points of interpretation of the English language with particular reference to the Conventions and the Act ("habitual residence"; "removal"; "retention"). The "first wave" concerned the formation of the attitude of the courts to matters of weight and balance in the working of the new code; hence it became clear early that it should not be an easy matter for the "abductor" to convince the court of the state addressed <* page 190> that a grave risk of physical or psychological harm would attend the return of the child to his country of habitual residence, although of course it must be possible to do so (MacMillan, supra). Lord Cameron has added to the small list of cases upon "mother's claim to a new life across the seas" by deciding in the mother's favour, in the case of Borland FN26 in the terms that she might take her two small sons from Scotland to a new life in Crete, provided that she undertook to ensure that the boys travel for holidays to Scotland, the home of the father. Such decisions decisions must be hard for the non-custodial parent to bear. In Hill v. Hill FN27 the Court of Session followed an honourable, pre-Convention Scottish approach, in preferring to let the parties attempt to resolve their differences before the Canadian "home" court. This was a "more appropriate forum" discussion in terns of the Family Law Act 1986, s. 14. A domestic decision, Mckechnie FN28 demonstrated lack of judicial enthusiasm for the award of joint custody, while in Casey v. Casey FN29 and Early v Early FN30 we see the court's preference for keeping together both or all siblings. There is support in Woodcocks FN31 for a view that the "mutual recognition, registration, and enforcement" scheme of treatment of English custody orders in Scotland, and vice versa, which is provided by the Family Law Act 1986, Pt. 1, is not to be regarded purely as an automatic procedure: it seems there is room still for the protective jurisdiction of the Court of Session to be exercised so as to "secure the welfare of the child." In this case, the inference is that the initial Scottish judicial reaction (which was to accede to the father's petition for delivery, on an ex parte application not in the presence of the mother, following registration of the English order in favour of the father) had been too swift to allow a sufficiently full and fair consideration of all the factors. This may sound a wise note of caution, and may provide a useful precedent in the meritorious case, yet one feels its use should be limited, for it seems likely that the Act envisaged a simple registration scheme, with little discretion in the registering court and the attitude taken in Woodcock is surprising, perhaps, in the <* page 191> general, though less so when one considers the instant case and the requirements of natural justice. FN32 . In the case of F. FN33 the parents were Israeli. Under Israeli law, they were joint guardians of their two children. In 1990 the father brought the younger child to England, in breach of the mother's rights of custody, and refused to return him. By the time the case reached the High Court in England, the mother bad obtained an order from an Israeli court in her favour, but had failed to persuade the English county court of her case, the English court having granted interim care and control to the father, ordered welfare inquiries, and remitted the case, Since Israel at the relevant time was not a Convention country (though it is now a Hague signatory) the question for the English forum was the extent to which Convention principles were applicable. The court applied a combination of the principles of "welfare of child paramount," and "court of child's habitual residence normally pre-eminent," and held that an abducted child should normally be returned to its country of habitual residence if there were no contra-indications such as those referred to in Article 13 of the Hague Convention, and if the court of that country would apply principles acceptable to the English courts." FN34 The second proviso is surely an example of an undue imagination at work. It is inevitable that the courts at the highest level in this Country (and other signatory countries) must interpret the terms of the Convention as cases arise, but there is no justification for making up the Convention itself, (even) where the case is not one to which the Convention yet applies. Children in these sad and difficult cases belong usually to two cultural traditions, and any forum should eschew chauvinism. (In the case of F., moreover, the family seems to have been most closely associated with Israel). Though there is, in the Council of Europe (convention, Art. 10)(a), a hint of the thinking found in F., that provision serves a <* page 192> quite and justifiable purpose, entitling the state addressed to retain a child, exceptionally, where the effects of the foreign decision are manifestly incompatible with the fundamental principles of its own law relating to the family and children. A useful point arose in the case of Re J (A minor) (1989). FN35 A child was made ward of the English court a few months after birth in 1984. On the parents' divorce in 1986, care and control of he ward was given to the mother, and weekly access to the father. The motor having removed the child to the USA in 1987 without the court's consent, it was held that the court had rights of custody as defined by Article 5 of the Hague Convention, and was a "person, institution . . . or other body," to which the rights of custody were to be attributed under Article 3. Hence, there had been "wrongful removal" within the meaning of the Convention. In this case, therefore, the parent having access (only) received help by means of a Family Division declaration that the custody rights vested in the court bad been breached, enabling him to approach the Lord Chancellor's department as central authority to seek the ward's return. A decision upon the father's application for care and control was postponed. It might be, of course, that it would be refused, on consideration of all the facts, but he had achieved a notable success in bringing the issue into court, because the Conventions are of less assistance to the noncustodial parent with access rights (only). Concern is voiced about this sometimes but probably one must conclude that the situation reflects reality. Facts are chiels that winua ding. When one considers the differing factual situations and the inevitable pre-eminence of the custody order, which will set the facts, it is probably necessary that the Convention, in the matter of access rights, set a tone and a hope rather than a rule, allowing the court to do the best it can in the circumstances to "secure" access rights. FN36 MODERN DEVELOPMENT There remains to be considered the effect of the (mainly English FN37) Children Act 1989 upon child abduction case law. The <* page 193> Lord Chancellor has indicated that the replacement of the custody order by the residence order will not cause difficulty, since the order identifies the person with whom the child is to live, and removal against the wishes of that person would be a breach. It is a more difficult matter to predict the outcome when a parent who has parental responsibility but no court order, objects to the removal of the child by the other parent who has parental responsibility and who has exercised it unilaterally as, now in English domestic child law generally, he/she is entitled to do. It is to be hoped that foreign courts will seek an English interpretation of the effect of the 1989 Act which will reinforce the spirit of the Convention. FN38 The Lord Chancellor recommends that a parent fearful of child abduction should obtain a residence order. SUMMARY Certain points should be made. (1) The number of Convention countries increases. Publicity and writing about the legal remedies is growing, FN39 and there must be fewer cases of parental ignorance and helplessness. These developments arc most desirable, but it is notable that, as new members are announced, we are reminding ourselves that the operation of the rules in the various countries is variable -- both in efficiency and also, one must assume, in interpretation. A status sheet of Hague ratifications and accessions, reproduced by kind permission of the Permanent Bureau of the Hague Conference on Private International Law, is appended to this article. There is a Parliamentary Working Party on Child Abduction, which seeks to facilitate the recovery of abducted children by making recommendations to improve the law and practice in this area, and a Scottish sub committees, which aims to fit its proposals in summer 1992. (2) The "second wave" of "technical interpretation" cases has begun, which means that we must be alert to those new Scotish and (more numerous) English authorities, the effect of which upon the case before us may be surprising. It is important that parents understand that interpretation is a crucial matter, and that the decision upon the meaning of a well-meaning provision <* page 194> may not be what they might have envisaged. FN40 It would be better speak of "a parent" in this connection, of course, because, unfortunately her interests tend to be opposed to his. In this area of law and life, above all, the advantage of the one will be the disadvantage of the other. As always, the English language must clothe the rules and embody the good intentions. The case law is growing rapidly. ================================================================= 29 Nov 1996 -- Comment by William M. Hilton The article, while comprehensive as to its analysis of Habitual Residence, runs contra, I think, to the flow of cases that have interpreted The Convention. It appears as if the author is attempting to force Habitual Residence into the mold of Domicile -- where one always has a domicile and it continues until there is a new one. But I do not think that this is the purpose of The Convention. If one usues the "similar to domicile" approach, one is faced with instant discarding and acquisition of a habitual residence, in the same manner as one changes a domicle: Intent coupled with an act. This appears, as I have said, to be contra to the intent of The Convention Most of the decisions in the United States Courts have held that Habitual Residence is fact driven and that there should not be a formal, legal definition of this term. See, e.g., Friedrich v. Friedrich (6th Cir. 1993) 983 F.2d 1396, 1400-1401. -------------------- 1. Hague Convention Signatories (at Jan. 1, 1992). Argentina, Australia, Austria, Belize, Canada, Denmark, Ecuador (from Jan. 4, 1992), France, Germany, Hungary, Ireland, Isle of Man, Israel, Mexico, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, UK, USA, Yugoslavia. Council of Europe Convention Signatories (at Jan. 1. 1992): Austria, Belgium, Cyprus, Denmark, France, Germany, Ireland, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, UK. 2. Lord Denning, in Re P. (G. E.) (An Infant) [1964] 3 All E.R. 977 at pp. 980-981 3. See C v S [1990] 2 All E.R. 961, per Lord Brandon at p. 965: "when a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers" and (per Lord Donaldson M.R. in the Court of Appeal, [1990] 2 All E.R. 449 at p. 454): "Jame's intentions must, of course, be those of his mother since he is two-and-a-half." 4. [1991] 3 All E.R. 230 5. 1990 S.C.L.R. 693 6. See, e.g. E B. Crawford, "International Child Abduction" (1990) 35 J.L.S.277 7. E.g. Art 12 (Hague), Art. 10(1)(b) (Europe) and Family Law Act 1986, s 41 (intra U.K.. 8. C v S [1990] 2 All E.R. 449 9. Cf. I.R.C. v Duchess of Portland [1982] Ch. 314, per Nourse J. at p 318, in respect of the deemed domicile of choice of the (pre)existing wife, newly "freed" from the barbaric servitude of the rule of unity of domicile; not, of course, that that case is anything but a warning on the drafting of transitional provisions (Law Com No 168; Scot. Law Com No 107 (1987), 8.2 and 8.5) 10. Stuart-Smith L.J., Re H. (in C.A. [1992] 1 All E.R. 836 at p. 844 11. See Viola, 1988 S.L.T. 7; contrast MacMillian, 1989 S.L.T. 350. 12. See C. v S. [1990] 2 All E.R. 449, a case in which the parties had lived in Western Australia. The parents had exercised de facto joint custody. It was possible for the father of the illegitimate child to obtain a court order vesting in him custody rights, but, as he had not done that before the mother removed the child to England, the House of Lords held that the removal was not wrongful within the meaning of Art. 3 of the Hague Convention (breach of rights of custody. Moreover, the retention was not wrongful because, by the time the father applied to the Family Court of Western Australia for custody and guardianship and obtained such an order, the child and his mother no longer could be said to be habitually resident in Australia. 13. Cf Lord Ordinary (Prosser) in Kilgour, 1987 S.L.T. 568, at pp. 570 et seq; and see H.L. decisions, Re H. and Another (Minors) and Re S. and Another (Minors) [1991] 3 All E.R. 230, discussed above. 14. [1984] F.L.R. 920 at p. 926 15. Dickson, 1990 S.C.L.R. at p. 700 16. Cruse v Chittum [1974] 2 All E.R. 940 17. at p. 703 18. However, it is true that in the House of Lords, in C. v S. [1990] 2 All E.R. 961, favour is shown to the "ordinary meaning" approach: "the expression 'habitual resident,' as used in Art. 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains." The question is one of fact, to be decided by reference to all the circumstances of the particular case (per Lord Brandon at p. 965). 19. at p 699 20. (1868(=) 6 M. (H.L.) 69. Admittedly, thee is not yet a continuance rule in Scots or English domicile law, except in the case of domicile of origin: in other cases, upon loss of domicile of choice without immediate acquisition of a new domicile, domicile of origin revives. In any event, however, there is never a gap. 21. [1990] 2 Al E.R. 961 (H.L.); 449 (C.A.) 22. In H.L. at p. 965 23. As, of course, in exceptional circumstances domicile may be established by laying down the suitcase (even after having left the suitcase to return to the erstwhie home state for the night -- see unusual American case of White v Tennant (W.Va. 1888) 31 W.Va. 790 [8 S.E. 596]. 24. in C.A. at p. 454 25. at p. 455: "it must be pointed out that the case with which we are concerned is unusual . . . But, in the ordinary case of a married couple, in my judgment it would not be possible for th parent unilaterally to terminate the habitual residence of the child by removing the child from the jurisdiction wrongfully and in breach of the other parent's rights. So I do not anticipate (in fact, I am sure) that this decision cannot be applied to the ordinary case of a married couple." 26. 190 G.W.D. 33-1883 27. 1990 S.C.L.R. 238. Contrast recent case of Messenger v M., 1992 S.L.T. (Sh.Ct.) 29 28. 190 S.L.T. (Sh.Ct.) 75 29. 1989 S.C.L.R. 761 30. 1990 S.L.T. 221 31. 1990 S.L.T. 848 32. See generally Ian L.S. Balfour, "Family Law" (1989) 34 J.L.S. 96; George Jamieson, "Custody of Children and the Family Law Act 1986" 1991 S.L.T. (News) 438. There must be, of course, an opportunity to seek to alert custody orders, and the Family Law Act appears to permit this. (s. 6; s 15), provided that (see s. 15) the later court is competent within the terms of th Act. For a recent article which is critical of the approach taken in Woodcock, in its failure "to give effect to the principle of automatic recognition an enforcement within the United Kingdom of custody orders of other U.K. Courts" and (in addition) in respect of the possibility which it may have opened up of Justice (competent) discussion of the merits in another U.K. jurisdiction (p. 449), see Denis S. Edwards, "A Domestic Muddle: Custody Orders in the United Kingdom" (1992) 41 I.C.L.Q. 444. 33. [1990] 3 All E.R. 97 34. Emphasis added 35. [1989] 3 All E.R. 590 36. See the judgment of Waterhouse J in B. v B. [1988] 1 All E.r. 652 (earlier remarks at p. 656, but considered summing up at pp. 658-659), and the words of Professor Anton, writing in anticipation of the coming into force of the Hague code: A.E. Anton "The Hague Convention on International Child Abduction" (1981) 30 I.C.L.Q. 537, at pp. 554-555. The relevant Articles (Hague) are 7(f) and 21; (Europe) 11. 37. See E.F. Sutherland, "Child Law: Radical Change or Woeful Neglect?" 1991 S.L.T. (News) 447. 38. "Family Practice," N.L.J. Dec 6 1991 39. See e.g. "International Child Abduction, " Sarah Evans, executive officer, Child Abduction Unit, Lord Chancellor's Department (1992 (142) N.L.J. 232). The Lord Chancellor's Department has produced a booklet for the guidance of parents, entitled Child Abduction, free on application. 40. "The last thing that I wish to say is that I regret having to decide the case in this way in the sense that I think that the father has been hard done by on the part of the mother. Nevertheless, we are concerned to apply the Convention in its terms and in the way in which I think it was intended to be applied." C. V S. [1990] 2 All E.R. 449, per Lord Donaldson at p. 455. A significant "second wave" decision recently noted is Re A and another (minors) (abduction; acquiescence) [1992] 1 All E.R. 929, in which, by a 2/1 majority (Balcombe, L.J. dissenting on the interpretation of "acquiescence"), the Court of Appeal held that a father's letter from Australia to his ex-wife in England (the ex-wife having unlawfully removed the children to England "secretly and with a degree of premeditation"), which in its terms seemed to accept that state of affairs (although then the writer had not been told specifically of his wife's long-term intentions to remain in England), amounted to acquiescence in the removal; further, that acquiescence is not to be interpreted as a continuing sate of affairs but a once for all decision, which cannot be withdrawn, although the court may note a change of mind. A parent must be well advised as to what (he) says, and especially as to what (he) writes. (On hearing of the wife's intentions, the husband then made application in Australia for return of the children in terms of the Hague Convention thereby displaying his lack of acquiescence, in fact if not in law.) His change of mind, or demonstration of lack of acquiescence, or withdrawal of acquiescence, came too late or was ineffective. The matter of return by State addressed having become one of discretion, therefore (Art. 13), the case has been remitted to the High Court for the exercise of the discretion.