Re F (Minor: Abduction: Jurisdiction) [1990] 3 All ER CA 97 [WMH Note 01] [1991] Fam. 25 Court of Appeal, Civil Division Lord Donaldson of Lymington MR, Neill and Balcombe LJJ 30 Jul 1990 Minor -- Custody -- Rights of custody -- Foreign custody rights -- Jurisdiction -- Wrongful removal or retention -- Removal from non-convention country -- Father removing child from Israel to England in breach of mother's rights of custody -- Mother obtaining interim custody order from Israeli court -- Father subsequently obtaining similar order from English court -- Principles applicable in deciding appropriate forum to determine child's welfare -- Whether English court should order child to be returned to Israel -- Child Abduction and Custody Act 1985, Sch 1, art 13. The father, who had both English and Israeli nationality, married the mother, an Israeli national, in Israel in 1979. They had two boys, one born in 1980 and another born in 1986. The parties resided in Israel except for a period between 1982 and 1985 when they lived in England. The marriage was not happy and throughout there were difficulties, separations and reconciliations. In 1989 they finally separated. Under Israeli law they were joint guardians of the children. On 4 April 1990 the father came to England with the youngest child, B, and, in breach of the mother's rights of custody under Israeli law, refused to return the child to the mother. On 15 April the mother applied to an Israeli court for interim custody of both children. The mother then applied to the county court for an order requiring the father to return the child to Israel but the judge gave interim care and control of the child to the father pending further inquiries by the court welfare officer and ordered the case to be transferred to the High Court and also forbade the mother to remove the child out of the jurisdiction. The mother appealed against those orders. Since Israel was not a party to the Convention on the Civil Aspects of International Child Abduction as set out in Sch1 to the Child Abduction and Custody Act 1985 the question arose as to the extent to which convention principles were applicable. HELD -- Where a child was wrongfully removed from a foreign jurisdiction to the United Kingdom an English court should not retain jurisdiction merely on the basis that a possible outcome of custody proceedings, whether in the United Kingdom or the foreign jurisdiction, was that the child may be ordered to remain in the United Kingdom. Instead, applying the principle that the welfare of the child was paramount, it was normally in the interests of a child that it should not be abducted and any decision relating to the custody of the child was normally best decided by the court in the state where the child was habitually resident. Accordingly, the English court should order the return of the child to the jurisdiction of the court in the state where the child was habitually resident if that court would apply principles which were acceptable to English courts, there were no contraindications such as to referred to in art 13 [FN-1] of the [98] convention and there was no risk of persecution or discrimination. Where the removal of a child was in breach of rights of custody, the existence of prior orders by a foreign court did no more than affirm or reinforce those rights and, furthermore, the fact that there were ties with England was merely on of the matters to be considered by the court charged with resolving the dispute between the parents and did not point to the English court as being the appropriate court for that purpose. Moreover, possible outcomes of any proceedings had no bearing on which court should decide the issue of custody. Applying the normal rule that abducted children should be returned to their country of habitual residence the father would be ordered to arrange for the immediate return of the child to Israel. The mother's appeal would accordingly be allowed (see p 100 b to gj to p 101 d, post). Notes For the return of abducted children, see Supplement to 8 Halsbury's Laws (4th edn) para 525A. Cases referred to in judgments Barrios and Sanchez [1989] FLC 92-054, Aust.Fam.Ct. G (a minor) (wardship:jurisdiction), Re [1984] FLR 268, CA. Giraudo v Giraudo [1989] CA Transcript 527. H (infants), Re [1966] 1 All ER 886, [1966] 1 WLR 381, CA. H and H [1985] FLC 91-640, Aust.Fam.Ct. Khamis and Khamis [1978] FLC 90-486, Aust.Fam.Ct. Case also cited L (minors) (wardship:jurisdiction) [1974] 1 All ER 913, [1974] 1 WLR 250, CA. Appeal The mother of a minor appealed against the order of her Honour Judge Vinner QC sitting in the Hastings County Court on 2 July 1990 granting interim custody, care and control of the child Ben to the father until final disposal of the matter, refusing to mother's application for the return of the child to Israel, ordering the parties' claims for custody of the child to be heard by the Family Division of the High Court and restraining the mother from removing the child from the father's care or from the jurisdiction of the court. The facts are set out in the judgment of Lord Donaldson MR. Adrian Salter for the mother. Judith Rowe for the father. LORD DONALDSON OF LYMINGTON MR This is an international child abduction case. It is not, however, one to which the Child Abduction and Custody Act 1985 applies because Israel has not yet been named in an Order in Counsel made under s 2, and may indeed not be a party to the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS 66 (1986); Cm 33) to which that Act gives effect. Nevertheless, like all international child abduction cases, it is in a special category. The facts are these. The father is English by birth, but has acquired additional Israeli nationality. The mother is Israeli by birth. They met at Kibbutz Yig'at in Israel in 1975 and in 1977 the father was converted to Judaism. He returned to England in January 1979 sent the mother a telegram announcing that he was coming to Israel and proposing marriage. His proposal was accepted and he went to Israel. However, in May 1979 he had second thoughts and broke off the engagement. In the following month the couple were in fact married, when the mother told him that she was pregnant, and the child, Ron, was born in January 1980. Ron is therefore ten and a half years old. Ben, the child [99] with which these proceedings are primarily concerned, was born in September 1986 and is therefore just under four years old. The marriage has not been a happy one and in May 1989 the parties were considering a divorce. Nothing came of this, but in September 1989 they executed an informal separation agreement and were rehoused in separate accommodation in the kibbutz. Under the agreement both parents had 'control', to use the word used in the agreement, of the children and it provided for divided care. Whatever the status of that agreement, it is clear that under ss 14 and 15 of the Israeli Capacity and Guardianship Law 1962 the parents are joint guardians of their minor children, and have joint custody and the joint right to determine their place of residence. [WMH Note 02] The basic disagreement between the parents is clearly concerned with where they shall live, although there are no doubt other problems. The father wants to live in England. Indeed, he left the mother and Ron, the elder child, in Israel in October 1980, and it was not until September 1982 that he and the mother were reconciled. That reconciliation was achieved when the mother and Ron joined him in England. The mother was unhappy in England, but stayed here until 1985 when the family moved back to Israel. Since then, both parties have lived in Israel, although the father paid a short visit to England last Christmas, accompanied by the younger son, Ben. Before the mother would agree to that visit, she required the father to give security for the prompt return of Ben. [WMH Note 03] On or about 4 April of this year the father came to England, taking Ben with him. They are now living with the paternal grandparents. He neither obtained nor even sought the consent of the mother, and left her a letter falsely promising to return Ben on 18 April. On 15 April the mother applied to the District Court of Nazareth for interim custody of both children, and on 26 April the father made a similar application to the Hastings County Court in relation to Ben. The Nazareth court made an order in favour of the mother and ordered the father to return Ben. [WMH Note 04] The mother applied to the Hastings court for an order requiring the return of Ben to Israel, but this was refused pending further inquiries in the form of a court welfare officer's report which was to include the result of inquires in Israel. Meanwhile, the father was given interim custody and care and control, the case was transferred to the Family Division of the High Court and the mother was forbidden to remove Ben from the jurisdiction. The Hastings County Court orders were made by her Honour Judge Viner QC, and it is from those orders that the mother now appeals. No one could or would criticize the judge's decision to order further inquiries and to give interim care, custody and control to the father, who is, after all, the only parent present in England, provided always that it was appropriate that the English rather than the Israeli courts should decide what the welfare of Ben required. If it was more appropriate that this should be decided by the Israeli court, as I have no doubt that it was, she should have ordered the return of Ben to Israel at the earliest possible moment. If this had been a convention case, there would have been no argument. The father's action in bringing Ben to England was a 'wrongful removal' within the meaning of the convention, having been undertaken in breach of the mother's rights of custody under the law of Ben's habitual place of residence immediately before the removal. There are no contraindications, such as those contemplated by art 13. But this is not a convention case and the question inevitably arises of the extent to which convention principles are applicable. I agree with Balcombe LJ's view expressed in Giraudo v Giraudo [1989] CA Transcript 527 that, in enacting the 1985 Act, Parliament was not departing from the fundamental principle that the welfare of the child is paramount. Rather it was giving effect to a belief -- 'that in normal circumstances it is in the interests of the children that parents or others shall not abduct them from one jurisdiction to another, but that any decision relating to the custody of the children is best decided in the jurisdiction in which they have hitherto been normally resident.' [100] This decision was not drawn to the judge's attention, although she was referred to two earlier cases, Re H (infants) [1966] 1 All ER 886, [1966] 1 WLR 381 and Re G (a minor) (wardship:jurisdiction) [1984] FLR 268, in which children were ordered to be returned. She distinguished those cases on the grounds that in each case there had been orders by foreign courts relating to the children prior to their removal and that in Re G the family had no fixed ties with England, although the mother was of English nationality. In the instant case, by contrast, she held that the father had important ties with England and that not all Ben's ties were with Israel. For my part, I consider that the existence of prior orders by a foreign court is of little, if any significance so long as the removal was in breach of rights of custody. [WMH Note 05] The existence of a prior order would do no more than affirm and reinforce those rights. So far as ties with England are concerned, this is not one of the matters which falls to be considered by the court charged with resolving the dispute between the parents. It does not point to the English courts as the courts appropriate for that purpose. Similarly, I reject the judge's reliance on her view of Ben's future. As she put it: '. . . this is not a case where his future is inevitably tied up with Israel. It might be so, but that is not an inevitable certainty.' That is something which has to be taken into account by the appropriate court, be it English or Israeli, but does not point to one rather than the other. Finally, the judge expressed doubts as to the extent to which the father is free to return to Israel without adverse consequences as a result of his abduction of Ben. If, for example, he were imprisoned, this would deprive Ben of his father's care and attention for a period. Quite apart from the fact that this involves the father being allowed to rely on his own wrong, it ignores the fact that, so long as Ben remains in England, he is cut off from his mother and younger brother. In fact, the criminal charges were instituted in Israel by the mother when she discovered that Ben had been abducted, and we are told that she does not intend to press those charges. Of course, it will be for the Israeli authorities to decide what difference that makes. [WMH Note 06] There is no evidence that the Israeli courts would adopt an approach to the problem of Ben's future which differs significantly from that of the English courts. It is not a case in which Ben or his father are escaping any form of persecution or ethnic, sex or other discrimination. In a word, there is nothing to take it out of the normal rule that abducted children should be returned to their country of habitual residence. The welfare of the child is indeed the paramount consideration, but it has to be considered in two different contexts. The first is the context of which court shall decide what the child's best interests require. The second context, which only arises if it has been decided that the welfare of the child requires that the English rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made. In my judgment, the judge mixed the two questions. Thus, in her judgment, having distinguished Re G (a minor) (wardship:jurisdiction) [1984] FLR 268, on the basis that the parents were of different nationalities, but the mother, though English, had no fixed ties with Britain, she continued in this way: 'In this case the applicant clearly has important ties with this country notwithstanding his conversion and acceptance of dual nationality. It could not be said that on common sense all Ben's ties are with Israel. As regards the future and Ben, this is not a case where his future is inevitably tied up with Israel. It might be so, but that is not an inevitable certainty.' In other words, she was saying that, if one possible outcome of any proceedings, whether in Israel or England, would be that Ben might remain in England, the English courts should retain jurisdiction. This is an error in principle. Possible outcomes have no bearing on which court should decide. Which court should decide depends, as I have said, on whether the court will [101] apply principles which are acceptable to the English courts as being appropriate, subject always to any contraindication such as those mentioned in art 13 of the convention, or a risk of persecution or discrimination, but prima facie the court to decide is that of the state where the child was habitually resident immediately before its removal. I would allow the appeal accordingly and order the immediate return of Ben to Israel. NEILL LJ. I agree. The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child's welfare is the first and paramount consideration. This principle is subject to exceptions and these exceptions will no doubt be worked out in future cases. In the present case, however, I can see no reason whatever why the general principle should not be applied. I too consider that the judge erred in this case and applied the wrong principle. Accordingly, this court is entitled to, and should interfere. I too, for the reasons explained by Lord Donaldson MR, would allow this appeal. BALCOMBE LJ I agree that this appeal should be allowed for the reasons given by Lord Donaldson MR and Neill LJ and following the decision in Giraudo v Giraudo [1989] CA Transcript 527. I add that the effect we are giving to the Child Protection and Custody Act 1985 in relation to non-convention countries is consistent with the practice which the Australian courts have adopted. By 1976 Australia had entered into bilateral treaties with New Zealand and Papua New Guinea with respect to children removed from those jurisdictions, and those treaties were enshrined in the provisions of s 68 of the Australian Family Law Act. That enactment helped then to shape the common law. In Khamis and Khamis [1978] FLC 90-486, when dealing with a child who had been removed from California, the Full Court of the Family Court of Australia indicated that, in determining an appropriate forum, the court should endeavour to apply principles identical to those outlined in s 68 of the Family Law Act, notwithstanding that California was not a signatory to any bilateral treaty, nor did the legislation particularly apply to it. Australia, but not Chile, is a party to the Convention on the Civil Aspects of International Child Abduction (The Hague, 25 October 1980; TS66 (1986); Cm 33), and in Barrios and Sanchez [1989] FLC 92-054 the Full Court of the Family Court of Australia was concerned with children who had been removed from Chile to Australia. In its judgment the court said (at 77,609): '. . . the clear policy of the Convention is that save in exceptional circumstances, children who have been removed from their lawful custodial parent in another country without the authority of a court should be returned to that parent. In the present case we think it is appropriate to take this into account as an element to be considered. . . " I also agree with what the Full Court of the Family Court of Australia said in H and H [1985] FLC 91-640 that, as a general principle, courts should act in comity to discourage the abduction of children across national borders. The forum which has the pre-eminent claim to jurisdiction is the place where the child habitually resided immediately prior to the time when it was removed or retained without the consent of the other parent. In my judgment, a rapid accession to the Hague Convention by all nations would be a welcome advance towards the recognition of the rule of law by all nations. Appeal allowed Solicitors: Cartier and Co (for the mother); Morgan & Lamplugh, Hastings (for the father) Mary Rose Plummer, Barrister. --------------------------------------------------- [WMH Note 01]: This case applies The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [Convention] to countries that are not contracting states within the meaning of Art 28. This apears to be contra to the rule in the United States: See Mohsen v Mohsen (Dist.Ct. Wyoming 1989), No. C89-0147J. [WMH Note 02]: The existence of joint custody rights in the parents prior to any form of legal action has been held to be a right of custody within the meanings of Arts 3 and 5 of the Convention in all cases that have applied this type of a statute. For typical language see California Civil Code Section 197. [WMH Note 03]: A typical agreement would include language that (here) Isreal was the Habitual Residence of the child within the meaning of Art 3, that the retention of the child beyond a certain date was a wrongful retention within the meaning of Art 3, that the parent in the Habitual Residence had and was exercising a right of custody within the meaning of Art 5, etc. [WMH Note 04]: If reasonable notice and opportunity to be heard were given, this order would be enforceable in nearly all of the United States pursuant to 9 Uniform Laws Annotated (ULA) 23, the Uniform Child Custody Jurisdiction Act (UCCJA). [WMH Note 05]: See Art 3 of the Convention. It is important to stress to the court that the right of custody spoken of in the Convention does not require a formal court order, it may and is usually found by operation of law and possibly custom. [WMH Note 06]: An argument can be made that abduction of a child is per se child abuse and accordingly the parent that takes the child should not be allowed to have custody as that parent is a child abuser. Further the seeking of criminal sanctions may be the only practical way the left behind parent has to locate and cause the return of the child, particularly as to the costs of investigation, location, etc. This attitude also impinges on the sovereignty of the country of Habitual Residence as to the application of their laws on such issues. -------------------- 1. Article 13, so far as material, provides: 'the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -- (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.'