In re N. (Child Abduction: Jurisdiction) [1995] Fam. 96 3 International Abduction [UK 1995] =========================================================== 1994 Aug. 31 Wilson J. 001 Children - Custody rights - Breach - Order of Californian Court restraining both parents from removing child from jurisdiction - Father removing child to Iraq - Californian court ordering father to return the child to California - Father intending to visit United Kingdom with child - Whether English court having jurisdiction to make interim directions in respect of child before arrival in United Kingdom - Child Abduction and Custody Act 1985 (c. 60), s. 5, Sch. 1, arts. 7, 8, 11 002 A boy, born in November 1991, lived in California with his mother following the separation of his parents. The father was an Iraqi national and the mother a U.S. national. The Superior Court of California had ordered, inter alia, that tile child should not be removed front California without the consent of both parents or the leave of the Court. In July 1994, the father, having received the child for agreed week - end contact, flew with him to Iraq. The Californian court directed the father to return the boy to the the mother forthwith. The father agreed to bring the child to London in order to discuss the future and indicated that they would arrive in the United Kingdom on 2 September 1994. The mother applied, ex parte, for an order under the Child Abduction <* page 97> and Custody Act 1985 FN1 requiring the father to return the child to her pending an inter partes hearing, the order to be served on tile father on arrival at Heathrow. 003 On the question whether the court could make the order before the father and child had entered the jurisdiction: - 004 Held, granting the application, that since tile Child Abduction and Custody Act 1985, in giving effect in the United Kingdom to the Convention oil the Civil Aspects of International Child Abduction, had imposed on the court a duty to co-operate with all other contracting states and to act expeditiously in making orders to secure the return of wrongfully taken children, and since nothing in the Act or the Convention expressly or impliedly limited the court's jurisdiction to children already in the United Kingdom, it was open to the court under the wide terms of section 5 of the Act of 1985 to make interim directions in respect of a child who had not yet arrived in the United Kingdom but who was likely to do so; and that the court's duty could be discharged only by making orders for the boy's initial restoration to the mother's care in England if, as there were substantial grounds for expecting, he arrived in the United Kingdom with his father (post, pp. 99D - 100B). 005 No cases are referred to in the judgment or were cited in argument. APPLICATION 006 On 9 June 1994, following the inception of divorce proceedings by the mother of a boy, N., born on 2 November 1991, the Superior Court of California ordered that both parents should have joint custody; that the mother would care for him physically; that the father should have visiting rights; and that the boy should not be removed from the state of California without the consent of both parents or the leave of the court. In breach of the order the father went to Iraq with the boy. On 26 July 1994 the Superior Court of California varied the earlier order by granting sole custody to the mother and directing the father to return the boy forthwith. Subsequently the father intimated to the mother that he intended to arrive at Heathrow Airport on 2 September 1994 with the boy. 007 On 31 August 1994, the mother applied, ex parte, for an order under the Child Abduction and Custody Act 1985 requiring the father to return the child to the mother pending an inter partes hearing. 008 The application was heard in chambers and the judgment is reported with the consent of Wilson J 009 The facts are stated in the judgment. 010 Henry Setright for the mother. WILSON J. 011 This is an application made ex parte by it mother. She has not yet issued proceedings under the Child Abduction and Custody Act <* page 98> 1985; but she proposes to do so and subject to constraints of time she will do so this afternoon, and, if not this afternoon, tomorrow. The proposed defendant to the proceedings is the father. The child concerned is N., who is now some 24 3/4 years old. 012 The rather is an Iraqi national. The mother is a United States national. After the little boy was born, the parties married and they remain married. They lived at all material times in California. When the marriage broke down, the boy went with the mother to live at another address in California and the mother issued proceedings for divorce. An agreement was reached which was recorded by stipulation in an order of the Superior Court of California on 9 June 1994. The order provided that the boy should be in the joint custody of both parents; that responsibility for his physical care should be with the mother; that the father should have visitation rights to him; and that he should not be removed from the State of California without the consent of the parties or the leave Of the Court. 013 In the late part of July 1994, the mother handed the boy to the father for what she believed would be a weekend camping trip to Santa Barbara in the State of California. But the father had laid elaborate plans to remove the boy from the State of California and from the United States of America. He flew with the boy to Iraq via New York and Jordan, and that is where it is believed that the father and the boy still remain. It was, prima facie, a clear breach of the order by consent of 9 June 1994 and or the rights of custody attributed to the mother under Californian law, that state being clearly the state in which the boy was habitually resident immediately before his removal to Iraq. 014 When the mother discovered that the father and the boy had gone to Iraq, she quickly moved the Superior Court of California for further relief. It seems that the father's attorney was present at that hearing. The order made on 16 July 1994 gave sole physical custody of the boy to the mother and directed his return to her forthwith. A warrant was issued for the father's arrest for violation of the previous order. 015 The mother and the father have had certain discussions over the telephone, she in the United States and he in Iraq. By the middle of August, the father was indicating to her that he might be prepared to come and discuss their differences, both in respect of the boy and otherwise, in a third country, specifically England. This led the mother to inform the American administrative authorities and they in return requested the Lord Chancellor's Department to take all possible steps to assist in the return of the boy to the mother's care in America. 016 Discussions between the parents have fructified into what, on the evidence before me, has become a fairly firm understanding that the parties will meet in London this coming weekend; and the father has indicated that, to that end, he will arrive with the boy in London on Friday, 2 September 1994, in order to meet the mother and to discuss their deferences. The mother has, accordingly, made plans to come herself to London and she is expected to arrive on Thursday, 1 September 1994. 017 Such are the circumstances in which the mother asks this court to exercise what is said to lie its jurisdiction under the Child Abduction and Custody Act 1985 to make orders which will have the effect of authorising the tipstaff to collect the boy from his father's care. assuming that they <* page 99> do together arrive at Heathrow Airport on Friday, 2 September 1994 -- and to restore the boy, in the first instance temporarily, to the care of the mother pending a further analysis by this court of where its duties lie, or alternatively how its powers should be exercised, under the Act of 1985. 018 Mr. Setright, who I believe knows as much as any other member of the bar about the intricacies of the Child Abduction and Custody Act 1985, has very properly put before me the fact that there is no reported case in which an order has been made under the Act of 1985 in respect of a child who has not yet been brought within the jurisdiction of England and Wales. 019 There is no doubt that, had the boy arrived within the last hour at Heathrow Airport, I would have had the power to make the appropriate interim directions under section 5 of the Act of 1985 to hold him in this country in the most advantageous circumstances from his point of view that may be devised, pending all inter partes inquiry as to whether he should be returned to California. Looking at the matter on the basis of common sense, it would seem to be extraordinary if that power were to exist in respect of a child who has just landed upon these shores but were not to exist in respect of a child who there was good reason to believe was likely to land upon these shores. And if, in truth, there is no jurisdiction to make orders in the latter case, there would seem to be a likely frustration in a number of such cases of the common intention of the states which signed the Convention on the Civil Aspects of International Child Abduction and imported it into their own laws. So I look to see whether I am driven by the terminology of the Act to conclude that the interim powers given to me under section 5 cannot be exercised other than in respect of a child already here. 020 There is certainly nothing in section 5 itself which suggests that limitation. Nor is there any other section in Part I or Part III of the Act itself - Part II being irrelevant - which so provides, and it would have been easy for Parliament to have so provided if It had wished to do so. 021 I look then to the terms of the Convention itself, which are set out in Schedule I to the Act of 1985. I note that under article 7 central authorities are bidden to: "co-operate with each other and promote co-operation amongst the competent authorities in their respective states to secure the prompt return of Children and to achieve the other objects of the Convention." 022 I appreciate that that article 7 is addressed to administrative authorities. Nevertheless its terms are such that, in application to this case, it amounts to a mandate to the administrative authorities of California and of England to co-operate to secure the prompt return of this boy. The obligation under article 7 is not, expressly or by implication, limited to the central authorities of the jurisdiction from which the child has been removed and of the jurisdiction where the child then is. I note article 8, namely that anybody "claiming that a child has been removed ... in breach of custody rights may apply either to the central authority of the child's habitual residence or to the central authority of any other contracting state for assistance in securing the return of the child." <* page 100> The words "any other" are, in my view, of significance and clearly cover this jurisdiction, notwithstanding that the boy is not now here. 023 Article II provides: "The judicial or administrative authorities of contracting states shall act expeditiously in proceedings for the return of children." The terminology is noticeably wide. I consider myself to be under a duty, as the judicial authority of a contracting state, to act expeditiously, as Mr. Setright bids me do this afternoon, in proceedings for the return of this child. 024 I interpret the language both of the articles of the Convention and of the text of the Act as being deliberately wide in its instruction to this court to co-operate with all other contracting states in making orders which will secure the return of wrongfully taken children; and in this case its duty can be discharged only by making the orders for the boy's initial restoration into his mother's care in England if, as there are substantial grounds for expecting, he does land here with his father during the next few days. Orders accordingly Costs reserved Legal aid taxation Solicitors: Bindman & Partners =========================================================== 23 May 1998 Notes by William M. Hilton, CFLS This case illustrates the Court's duty to interpret The Convention and its enabling legislation so as to cause the return of a child to his or her habitual residence of origin. The court finds that while there was nothing specific that stated it could exercise jurisdiction, there was also nothing that said it could not and then uses the language of Art. 7 to accomplish the intent of The Convention. This case can then stand for the general proposition that when there is a conflict in the matter before the court, the court should resolve the matter in favor of operation of The Convention, e.g., questions about facts, statements of law, etc. -------------------- 1. Child Abduction and Custody Act 1985, s.5: "Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned . . . " Sch. 1, art. 7; see post, p 99F; Art 8: see post, p 99H; Art. 11: see post, P. 100A.