36 THE TIMES LAW REPORT WMH FN-1 26 Jan 1993 Court of Appeal In re G (a Minor)(Convention on the Civil Aspects of International Child Abduction: Access) Before: Sir Thomas Bingham, Master of the rolls; Lord Justice Butler-Sloss; Lord Justice Hoffmann (Judgment: 09 Dec 1992) A child who was habitually resident with her mother in England and whose father had access rights granted by the Ontario court, was a child to whom the Convention on the Civil Aspects of International Child Abduction applied. Article 21 of that Convention provides: An application to make arrangements for organizing or, securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject. However, any breach of such access rights would be considered by the English court under its domestic law. Article 21 of the Convention, which had administrative effect but imposed no direct obligation on judicial authorities, required the Lord Chancellor's Department, as the central authority for the purpose of the Convention, to assist the father by introduction to local legal services and where necessary by the provision of legal aid. The Court of Appeal so stated dismissing an appeal by the father from Mr. Justice Cazalet who had (i) held that although weight should be given to a consent order made by Judge Nevins in the Ontario Court, Provincial Division sitting in Toronto, the English court should have regard to the welfare of the child and (ii) ordered specific access arrangements to the father initially to take place in England. G's parents who had married in England in 1985 had subsequently lived in Canada where G was born in 1989. Following the break up of their marriage the judge in Canadian proceedings had permitted the mother to return with G to live in England but had directed specific access to the father to take place in Canada. On the mother's refusal to comply with the access arrangements the father had initiated proceedings under the Convention for the protection of his access rights through the central authority in England. Mr James Turner for the father, Mr Andrew McFarlane for the mother. LORD JUSTICE BUTLER-SLOSS said that the first issue, not argued before the judge, was whether on the present facts the Convention applied. Her Ladyship referred to Article 7 which enjoined co-operation between competent authorities of the contracting states to achieve the objects of the Convention and Article 4 which provided: The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. Referring to the effect of the consent order, her Ladyship said that G had become habitually resident in England before the potential breach of access rights was known. On an application in respect of such rights the relevant jurisdiction under Article 4 was the English, not the Canadian, court. The effect of Judge Nevins' order was to transfer the primary control by a court over G from Ontario to England and to put the English court in the driving seat. The question then arose whether the Convention applied at all. The Convention focused both on co-operation between central authorities and the enforcement of the return of the child wrongfully removed or retained outside the state of its habitual residence. The Convention did not visualize that orders from a state which was not the state of habitual residence would continue to govern the affairs and welfare of a child living permanently elsewhere. Her Ladyship adopted Lord Justice Hoffmann's the construction of Article 4 and rejected that of Mr Justice Waterhouse in B v B [(1988) 1 WLR 526, 532]. Article 21 did apply to the case. The Convention's approach to access rights was more flexible than its approach to wrongful removal or retention. Her Ladyship agreed with the explanation of Article 21 given by Dr John Eekeler in his "Explanatory Documentation" prepared for the Commonwealth Jurisdictions in February 1981 that it allowed a party resident outside the contracting state to present to that state's central authority an application for making arrangements for organizing or securing the effective exercise of rights of access. Central authorities were not placed under mandatory duties with respect to such applications other than generally to promote co-operation, and in practice that could be achieved by passing the matter onto a local lawyer who might either negotiate agreement between the parties or institute whatever proceedings might be necessary in the local court on behalf of the party living abroad. There was a distinction between the duties of the central authority and the jurisdiction of the court. Article 21 applied at the administrative level to bring the application to the attention of the contracting state. The authority complied there-after with its obligation under Article 21 by making appropriate arrangements for the applicant and in the present case by providing for legal aid and instructing English lawyers to act on his behalf. A dissatisfied parent's remedy for enforcing any failure by the Lord Chancellor's Department, as the central authority, would be by way of judicial review. Where the child was habitually resident in the contracting state, being England, before the breach, the Convention did not directly affect the jurisdiction of the English court. No teeth were to be found in Article 21 and its provisions had no part to play in the decision to be made by the judge. The father's application should have been made for a section 8 order under the Children Act 1989 and would therefore be governed by the provisions of section 1(a) of the 1989 Act, the child's welfare being paramount. The court's discretion was accordingly not fettered by the Convention, although the existence of the earlier order, where the child was then habitually resident, was crucially important and a factor to be given the greatest weight consistent with the over-riding consideration that the child's welfare was paramount. The judge's exercise of his discretion here had been impeccable and the appeal would be dismissed. WMH FN-2 LORD JUSTICE HOFFMAN, agreeing, said that the "contracting state" in Article 4 did not meant the state under whose law the rights of access existed. His lordship reached his conclusion for a number of reasons: 1. A contrary meaning, which would disapply the Convention in the present case, since the right of access existed under the law of Canada but the contracting state in which G was habitually resident immediately before the breach of that right was England, was too narrow and involved reading wording into the Convention. G was habitually resident in a contracting state. The Article did not say that it had to be the state under which the access right arose. 2. While it was true that the provisions for the return of children were intended to protect rights of custody under the law of the contracting state where the child was habitually resident, that was expressly spelled out in Article 3. It did not require in addition a narrow interpretation of Article 4. 3. Rights of access had normally to be enforced in the country where the child was habitually resident. It was unusual for a breach of access rights to occur when the child was away from home. It followed that if Article 21 did not apply to the enforcement of a foreign access right in the country of the child's habitual residence it would seldom achieve its object of ensuring that rights of access under the law of one contracting state were effectively respected in the other contracting states. 4. A restrictive interpretation of Article 4 was not needed to prevent the Convention from applying to cases which were purely domestic. There was no difficulty in construing Article 21 as confined to cases which gave effect to the relevant purpose of the Convention, namely to ensure that foreign access rights were respected. 5. While it was part of the rationale of the child abduction provisions of the Convention that the foreign custody right should be enforced to the extent of returning the child to the jurisdiction from which it had been abducted without regard to the merits, the same was not true of access rights. His Lordship referred to and adopted the comments of the chairman of the conference which drafted the Convention ((1981) 30 International and Comparative Law Quarterly 537, 554-555) WMH FN-3 that the Convention contained no comparable mandatory provisions for the support of access rights, that the effective exercise of access rights depended in the long run more on the goodwill, or at least the restraint of the parties than the existence of formal rules and that Article 21 therefore established open-textured rules for assisting parties to secure the effective exercise of access rights by seeking the intervention of central authorities. WMH FN-4 The Master of the Rolls delivered a judgment concurring with both judgments. Solicitors: Mischon de Reya; Salmons, Newcastlte under Lime. -------------------- 1. This decision was copied from a photo copy of the above publication. 2. While this appears to be consistent with McKee v McKee [1951] A.C. 352; [1951] 1 All E.R. 942, P.C., it may have the effect of limiting the removal of children from the original forum. While this decison does not say, it is implied that the Canadian court allowed the removal of the child on the conditions that certain access be had in Canada. Since this decision, as does McKee, states that while some effect is to be given to the foreign decree, the court of the Habitual Residence can always vary the foreign order, making it worthless. Compare, however, the practice in those jurisdictions that follow the Uniform Child Custody Jurisdiction Act (UCCJA) which leaves exclusive jurisdiction to vary the original order with the original court so long as one party remains in the original jurisdiction. In practice this has often meant that the left behind parent's rights of access are protected by the court that originally made those orders. See Pieri v Superior Court (Pieri) (Cal.App. 1 Dist. 1991) 1 Cal.App.4th 114 [1 Cal.Rptr.2d 742] and In re Marriage of Arnold (Cal.App. 1 Dist. 1990) 222 Cal.App.3d 499 [271 Cal.Rptr. 624] for two examples of this policy. 3. THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION By A. E. ANTON 4. See, however, the Report of Meeting No. 7, Special Commission of January 1993, Item 32 where this limitation of powers is regreted and that in the future these powers may be the subject of a Protocol to The Convention.