Re: "O" (Minors) [UK 1997] High Court of Justice, Family Division, 30 May 1997 3 International Abduction [UK 1997] ============================================================== IN THE HIGH COURT OF JUSTICE FAMILY DIVISION Royal Courts of Justice Strand, London WC2, United Kingdom 30 May 1997 Before: Mr. JUSTICE HOLMAN RE: "O" MINORS Mr. Henry Setright (instructed by Messrs. Margaret Bennett & Co.) appeared as Counsel on behalf of the Father (Proposed Plaintiff). Mr. Bernard Mocatta, Solicitor, appeared on behalf of the Mother (Proposed Defendant). Friday, 30th May, 1997 JUDGMENT (As approved by the Judge) Mr. JUSTICE HOLMAN: Introduction and Background 001 This unusual case raises an issue of fundamental importance for the smooth operation internationally of the Hague Convention on the civil aspects of international child abduction. In summary, a mother wrongfully removed her children from California to Sweden. Both the United States Of America and Sweden are Contracting States to the Hague Convention, as, of course, is the United Kingdom. The father applied through the American and Swedish central authorities for the return of the children to California pursuant to the Convention, which is incorporated into Swedish law by what Swedish lawyers refer to as "The Implementation Act". 002 After full and careful consideration, the appropriate Swedish court applied the discretion under Article 13(b) of the Convention to refuse to order the return of the children to California. The father appealed from that decision to a higher Swedish court and earlier this week that appeal was heard in Sweden. The appellate court has reserved its judgment. The father, who had traveled to Sweden for the hearing of the appeal, then himself "abducted" the children from Sweden. Whilst traveling back to California with them by air, he touched down at Heathrow Airport in England to change flights. He was arrested. The children are temporarily present in England. 003 The father now applies to me, through the American and English central authorities, for an order for the return of the children to America pursuant to Article 12 of the Hague Convention. The issue of fundamental importance, to which I have referred, is whether I should entertain on its merits that application under the Convention. Alternatively, the father applies for an order for the return of the children to California under the Children Act 1989 and/or in the exercise of the court's inherent jurisdiction. The mother cross-applies for orders under the Children Act 1989 and/or in the court's inherent jurisdiction for the return of the children to Sweden. Facts 004 I must now set out the background facts in a little more detail. The father is aged 41. He was born and brought up entirely in America and is an American citizen. The mother is aged 43. She was born and brought up entirely in Sweden and is a Swedish citizen. In 1986 the parties married and made their home in California. They have two children. The elder, Charlotte, was born on 3rd September 1988, so she is now aged about eight and a half. The younger, Samantha, was born on 27th April 1992, so she in now aged just five. Each of the children have dual American and Swedish nationality. Neither parent and neither child has any relevant connection with England or the United Kingdom whatsoever and, indeed, as I understand it, neither chi1d has ever spent any time at all in the United Kingdom, except, perhaps, on occasions when changing flights at an airport. 005 Sadly, the marriage of the parents became unhappy and there was a physical separation at the latest in about May l996. In that month the mother petitioned for divorce in a court in Los Angeles in California. The parties continued at that time jointly to own their former matrimonial home. 006 On 2nd July 1996 the Superior Court of Los Angeles, in which the divorce was proceeding, made an order by consent of the parties in the terms of a stipulation which the parties had reached. In effect, that order contemplated that the former home would be sold. It dealt with temporary arrangements pending the sale and provided that, pending that sale, the mother would have the physical custody of the children from Sunday evening to Friday evening and the father would have the physical custody of the children from Friday evening until Sunday evening. It further provided thee during the periods when each parent respectively had the physical custody of the children that parent would have the exclusive use and possession of the family home. So, in effect, the children would live all the time at the home, during the weekends with their father alone, and during the weekdays with their mother alone. Jumping ahead in the chronology, I understand that it was only earlier this month, namely in May 1997, that the home was actually sold. 007 On or about 13th September 1996 the mother removed the children from California without the prior knowledge or consent of the father and took them to Sweden, where her own family still live. Very promptly, on 20th September 1996, the father signed appropriate forms in America invoking the help of the American central authority under the Hague convention in his endeavour to obtain the return of his children to California. At some stage after that, although I am unclear as to exactly when, legal proceedings were formally commenced in Sweden pursuant to the Hague Convention and the Swedish Implementation Act, to which I have referred, for the return of the children. Meantime, the father also took proceedings in America. There was a hearing before the Los Angeles Superior Court on 5th December 1996 within the pre-existing divorce proceedings between the parties. It appears quite clear on the face of the resulting American order that the mother was represented at that hearing by an attorney called E. Bonnie Marshall. However, I have been told today that the mother, herself, was not aware that that hearing was taking place, or was scheduled to take place, until some time after it in fact took place. 008 At all events, on 5th December 1996, the American court found that the mother had "wilfully violated the Court orders giving visitation and custody to [the father]" and awarded both the legal and the physical custody of each of the children to the father. It further ordered the mother to return both children to California forthwith. At this moment, so far as I and anybody else in court before me are aware, that order remains in full force and effect and, indeed, it is the only order in any jurisdiction formally according the custody of either of the children to either parent . 009 On 6th February 1997 the father's application to the Swedish courts for the return of his children under the Hague convention was heard in the Lansrattan court (which I will hereafter refer to as the "County Court") in Scania, Sweden. That court actually gave its judgment and made its order on 13th February l997. The father was not personally present at any stage during the proceedings in the County Court in Sweden, but was represented throughout by lawyers instructed, as I understand it, through the central authorities. I have been told today that those lawyers advised him, in what he has subsequently come to regard as mistaken advice, that it was not necessary for him to attend that hearing. I should add, however, that I have also been assured that in all other respects' the father has and continues to have complete confidence in his Swedish lawyers. 010 Although he did not personally attend the hearing, it is clear from the judgment of the Swedish County Court that considerable written material was placed before that court by and on behalf of the father. Equally, however, considerable written material was placed before the court by and on behalf of the mother and, as I understand it, she herself did give some oral evidence to that court. 011 I have before me a translation of the Judgment of the Swedish County Court. There is no magic in length, but I mention that it runs to eight and a half closely spaced A4 pages and is, therefore, a judgment which deals with the matter in some considerable detail. It in quite clear from that judgment that the Swedish court took the view that there had been a wrongful removal of the children from California in terms of Article 3 of the Hague Convention. It is clear, also, that the Swedish court recognized that, accordingly, the children had to be returned to California unless the court exercised its discretion under one of the provisions of Article 13 of the Convention. It concluded its judgment in the following passage (I mention that I am reading from page 8 of the translation of the Swedish judgment): "Even though the formal conditions for implementation have been satisfied, transfer [that is, return of the children to California] may be refused under the provisions of section 12 of the Implementation Act. In the present case, that which is stated in point 2 of this legal paragraph should therefore be considered; i.e. whether there is a serious risk that such transfer would harm the child's physical or mental health or otherwise place the child in an unacceptable situation. It in apparent from the preparatory work to the legislation, on the one hand, that it should be apparent from objective circumstances that there is such a risk and, on the other hand, that transfer would obviously be in conflict with the child's best interests." 012 I interpolate at this point that I am, of course, reading from a translation into English of the Swedish language in which the judgment was expressed. It in obvious that during the course of such translation some different English words have been selected by the translator than the words which appear in Article 13 of the Convention itself. Thus, for instance, there is the reference to placing the child in an "unacceptable" situation, whereas Article 13 of the Hague convention refers to placing the child in an intolerable situation. But, quite clearly, making those allowances for translation, the Swedish court in that passage was clearly applying to the letter the terms of Article 13 of the Hague . Convention. 013 The Swedish judgment continues: "The father has claimed in this case that he has not abused either alcohol or narcotics since he was convicted ten years ago for driving under the influence of alcohol and a minor possession of marijuana. This statement gains no support in the examination of the case. In the absence of any other enquiry than that by the mother in this matter, the statement that her husband still continues to use marijuana cannot, in the view of the County Court, be disregarded. In addition, the County Court ascertains that the father has not been capable of providing any account in the matter of, inter alia, work, living conditions, and care of the children which, in a satisfactory manner, would show that he has adopted any measures with the purpose of creating, for the children's best interests, the preconditions for as gentle a transfer of them as possible. Besides, it has not been contented in this case that Charlotte cannot return to her previous school. The County Court further ascertains that the father has not presented any evidence which refutes that laid against him by the mother in the form of the examination carried out concerning his personality, principally his behaviour and behavioral approach vis-a-vis his children. Against this background and against the background of other matters that have transpired in this case, the County Court finds that a transfer of Charlotte and Samantha to their father would be obviously contrary to the children's best interests. Thus, it is the opinion of the County Court that there are circumstances of such a nature that it may be deemed warranted to refuse transfer under the provisions of section 12(2) of the Implementation Act [which clearly is a reference to the provisions of Article 13 of the Convention]. This application in therefore rejected." 014 Within about three weeks of that decision, and within the time provided under the relevant Swedish rules, the father appealed to the higher Swedish Kammarrattan (to which I will refer as the "Swedish Appellate Court"). The hearing of that appeal took place on Monday of this week, namely 26th May 1997. On this occasion the father did attend personally. I understand that both parents gave some oral evidence to the Swedish Appellate Court. In addition, there was legal argument as to the correctness, or otherwise, of the decision of the Swedish County Court. The Swedish Appellate Court reserved its judgment and made it clear that it would give its decision and reasons within four weeks, namely by (at the latest) about the end of June 1997. 015 The following day, namely on Tuesday, 27th May 1997, the father was permitted to have contact or access to both of the children. He agrees that he had assured the mother that he would not make any attempt to remove the children from Sweden and that he would return them to her at the agreed end of the period of contact. Further, he gave to the mother his passport and his own aeroplane ticket for his return to America. 016 Notwithstanding that assurance and those safeguards, the father, in fact, removed the children from Sweden to Copenhagen in Denmark. It is not necessary to go into any detail as to the further steps which he took, but the upshot was that he embarked with the children to fly from Denmark to America via London. He landed at London with the children yesterday, Thursday, 29th May. Immediately on arrival he was arrested by the police at Heathrow pursuant to a warrant for the extradition of the father back to Sweden to face criminal charges connected with the removal of the children by him from Sweden. 017 Arrangements were made for the children to be voluntarily accommodated overnight by the London Borough of Hillingdon, and the mother, herself, flew from Sweden to England, Thus, by yesterday evening both parents and both children were all present in England and, indeed, I had to make certain temporary orders to which it is not necessary to refer in any further detail. 018 Today, Friday, 30th May 1997, the father was taken to Bow Street Magistrates' Court in connection with the extradition proceedings and where an application was made on his behalf for bail. However, the magistrate at that court refused to grant bail and has remanded the father in custody until next Wednesday, 4th June. I postponed this hearing before me until the father was able, albeit still in custody, to be }wrought to this court. 019 Meantime, by an application dated 29th May 1997, the mother has applied to the Superior Court of Los Angeles for a modification of its order of 5th December 1996. That application is expressed to be returnable before the Los Angeles Court at 1.30 pm (obviously, Los Angeles time) today, 30th May 1997. Because of the time difference it will be a few hours yet before that application comes before the Los Angeles court, but, in terms of date, it comes before that court on the same date that I am hearing this matter in London. The formal application orders the father to appear before that court, but since, as we all know, he is in physical Custody in England thee is, of course, a practical impossibility for him to do. 020 By her application to the Los Angeles court the mother asks that the order of 5th December 1996 be modified so as to give custody of both children to herself and, as I understand it, monitored visitation to the father. I have to say that I find it very difficult to comprehend why, at this precise moment in the history of these proceedings, the mother's American lawyers have thought it appropriate to make that particular application. Of course I can understand that there may have been many periods of time subsequent to 5th December 1996 when it might have been appropriate for her to apply to the American court for a modification of its order. An obvious example might have been immediately after the decision of the Swedish County Court on 13th February 1997 not to order the return of the children pursuant to the Hague Convention. But quite why it was thought necessary or appropriate to issue that application at the precise moment when the children were temporarily in England I cannot, myself, understand. 021 At all events, I intend to consider the applications before me on the basis that the American order of 5th December 1996 remains extant as the governing custody order at the precise moment that I am giving this judgment and considering this matter. I do, however, observe that objectively there seams some absurdity in the fact that in the space of a single day, fundamentally in relation to the same matters, there have been legal hearings in two courts in England, namely the Bow Street Magistrates' Court and the High Court or Justice, and also in a court in Los Angeles, and all at the same time as we are awaiting the decision of the Swedish Appellate Court in properly constituted proceedings there. 022 I turn from that account of the facts to consider the applications which are before me. Application under the Hague Convention 023 By a fax dated 29th May 1997 the American central authority under the Hague Convention notified the Child Abduction Unit, which acts as the English central authority under the Hague Convention, that they would be forwarding to it an application under the Convention for the return of Samantha and Charlotte to America. The formal application has not yet been received by the Child Abduction Unit here, but I intend to treat the fax to which I have referred as if, itself, it constituted a formal request by the American Central authority to the English central authority under the Hague Convention. In my judgment, quite clearly, I must first determine what orders, if any, I should make on that application before giving any consideration to the cross - applications of each parent, to which I have referred, for orders under the Children Act or the inherent jurisdiction of the court. 024 In relation to his application under the Hague Convention, Mr. Setright, on behalf of the father, submits, correctly, that the state of habitual residence of these children remains California. At any rate in the eyes of English law and the manner in which English courts have interpreted the Convention, one parent of legitimate children (as these children are) cannot, by a process of abduction, unilaterally change the children's habitual residence against the will of the other parent unless and until that change is sanctioned by a court of competent jurisdiction. No court has yet made any order which would have the effect of sanctioning the change of the children's habitual residence from California to Sweden. Mr. Setright further submits, correctly, that it remains the case that these children were wrongfully removed from California in terms of Article 3 of the Convention. 025 So he submits that it is now my duty under the Convention and the Child Abduction and Custody Act 1985, which incorporates it into English law, substantively to hear and determine the application of the father via the American and English central authorities for the return of the children to California. He says that it is my duty loyally to apply Article 12 of the Convention, unless I am satisfied that Article 13 provides a discretionary ground for not returning the children in this particular case. Of course, he does not suggest that I should embark today on a consideration of any issues that may arise under Article 13, but submits that I should adjourn his application for substantive consideration on an early date after more evidence of the kind which was available in Sweden has been filed within these English proceedings. Meantime, he submits that I should make orders designed to ensure that the children remain within this jurisdiction until a substantive application can be heard. 026 In developing his submission Mr. Setright pointed to the general duty of co-operation on central authorities and "competent authorities" (in which I include the judicial authorities and this court) under Article 7 of the Convention. He points to the fact that Article 8 refers to "the central authority of any other Contracting State" and is not limited to the central authority of the Contracting State (in this case Sweden) to which the children were first wrongfully removed. The all-embracing effect of Articles 1 and 8 is very important. It underpins the international web of central authorities and other competent authorities, including courts, which are all committed to Preventing the harmful effects of international child abduction. Nothing in this judgment is intended in any way to detract from the importance in appropriate cases of several central authorities all co-operating and interacting together. 027 Mr. Setright points to Article 9 and the importance, if an abducted child is moved to a second Contracting State, of the first requested State promptly transmitting the application to that State; and he also points to the last paragraph within Article 12, which tends to be rarely referred to, which provides that "where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. 028 So he submits that, in effect, resolution of the outstanding issues under the Hague Convention has now passed from Sweden to England. He stresses that the proceedings are still pending in Sweden in the sense that there has not yet been a final decision on the appeal there. He submits that proceedings under the Convention are, in character, essentially ones of "enforcement"; that enforcement proceedings can be identically replicated in any convention country; and that, therefore, no question of comity between this court and the Swedish courts and legal system arises. 029 But, in my judgment, all these submissions overlook two fundamental points. The first is that one of the fundamental purposes of the Convention and its mechanisms in to prevent, by deterring, international child abduction. The preamble to the Convention refers to ''The States signatory to the present Convention ... desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence ... [I underline and emphasize the word "and"]. Thus, ensuring prompt return of children to the State of their habitual residence is one of the objectives of the Convention, in conjunction with the important overall objective of desiring to protect children from the harmful effects of their wrongful removal or retention. As the Explanatory Report by Elisa Perez-Vera issued by the Hague Conference itself in 1982 and frequently referred to by the courts, not only of England but of many other Contracting States, makes clear at paragraphs 16 to 19 ". . . effective respect for rights of custody and of access belongs on the preventive level, insofar as it must lead to the disappearance of one of the most frequent causes of child abductions". 030 Thus, one objective of the Convention is to provide an effective mechanism for the prompt return of children through administrative and judicial procedures so that people in the position of the father in this case do not resort to self-help and secondary abduction. In my judgment, it would run quite counter to this objective if a parent, who had failed to procure the return of his child from one Contracting State, could successfully obtain a re-run of his application by himself abducting the child to or via another Contracting State. 031 The second fundamental point is that the machinery of the Convention, read as a whole, essentially contemplates a summary procedure to be operated once only. In particular Article 16 provides that the judicial or administrative authorities of the State to which the child has been removed or in which it has been retained, shall not decide on the merits of rights of custody "until it has been determined that the child is not to be returned under this Convention". Thus, if a child is abducted to England and, within proceedings under the Convention, the court decides that, because of the discretions under Article 13, it should not be summarily returned, the force of the Convention insofar an it relates to summary return in then spent. There cannot be second or subsequent applications under the Convention. 032 In my judgment, that principle and approach must apply no less forcefully just because the summary procedure under the Convention has taken place in another Contracting State. I can no more sit "on appeal" from the decision of the County Court in Sweden in thin case (whose decision and order at this moment remains in existence) than I could if an earlier decision not to return the children had been made in proceedings here. 033 Even when a court is exercising a statutory jurisdiction and duty, as I am under the Child Abduction and Custody Act 1985, there is a discretion to decline to exercise the jurisdiction; for example, when a court stays proceedings on the principal of forum non conveniens. I stress that I do not regard the principle of forum non conveniens as having any direct application whatsoever to the present case or, indeed, to proceedings under the Convention generally; nor do I regard myself as exercising a power to "stay" in the conventional sense the father's application under the Child Abduction and Custody Act and the Convention. Nevertheless, the existence of that inherent power in other types of legal proceedings, including proceedings for the exercise of a statutory jurisdiction and duty, fortifies me in the view that I can, and should, decline to entertain on its merits the application under the Convention for the return of these children to America. 034 I stress that I am declining even to entertain the application under the Convention on its merits. I am not hearing it on its merits. I do not have, and do not wish to express or imply, any view as to whether or not within the Swedish proceedings and the current Swedish appeal the children should be returned to America. In my judgment that is a matter within the exclusive province of the Swedish appeal court, which is, even now, considering its decision 035 For those reasons, I intend to exercise an inherent jurisdiction and discretion not to entertain the father's application under the Hague Convention. Cross - applications under the Children Act and in Wardship 035 I now turn to consider what orders I should make in relation to these children under the Children Act or in wardship. On my direction they are now wards of this court. The father seeks orders to provide for their return with him to California. The mother seeks orders to permit their return with her to Sweden. Clearly, the one place where the children cannot remain for any significant period of time is England, where neither child and neither parent has any significant or relevant connection. 036 In considering these applications I put the Convention to one side and must, and do, apply the testy in section 1 of the Children Act 1989. I must make the welfare of each of there children my paramount consideration. I must, and do, have regard in particular to all the matters listed in section 1(3) of the Children Act 1989 which, at this point, I specifically re-read and remind myself of, although I do not propose to refer seriatim to all the matters listed there. 037 I stress that I view the decision which I have to make on these cross-applications as very short-term and temporary in character. It is a choice between returning the children to America to be subject to further legal proceedings there in which, no doubt, the mother would be asking to be able to take them back to Sweden; or to return them to Sweden for the very short period of time (less than a month) which will remain between today and the announcement of the decision of the Swedish Appellate Court. If that court reverses the decision of the Swedish County Court, then, presumably, it will order the return of the children to California forthwith. If it does not reverse that decision, then I presume that further proceedings can take place in Sweden, not under the Convention but on the merits of the custody issues as to whether the children should live in Sweden or in America, . 038 It would be unfair to base this important decision on the fact that, at any rate temporarily, the father is in custody for an offense connected with abducting the children themselves; and I leave that fact out of account altogether. 039 It seems to me, in approaching the decision, that the salient facts are these: Clearly, the mother acted very wrongfully in first removing the children from California last September. Nevertheless, the fact is that the children have now resided with the mother in Sweden for over eight months. The old home in California has, as I have said, been sold. The children have had some indirect contact with their father but, as I understand it, have not otherwise seen him (I stress through no fault of his) at any time between last September and Tuesday of this week. Temporarily at leant the children have come to rest in some sort of status quo in Sweden. The mother has made arrangements properly to accommodate them there. The elder child, Charlotte, is going to a school there. I have been specifically told by the father, through Mr. Setright, that there is no particular criticism on a short-term and temporary basis of the practical arrangements that the mother has made for the children in Sweden, although, of course, the father remains adamant that in the longer term it is more in the interests of the children to be brought up by him then by their mother. 040 In that situation it seems to me that the welfare of these children is clearly better served in the short-term (and I stress again that I am only dealing with the very short-term of a few weeks) by their returning to Sweden where they were living in satisfactory and relatively settled conditions until just three days ago. 041 For those reasons, I propose on the cross-applications to make orders permissive of the return of the children forthwith to Sweden. 042 That concluded the judgment, and I will now turn to consider the form of the orders. 043 Mr. Setright and Mr. Mocatta, this is what I have in mind. If I could just dictate this to you and then you will each tell me if it is, in some way, technically unsatisfactory or fails technically to meet the situation as I have now decided it. So, it will say: "Upon hearing Counsel on behalf of Gregory O'Donobue (the Father)" -- I think, actually, are you a solicitor? MR. MOCATTA: I am a solicitor, yes. MR. JUSTICE HOLMAN: Can we say not "counsel", can we say "advocates"? I like to be very undiscriminatory about this. Can we say: "Upon hearing Advocates on behalf of Gregory O'Donobue (the Father) and Susanna Gregmar O'Donobue (the Mother) and upon the applications of the Father for the return of the children to California either under the provisions of the Child Abduction and Custody Act 1985 and the Hague Convention or, failing that, under the provisions of the Children Act 1989 and under the inherent jurisdiction of the court; and upon the application of the Mother for the return of the children to Sweden under the provisions of the Children Act 1989 and under the inherent jurisdiction of the Court it in ordered that:- (1) The Court declines to exercise any jurisdiction under the Child Abduction and Custody Act 1985 and the Hague Convention; (2) The said applications of the Father are dismissed; (3) The mother do have leave to remove the children forthwith from England to Sweden; (4) Until the children leave the jurisdiction pursuant to paragraph (3) above - (i) they do remain Wards of this Court, and (ii) they be in the care and control of and do reside with their mother; (5) Forthwith upon the children leaving the jurisdiction pursuant to paragraph (3) above they do cease to be Wards of this Court and all English proceedings do cease." Then (6) will be any provision about costs, which I will come to as a separate matter, and then under that I want to add these words: "... and the Court records that this Order is made solely to enable the children to return to the situation which existed immediately before they were removed from Sweden on 27th May 1997. It is not a determination on the merits or at all of the questions - (i) whether the children should be returned to California under the Hague Convention, or (ii) where or with which parent the children should live in the longer term." I just want to go back. Where I said, ". . . and the Court records that thin Order is made solely to enable the children to return to the situation", I want to say, "to enable the children to return to the legal and factual situation which existed immediately before." etc.. I hope, Mr. Setright, at any rate, that sufficiently records the "without prejudice" aspect of your submission. MR. SETRIGHT: My Lord, if I can turn briefly to those behind me --- MR. JUSTICE HOLMAN: Yes (Counsel confers with h is instructing solicitor) MR. SETRIGHT: My Lord, yes. MR. JUSTICE HOLMAN: I hope that that is not just one belt and one pair of braces but several and, indeed, I have gone out of my way in the judgment to try and make that clear, and I do intend for a variety of reasons to say that the judgment I have given should be transcribed at the expense of public funds There is a variety of reasons for that. One is that I think it should be available to Swedish courts so they understand what has happened. I think it should be available to the American court -- it cannot be in a few hours' time but at any subsequent hearing. I think it should be available to both central or all three central authorities involved, and, incidentally, it may be of interest to a wider audience; but that in purely secondary. MR. SETRIGHT: The appropriate additional orders will have to be added : "Leave for the judgment to be transcribed with expedition at public expense" ---- MR JUSTICE HOLMAN: Certainly. MR. SETRIGHT: --- because one does not know --- MR. JUSTICE HOLMAN: Then paragraph (6) of the order itself will say, "Leave" -- it is not just leave -- "It is directed that" --- MR. SETRIGHT: Yes, my Lord. MR. JUSTICE HOLMAN: --- "a transcript of the Judgment be made as a matter of urgency at the expense of public funds and copies supplied to" -- I think I will say the solicitors for both parties. They will soon make sure it in used anywhere else relevant, will they not? MR. SETRIGHT: Yes. ME JUSTICE HOLMAN: "Copies supplied to the solicitors for both parties". MR. SETRIGHT: Then leave for the judgment to be disclosed to other central authorities, because they are all outside the jurisdiction; my Lord, and leave subject to the usual restrictions on anonymity for the judgment to be reported. In fact, the judgment and this order to the central authorities. MR. JUSTICE HOLMAN: Very well. Paragraph (6) had beetle say (6)(i) what I have just said and (6)(ii): Cleave for the judgment (edited to give anonymity to the children) to be reported". If I say it can be reported, that says it --- MR. SETRIGHT: It must. MR. JUSTICE HOLMAN: I do not need go beyond that. MR. SETRIGHT: I agree, with respect, by Lord. Apart from costs, there is one other point and one only and that is this. My instructions from my lay client, the father, are that he would wish, it he can, to take this matter to the Court of Appeal. MR. JUSTICE HOLMAN: Before we get to that, let us just deal with costs because appeal comes --- MR. SETRIGHT: Last. MR. JUSTICE HOLMAN: ---- after the Question of costs. MR. SETRIGHT Yes, my Lord. MR. JUSTICE HOLMAN: So far as costs are concerned -- so paragraph (7) of the order is costs -- what submission do you want to make? MR. SETRIGHT: There is legal aid on this side, my Lord, and I would suggest that the court should make or consider making no order as to costs. MR. JUSTICE HOLMAN: What is your position, Mr. Mocatta? MR. MOCATTA: I am not really sure, is the answer, my Lord. I was formally instructed by the Swedish lawyer representing Mrs. O'Donobue, the mother, and I was assured that I would be paid by the Swedish Legal Aid or the Swedish lawyers, but am not sure --- MR. JUSTICE HOLMAN: I am only on the question of whether or not there be an order as to costs inter partes. MR. MOCATTA: I would feel it appropriate I should make that request, my Lord, inter partes because it was a matter of public importance that thin matter was heard, or of significant importance. MR. JUSTICE HOLMAN: Yes, but are you asking that Mr. O'Donobue should pay your client's costs? MR. MOCATTA: I would be bound to ask for that if I were under a legal aid in this country and if I feel I am under a similar situation in Sweden I would ask for that order, my Lord. MR. JUSTICE HOLMAN: The position is, of course, that automatically under the Convention Mr. O'Donobue has a legal aid certificate to which he is not required to make any contribution, however well off he may be; so does he not gain the protection of the Legal Aid Act? MR. MOCATTA: My Lord, I would have thought that would be the case but protection is not a hundred per cent. It is possible, is it not, for the legal aid to pay my costs as well? MR. JUSTICE HOLMAN; The Legal Aid Fund? I am certainly not going to make an order for your costs out of the innocent Legal Aid Fund. MR. MOCATTA: Then I can say no more. MR. JUSTICE HOLMAN: No, but I do not honestly think I can make an order for your costs to be paid by Mr. O'Donobue. MR. MOCATTA: Not if he is legally aided, no. MR. JUSTICE HOLMAN: Well, he is. MR. MOCATTA: In which came it ought to be against the Fund and I hear your Lordship's comment. MR. JUSTICE HOLMAN: I think the answer is no order as to costs; so legal aid taxation for the father and, if legally aided, the mother leaving aside appeal, are there any other substantive orders that either of you seek? MR. SETRIGHT: There are not, my Lord, and I wonder if the court would give me no more than two minutes because, so far an the application I was about to make is concerned, it is certainly my view that the father should have a moment or two to consider the instructions which I have received. MR. JUSTICE HOLMAN: Certainly. There would be two applications you would have to make: One would be an application for leave to appeal and the second, which would not be contingent on the first, would be for a stay. MR. SETRIGHT: Yes. Rather than my saying a single word more --- MR. JUSTICE HOLMAN: You take some instructions. MR. SETRIGHT: If I may. MR. JUSTICE HOLMAN: You did mention that there had been this threat some time ago to take the children to Spain. But I am, of course, trusting implicitly that Mrs. O'Donohue, whose connections are entirely (in so far as they are not with America) with Sweden, will be taking theme children to Sweden and nowhere else and resubmitting herself to the full jurisdiction of the Swedish courts. MR. MOCATTA: My Lord, I did not mention that point. My instructions are in writing that there is a flat denial that she would ever go to Spain. She has a good benefit scheme in Sweden at the moment; the children are at school; she in with her parents and her brother, I believe, or sister -- I may be corrected on that -- but certainly another close member of the family and she has no intention of going to Spain whatsoever. MR. JUSTICE HOLMAN: I will rise for a short while. (Short adjournment) MR. JUSTICE HOLMAN: Mr. Setright, just before we resume, there in one matter which I mentioned during the course of argument and omitted to say in the judgment that I intend to add a sentence about when I do correct this judgment, and that is that in deciding on return to Sweden I have not been influenced in any way by the fact that temporarily Mr. O'Donobue is in custody. It seems to me that it would have been unfair to have based this important decision on the fact that, at any rate, temporarily, he is in custody for an offense connected with the children themselves, and I intended to say a sentence to that effect. We Will put that in, but I just mention that now. Yes? MR. SETRIGHT: My Lord, so far as an application for a stay and for leave in concerned, and I am very grateful for the time the court has given me. It had been the father's instruction that he sought both and, recognizing the novelty of the first part of the court's decision, felt that it was a matter he wished to pursue because he wishes to do everything he can to ensure that the children return to California. But, my Lord, having had the chance to consider the matter carefully, and having received some advice on the quality, with respect, of the extempore judgment that he has just heard and its likely reception on any appeal, he has instructed me, regretfully but nonetheless firmly, that he does not seek either leave to appeal or a stay, recognizing that the children and the mother must return to Sweden where he trusts they will stay until the decision of the Court of Appeal. MR . JUSTICE HOLMAN: Thank you very much. I think, if I may say so, that is a very humane decision on the part of Mr. O'Donobue because, although (as I have recently said) I am not influenced at all in the decision by the fact that he is in custody, that remains the fact and, amongst other things, if he had successfully persuaded me even to stay these proceedings the children could not be with him; they would have to be living with their mother; she is bereft really here, and it would have just prolonged the agony for these children. So, I respect and admire the humanity of Mr. O'Donohue's decision. MR. SETRIGHT: There was another side to it, which is the interest of the central authority, and Miss Hutchinson and I would have felt it right to talk realistically to Mr. Nicholls and, realistically, that could only be done on Monday morning. So the stay I would have asked for would have been until 4 pm on --- MR. JUSTICE HOLMAN: Appeals, anyway, in the end do not depend on central authorities but on the parties. MR. OUTRIGHT: Precisely so. MR. JUSTICE HOLMAN: Hank you very much. So that, in fact, concludes it. That means, Mrs. O'Donobue, that you can, in fact, an far as this court is concerned, fly out with the children tonight. I do not suppose that is practicable, but you are completely at liberty to do just that. Now, has there been further contact during the course of this day with the London Borough of Hillingdon? MR. MOCATTA: My Lord, no. There has been contact with a social worker with the London Borough of Hillingdon, but there has been no other. I assume I will have to take this court order to them. MR. JUSTICE HOLMAN: I do not think you will have to take it; you will have to fax it. Have you got a fax number? In my room I have a battery of fax numbers for the London Borough of Hillingdon and others. MR. SETRIGHT: My Lord, we can provide one. MR. JUSTICE HOLMAN: Yes. The position is, if we just look at yesterday's order, that clearly says that until the said hearing, which is the hearing which is now concluding, neither parent was to remove or attempt to remove either of the children from accommodation voluntarily provided. So, the force of last night's order is already spent and I have said that the children are to be in the care and control and residence of the mother. I think once you have the order, which you will get just an soon as the associate can finish her typing, you can fax it to Hillingdon and you can just take the children and look after them as a mother, making whatever arrangements you can for them. MR. MOCATTA: There are suitable arrangements for tonight, anyway. MR. JUSTICE HOLMAN: Yes, I have confidence in that fact. But I do hope, Mrs O'Donobue, you do understand that I am doing no more than saying they just go back to Sweden for now and you each seemed to have had your different advice about how things went in the Court of Appeal there, but none of that is anything to do with me at all. I do not want you to have some raised hope by anything that has happened here that the children may yet remain in Sweden, because they may not. But that is nothing to do with me. All right? Other than the completion of the typing, is there anything else that we can usefully do? MR. MOCATTA: I think in the order yesterday you described my client fully as Susanna Marguereta Gregmar. I trust that is in the order as well, because your Lordship omitted that. MR. JUSTICE HOLMAN: Yes, I got that from something you faxed to me yesterday. To the security people, where will Mr. O'Donobue have to go - Brixton? I am sorry it has been a long day for you. I have to say that if he had been got to Bow Street, as he should have been, at ten of crock this morning he would have been here by 11 o'clock and we would all have been gone by -- I do not know -- anyway, by four o'clock. So, I am very, very sorry you have been kept here late, but I think I can say with my hand on my heart it is not my fault. There we are. Mr. O'Donobue, I would like you to understand that I do know this all began with an abduction by their mother. I am not entering into the rights and wrongs of any of it or the background. But, as a human being, I have great sympathy for you. I would like you to understand that. Thank you all very much indeed. (The Court adjourned) ============================================================== COMMENTS by William M. Hilton, CFLS Attorney At Law Box 269, Santa Clara, CA 95052 TEL: 408/246-8511; FAX: 408/246-0114 Genral Comment For a similar case see Patrice d'Assignies and Sandra Escalante, Superior Court of California, Los Angeles, Number BD 051876, dated 09 Dec 1991. This is on Hilton House Web Site as Escalante_california.txt. In Escalante two children were was removed from France by the mother and an action under The Convention was commenced by the father in Los Angeles. After several weeks of on again, off again hearings, the Los Angeles Superior Court advised counsel on Friday that the Court would make its decision on Monday. By this point it was rather clear that the children would be ordered back to France. Over the intervening weekend the father was granted access and then absconded with the children. The Court, on Monday, after stating that in fact the Court was going to order the children returned, but because of the actions of the father, found that Art. 13(b) applied since the father's abduction placed the children in an intolerable situation. Ultimately, after several years and further litigation, the children were returned to the mother. Paragraph by Paragraph Comment 006 Having the children stay in the family home while the parents move in an out is sometimes called "bird nesting" and while it is uncommon (as it requires at least a modicum of civility, usually absent in these cases) it is not unheard of. 007 A person removing a child from California in violation of a custody order could be subject to criminal prosecution under California Penal Code Section 278.5 or the Federal International Parental Kidnapping Crime Act of 1993, 18 U.S.C. 1204. It is of interest to note that the District Attorney of Los Angeles has a very capable Child Abduction Unit. 009 The Convention, of course, does not require that the wronged parent be present. The issue of whether or not the wronged parent should be present is one where competent counsel can differ, but in the whole it is, all things considered, the better tactic to have both rather than one parent present. At least by this the court can see for themselves that the wronged parent does not have horns and a tail. Perhaps if neither parent were present at the hearing and if the entire hearing was conducted by affidavit, then the absence would not be a factor. This paragraph also points out the necessity of having competent counsel available for the wronged parent in the requested forum. 011 Since the only issue that is supposed to be before the Swedish Court is whether or not the children should be returned under The Convention, one wonders why it took 44 pages to decided against the return. In reading the translation it would appear, at least to the writer, that the Swedish court was in fact during a best interests hearing rather than a hearing under The Convention. 012 I would respectfully take exception with the Court in its opinion that the use of the term "unacceptable" rather than "intolerable" was merely a translation issue. I would say, based on the precis of the Swedish order, that in fact the Swedish meant that the living conditions in California were "unacceptable" to the Swedish court and therefore they would not return the children. I do not believe that the Swedish court found that the situation in California ever reached the level that "intolerable" connotates for the court to exercise its discretion and not return the children. 019 It will be interesting to see the result of the mother's application. There is a doctrine of law in the United States Courts called "disentitlement", see, e.g., In re Prevot (6th Cir. 1995) 59 F.3d 556. Under this doctrine a person who is seriously in violation of the law is not allowed to use the court system until things are "made right", e.g., the children are returned to California by the mother. California has applied this doctrine in a number of cases. 021 I cannot but strongly agree with the Court as to the absurdity of the multiple actions. One of the objectives of The Convention, I would opine, is one court, one order. This, of course, makes the Court's decision to not entertain an action under The Convention and ordering the forthwith return of the children to Sweden all the more correct. 023 The Court makes a nice procedural point: The use of a FAX rather than the actual document. This is, of course, in accord with The Convention. Arts. 23, 30; 42 U.S.C. 11605. 024 - 032 As I understand it the Court, rightfully, is stating that once a court of a sister nation is seized of the matter and that matter is still pending, then that court has exclusive international jurisdiction over the matter and the only duty of other courts is to forthwith return the child and/or the parties to that forum. This is very similar to the scheme adopted by the Uniform Child Custody Jurisdiction Act (UCCJA) in the United States, Section 6, which holds that when a court is exercising its jurisdiction in conformity with the UCCJA, then all other courts are prohibited from exercising concurrent jurisdiction. This is well developed and regularly followed doctrine under decisions of the State courts in the United States.