Re S (Minors) (Abduction) Court of Appeal Balcombe and Nolan LJJ United Kingdom 17 Dec 1992 [1994] 1 FLR 297 Child abduction -- Non-Convention case -- Mother wrongfully removing children from Pakistan -- Father seeking their return -- Principles to be applied in non-Convention cases. The parents were Muslims, born in Pakistan. The mother lived in England from the age of 5 and acquired British citizenship. The father came to England as a student and married the mother in England in August 1977. The following month they went to live in Pakistan. They had three children born in 1978, 1985 and 1989. In November 1992 the mother took the two younger children to England without the father's knowledge or consent. On arrival she issued proceedings under the Children Act 1989 for intermin residence and prohibited steps orders. The father sought the return of the children to Pakistan. This was a non-Convention case, since Pakistan was not a signatory to the Hague Convention. The judge, holding that the test under s 17 of the Guardians and Wards act 1890 which the Pakistan courts would apply in deciding questions relating to the children's future approximated to the test provided by s1(1) of the Children Act 1989, decided that the interests of the children required that they should go straight back to Pakistan. He directed accordingly. The mother appealed, contending that Pakistan did not apply the same system of law regarding decisions on the welfare of children as that adopted in the English courts. HELD -- dismissing the appeal -- it was settled law that the court must apply the philosophy of the Hague Convention in non-Convention cases, that philosophy being that in normal circumstances it was in the interests of the children that parents or others should not abduct them from one jurisdiction to another but that any decision relating to the custody of children was best decided in the jurisdiction in which they had hitherto been normally resident, provided that the courts in that jurisdiction applied principles which were acceptable to the English courts as being appropriate. On the facts, these were Pakistani Muslim children whose home was in Pakistan, so that it was clear that prima facie their future should be decided in pakistan, and the difference in the tests applied under Pakistani and English law was not such as to entitle the court to say that the Pakistan courts were not the appropriate form in which to decide their future. Statutory Provisions considered Children Act 1989, s 1(1) Guardians and Wards Act 1890 (of Pakistan), s 17 Cases referred to in judgment F (A Minor) (Abduction [1991] Fam 25, [1990] 3 WLR 1272, [1990] 3 All ER 97, sub nom F (A Minor) (Abduction: Jurisdiction), Re [1991] 1 FLR 1, CA G v G (Minors) (Abduction) [1991] 2 FLR 506, CA L (Minors) (Wardship: Jurisdiction), Re [1974] 1 WLR 250, [1974] 1 All ER 913, CA Mohammed Bushir v Ghulan Fatima [1953] PLD Lah 73 R (Minors) (Wardship: Jurisdiction), Re [1981] FLR 416 Appeal from Sir Gervase Sheldon sitting as a deputy judge of the High Court Nicholas Wall QC and Janet Bazley for the mother Judith Parker QC and Caroline Reid for the father BALCOMBE LJ: This is an appeal by the mother of two children from an order made by Sir Gervase Sheldon sitting as a deputy judge of the High Court on 8 December 1992, whereby he directed that the children concerned should be returned immediately to Pakistan whence the mother had brought them to England some few weeks previously. The circumstances of the family are these. The father was born in Pakistan and is now aged 35. The mother was born in Pakistan and is now aged 33. In 1964, when she was only 5 years old, she and her family came and settled in the UK and she subsequently acquired British citizenship. She met the father in 1977 when he was in this country studying, and they married in a register office in this country on 24 August 1977. Both the father and mother are Muslims. In September 1977 the parties, ie the mother and the father, went to Pakistan and they lived initially in the home of the father's parents in Lahore. I should say here that the father's family is of some material substance. They have a good business in Pakistan and the parties have been able to live in circumstances of some comfort whilst in Pakistan -- they enjoyed good accommodation, they had the use of several servants and so on. The first child of the marriage, a son, was born on 27 July 1978, so he is now aged 14. He is not the subject of these proceedings. The second child was born on 24 February 1985, is a daughter now aged 7 and she is one of the two children with whom this case is concerned. In May 1985 the parties visited England with the elder son, and the daughter. There was apparently a move by the mother at that time to leave the father but she subsequently agreed to return to Pakistan. They returned to Pakistan to live separately from the father's parents, in Karachi -- that, of course, is some considerable distance from Lahore. It has always been the mother's case that the difficulties in the marriage arise largely from what she considers the interference by the husband's parents. When the parties moved to Karachi, however, the elder son did not accompany them. Different explanations have been given for this but the fact is he remained living with his grandparents but seeing the parties reasonably frequently. In 1987 the father, the mother and the daughter moved to Rawalpindi, again some distance from Lahore, and on 6 November 1989 their third child, another boy, also a subject of these proceedings, was born. He is now aged 3. In 1989 the daughter entered nursery school in Rawalpindi and by all accounts, according to the evidence which has been put in these proceedings, has been doing well thee. In April this year the parties moved to a new home in Rawalpindi owned by the paternal grandfather. The father's business requires him to make frequent trips abroad and in November of this year he was in Czechoslovakia on business. While he was away the mother left Pakistan in circumstances of some secrecy and came to England with the two younger children. For a time the father did not know where they were but within a week he learnt that they were at the maternal grandmother's home in a suburb of London living there, as it now turns out, in circumstances of some discomfort because it was only a small house and there was not sufficient accommodation for the mother and the children. The mother then took the initiative by issuing proceedings under the Children Act for appropriate orders to prevent the children being removed from this country without the leave of the court, and she obtained ex parte orders from the county court prohibiting the father from removing either child from her care or from the jurisdiction. Those were limited to 7 days simply to hold the ring, and the applications for interim residence and prohibited steps orders were transferred to the High Court where they came before Sir Gervase Sheldon on 4 December 1992 and his judgment, as I have said, was given on 8 December 1992. Those in summary are the relevant facts. This is what has sometimes been called a 'kidnapping case', although Ormrod LJ, in a case which I will refer, deprecated the use of that term. Nevertheless, it was a case in which the mother wrongfully, as I have to say, removed two of the children from the family home, from their native land, from the only country they had known as their home, and brought them to this country without informing the father of what she was doing. There is a fair amount of law as to the test to be applied in these circumstances where, as here, the country from which the children came, Pakistan, is not a signatory to the Hague Convention on the abduction of children and this is, therefore, what is nowadays called a 'a non-Convention case'. But even before this country became a subscriber to the Hague Convention -- and it was adopted as part of our domestic law by the Child Abduction and Custody Act 1985 -- the problems presented by actions of the type which the mother has taken in this case had long been known to our courts, and the case from which all the relevant modern law derives is the case of Re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250. I need not refer to the facts of that case nor to the classic passage from the judgment of Buckley LJ at p. 264 because it is referred to in all the subsequent cases and it will be convenient to refer to the summary of it which Ormrod LJ gave a subsequent case -- again a non-Convention case, in fact a pre-Convention case: Re R (Minors) (Wardship: Jurisdiction) (1981) FLR 416 and I wish to refer only to brief passages in the judgment of Ormrod LJ. After deprecating the use of the term 'kidnap' or 'kidnapping' and referring to them both in inverted commas, he said at p 425H: '"Kidnapping", like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his her own country, but not the sacrifice of the child's welfare to some other principle of law.' Then at the top of p 426 he refers to the passage in the judgment of Buckley LJ to which I have already referred, in these terms: 'The damage to a child's interest which may arise from not making a summary order is conveniently set out by Buckley LJ at p 264E-H of his judgment in Re L . . . In a sentence, they are alienation from background, home, schools, friends, relations and, ultimately, from his country and its society and culture. These dangers have to be weighed against the risk to the child of possible, perhaps probable, separation from the mother, of being entrusted to the care of a father whose capabilities and fitness to act as a single parent may be in doubt, in surroundings which may be unfavorable in themselves, and of being subjected to a regime of law under which the protection of the interests may be open to question. . . ' So looking at this, as of course we are bound to do, as a matter of what the interests of the children require, it is clear that Ormrod LJ, in considering the balancing exercise which had to be effected by the court, recognised that one of the facts to be taken into account is the regime of law in the country to which the child is to be returned if that is the order which the court is to make. Since then the Hague Convention came into force, it has been adopted by this country in relation to certain signatories, and I have already said that Pakistan is not one of the Convention countries. But twice in this court it has been laid down that in non-Convention cases, the principles behind the Convention are to be taken into account. In G v G (Minors) (Abduction) [1991] 2 FLR 506, which was a case from Kenya, I said that the jurisprudential concept which law behind the Child Abduction and Custody Act 1985 was that welfare normally required the return of the abducted child to the country whence it had been abducted. That particular passage from my judgment was approved by this court in a further case, Re F (A Minor) (Abduction: Custody Rights) [1991] Fam 24 at p. 30, sub nom Re F (A Minor) (Abduction: Jurisdiction) [1991] 1 FLR 1 at p 3 where Lord Donaldson of Lymington MR cited a passage from my judgment in G v G with approval: '. . . 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 best interests of children that parents or others should not abduct them from one jurisdiction to another, but that any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident."' Then in a later passage from the same judgment, Lord Donaldson of Lymington MR says this at pp 31-1 and p 4 respectively: 'Possible outcomes have no bearing on which court should decide. Which court should decide depends, as I have said, on whether the other court will apply principles which are acceptable to the English courts as being appropriate, subject always to any contra-indication such as those mentioned in Art 13 of the Hague 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.' That case was a case of the removal of a child from Israel. So the issue which came before Sir Gervase Sheldon was this. Applying the test that the welfare of the children is paramount, did their interests require that they should go straight back to Pakistan in order that the courts of that country should decide what their welfare required, or should the matter be allowed to go ahead in this country, again so that the courts of this country should decide what their welfare required, with the inevitable delay -- though one would hope not lengthy -- that they would entail? Sir Gervase Sheldon, applying the principles to which I have referred, said that the children should go straight back. The matter then came before this court last week when it granted a stay pending the hearing of the appeal, and we heard the appeal yesterday. The position of the mother can best be summarised by the following submissions from the skeleton argument which Mr. Wall QC has argued on her behalf. Paragraph 4 really highlights the issues in this case: 'The question raised by the instant case is . . . whether or not the court should order a peremptory return to a jurisdiction (a) which does not apply a similar system of law to that governing decisions over the welfare of children adopted in the courts of England, and/or (b) in which one parent asserts she will not receive a fair trial.' I can deal with that last point quite briefly. The mother has asserted that because of the influence, as she says, which the father's family has in Pakistan, she will not get a fair trial there. The judge who has the advantage of seeing both the parents in the witness-box did not accept that assertion and it seems to me that it is not something to which this court can pay any significant regard. It was merely her belief that she would not get a fair trial in Pakistan. I know of no evidence which justifies that assertion. But it is undoubtedly the case that in the two immediately previous non-Convention cases to which I have referred -- G v G (which was a case from Kenya) and Re F (which was a case from Israel) -- the countries concerned applied a system of law which was as near as no matter the same as that applied in this country, namely a system whereby in deciding questions abut children the welfare of the child is paramount. There is evidence before the court in the form of an affidavit from Professor Pearl, who is an expert in Pakistan Law, that the law applicable in Pakistan is the Guardians and Wards Act 1890. It is perhaps not irrelevant to note that the Act dates from the time when Pakistan was part of the Indian Empire. Section 17 of that Act states that: 'In the event of a dispute involving the physical care of a child, the court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.' Then he goes on to say: 'In the Muslim law as applied in Pakistan, the mother retains custody (physical care) until the girl reaches puberty and the boy reaches the age of 7. However, the mother will lose this entitlement to custody if she is deemed to be unsuitable. In accordance with s 17 of the 1890 Act, the courts have developed the presumption that the minor's welfare lies in granting custody in accordance with the personal law of the minor. In this case, the personal law is the Muslim law as applied in Pakistan. This means that Muslim law principles will be applied to the case unless there are overriding reasons to the contrary. According to Muslim law, the mother will lose the entitlement to bring up her children in her own care in the following circumstances: (a) if she concludes a subsequent marriage, or forms a liaison with another man other than a close relative of the children; (b) if the mother is deemed to be unsuitable, for instance if she has a way of life which the court would consider unIslamic; (c) if there is a suggestion that the children would not be brought up as Muslim.' I can deal with that last point immediately because as the judge himself said: 'There was no suggestion that the mother would not bring the children up as Muslim.' He goes on to detail the other respects in which the Muslim personal law differs from the law applicable in this country. The father also put in expert evidence by Dr Doreen Hinchcliffe, another expert on Muslim law. I need not refer to it in any detail, because in substance she agrees with what Professor Pearl says to be the relevant law. The main submission which Mr Wall on behalf of the mother has raised before us is that because of these matters to which I have just referred, that the welfare of the child is qualified by reference to Muslim law, this is not a case where we should take the view that the interests of the children requires their immediate return to Pakistan because the Pakistan court will, so it is said, apply s 17 of the 1890 Act, which in turn brings into play those matters of Muslim law to which I have referred. What the judge himself said is: 'In fact I am far from persuaded that the Pakistan courts, if matters were to be referred to them, would fail to do justice between the parties, or, as enjoined by the Guardianship and Wards Act 1890, in deciding questions as to the children's future to be "guided by what consistently with the law to which (they are) subject appears in the circumstances to be for (their) welfare". That, in my view, is a test which approximates to that provided by s 1(1)(a) of the Children Act 1989 which would apply if the substantive issues were to be determined in England as to the paramountcy of the children's welfare. Nor, in my opinion, would it be appropriate for this court to deny the Pakistan courts jurisdiction merely because as Professor David Pearl has suggested they would try "to give effect to what is the minors' welfare from the Muslim point of view".' I should add one further factor which is relevant to this case. The mother has said in evidence that she will not return to Pakistan with the children even if this court orders that they should do so, and that therefore the children's interest will suffer by their being parted from their mother -- they are young children of course. It is an argument which the court has to take into account, unattractive though it is, because it has the effect of seeking to put a pistol to the head of the court. But nevertheless this is what the judge said about this: '. . . although I could not order her to return to Pakistan with the children, I still entertain the hope that, if she really has their interests at heart and despite her protestations to the contrary that is what she will do.' I would echo that and say that in certain other cases of which I have knowledge, that has in fact happened, namely, that the mother, although saying that she would not return with the children, has in fact done so. I certainly would hope that that is what will happen in this case. But be that as it may, we have to say whether or not the judge, who clearly had a discretion here, was wrong in the way he exercised his discretion by directing the return of the children to Pakistan in a peremptory way without any investigation of the merits by the English courts. All the matters of which Buckley LJ and Ormrod LJ spoke are present here. These are Pakistani Muslim children. Their home is in Pakistan. They have been brought up in Pakistan. Their religion is Muslim. They have been wrenched away from all they knew to this country. Prima facie, therefore, it must, within the test to which I have referred, be in their interest that they should go straight back to allow the courts of their own country to decide what their interests require. The only point is whether the fact that the Pakistan courts apply a test, which I have set out, which is not in all respects the same as that which the English court would apply, is a good reason for not following what would be the obvious course. The primary criticism made by Mr Wall of Sir Gervase Sheldon's judgment is where he says that in his view the test which the Pakistan courts would apply 'approximates to that provided by s 1(1)(a) of the Children Act 1989' and he relies on the differences pointed out by Professor Pearl and accepted by Dr Hinchcliffe, to which I have already referred. Whether the use of the word 'approximates' is right, I do not find it helpful to go into. It is really a matter of semantics. What I am quite clear of in my mind is the test which Lord Donaldson referred to in Re F (above) was whether or not the system of law was appropriate. I repeat again: 'Which court should decide depends . . . on whether the other court will apply principles which are acceptable to the English courts as being appropriate . . .' Sir Gervase Sheldon clearly thought that it would be appropriate for the Pakistan courts to exercise their jurisdiction. To put it the other way round: would it be appropriate for this court to deny Pakistan courts jurisdiction merely because, as Professor Pearl suggested, they would try to give effect to what is the minors' welfare from the Muslim point of view? The judge thought not and in my judgment the manner in which the judge exercised his discretion is one with which this court cannot interfere. Even if this were not a matter of the judge's exercise of his discretion, with which we could not interfere unless we were satisfied that it was wrong, I would go so far as to say, although it is not necessary for me to do so, that if the decision had been mine, I would have exercised the discretion in the same way. It does seem to me that what we have been told of the system of law applied in Pakistan does not entitle this court to say that the Pakistan courts are not the appropriate fora in which to decide the question of the future of these Pakistani children, more especially, as I say, bringing into the balance all the positive matters in relation to their welfare which require their return to Pakistan, from which they should never have been taken, as soon as possible. I would, therefore, dismiss this appeal. NOLAN LJ I agree. It is settled law that although Pakistan is not a signatory to the Hague Convention, we must apply the philosophy of the Convention to the case before us; see G v G Minors) (Abduction) [1991] 2 FLR 506 and Re F (A Minor) (Abduction: Custody Rights) [1991] Fam 25, sub nom Re F (A Minor) (Abduction: Jurisdiction) [1991] 1 FLR 1. This philosophy is that in normal circumstances it is in the interests of the children that parents or others should not abduct them from one jurisdiction to another but that any decision relating to the custody of children is best decided in the jurisdiction in which they have hitherto been normally resident; see the judgment of Balcombe LJ in the former case at p 514D, which was approved and adopted by Lord Donaldson MR in the latter at p 30 and p3, respectively. Balcombe LJ went on to say in G v G at p 514E: 'The question why certain countries are brought in and others are not may (I put it no higher) be because, in some cases the appropriate authorities have not been satisfied about the efficacy of the legal arrangements in those countries. In the case of Kenya, I see no reason to believe that a custody hearing in Kenya having regard to S 17 of the Guardianship of Infants Act to which I have already referred, would not be dealt with in this country.' In the present case the argument before us is that Sir Gervase Sheldon wrongly failed to appreciate or take sufficient account of the fact that the attitude of the Pakistani courts towards the welfare of the children would differ significantly from that of an English court. The appellant relies in this connection upon the affidavit of Professor Pearl, sworn on 13 December 1992, which confirms a written statement of his expert opinion which was before Sir Gervase Sheldon and to which he referred. The essential difference can, I think, be summarised by saying, as was said in the Pakistan case of Mohammad Bashir v Ghulam Fatima [1953] PLD Lah 73, that the courts in Pakistan will try to give effect to the minors' welfare from the Muslim point of view. That seems to me neither surprising nor, in the circumstances of these children, objectionable. They are the children of Muslim parents who are part of a Muslim family. Sir Gervase Sheldon is criticised for saying that the test laid down in s 17 of the Pakistan Guardians and Wards Act 1890, namely that the court would be 'guided by what, consistently with the law to which [the minor is] subject appears in the circumstances to be for [the] welfare [of the minor] . . . ' approximates to that provided by s 1(1)(a) of the Children Act 1989, namely, that when a court determines any question with respect to the upbringing of a child, the child's welfare should be the court's paramount consideration. But it is implicit in s (1)(a) that the paramountcy of the child's welfare is to be observed consistently with the law to which the child is subject. The difference between the two tests is simply the difference between Pakistan and English law. No one suggests, nor could it be suggested, that summary return can only be justified when the law of the country of previous residents is the same as that of England. The test, as Lord Donaldson MR said in Re F [1991] Fam 25 at pp 31-1, [1991] 1 FLR 1 at p 5, is: 'Which court should decide depends, as I have said, on whether the other court will apply principles which are acceptable to the English courts as being appropriate, subject always to any contra-indication 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 is habitually resident immediately before its removal.' In my judgment, Sir Gervase Sheldon was fully entitled to take the view that, for Muslim children of Muslim parents whose home hitherto has been in Pakistan, the principles of Pakistani law are appropriate by English standards. This is a sad case and one can only express the hope that the mother will feel able, bearing in mind the attention which the case will inevitably attract, if only in professional circles, to overcome the fear of injustice of which she speaks and accompany her children back to Pakistan and put her case before the courts of Pakistan. For these reasons and for the reasons given in the judgment of Balcombe LJ, I too would dismiss this appeal. Appeal dismissed with costs. Order for costs not to be enforced without leave of the court. Legal aid taxation of appellant's costs. Appellant's liability for costs assessed at nil. Application for cots against the Legal Aid Board adjourned and to be referred to the registrar. Solicitors: Van Emden & Co. for the Mother Green David Conway & Co for the father. Barrister: Patricia Hargrove