COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION PRINCIPAL REGISTRY
Mr Justice Johnson
London, WC2A 2LL
B e f o r e :
THE RT. HON. LORD JUSTICE SCOTT BAKER
THE HON. MR JUSTICE LAWRENCE COLLINS
| P (A CHILD)
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
Mr Michael Nicholls (instructed by Messrs Hartnell Chanot & Partners) for the Respondent Mother
Crown Copyright ©
Lord Justice Ward :
The factual background.
"That neither party shall remove the child from the State of New York except for temporary vacations without the prior written consent of the other party or prior court order."
I, (A.P., the father), am aware that (A.H., the mother) is taking our daughter. I also agree with this visit and give my permission.
The father asked for it to be dated and she wrote the date, "2/12/03", on it. He then signed it in her presence. She explained:-
"Because I had confirmed with him that we were likely to spend a minimum of eighteen months in England and that I could not be more specific as to the duration of our stay, and because it was not a holiday, I termed this trip a "visit" in the note. So when I wrote the note I knew that the father understood that, because I had been explicit in my instructions with him, the proposed visit would be for a minimum of eighteen months and possibly for as long as two or three years. I therefore believe that he consented to (the child) staying for that period of time."
The Hague Convention on the Civil Aspects of International Child Abduction.
The objects of the present Convention are:-
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
The removal or retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-para. (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision …
For the purposes of this Convention:
(a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
(b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
Central Authorities shall co-operate with each other … In particular, either directly or through any intermediary, they shall take all appropriate measures:
(e) to provide information of a general character as to the law of their State in connection with the application of the Convention.
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child's habitual residence … for assistance in securing the return of the child.
The application may be accompanied or supplemented by:
(f) a certificate or affidavit emanating from a Central Authority, … or from a qualified person, concerning the relevant law of that State.
Where a child has been wrongfully removed or retained in terms of Article 3 … the authority concerned shall order the return of the child forthwith. …
Notwithstanding the provisions of the preceding Article the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child … had consented to or subsequently acquiesced in the removal or retention; …
In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested state may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the state of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the state of the habitual residence of a child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that state. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination."
The hearing before Johnson J.
"As is customary, before me there has been no oral evidence by the parents themselves. The mother is present in court, the father remains in the United States."
Not surprisingly, no application was made by either side for oral evidence to be given.
"14. … I have evidence from Mr Baxendale and from Mrs Ward-Gandy. Neither has given oral evidence and I base myself on my reading of their reports. Each of them has set out a detailed account of their qualifications and relevant experience. It would seem that, at least on paper, Mr Baxendale's opinion merits greater weight than that of Mrs Ward-Gandy, but I am of course acutely conscious that had they given evidence orally my conclusion might have been to the contrary. However I have sought to base myself not upon the respective qualifications and experience as portrayed in writing, but upon the substance and the analysis which each has deployed in written opinion.
15. I think I need not burden this judgment with a detailed review of the technicalities of what is involved. The conclusion of Dr. Baxendale is, "There is strong evidence that the signature is a genuine signature written by the father. I consider it most unlikely that it is a forgery". Mrs Ward-Gandy concludes that the father, … most probably did not sign the disputed document of 16th February 2003. It appears to be a simulation by (the mother) … Doing the best I can to resolve the issues on the basis of the written evidence, I have preferred the opinion of Dr. Baxendale to that of Mrs Ward-Gandy.
16. There is nothing of significance in the written evidence of the parents upon which either counsel has sought to suggest that one account is more likely than the other. However, it is odd that the document prepared by the mother for the father's signature referred to "a visit", that it did not suggest the children would be going to England for a lengthy period, and indeed that it did not specify any period. Had the mother intended to deceive by creating a forgery, one might have supposed that she would have drafted the document very differently and in terms which would purport to suggest that the father had in effect consented to (the child's) permanent removal.
17. As between counsel a nice point was said to arise relating to the onus of proof. It is of course the case that where consent is relied upon, it is for the supposed abducting parent – here the mother – to establish that the consent was given. Equally, where there is an allegation of forgery, there is an evidential burden that where such a serious allegation is made the balance of probability can be tipped in favour of the allegation only if the evidence is appropriately cogent. I have not found it necessary to decide the weight to be attached to these seemingly conflicting considerations. On the evidence that I have heard I am entirely satisfied that the document of 16th February 2003 was, in truth, signed by the father."
"18. The consequence of such a finding seems usually to prompt a reference to Article 13 of the Hague Convention, a submission by counsel with which I agree. The consequence of a finding that consent was given does of course give rise under Article 13 to a discretion …
19. Reliance upon a finding of consent under Article 13 does at least create a risk that the discretion then arising will be exercised to the opposite effect of the consent. However, it has seemed to me in considering this question on other occasions, and it is now submitted by Mr Nicholls on behalf of the mother, that a finding of consent has significance not only under Article 13 but under Article 3: "A removal is to be considered wrongful where it is in breach of rights of custody of the other parent". A finding that the removal was consensual makes it impossible to argue that it was in breach of the rights of custody of which he or she who gave consent to the removal. Thus used, the consent does not give rise to a discretion but to a fundamental flaw in the application for return. In a sentence, a parent cannot consent and then assert that the removal was in breach of his or her rights of custody. Such an assertion is a nonsense."
"20. … Here I have the advantage of written evidence from Professor Spector and Miss Marjorie Fields. Professor Spector has, since 1980, been Professor of Family Law in the University of Oklahoma, where he has developed a particular interest in international family law, and indeed has been a member of the United States delegation to one of the several Hague Conferences. Miss Marjorie Fields is an attorney licenced to practise law in the state of New York and is presently in private practice with a firm of solicitors in London. However, for thirteen years she was a judge of the Family Court in New York City and for three years until August 2002 an acting justice of the Supreme Court of New York State assigned to preside in matrimonial matters. Neither has given evidence orally but, by happy chance, Professor Spector has attended this hearing as he passes through London, and I hope that he will be tolerant of the inadequacies of my ex temporare judgment.
21. There are three possible bases upon which this father might have had rights of custody under the law of New York at the time of (the child's) removal. The first is based on the prohibition against removal from New York in the order of 19th January 2001. Both Professor Spector and Miss Marjorie Fields agree that such prohibition did not confer rights of custody under the law of New York. Secondly, it might have been possible that the rights of custody vested not in the father but in the family court in New York. Again, it is agreed that that does not arise. The third possibility is in issue between Professor Spector and Miss Fields. Miss Fields asserts that the visitation provision in the order of 19th November 2001 constitutes a right of custody under the law of New York. Professor Spector disagrees. It is an unattractive task for any judge to have to choose between conflicting opinions of two such distinguished experts in their own law, but having considered their two opinions, I prefer that of Professor Spector, albeit, having decided the father's application under the Hague Convention on the basis of his having given consent, my finding is of no significance in these proceedings.
22. Mr Roberts (counsel for the father) … was not able to point me to any English authority in which the English court had held that there was a right of custody for the purpose of the Convention here in England where there was no right of custody in the state of habitual residence. That does not seem to me to be, by any means, surprising.
23. Article 3 requires there to have been a breach of a right of custody which existed under the law of the child's habitual residence. If there was no right of custody arising under that foreign law then there could be no thought of the English court deciding that there was, nonetheless, a right of custody recognised in England for the purpose of the Convention. Indeed, Article 15 gives a judge in doubt about the matter the opportunity of requesting a determination by the authorities of the state of habitual residence, whether or not the removal or retention was wrongful; not wrongful at large but wrongful within the meaning of Article 3.
24. Accordingly, had it been necessary for my decision, I would have concluded that in bringing (the child) to England, the mother did not act in breach of rights of custody attributable to the father or indeed any institution in the United States. I therefore dismiss the father's application under the Hague Convention – the removal was by consent and the father had no rights of custody."
"However, in the light of the personal circumstances of the child and of the mother, … my strong predisposition is outweighed by the disadvantage, as I see it, to (the child) of my ordering a summary return."
He accordingly dismissed that application.
The issues arising in this appeal.
i) Consent: did the judge err in finding that the father had consented to the child's removal from the United States of America?
ii) Consent and Article 3: if the father did give permission, does that consent lead to the conclusion that the mother's removal was not wrongful because it could not be said to be in breach of the father's rights of custody, or does his consent operate only under Article 13 to give the court a discretion not to order an immediate return of the child?
iii) Rights of custody: is the presence or absence of a right of custody to be judged as a matter of English law or New York law? Does the father have rights of custody?
i) what is the proper approach for the court to adopt when having to resolve disputed matters of fact;
ii) upon whom is the burden of proof; and
iii) how closely reasoned does the judgment have to be?
The proper approach in resolving disputed matters of fact.
"If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before a judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case."
In Re F (A Minor) (Abduction: Custody Rights Abroad)  Fam. 224, 232 she added:-
"Admission of oral evidence in Convention cases should be allowed sparingly. If the issues between the parties cannot be resolved on affidavit the Article 13(b) criteria will not have been established. The child is returned pursuant to Article 12 and it will be for the court of habitual residence to determine the disputed issues with the opportunity to hear oral evidence and the parties cross-examined."
The burden of proof.
The need for a reasoned judgment.
"16. We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost.
17. As to the adequacy of reasons, as has been said many times, this depends on the nature of the case: …
19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. …
20. The first two appeals with which we are concerned involved conflicts of expert evidence. In Flannery's case  1 WLR 377 Henry L.J. quoted from the judgment of Bingham L.J. in Eckersley v Binnie (1988) 18 Con LR 1, 77-78 in which he said that "A coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal". … He (the judge) should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another. It may be that the evidence of one or the other accorded more satisfactorily with facts found by the judge. It may be that the explanation of one was more inherently credible than that of the other. It may simply be that one was better qualified, or manifestly more objective, than the other. Whatever the explanation may be it should be apparent from the judgment."
Can we resolve the conflict ourselves?
Is consent relevant for Article 3 or only for Article 13?
"There is much force in this argument, but it ignores the fact that the Convention specifically places the issue of consent firmly within Art. 13. So far as is material Art. 13 reads:
"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; …"
It is quite clear from both the English and French texts that the word "subsequently" in Art. 13(a) only qualifies the word "acquiesced", and that the words "had consented to" clearly refer to a consent before the act of removal or retention.
It is also to be observed that although the issue of whether rights of custody were actually being exercised also forms part of the definition of "wrongful removal" within Art. 3 itself, that issue, too, is also specifically placed within Art. 13(a). This must have been done deliberately, and proper force must be given to it. The Convention clearly intends that once it has been shown that:
(i) there has been a removal from or retention away from the state of habitual residence; and
(ii) that is prima facie in breach of rights of custody; and
(iii) consent is put in issue,
then the onus shifts firmly onto the person or body which opposes the return of the child to prove that the removal or retention was by consent. Further, even if that is proved the court still has, and must exercise, a discretion."
"In my judgment, whether consent comes within Art. 3 or Art. 13(a) will depend on the facts of each case. If the non-removing parent asserts or effectively has to concede that on the face of it he gave consent, but asserts that it is vitiated by deceit or threats or some other vitiating factor, which he must raise in order to establish that his consent was no true consent, then the matter falls to be dealt with under Art. 3. If, on the other hand, the very fact of consent is in issue, as it was in Re C, then the matter comes within Art. 13(a) and the burden falls upon the person who asserts consent to prove it."
"(a) I agree with the conclusion reached by Holman J. in Re C … and thus that the Convention must be construed as a whole and when this is done the existence or otherwise of consent to a removal or retention falls to be decided under Art. 13 because this issue is expressly referred to therein. ….
(c) If it had been necessary for me to do so I would have declined to follow the reasoning and conclusion of Bennett J. in Re O."
The choice of law: English law or New York law? Does the father have rights of custody?
i) Article 1(b) states the object of the Convention to be to ensure that the rights of custody under the law of one Contracting State are "effectively respected" in the other Contracting State.
ii) Article 3 itself defines wrongful removal as being a breach of the rights of custody "under the law of the state in which the child was habitually resident".
iii) Article 7 requires co-operation between the Central Authorities and that requires the taking of appropriate measures to provide information "of a general character as to the law of their state in connection with the application of the Convention".
iv) Article 8 allows the application to be accompanied or supplemented by evidence "concerning the relevant law" of the state of habitual residence.
v) Article 14 provides that in ascertaining whether there has been a wrongful removal, the requested state may take notice directly of the law of the state of habitual residence.
vi) Under Article 15 the authorities may request from the authorities of the state of habitual residence a decision or other determination that the removal was wrongful within the meaning of Article 3.
"The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system. Thus the expression "rights of custody", for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention".
"We are necessarily concerned with Australian law because we are bidden by article 3 to decide whether the removal of the child was in breach of "rights of custody" attributed by the father either jointly or alone under the law, but it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the Convention definition of "rights of custody". Equally, it matters not in the least whether those rights would be regarded as rights of custody under English law, if they fall within the definition."
"It cannot, as I see it, have been the intention that the courts of the other contracting state should be asked to determine the issue of the applicability of article 3 insofar as it turns on the meaning of the Convention itself, because that is something which the courts of both countries are equally able to determine. Indeed, they would be expected to arrive at similar determinations. If, unhappily, this did not occur, the court which is being asked to order the return of the child would be bound to apply its own view of the Convention, particularly where, as here, the Convention only takes effect by virtue of a domestic Act of Parliament."
"having established the rights of the parent according to Colorado law it is for the English court to apply English law as to whether those rights are "rights to custody" within the Convention. Equally it is a matter of English and not Colorado law whether there is a breach of those rights".
"In my judgment the Colorado lawyers were asked the wrong questions. They should not have been asked whether the mother's conduct in removing the child from Colorado was wrongful by the law of Colorado, whether at the time of the child's removal the father had what a Colorado court would describe as "rights of custody", or whether the child's removal would be regarded by a Colorado court as being in breach of those rights. All these questions depend in part on the meaning attributed to expressions in the Convention; and these must be construed in accordance with English law as the law of the court whose jurisdiction under the Convention has been invoked.
The Convention is an international convention and it is to be hoped that its terms will receive a similar interpretation in all the contracting states. It is to be construed broadly and in accordance with its purpose without attributing to any of its terms a specialist meaning which it may have acquired under domestic law: see In Re B (A Minor) (Abduction)  2 F.L.R. 249, 257, per Waite L.J. I take that purpose to include the summary return of a child who has been removed from the country of his habitual residence by the unilateral act of one parent where the other has an equal right under the law of that country to decide where the child shall live and does not agree to his removal.
In my judgment the only question which the Colorado lawyers should have been asked what rights, if any, were possessed by the father in relation to his child at the time of his removal from Colorado."