Applicant parent v The Birth Mother

JurisdictionJersey
CourtCourt of Appeal
JudgeMcNeill,Sir Michael Birt,Mountfield, JJ.A.,Helen Mountfield,James McNeill,Birt
Judgment Date08 July 2020
Neutral Citation[2020] JCA 141A
Date08 July 2020

[2020] JCA 141A

COURT OF APPEAL

(Samedi)

Before:

James McNeill QC., President,

Sir Michael Birt and Helen Mountfield Q.C.

Between
Applicant parent
Appellant
and
(1) The Birth Mother
(2) Grandfather
(3) Grandmother
(4) GG (acting by her children's guardian Sue Clarke)
(5) HH (acting by his children's guardian Eleanor Green)
Respondents

Advocate C. Hall for the Appellant.

Advocate C. G. Hillier for the First Respondent

Advocate R. S. Tremoceiro for the Second and Third Respondents

Advocate E. L. Wakeling for the Fourth Respondent

Advocate B. J. Corbett for the Fifth Respondent

Authorities

Jersey by the Child Abduction and Custody (Jersey) Law 2005

DA & DS v Secretary of State for Work & Pensions [2019] UKSC 21

Cannon v Cannon [2004] EWCA Civ 1330

AH v CD [2018] EWHC 1643 (Fam)

Re E [2011] UKSC 27

Re M (Abduction: Leave to Appeal) [1999] 2 FLR 550, CA

Re D (A Child) (Abduction: Custody Rights) [2007] 1 FLR 961

Director-General, Department of Community Services v N and C [1998] ICAD HC/E/AU 291

Family Law (Child Abduction Convention) Regulations 1986

State Authority v Castillo [2015] FAMCA 792

Re N (Minors) (Abduction) [1991] 1 FLR 413, 417

AH v CD [2018] EWHC 1643 (Fam)

Cannon v Cannon [2004] EWCA Civ 1330

Re C (Child Abduction: Settlement) [2006] 2 FLR 797

Nessa v Chief Education Officer [1999] 1 WLR 1937

Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, 555

In re M (Abduction: Rights of Custody) [2008] 1 AC 1288

Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144

MacDonald J in H v K [2017] EWHC 1141 (Fam)

RA v RQ [2016] EWHC 3554 (Fam)

Uhd v McKay [2019] EWHC 1239 (Fam), [2019] 2 FLR 1159

Re M (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288

Reg's Skips Limited v Yates [2008] JLR 191

Durant International Corporation v Federal Republic of Brazil [2013] (1) JLR 273

Foxworth Investments Limited v Henderson [2014] UKSC 41

Jaiswal v Jaiswal [2007] JLR 305

Court of Appeal — re: proceedings seeking the summary return of a child to the jurisdiction of Canada

JUDGMENT (IN PRIVATE)
THE PRESIDENT:
1

This is the Judgment of the Court to which all members have contributed. It concerns an appeal in respect of proceedings seeking the summary return of a child to the jurisdiction of Canada, pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”), as given domestic effect in Jersey by the Child Abduction and Custody (Jersey) Law 2005 (the “Law”). The Appellant had contended that the child (“GG”), the Fourth Respondent, had been removed wrongfully from Canada, her country of habitual residence, by the First Respondent on or around 8 May 2016 in contravention of the Appellant's rights of custody. She submitted that, under Convention principles, GG should be returned to Canada, whose courts should determine the relevant substantive questions concerning GG's future upbringing. The Royal Court (Sir William Bailhache, Commissioner, with Jurats Ronge and Austin-Vautier) refused the application at the conclusion of a contested final hearing that took place on 13 to 17 January 2020. The finalised judgment is dated 26 February 2020.

2

The Royal Court found that GG had been habitually resident in Canada at the time of her removal and that the removal and continued retention was in contravention of the Appellant's rights under Article 3 of the Convention; and these conclusions have not been appealed by any of the Respondents.

3

The Royal Court refused to order that GG should return to Canada for two reasons. It found that GG was settled in her new environment pursuant to the second paragraph of Article 12 of the Convention. It also found that a return of GG to Canada would expose her to a grave risk of psychological harm pursuant to Article 13(b) of the Convention. It is against these parts of the decision and judgment that the Appellant appeals.

The Convention
The effect of the Convention in the law of Jersey
4

Article 3 of the Law provides that those parts of the Convention set out in Schedule 1 of the Law shall have the force of law in the Island; that is, those provisions of the Convention are directly incorporated into the law of Jersey by statute.

5

The scheduled provisions of the Convention ought to be interpreted in accordance with the objects and purpose of the Convention and the relevant body of international law as a whole, including, where material, the United Nations Convention on the Rights of the Child (“UNCRC”). The United Kingdom Supreme Court has held that while the UNCRC is not part of domestic law in England and Wales, it is relevant as an aid to interpretation of other articles of other treaties which have been incorporated into domestic law, if there is a relevant subject matter link: per Lord Wilson in DA & DS v Secretary of State for Work & Pensions [2019] UKSC 21 at 67–87. UNCRC was extended to Jersey on 29 April 2014 and accordingly, we consider the same principle ought to apply in Jersey law.

The objects and purpose of the Convention
6

The Convention is a treaty to which almost all countries in the world, including the United Kingdom and Canada, are signatories. Its preamble states that “firmly convinced that the interests of children are of paramount importance in matters relating to their custody, desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access” signatories have resolved to conclude the Convention.

7

This preamble matters because, in accordance with the principles of the Vienna Convention, a treaty is to be read in accordance with its objects and purpose. The preamble emphasises the ‘paramount’ importance of the interest of children in matters relating to their own custody, and emphasises that the purpose of ‘prompt return’ to the state of habitual residence is ‘to protect children from the harmful effects of their wrongful removal or retention’. Securing protection for rights of access is a secondary consideration.

8

This reading of the purpose of the Convention accords with Article 3 UNCRC which provides that in “all actions concerning children… the best interests of the child shall be a primary consideration.”

9

For present purposes, the relevant Articles in Schedule 1 of the Law are the following:

Article 3

The removal or the 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-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State .

Article 5

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 .

Article 11

The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children …

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment .

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 .

Article 13

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; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual...

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