International child abduction cases have increased – 273 in the High Court in 1993 and 323 in 1994 – along with the number of countries, most recently Italy, now bound by the Hague Convention. But what does a court do when faced with a request for a return under the convention, where there are Children Act proceedings ready and waiting, but stayed by the convention, where there has been a technical abduction, where there is no defence, but where to order a return would be contrary to common sense and to welfare?
Despite the decision of the Court of Appeal in 1995 in the case of Re: F (a Minor) (Child Abduction: Risk if returned) – The Times 15 February to itself find an Article 13(b) defence made out, and to refuse a return to the US on the strength of it, there has been no loosening of the bonds of this sometimes draconian but very necessary jurisdiction.
In that case, Lady Justice Butler-Sloss did what she had previously understood had never been done in an English or other Hague Convention court. She found, allowing the abducting mother's appeal, that because of the father's behaviour, a young child would be placed in an intolerable situation if he had to return.
No floodgates have been opened by this case, however, and to make out an Article 13(b) defence remains exceedingly difficult.
Detailed consideration has been given to the scope of the jurisdiction applied in A v A (Abduction: Jurisdiction) 1995 FLR 341 by Justice Wilson to a child physically outside this country who had never had any connection with it but who was likely to pass through it in transit on a future date.
The Court of Appeal considered and defined the nature, scope and effect of Article 15 and Section 8 declarations in Re: P (a Minor) (Child Abduction: Declaration) 1995 The Times 16 February.
The special and distinct nature of convention proceedings was considered by Justice Connell in Re: G (23 March 1995 as yet unreported) in striking out for want of prosecution a Hague Convention case. This case, which having been run by an 'unusual' decision at an interlocutory hearing in parallel with Children Act proceedings, had been allowed to drift far outside the 21-day limit on adjournments.
Acquiescence has been dissected in Re: S (Minors) (Acquiescence) 1994 1 FLR 819 – abducting parents must be reconciled to the motives of wronged parents being given weight in cases where acquiescence is passive.
Children's objections have also been analysed in Re: R (Minors: Child Abduction) 1994 The Times 5 December. It is said, like most other convention countries (with the exception of Germany), England has a cautious and critical approach to a defence that can easily be conjured up in young children by an abducting parent.
The application of convention principles to cases involving non-convention countries continues to develop. Lord Justice Balcombe's concept of an 'appropriate non-convention country' has, in the experience of this writer alone, allowed orders made on convention principles in comity with countries as diverse as Kenya, Nigeria, South Africa and Malaysia; and similarly comity and assistance in cases 'going out' have been received from countries including Pakistan, Gibraltar, Singapore, China, and Russia.
The decisions in D v D (Child Abduction: Non-Convention Country) 1994 1 FLR CA and in other similar cases, have emphasised, however, that in a non-convention case, the court need not follow the requirements of the convention slavishly. While principally this releases the court in a non-convention case from adhering to the minutiae of technical provisions, it can have a far wider import.
This may mean that a return may be ordered in a meritorious case in the absence of a convention element. For example, where the father of an illegitimate child has no rights of custody but in reality has a real interest. The Court of Appeal in Re: R made a glancing reference to the under-used Article 18 which may give release in an appropriate case from the need to comply fully with the requirements of the convention even in a convention case.
On the other hand, this may still allow the court in a non-convention case to avoid ordering a return, and instead taking on a merits hearing, where, on convention principles, there is no defence. The circumstances in which the court is likely to take a materially different view in a non-convention case to that in a convention case are likely to be limited, and certainly do not hold out extravagant hopes for abductors. However, the traditional and wider discretion remains alive.
For example, what should the English court do with young children, taken wrongfully back to England by a mother who is their de facto and de jure primary carer. Sending them back following a plain breach of a separated father's rights of custody – he had the right to a say to determine where the children should live – means possibly that she and the children will have to wait many months for a hearing. At this hearing, if welfare principles were applied, as the English court has a right to expect, the only likely result is a custody order in her favour, and a leave to remove to England, with suitable arrangements for the father's contact. The same could be achieved in a few hours by the English court, with fairness to the father and saving time, distress and expense.
In H v H (Child Abduction: Stay of domestic proceedings) 1994 1 FLR 530, Justice Thorpe had before him a convention case, which he was bound within its terms to accede to. It was made out, there was no defence to it. Justice Thorpe acknowledged that the father was entitled to an order for a return. He said as much, but having regard to the obvious facts, found that the case was much better disposed of on the merits in England, where the parties could litigate more easily and quickly. He so ordered. Any hope held out to 'meritorious' abductors and their children by this practical and humane approach is, however, chimeric. The decision was appealed, and the appeal was conceded. No one has yet found an option to avoid ordering a return in a properly made-out convention case, where there is no defence.
While in most cases it is plain that the best remedy for an abduction is a very summary return, in cases such as those above there must be a special onus on solicitors and counsel who are instructed to seek returns to explore the possibility instead of reaching a comprehensive solution with the children remaining in this country. This accords with Article 7(c) of the convention, and also with the usual approach in litigation concerning children. It will not work in every case, and sometimes the wronged parent, who may be at the end of a telephone thousands of miles away, will insist upon a return, for reasons which – good or otherwise – may seem less than realistic or obvious to an English lawyer, but which in the end will be respected.
Henry Setright is a barrister at 1 Gray's Inn Square and sits on the House of Commons working group on international child abduction.