HC/E/AU 1018
NEW ZEALAND
Court of Appeal
Appellate Court
NEW ZEALAND
AUSTRALIA
24 March 2009
Final
Rights of Custody - Art. 3 | Article 15 Decision or Determination
Article 15 declaration granted
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The father submitted that even if he was not a guardian, he had acquired custody rights either under the parenting plan, or, by virtue of the fact he had been caring for the child in a parental role and, but for the removal, would have been able to apply to court to perfect the arrangement. These inchoate rights were sufficient to constitute custody rights under New Zealand domestic law.
The Court of Appeal gave detailed consideration to the role and operation of Article 15 of the 1980 Hague Child Abduction Convention. The majority (Chambers and Robertson JJ.) held that the High Court had erred in its appreciation of the function of Article 15. The latter provision was to enable a court in the requested State to obtain a decision or determination from a court in the State of the child's habitual residence as to the domestic law of that State.
The requested court was not entitled to go further since the classification of a removal as "wrongful" was a matter for the court in the requested State in light of its assessment of the autonomous law of the Convention. On the facts of the case therefore, the determination of whether the removal was wrongful was a matter exclusively for the Australian courts and was to be determined in accordance with Australian case law.
The majority noted that the House of Lords had given consideration to the role of Article 15 in Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 [INCADAT Reference: HC/E/UKe 880]. Their lordships had accepted that it was appropriate to seek the views of the requested court on Convention questions as well as the status of domestic law; opinions on the latter issue were ordinarily to be conclusive, save in cases of fraud or a breach of natural justice, but as regards the Convention question regard would be paid to the prevailing international understanding of the Convention's terms.
The majority in the New Zealand Court of Appeal rejected this assessment (cf. the dissenting judgment of Baragwanath J.); it held that no court ever analysed the wrongfulness of a child's removal from its jurisdiction in Convention terms. The majority suggested that the effect of the House of Lords' approach would be to encourage Article 15 decisions or determination, and it had the further consequence of ordinarily rendering the opinion of the requesting court binding on the courts of the requested State.
The majority expressed its support for the position taken by the English Court of Appeal in Re D. [INCADAT Reference: HC/E/UKe 866] as well as in the earlier decision of Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT Reference: HC/E/UKe 809]. The majority reaffirmed that only domestic law issues should be considered within an Article 15 request.
It further suggested that such requests should only rarely be made as between Australia and New Zealand, given the similarities of the legal systems. Furthermore, in the instant case the request was inappropriate given that crucial facts were in dispute.
Notwithstanding these findings, the majority went onto consider the domestic law issues raised because it did not wish to leave the ruling of the High Court as an authority. It therefore turned to consider whether the father had rights of custody if he was not the guardian of the child. In this it had to consider whether the parenting plan was an agreement having legal effect, (cf. the dissenting judgment of Baragwanath J.).
The majority found that, as a matter of New Zealand law, if both parents abided by the plan it had practical effect, and if one ceased to abide by it, the other could apply to the Family Court to have it embodied in a court order and then enforced. In reaching this conclusion the majority noted that legislative policy was to encourage private ordering of child care disputes and if such agreements could not be relied upon then judicial approval would always have to be sought.
The majority recalled that the issue of whether the plan amounted to an agreement having legal effect for the purposes of Article 3 was a matter for the Australian courts. It was argued for the mother that even if the parenting plan was an agreement having legal effect, it did not confer on the father the right to determine the child's place of residence.
Such a right, in her view, had to exist alongside rights relating to the care of the child, to satisfy the terms of Article 5 of the Convention. Relying on existing New Zealand authority, (Dellabarca v. Christie [1999] 2 NZLR 548 [INCADAT Reference: HC/E/NZ 295]) the majority held that the right to determine the child's place of residence was not a necessary qualification of a right of custody.
All three members of the Court of Appeal panel criticised the High Court for not following this authority, but the majority did leave open the possibility that the issue could be reconsidered in the future. Baragwanath J. in his dissenting judgment explored the matter further, finding that from the perspective of the Convention there had to be real doubt as to whether in the cases of Gross v. Boda [1995] NZFLR 49 [INCADAT Reference: HC/E/NZ 66] and Dellabarca v Christie [1999] 2 NZLR 548 [INCADAT Reference: HC/E/NZ 295] the rights of the applicant fathers were sufficient to meet the requisite autonomous standard to be "rights of custody".
Nevertheless, he submitted that given the evolution in the status afforded to unmarried fathers in many legal systems reliance should be placed on Article 32 of the Vienna Convention of the Law of Treaties so that a father who shared the care of a child equally with the mother's agreement should be treated as having joint rights of custody for Convention purposes. In this he added that the interests of the child which ultimately underlie the Convention could not be achieved if one was able to remove the child from his settled day-to-day care.
The majority therefore concluded that the father, even if not a guardian, held under the parenting plan rights of custody under New Zealand law. It was not necessary therefore to consider the issue of inchoate rights arising from the father's care of the child. However, it was on this basis that Baragwanath J. found that the father held rights of custody: the mother as guardian parent, in conferring equal custody responsibility to the father, could be said to have granted him legal rights which could not be withdrawn by a peremptory removal.
The Role and Interpretation of Article 15
Article 15 is an innovative mechanism which reflects the cooperation which is central to the 1980 Hague Convention. It provides that the authorities of a Contracting State may, prior to making a return order, request that the applicant obtain from the authorities of the child's State of habitual residence 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.
Scope of the Article 15 Decision or Determination Mechanism
Common law jurisdictions are divided as to the role to be played by the Article 15 mechanism, in particular whether the court in the child's State of habitual residence should make a finding as to the wrongfulness of the removal or retention, or, whether it should limit its decision to the extent to which the applicant possesses custody rights under its own law. This division cannot be dissociated from the autonomous nature of custody rights for Convention purposes as well as that of 'wrongfulness' i.e. when rights of custody are to be deemed to have been breached.
United Kingdom - England & Wales
The Court of Appeal favoured a very strict position with regard to the scope of Article 15:
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT Reference: HC/E/UKe 809].
The Court held that where the question for determination in the requested State turned on a point of autonomous Convention law (e.g. wrongfulness) then it would be difficult to envisage any circumstances in which an Article 15 request would be worthwhile.
Deak v. Deak [2006] EWCA Civ 830 [INCADAT Reference: HC/E/UKe 866].
This position was however reversed by the House of Lords in the Deak case:
Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].
Whilst there was unanimity as to the utility and binding nature of a ruling of a foreign court as to the content of the rights held by an applicant, Baroness Hale, with whom Lord Hope and Lord Brown agreed, further specified that the foreign court would additionally be much better placed than the English court to understand the true meaning and effect of its own laws in Convention terms.
New Zealand
Fairfax v. Ireton [2009] NZFLR 433 (NZ CA), [INCADAT cite: HC/E/NZ 1018].
A majority in the Court of Appeal, approving of the position adopted by the English Court of Appeal in Hunter v. Morrow, held that a court seised of an Article 15 decision or determination should restrict itself to reporting on matters of national law and not stray into the classification of a removal as being wrongful or not; the latter was exclusively a matter for the court in the State of refuge in the light of its assessment of the autonomous law of the Convention.
Status of an Article 15 Decision or Determination
The status to be accorded to an Article 15 decision or determination has equally generated controversy, in particular the extent to which a foreign ruling should be determinative as regards the existence, or inexistence, of custody rights and in relation to the issue of wrongfulness.
Australia
In the Marriage of R. v. R., 22 May 1991, transcript, Full Court of the Family Court of Australia (Perth), [INCADAT cite: HC/E/AU 257];
The court noted that a decision or determination under Article 15 was persuasive only and that it was ultimately a matter for the French courts to decide whether there had been a wrongful removal.
United Kingdom - England & Wales
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].
The Court of Appeal held that an Article 15 decision or determination was not binding and it rejected the determination of wrongfulness made by the New Zealand High Court: M. v. H. [Custody] [2006] NZFLR 623 (HC), [INCADAT cite: HC/E/UKe 1021]. In so doing it noted that New Zealand courts did not recognise the sharp distinction between rights of custody and rights of access which had been accepted in the United Kingdom.
Deak v. Deak [2006] EWCA Civ 830, [INCADAT cite: HC/E/UKe 866].
The Court of Appeal declined to accept the finding of the Romanian courts that the father did not have rights of custody for the purposes of the Convention.
This position was however reversed by the House of Lords in the Deak case:
Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].
The House of Lords held unanimously that where an Article 15 decision or determination was sought the ruling of the foreign court as to the content of the rights held by the applicant must be treated as conclusive, save in exceptional cases where, for example, the ruling had been obtained by fraud or in breach of the rules of natural justice. Such circumstances were absent in the present case, therefore the trial court and the Court of Appeal had erred in disregarding the decision of the Bucharest Court of Appeal and in allowing fresh evidence to be adduced.
As regards the characterisation of the parent's rights, Baroness Hale, with whom Lord Hope and Lord Brown agreed, held that it would only be where this was clearly out of line with the international understanding of the Convention's terms, as might well have been the case in Hunter v. Murrow, should the court in the requested state decline to follow it. For his part Lord Brown affirmed that the determination of content and classification by the foreign court should almost invariably be treated as conclusive.
Switzerland
5A_479/2007/frs, Tribunal fédéral, IIè cour civile, 17 octobre 2007, [INCADAT cite: HC/E/CH 953].
The Swiss supreme court held that a finding on custody rights would in principle bind the authorities in the requested State. As regards an Article 15 decision or determination, the court noted that commentators were divided as to the effect in the requested State and it declined to make a finding on the issue.
Practical Implications of Seeking an Article 15 Decision or Determination
Recourse to the Article 15 mechanism will inevitably lead to delay in the conduct of a return petition, particularly should there happen to be an appeal against the original determination by the authorities in the State of habitual residence. See for example:
Re D. (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, [INCADAT cite: HC/E/UKe 880].
This practical reality has in turn generated a wide range of judicial views.
In Re D. a variety of opinions were canvassed. Lord Carswell affirmed that resort to the procedure should be kept to a minimum. Lord Brown noted that it would only be used on rare occasions. Lord Hope counselled against seeking perfection in ascertaining whether a removal or retention was wrongful, rather a balance had to be struck between acting on too little information and searching for too much. Baroness Hale noted that when a country first acceded to the Convention Article 15 might be useful in cases of doubt to obtain an authoritative ruling on the content and effect of the local law.
New Zealand
Fairfax v. Ireton [2009] NZFLR 433 (NZ CA), [INCADAT cite: HC/E/NZ 1018].
The majority in the Court of Appeal, suggested that Article 15 requests should only rarely be made as between Australia and New Zealand, given the similarities of the legal systems.
Alternatives to Seeking an Article 15 Decision or Determination
Whilst courts may simply wish to determine the foreign law in the light of the available information, an alternative is to seek expert evidence. Experience in England and Wales has shown that this is far from fool-proof and does not necessarily result in time being saved, see:
Re F. (A Child) (Abduction: Refusal to Order Summary Return) [2009] EWCA Civ 416, [2009] 2 F.L.R. 1023, [INCADAT cite: HC/E/UKe 1020].
In the latter case Thorpe L.J. suggested that greater recourse could be made to the European Judicial Network, through the International Family Law Office at the Royal Courts of Justice. Pragmatic advice could be offered as to the best route to follow in a particular case: whether to go for a single joint expert; whether to go for an Article 15 decision or determination; or whether to go for an opinion from the liaison judge as to the law of his own country, an opinion that would not be binding but which would perhaps help the parties and the trial court to see the weight, or want of weight, in the challenge to the plaintiff's ability to cross the Article 3 threshold.
The reliance on 'inchoate custody rights', to afford a Convention remedy to applicants who have actively cared for removed or retained children, but who do not possess legal custody rights, was first identified in the English decision:
Re B. (A Minor) (Abduction) [1994] 2 FLR 249 [INCADAT cite: HC/E/UKe 4],
and has subsequently been followed in that jurisdiction in:
Re O. (Child Abduction: Custody Rights) [1997] 2 FLR 702, [1997] Fam Law 781 [INCADAT cite: HC/E/UKe 5];
Re G. (Abduction: Rights of Custody) [2002] 2 FLR 703 [INCADAT cite: HC/E/UKe 505].
The concept has been the subject of judicial consideration in:
Re W. (Minors) (Abduction: Father's Rights) [1999] Fam 1 [INCADAT cite: HC/E/Uke 503];
Re B. (A Minor) (Abduction: Father's Rights) [1999] Fam 1 [INCADAT cite: HC/E/UKe 504];
Re G. (Child Abduction) (Unmarried Father: Rights of Custody) [2002] EWHC 2219 (Fam); [2002] ALL ER (D) 79 (Nov), [2003] 1 FLR 252 [INCADAT cite: HC/E/UKe 506].
In one English first instance decision: Re J. (Abduction: Declaration of Wrongful Removal) [1999] 2 FLR 653 [INCADAT cite: HC/E/UKe 265], it was questioned whether the concept was in accordance with the decision of the House of Lords in Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT cite: HC/E/UKe 2] where it was held that de facto custody was not sufficient to amount to rights of custody for the purposes of the Convention.
The concept of 'inchoate custody rights', has attracted support and opposition in other Contracting States.
The concept has attracted support in a New Zealand first instance case: Anderson v. Paterson [2002] NZFLR 641 [INCADAT cite: HC/E/NZ 471].
However, the concept was specifically rejected by the majority of the Irish Supreme Court in the decision of: H.I. v. M.G. [1999] 2 ILRM 1; [2000] 1 IR 110 [INCADAT cite: HC/E/IE 284].
Keane J. stated that it would go too far to accept that there was 'an undefined hinterland of inchoate rights of custody not attributed in any sense by the law of the requesting state to the party asserting them or to the court itself, but regard by the court of the requested state as being capable of protection under the terms of the Convention.'
The Court of Justice of the European Union has subsequently upheld the position adopted by the Irish Courts:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].
In its ruling the European Court noted that the attribution of rights of custody, which were not accorded to an unmarried father under national law, would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the mother.
This formulation leaves open the status of ‘incohate rights’ in a EU Member State where the concept had become part of national law. The United Kingdom (England & Wales) would fall into this category, but it must be recalled that pursuant to the terms of Protocol (No. 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom (OJ C 115/313, 9 May 2008), the CJEU could not in any event make a finding of inconsistency with regard to UK law vis-a-vis Charter rights.
For academic criticism of the concept of inchoate rights see: Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' Oxford, OUP, 1999, at p. 60.
A very wide interpretation has been given to rights of custody for the purposes of the Convention by the New Zealand courts. Notably, a right of intermittent possession and care of a child has been regarded as amounting to a right of custody as well as being an access right. It has been held that there is no convincing reason for postulating a sharp dichotomy between the concepts of custody and access.
Gross v. Boda [1995] 1 NZLR 569 [INCADAT cite: HC/E/NZ 66];
Dellabarca v. Christie [1999] 2 NZLR 548 [INCADAT cite: HC/E/NZ 295];
Anderson v. Paterson [2002] NZFLR 641 [INCADAT cite: HC/E/NZ 471].
This interpretation has been expressly rejected elsewhere, see for example:
United Kingdom - England & Wales
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT cite: HC/E/UKe @809@].