CASE

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Case Name

Re G. (A Minor) (Enforcement of Access Abroad) [1993] Fam 216

INCADAT reference

HC/E/UKe 110

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal

Level

Appellate Court

Judge(s)
Sir Thomas Bingham MR, Butler-Sloss and Hoffmann L.JJ.

States involved

Requesting State

CANADA

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

9 December 1992

Status

Final

Grounds

Rights of Access - Art. 21 | Interpretation of the Convention

Order

-

HC article(s) Considered

21

HC article(s) Relied Upon

21

Other provisions

-

Authorities | Cases referred to
B. v. B. (Minors: Enforcement of Access Abroad) [1988] 1 WLR 526, [1988] 1 All ER 652.

INCADAT comment

Aims & Scope of the Convention

General Approach to Interpretation
Interpretation
Pérez-Vera Report

Access / Contact

Protection of Rights of Access
Protection of Rights of Access

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a girl, was 2 2/3 at the date of the application for access. Sometime after September 1990 the mother unilaterally took the child to England in breach of the father's rights of custody.

On 21 June 1991 the High Court ordered the return of the child. Upon the child's return the Ontario Court (Provincial Division) awarded custody to the mother and gave her the option of living in either England or Canada. The mother then relocated to England with the child.

On 19 December 1991 the Ontario court awarded the father certain access rights. In April 1992 the father sought to exercise those rights. The mother however refused to send the child to Canada.

In July 1992 the father initiated proceedings under the Convention to enforce his rights of access.

Ruling

Application to enforce foreign access order refused; Article 21 was held to create no rights in private law which a parent could directly enforce in respect of a child.

Grounds

Rights of Access - Art. 21

Article 21 applies at an administrative level to bring an application to the attention of the Central Authority of the Contracting State. On receiving such an application the Central Authority complies with its obligations by making appropriate arrangements for the applicant. In the instant case this was by instructing English solicitors and by providing for legal aid. Article 21 imposes no duties whatever upon judicial authorities. It leaves untouched the law of recognition of foreign access orders.

Interpretation of the Convention

Reference was made to several different aids to interpretation: the Perez-Vera Report, academic articles and the Council of Europe Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children.

INCADAT comment

The facts of this case show how the Convention can work to facilitate a final custody settlement and not serve to disadvantage an "abductor". First, there was a wrongful removal, but then the child was returned to her habitual residence within a very short period of time. The courts in the latter State subsequently proceeded to hold a substantive custody hearing, as a result of which the erstwhile abductor was accorded custody and allowed to relocate with the child.

As to the approach of English courts to rights of access see: Lowe N. "Problems Relating to Access Disputes under the Hague Convention on International Child Abduction" 8 International Journal of Law, Policy, and the Family (1994) 374.

Interpretation

Preparation of INCADAT case law analysis in progress.

Pérez-Vera Report

Preparation of INCADAT commentary in progress.

Protection of Rights of Access

Article 21 has been subjected to varying interpretations.  Contracting States favouring a literal interpretation have ruled that the provision does not establish a basis of jurisdiction for courts to intervene in access matters and is focussed on procedural assistance from the relevant Central Authority.  Other Contracting States have allowed proceedings to be brought on the basis of Article 21 to give effect to existing access rights or even to create new access rights.

A literal interpretation of the provision has found favour in:

Austria
S. v. S., 25 May 1998, transcript (official translation), Regional civil court at Graz, [INCADAT cite: HC/E/AT 245];

Germany
2 UF 286/97, Oberlandesgericht Bamberg, [INCADAT cite: HC/E/DE 488];

United States of America
Bromley v. Bromley, 30 F. Supp. 2d 857, 860-61 (E.D. Pa. 1998). [INCADAT cite: HC/E/USf 223];

Teijeiro Fernandez v. Yeager, 121 F. Supp. 2d 1118, 1125 (W.D. Mich. 2000);

Janzik v. Schand, 22 November 2000, United States District Court for the Northern District of Illinois, Eastern Division, [INCADAT cite: HC/E/USf 463];

Wiggill v. Janicki, 262 F. Supp. 2d 687, 689 (S.D.W. Va. 2003);

Yi Ly v. Heu, 296 F. Supp. 2d 1009, 1011 (D. Minn. 2003);

In re Application of Adams ex. rel. Naik v. Naik, 363 F. Supp. 2d 1025, 1030 (N.D. Ill. 2005);

Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005), [INCADAT cite: HC/E/USf 828];

Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006), [INCADAT cite: HC/E/USf 827]. 

In Cantor, the only US appellate decision on Article 21, there was a dissenting judgment which found that the US implementing act did provide a jurisdictional basis for federal courts to hear an application with regard to an existing access right.

United Kingdom - England & Wales
In Re G. (A Minor) (Enforcement of Access Abroad) [1993] Fam 216 [INCADAT cite: HC/E/UKs 110].

More recently however the English Court of Appeal has suggested that it might be prepared to consider a more permissive interpretation:

Hunter v. Murrow [2005] [2005] 2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].

Baroness Hale has recommended the elaboration of a procedure whereby the facilitation of rights of access in the United Kingdom under Article 21 could be contemplated at the same time as the return of the child under Article 12:

Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51[INCADAT cite: HC/E/UKe 880].

Switzerland
Arrondissement judiciaire I Courterlary-Moutier-La Neuveville (Suisse) 11 October 1999, N° C 99 4313 [INCADAT cite: HC/E/CH 454].                        

A more permissive interpretation of Article 21 has indeed been adopted elsewhere, see:

United Kingdom - Scotland
Donofrio v. Burrell, 2000 S.L.T. 1051 [INCADAT cite: HC/E/UKs 349].

Wider still is the interpretation adopted in New Zealand, see:

Gumbrell v. Jones [2001] NZFLR 593 [INCADAT cite: HC/E/NZ 446].

Australia
The position in Australia has evolved in the light of statutory reforms.

Initially a State Central Authority could only apply for an order that was ‘necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia', see:

Director-General, Department of Families Youth & Community Care v. Reissner [1999] FamCA 1238, (1999) 25 Fam LR 330, [INCADAT cite: HC/E/AU 278].

Subsequently it acquired the power to initiate proceedings to establish access rights:

State Central Authority & Peddar [2008] FamCA 519, [INCADAT cite: HC/E/AU 1107];

State Central Authority & Quang [2009] FamCA 1038, [INCADAT cite: HC/E/AU 1106].