CASE

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Case Name

C.W. v. H.R. and D.S.

INCADAT reference

HC/E/WS 332

Court

Country

SAMOA

Name

Supreme Court of Western Samoa at Apia

Level

First Instance

Judge(s)
Sapolu C.J.

States involved

Requested State

SAMOA

Decision

Date

19 February 1997

Status

Final

Grounds

Non-Convention Issues

Order

Return ordered

HC article(s) Considered

-

HC article(s) Relied Upon

-

Other provisions
Common law
Authorities | Cases referred to

-

INCADAT comment

Inter-Relationship with International / Regional Instruments and National Law

Non-Convention Child Abduction Cases under National Law
Policy Issues

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a boy, was approximately 7 at the date of the alleged wrongful removal. He had lived in Germany and Ireland. The parents were not married. Under a German court order the mother had custody, the father access.

In 1994 the mother moved from Germany to Ireland with the child. In July 1995 the child travelled to Germany for a period of holiday contact with his father. During this visit the father petitioned the local courts for custody.

The application was rejected and the court ordered the return of the boy to Ireland. The father did not comply with the order. In March 1996 the mother located father and child in Western Samoa.

On 29 January 1997 the Supreme Court of Western Samoa, sitting as a court of first instance, granted interim custody to the father and his wife. On 31 January the mother issued, inter alia, an application that the child be returned to Germany.

Ruling

Return ordered; in the light of the best interests of the child the appropriate courts to determine the issue of custody are those in Germany.

Grounds

Non-Convention Issues

Notwithstanding that Western Samoa is not yet a party to the Convention the court ruled that it was appropriate, when considering what was in the best interests of the child, to have regard to the policy and principles of the 1980 Hague Convention. The trial judge stated that Western Samoan law should be, as far as is practicable, as consistent as can be with the law of other nations. The court drew attention to the child's links with Germany and the fact that much of the evidence and many witnesses for any substantive hearing would have to come from that State. Regard was also paid to the fact that the father and child had acquired the status of prohibited immigrants in Western Samoa. Weighing up these facts, and in the light of the objects of the Convention, the court ordered that the child should be returned to Germany which was the appropriate venue for a substantive custody hearing.

INCADAT comment

Policy Issues

When a parent seeks the return of a child outside the scope of the Hague Convention, or another international or regional instrument, the court seised will have to decide how to balance the interests of the child with the general international policy of combating the illicit transfer and non-return of children abroad (Art. 11(1) UNCRC 1990).

Canada
Shortridge-Tsuchiya v. Tsuchiya, 2009 BCSC 541, [2009] B.C.W.L.D. 4138, [INCADAT cite: HC/E/CA 1109].

United Kingdom - England & Wales
Appellate courts have struggled to agree on the appropriate balance to be struck.

An internationalist interpretation, favouring an approach mirrored on that of Hague Convention, was adopted by the Court of Appeal in:

Re E. (Abduction: Non-Convention Country) [1999] 2 FLR 642 [INCADAT cite: HC/E/UKe 589];

Re J. (Child Returned Abroad: Human Rights) [2004] EWCA Civ. 417, [2004] 2 FLR 85 [INCADAT cite: HC/E/UKe 586].

However, in the earlier case Re J.A. (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 [INCADAT cite: HC/E/UKe 588] a return order was not made, there being concerns as to whether the legal system in the foreign jurisdiction would be able to act in the best interests of the child. A factor in that case was that the abducting mother, who was British, would not be entitled to relocate from the child's State of habitual residence unless she had the consent of the father.

In Re J. (A Child) (Return to Foreign Jurisdiction: Convention Rights), [2005] UKHL 40, [2006] 1 AC 80, [INCADAT cite: HC/E/UKe 801] the House of Lords expressly stated that the approach of the Court of Appeal in Re J.A. (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 [INCADAT cite: HC/E/UKe 588] was the one to be preferred.

The House of Lords held that the rationale of the Hague Convention necessarily meant that the State of refuge might on occasion have to do something which was not in the best interests of the individual child involved. States parties had accepted this disadvantage to some individual children for the sake of the greater advantage to children in general.  However, there was no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which were not parties to it. In a non-Convention case the court must act in accordance with the welfare of the individual child. Whilst there was no ‘strong presumption' in favour of return on the facts of an individual case a summary return may very well be in the best interests of the individual child.

It may be noted that in Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 854, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982] a trial judge who felt compelled to discharge his original order for return in the light, inter alia, of the ruling in Re M. had his judgment overturned. The Court of Appeal did not, however, comment on the ruling of the House of Lords and the case ostensibly turned on the existence of new evidence, pointing to the inevitability of the mother's deportation.

In E.M. (Lebanon) v. Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198 [INCADAT cite: HC/E/UKe 994] an immigration case centred around the wrongful removal of a child from a non-Convention country, the House of Lords ruled that a return would lead to a violation of the child's and his mother's right to family life under Article 8 of the European Convention on Human Rights (ECHR). However, it must be noted that on the facts the child's only ‘family life' was with the mother, the father having had no contact with the child since the day of his birth. A majority of the panel (4:1) held that the discriminatory nature of Lebanese family law, which would have led to the automatic transfer of care for the child being passed from mother to father, upon the child reaching his 7th birthday, would not have led to a breach of the ECHR.