HC/E/UKe 587
UNITED KINGDOM - ENGLAND AND WALES
Family Division of the High Court
First Instance
PAKISTAN
UNITED KINGDOM - ENGLAND AND WALES
25 July 2003
Final
Non-Convention Issues
Return ordered
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The court noted that the return application was governed by s. 1(1) of the Children Act 1989, namely that in determining any question with regard to the upbringing of a child the latter’s welfare must be the paramount consideration. The court also recognised that in abduction cases a central proposition was that the welfare of a child is best determined by the courts of the country of the child’s State of habitual residence. The court noted the existence of a Protocol of Agreement entered into by the President of the Family Division of the High Court in England & Wales and the Chief Justice of Pakistan in January 2003 with regard to cases of child abduction. However the latter text was not applicable in the instant case given the absence of any order dealing with custody / residence. The court reflected on the issue of the mother’s status as a refugee under Article 1 A (2) of the United Nations Convention Relating to the Status of Refugees 1951, and the effect of Article 33(1) of that instrument which seeks to afford refugees protection against return. It was noted that it might seem inconsistent that the UK should allow the mother to remain because of her well-founded fear of persecution in Pakistan, but at the same time UK courts could make an order which, because of her commitment to her child, could drive her to return there. However, it was pointed out that the grant of refugee status was based only on the mother’s evidence and on certain published material about the lack of State protection in Pakistan. Furthermore, counsel for the father stated that defendants in abduction proceedings were frequently UK citizens with greater rights than refugees and that their protection from deportation did not inhibit the making of a return order in respect of a child. The trial judge held that he would pay significant respect to the government finding that the mother had a well-founded fear of persecution in Pakistan since it would be unrealistic to divorce the mother’s situation from that of the child. Turning to the central issue of whether future arrangements for the child would be more likely to be in his interests if made in Pakistan or England, the court identified various arguments and made certain findings. In favour of remaining: - the mother enjoyed asylum in the UK; - the child after 18 months residence had a settled existence in the UK and was performing well at school; - it was alleged that the Pakistani authorities would not be able to protect the mother from the father. In favour of returning: - in the absence of the father’s consent to a change the child was deemed to have retained his habitual residence in Pakistan; - it was preferable for a child that his future be determined in the absence of a unilateral relocation; - the child would be able to travel between his families in the two States without the risk that each would use his arrival to impose contrary arrangements upon him; - the father had made wide ranging undertakings to address the mother’s concerns. Balancing the competing considerations and in the light of the undertakings an order was made to return the child.
The English Court of Appeal first considered the issue of asylum in a non-Convention abduction case in Re S (Children) (Abduction: Asylum Appeal) [2002] EWCA Civ 843, [2002] 1 WLR 2548 [INCADAT Reference: HC/E/UKe 590].
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.