CASO

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Nombre del caso

Re J.A. (Child Abduction: Non-Convention Country) [1998] 1 FLR 231

Referencia INCADAT

HC/E/UKe 588

Tribunal

País

Reino Unido - Inglaterra y Gales

Nombre

Court of Appeal (Inglaterra)

Instancia

Tribunal de Apelaciones

Estados involucrados

Estado requirente

Emiratos Árabes Unidos

Estado requerido

Reino Unido - Inglaterra y Gales

Fallo

Fecha

11 June 1997

Estado

Definitiva

Fundamentos

Asuntos no regulados por el Convenio

Fallo

Apelación desestimada, restitución denegada

Artículo(s) del Convenio considerados

-

Artículo(s) del Convenio invocados en la decisión

-

Otras disposiciones
Children Act 1989
Jurisprudencia | Casos referidos

-

INCADAT comentario

Interrelación con instrumentos internacionales y regionales y Derecho interno

Casos de sustracción de menores no regulados por el Convenio - Derecho interno
Cuestiones de Política

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The application related to a young girl born in the UAE. Her mother was British, her father a UAE national. The parents married in Sharjah and their daughter was born there in February 1995. Mother and child made an extended visit to England in the summer of 1995. In the summer of 1996 the mother again went to England with her daughter. They were due to return in September but with the father's consent they remined longer.

In October the mother indicated to the father that she did not wish to return. In December the father came to England and at this time he realised that mother and daughter would not return voluntarily. The father issued non-Convention proceedings to secure his daughter's return.

On 20 February 1997 the Family Division of the High Court dismissed the father's application on the basis that he had shown a sufficient degree of acceptance of the child living with the mother for it to be inappropriate to accede to a return request. The father appealed.

Ruling

Appeal dismissed and return refused; the risks inherent in return were such that it was not in the child's best interests to be sent back to the UAE.

Grounds

Non-Convention Issues

The Court of Appeal rejected the interpretation of the trial judge but nevertheless ruled that the ordinary need for the court of habitual residence to decide the child's future was not of sufficient benefit to outweigh the other risks inherent in a return order being made. Having being allowed to introduce fresh evidence, the mother argued, inter alia, that it was necessary that the court have regard to the way in which custody was likely to be resolved in the foreign jurisdiction so as to satisfy itself that the question would be decided along broadly similar welfare lines to the way it would be in England. Having reviewed a long list of authorities the court accepted that it would be an abdication of its responsibility and duty to the child under its protection to surrender the determination of the child's future to a foreign court whose regime might be inimical to the child's welfare. Having heard evidence as to the law applicable in the UAE the court came to the conclusion that the powers of courts in that jurisdiction were limited and there was no indication that welfare was the test. Furthermore if the mother returned to Sharjah with the child, there was no power in the court to permit her to return to England with the child if the father did not consent, even if that was in the best interests of the child. Consequently an order for summary return was not made.

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.