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AFFAIRE

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Nom de l'affaire

Walley v. Walley [2005] EWCA Civ 910, [2005] 3 FCR 35

Référence INCADAT

HC/E/UKe 826

Juridiction

Pays

Royaume-Uni - Angleterre et Pays de Galles

Nom

Court of Appeal (Civil Division)

Degré

Deuxième Instance

États concernés

État requérant

Afrique du Sud

État requis

Royaume-Uni - Angleterre et Pays de Galles

Décision

Date

22 June 2005

Statut

Définitif

Motifs

Engagements | Opposition de l'enfant au retour - art. 13(2) | Questions procédurales

Décision

Recours accueilli, retour refusé

Article(s) de la Convention visé(s)

13(2)

Article(s) de la Convention visé(s) par le dispositif

13(2)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

INCADAT commentaire

Mise en œuvre & difficultés d’application

Mesures facilitant le retour de l’enfant
Engagements

RÉSUMÉ

Résumé disponible en EN | FR

Facts

The application related to a girl who was 9 1/2 at the date of the alleged wrongful removal. She had spent the majority of her life in South Africa. The parents, who were married, were both South African. Their relationship both before and after the marriage, when their daughter was 4 years old, was a very difficult and troubled one.

In 1997 there was an incident where the mother shot the father, there were many allegations of violence against the mother by the father, the child was unilaterally removed on different occasions by both parents, there were many court proceedings, in different jurisdictions, with regard to the care of the child.

The present application related to the removal of the child by the mother from the family home in South Africa in January 2004. Upon the child's whereabouts being discovered the father petitioned for her return. It was conceded that the removal was wrongful, the child being habitually resident in South Africa and the mother's actions being in breach of the father's actually exercised rights of custody.

On 28 May 2004 the High Court ordered the return of the child subject to stringent conditions which the father was obliged to have registered in the High Court of South Africa before the child would be sent back. On 6 July the mother's appeal was dismissed.

However, compliance with the conditions was not forthcoming and the issue was brought back before the trial judge on 16 May 2005. It was the mother's case that there had only been partial compliance with 2 of the 9 conditions. It was the father's case that he had been unable to comply because he was in dispute with his solicitor in South Africa.

The trial judge gave the mother leave to appeal to the Court of Appeal on the basis that the return order was final and could not be revisited by the High Court.

Ruling

Appeal allowed and return refused; the applicant had failed to comply with the conditions placed on the initial return order.

Grounds

Undertakings

The Court noted that the return order had been properly made, subject to a series of stringent conditions but the conditions had not been complied with. Moreover there was no reasonable time limit within which there was the least possibility of compliance, therefore the order for return should be set aside.

Objections of the Child to a Return - Art. 13(2)

The child had been interviewed prior to the appeal by a Court specialist and it was evident that she strongly opposed returning to South Africa.

Procedural Matters

On a point of procedure the Court of Appeal affirmed that being subject to such stringent conditions the return order had never been final, therefore, the competent jurisdiction to address the issue of compliance was the High Court.

INCADAT comment

The summary of the trial court judgment is found at: Re W. (Abduction: Domestic Violence) [2004] EWHC 1247 (Fam), [2004] 2 FLR 499 [INCADAT Reference: HC/E/UKe 599].

Whilst a summary of the original appeal may be found at: Re W. (Abduction Domestic Violence) [2004] EWCA Civ 1366, [2005] 1 FLR 727 [INCADAT Reference: HC/E/UKe 771].

It should be noted that there is at least one example of an English appellate case where domestic violence against a mother, but not the child, led to Article 13(1)(b) being established, see: Re M. (Abduction: Leave to Appeal) [1999] 2 FLR 550 [INCADAT Reference: HC/E/UKe 263].

Undertakings

Preparation of INCADAT case law analysis in progress.