This is an appeal by the mother from the order of Ward J made on 20 December 1994 in an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (set out in Sch 1 to the Child Abduction and Custody Act 1985) (the convention) in which he ordered the return of the child to the United States of America. The appeal raises two difficult issues: (1) whether the mother in removing the child from the State of Colorado was in breach of the father's 'rights of custody' under art 3 of the convention and, if she was, (2) whether this is a case in which art 13(b) applies and should bar the return of the child to the United States.
The relevant facts are that the father was born in Texas and the mother in Wales. They met in the United States and married on 11 December 1987 in Colorado. The child, the subject of the application under the convention, is a boy, C. Born on 22 December 1990, he is now four. The marriage was unhappy and the mother made serious allegations in three affidavits about the violent behaviour of the father towards her, towards her mother when she stayed with them, and towards the child. Some of the allegations are confirmed by the maternal grandmother. The father in his one affidavit gave a general denial of violence but has not replied to the individual allegations. As a result of an incident on 6 June 1994 the mother on 7 June made an ex parte application to the county court in Adams County, Colorado asking for an order somewhat similar to our ouster order and care and control of C. The court made a temporary restraining order and a temporary order for care and control to the mother with a return date fixed for 21 June. The father was served with the order and vacated the matrimonial home. On 21 June the orders were continued until 14 July when a further hearing was fixed. The mother was legally represented on 21 June, but not the father. At neither hearing was any order made prohibiting the removal of the child from the jurisdiction. There is no evidence as to whether the county court has the jurisdiction to make such an order. The mother and C left the United States and arrived in the United Kingdom on 13 July. The father was not told of the mother's plans although the mother's lawyer knew and advised the mother that she had the right to leave the jurisdiction with the child. On 14 July the mother's lawyer attended the hearing and the proceedings
[1995] 3 All ER 641 at 644 were dismissed. The court was not told that the mother and child had left the United States. The father discovered later on 14 July on his return home that the mother and child were gone.
In Wales the mother commenced divorce and Children Act proceedings which have been served on the father. On 31 October the father made the convention application, and shortly thereafter he commenced divorce proceedings in the District Court of Adams County. No order relevant to this appeal has been made in the divorce proceedings.
At the hearing before Ward J there were the three affidavits from the mother and one from her mother and one affidavit from the father which had crossed with the mother's first affidavit. The judge also saw an affidavit as to Colorado law from the mother's lawyer, Miss Conran, and letters from another lawyer, Mr King, also on behalf of the mother, giving expert evidence on Colorado law. There were also letters and a memorandum on Colorado law from two associates of the firm acting for the father, Mr Studiolo and Miss Eaton.
The judge found that the mother had wrongfully removed C from the United States in breach of the father's rights of custody under art 3 of the convention and that the mother had not made out a case under art 13(b). He accepted undertakings from the father and ordered the return of the child. The order was stayed pending this appeal.
Counsel are agreed that the child was habitually resident in Colorado prior to his removal by the mother and that the issue under art 3 is removal and not retention. The convention has been signed by the United States, which is the relevant contracting state, but the court is concerned with the domestic law of Colorado, not federal law. By art 31 Colorado is a territorial unit of the contracting state. If the judge's order stands it would be sufficient for the mother to return to the United States and not to Colorado although in reality, we are told, her circumstances would preclude her from living anywhere but in the former matrimonial home.
The family law of Colorado
The evidence of the family law of Colorado is contained in an affidavit, letters and a memorandum and is unanimous on most points. On behalf of the mother, Miss Scriven QC accepted that the evidence of Miss Eaton, who had done the research, was to be preferred to that of her senior partner, Mr Studiolo, and did not rely on his letter. In my view the evidence of Miss Eaton set out in her carefully researched memorandum is the most useful of all the evidence provided to us. Colorado recognises the rights of parents without recourse to a court. Each parent has equal and separate rights of custody over their legitimate child absent a court order. Each parent can act independently of the other and there is no prohibition on the removal of a child from the jurisdiction by one parent even in contravention of the wishes of the other parent if it is not backed up by a court order.
On behalf of the mother, Mr Munby QC, in a careful and comprehensive argument, has submitted that the removal of C by the mother was not wrongful because the father did not possess rights of custody but, even if he did, there was no breach of the convention. At the time of the removal by the mother in July there was only one court order, which gave temporary care and control to the mother, with no order in favour of the father and no order restraining removal of the child from the jurisdiction. Since 14 July there has been no relevant order in Colorado. The mother was not in breach of any order nor had she violated any rights of the father under Colorado law. Mr Munby relied upon the advice given by the mother's lawyer that she would not violate Colorado law if she removed the child without the knowledge or consent of the father. The father was advised, according
[1995] 3 All ER 641 at 645 to his affidavit, by his lawyers that there was no legal step he could take and was advised by the police that the mother was not violating Colorado law. If the mother was not in breach of the father's rights under Colorado law, Mr Munby argued that the mother cannot be in breach of rights of custody under convention law.
Miss Scriven accepted that the mother was not in breach of any order nor had she violated any principle of state law but submitted that the father retained rights of custody despite the unilateral act of the mother. Having established the rights of the parent according to Colorado law it is for the English court to apply English law as to whether those rights are rights of custody within the convention. Equally, it is a matter of English and not Colorado law as to whether there is a breach of those rights. She argued that under the convention the mother was in breach of the father's rights of custody.
Article 3 states that the removal of a child is to be considered wrongful where—
'(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal … and (b) at the time of removal … those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal …'
Article 5 defines rights of custody to include—
'rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence'.
It is the duty of the court to construe the convention in a purposive way and to make the convention work. It is repugnant to the philosophy of the convention for one parent unilaterally, secretly and with full knowledge that it is against the wishes of the other parent who possesses rights of custody, to remove the child from the jurisdiction of the child's habitual residence. 'Rights of custody' within the convention are broader than an order of the court and parents have rights in respect of their children without the need to have them declared by the court or defined by court order. These rights under the convention have been liberally interpreted in English law. Waite LJ said in Re B (a minor) (abduction) [1994] 2 FLR 249 at 260:
'The purposes of the Hague Convention were, in part at least, humanitarian. The objective is to spare children already suffering the effects of breakdown in their parents' relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression “rights of custody” when used in the Convention therefore needs to be construed in the sense that will best accord with that objective. In most cases, that will involve giving the term the widest sense possible.'
In C v C (minor: child abduction: rights of custody abroad) [1989] 2 All ER 465, [1989] 1 WLR 654 this court held that art 5 has to be read into art 3 and may extend the concept of custody beyond the ordinarily understood domestic approach. In that case the father's right of objection to a removal from Australia under the terms of a court order was treated as conferring upon him 'rights of custody'.
The question on this appeal as to wrongful removal divides into two parts: whether the father had 'rights of custody' and, if he had, was the removal by the mother in breach of those rights. Each question is a matter of convention law as
[1995] 3 All ER 641 at 646 applied by the court of the jurisdiction in which the convention application is made, in this case the English court.
Rights of custody
I am satisfied that the father and mother both enjoyed equal and separate rights of custody by Colorado law. Equally, by Colorado law, absent a court order to the contrary, either parent could remove the child from the state and from the United States of America without violating any principles of Colorado law. It cannot, however, be the case that the lawful removal of the child by one parent destroys the rights of the other parent nor did any of the Colorado lawyers suggest it. The removal of the child by the mother interfered with the rights of the father in that he was prevented from actually exercising them in the United States. Such interference with rights is recognised in the convention and art 3 includes in its definition rights which 'would have been exercised but for the removal'. In my judgment the father continued to enjoy 'rights of custody' subject to the effect of the orders of the Adams County Court.
The effect of the ouster order on 7 June
The ex parte order of 7 June gave the mother temporary care and control and directed that the father vacate the matrimonial home in order that the mother and child would return to live there. The father did not contest the order on 21 June and there was no issue as to where the child would live. It was clear that it was the immediate intention of both parents that the child would live in the matrimonial home. There is nothing in the order which removed from the father the right to decide that the child should remain within the United States, nor that he would not have been exercising rights of custody but for the removal of the child by the mother. In my view the temporary order for care and control was of a limited nature and did not affect the father's rights of custody, nor was it suggested by the Colorado lawyers that it did. The answer to the first part of the question is therefore, Yes.
Breach
Although Mr Munby argued forcefully that the mother, who was not in breach of a court order and had not violated any principle of Colorado law, could not therefore be in breach of the convention, that is not the question which faces this court. The English court in applying the convention pays to a decision of the court of the other state concerned in the removal the respect which comity requires but is not bound by it (see C v S (minor: abduction: illegitimate child) [1990] 2 All ER 961 at 964, [1990] 2 AC 562 at 578 per Lord Brandon). Lord Donaldson MR in C v C [1989] 2 All ER 465 at 473, [1989] 1 WLR 654 at 663 said:
'We are necessarily concerned with Australian law because we are bidden by art 3 to decide whether the removal of the child was in breach of “rights of custody” attributed to the father either jointly or alone under that law, but it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the convention definition of “rights of custody”.'
Having found that the father retains rights as a parent by Colorado law which fall within the convention definition, as I have, equally it is a matter of English law whether the mother is in breach of those 'rights of custody' by her removal of the child. In applying the convention we are not bound by the mother's right under Colorado law to remove the child from the United States and that information is in
[1995] 3 All ER 641 at 647 my judgment irrelevant to the decision the English court has to take whether the removal from the United States was wrongful. We are concerned with the mother's unilateral decision to remove the child without the consent of the father and with the knowledge that if he knew he would have opposed her removal of the child. By the removal she frustrated and rendered nugatory his equal and separate rights of custody, in particular that the child should reside in the United States. In so doing she was in my judgment in breach of the father's rights of custody under the convention and the removal was wrongful.
Having answered both parts of the question 'Yes', it is unnecessary to consider in detail the further issue raised by the respondent's notice under art 3 which was not argued below, that 'rights of custody' were also to be attributed to the county court. This point was based upon the temporary care and control order and the pending proceedings at the time of the removal. In the absence of evidence as to the jurisdiction of the county court Miss Scriven has not pursued this alternative ground. It is not therefore necessary for me to express a view, other than to say that the existence of a court order or pending proceedings does not automatically clothe the court with 'rights of custody' within the meaning of the convention.
Article 13(b)
When a court has found that the removal of the child is wrongful within the meaning of the convention, art 12 requires that the court 'shall order the return of the child forthwith' unless any of the provisions of art 13 are established and the requested state exercises its discretion not to do so. It is asserted by the mother that art 13(b) is established on the facts before us and that the judge was in error in finding that it was not proved. Article 13(b) states that the court is not bound to order the return of the child if the mother who opposes its return establishes that—
'there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.'
Mr Munby recognised that a very high standard is required to demonstrate grave risk and an intolerable situation. But he has argued that the convention envisaged that there would be cases in which the facts would meet that high standard. In the present case the mother and grandmother have made very serious allegations against the father, in particular of his violence towards the child and the extremely serious effect it has had upon him. The mother's final evidence was filed about a week before the hearing but the first affidavits setting out allegations were filed in early December. The order at the directions hearing provided for affidavit evidence in rebuttal by the father which could have answered the main allegations, if not the detail. Miss Scriven has informed us that the decision of the father not to deal with the allegations made against him was based upon legal advice. I well understood the reluctance of the legal advisers to engage in voluminous accusation and counter-accusation in a summary procedure where oral evidence is rarely given. But the absence of evidence from the father to deal with the allegations relevant to the child, rather than to the mother, presents the court with effectively undisputed evidence. How should the court approach this situation? The judge accepted the evidence adduced by the mother but concluded that its totality did not meet the high test of intolerability required to establish art 13(b). In Re F [1992] 1 FLR 548 this court considered the approach to disputed evidence on affidavit in convention cases. I said (at 553–554):
'If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the
[1995] 3 All ER 641 at 648 judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.'
Admission of oral evidence in convention cases should be allowed sparingly.
If the issues between the parties cannot be resolved on affidavit the art 13(b) criteria will not have been established. The child is returned pursuant to art 12 and it will be for the court of habitual residence to determine the disputed issues with the opportunity to hear oral evidence and the parties cross-examined. In many cases the absence of evidence from the other parent on the major issues would cause a court to hesitate to find the art 13(b) threshold reached (see Re E (a minor) (abduction) [1989] 1 FLR 135). But I agree with the judge that the evidence adduced by the mother should be treated as true, particularly since the allegations affect this child, there was an opportunity to rebut them and the consequences for this child on the evidence before us are potentially very serious. Since the evidence is all on affidavit this court is in as good a position as the judge to assess its impact upon the standard to be established.
In looking at this evidence I have reminded myself of the difficulties inherent in proving grave risk of physical or psychological harm or of demonstrating that the child would be placed in an intolerable situation if returned to the country of habitual residence. Indeed, to my knowledge there is no case which has been heard in an English appellate court in which that standard has been reached. The signatories to the convention, nonetheless, anticipated that circumstances might arise in which there would be a grave risk that the return would expose the child to an intolerable situation. There are several aspects to the present appeal that lead me, despite considerable hesitation, to conclude that this exceptionally is such a case.
This child was, like so many other children, present at acts of violence and displays of uncontrollable temper directed at his mother or elsewhere, and at occasions of violence between the parents. These included assaults on his mother and one on his grandmother on 6 June, destruction of household items such as ripping the fridge door off its hinges. More important in my view was that the child was himself the recipient of the violence by the father. The judge was in error in finding only one occasion which directly affected the child when he suffered a nosebleed caused by the father in a temper throwing a coolbox onto the back seat where the child was sitting which hit him in the face. There were other incidents. He destroyed the child's toys by stamping on them and smashing them when the child was present. This happened more than once. On several occasions he pinched the child on the legs causing bruising. One occasion of pinching was witnessed by the maternal grandmother. On 6 June C was thrown out of the house as well as his mother. On this occasion, which was immediately before the mother made her ex parte application to the county court, the police were called and took his father away. His father in his presence threatened to kill him and his mother. In these incidents the child was not a bystander to matrimonial discord but a victim of it. In addition, other aspects of the behaviour of the father towards the child were
[1995] 3 All ER 641 at 649 unusual and inappropriate, such as waking up the child aged under four in the early hours of the morning, once to get him to help wash the jeep. In addition, after the temporary restraining order was made and the father left the house, the father seems to have engaged in a campaign of intimidation and harassment directed at the mother, including following her about in his car and threatening her with a gun. He also camped in the jeep several doors away from the matrimonial home which had a very adverse effect upon the child as well as upon the mother.
The child is asthmatic and the effect upon him of this behaviour was serious. He was present when his grandmother, who was recovering from surgery, was forcibly pushed out of the house and thrown against a wall. The child's reaction was to scream and to cry. He started to bed-wet regularly and to have nightmares where he screamed out in his sleep. He became unusually aggressive at the child care centre as well as at home. The effect of the father camping nearby in the jeep made him scared and upset. He copied the tantrums, the yelling, the screaming and bad language of his father.
Since leaving the United States he has been living in Wales in his maternal grandfather's house. The misbehaviour, the bed-wetting and the nightmares ceased after he settled down. But his mother told him after the start of the present proceedings that he might have to return to Colorado. He has had a disturbing resumption of the bed-wetting and nightmares and has begun to wet himself during the day. He has become aggressive towards other children at the nursery school he is attending and towards grown-ups.
The extent to which the child has himself been drawn into the violence between his parents and the clear evidence of the adverse effect on him of his father's violent and intimidating behaviour would not in my view in themselves be sufficient to meet the high standard required in art 13(b). The matters which I find most telling are (1) the actual effect upon the child of the knowledge that he may be returning to Colorado together with the unusual circumstances (2) that he would be returning to the very same surroundings and potentially the very same situation as that which has had such a serious effect upon him before he was removed. There has to be concern as to whether the father would take any notice of future orders of the court or comply with the undertakings he has given to the judge. How is a child of four to have any security or stability or from his perception come to terms with a return to his former home? I have come to the conclusion on the unusual facts of this case that the extreme reaction of the child to the marital discord and the requirement by art 12 to return him on the facts of this case to the same house with the same attendant risks would create a grave risk that his return would expose him both to psychological harm and would place him in an intolerable situation.
Although the mother wrongfully removed the child from the United States for the reasons which I have already given, I would however find that the art 13(b) criteria were met and in the exercise of the court's discretion I, for my part, would decline to send the child back to the United States.
I would allow the appeal.