Bring them home

Few international conventions are so much a product of their time as the Hague Convention on International Child Abduction, brought into our domestic law by the Child Abduction and Custody Act 1985. Perceived as a great success because of its widespread adoption, the number of cases it has generated in courts around the world tells another story.

A non-deterrent

The original hope was that the incidence of child abduction would be reduced, by the removal of any potential benefit an abductor might obtain by abduction. But the increase in both family breakdown and ease of international travel has more than countered any deterrent effect. And the truth of the matter is, of course, that deterrence only works for those who know of the deterring factor. Few parents have heard of the Convention, and even if they have, they can’t quite believe that a court would make its decision on anything other than the welfare of the child: the hope nearly always is that the abductor will have an opportunity to place his (or, more usually, her) assessment of welfare before the court.

It does not work like that, of course. The revolutionary feature of the Hague Convention is that welfare is to be assessed by the court of the child’s habitual residence and that the role of any other court is summarily to return the child to that residence. Legal advisers to abductors recognise this, but some clearly have difficulties in persuading their abducting clients of the realities of life. It would be unfair to describe some recent defences to immediate return as spurious, but making bricks without straw is as difficult in the legal trade as it is in the building trade.

One other feature of the Hague Convention worth mentioning is that most cases are depressingly similar, with the wrongful act being committed by the residence parent who fails to see why the other parent’s relationship with her child should inhibit in any way her own lifestyle choices.

A common factual background

In AL, Petr [2007] CSOH 55 the mother and father met in Australia and subsequently had a child. The mother returned to her native Scotland with the child, ostensibly on a short term holiday, but then decided to remain here. The father sought the child’s return.

In T, Petr [2007] CSOH 43 the parties, who were Polish, had two children. They then divorced. The mother came to Scotland to seek work and brought the children with her. The father sought their return.

In HJAV v CAW [2006] CSOH 115 a Scotswoman entered into a relationship with a Dutchman and bore two children while they lived in the Netherlands. The mother brought the children to Scotland, allowing the father to believe this was merely temporary. The father sought their return.

In RH v VH [2006] CSOH 70 a mother and father from Scotland relocated themselves and their child to New Zealand to explore the possibility of permanently settling there. After two years it was agreed that the mother and child would come back to Scotland before a final decision was made, but on returning here the mother decided to keep the child in Scotland and she raised an action in the Scottish court for (sole) residence. The father sought the child’s return to New Zealand.

Defence of last resort

Within this common factual background a variety of issues have been put to the court for resolution. In AL, Petr, the tedious defence of “grave risk of physical or psychological harm”, or that return would place the child in “an intolerable situation” was raised. This test is a high one, far beyond mere consideration of the child’s welfare. It is too often used as the last refuge of an abducting parent with no better argument.

In the present case the mother argued that the father adopted an unsuitable lifestyle. He drank too much, smoked cannabis and had convictions for drink driving; he had a negative attitude towards the mother which he might transmit to the child. In addition, the mother was pregnant by her new partner in Scotland and had been advised by her GP that she should not fly until after the birth. Lady Paton had little problem in holding that this litany of unsuitability came nowhere near creating a situation of grave risk of harm, or intolerable situation. She found “a picture of a father whose lifestyle may not be ideal, but who takes care of his son”. The issue of the mother’s inability to fly due to her pregnancy was dismissed as not relevant – there were various other options to ensure the child’s safe and immediate return to the country of his habitual residence.

Protected rights?

T, Petr, also decided by Lady Paton, raised the question of whether the divorced father had any rights of custody at all that were protected by the Hague Convention. This turned on the extent to which Polish law distributed parental power between parents, and the terms of the father’s divorce from the mother. The decree of divorce explicitly granted to the father the right of co-decision-making as to choice of school, profession and medical treatment for the child. The mother argued that these were not sufficient to amount to a “right of custody” as understood in the Hague Convention context.

Lady Paton preferred to look to the provisions of general Polish law before examining the decree of divorce. She found that the appropriate code conferred joint “parental authority”, but allowed that to be removed or modified in certain circumstances, including divorce. She held that unless the decree of divorce explicitly removed parental authority, it remained vested in both parents except insofar as the decree modified it. She found nothing in the decree of divorce in the present case which removed co-decision-making powers.

Indeed, Lady Paton went further and found that, in certain circumstances, having nothing more than co-decision-making in choosing school, profession and medical treatment might indeed amount to the right to determine the child’s place of residence, which is itself a right of custody. She regarded it as “unrealistic to assert that co-decision-making powers relating to choice of school or profession cannot or should not affect the child’s place of residence”. Otherwise these rights would be diminished into mere rights to be consulted. She accepted the consistent line of authority from the House of Lords that the phrase “rights of custody” should be construed in its widest sense.

And talking of the House of Lords, we should also note their most recent decision on the topic: In Re D (A Child) [2006] UKHL 51 (which again involved the common factual background). The major question in the case concerned whether the father had a right to veto the child’s removal from Romania, and if so, whether such a veto and nothing more amounted to “rights of custody” for Hague Convention purposes. I pointed out 10 years ago (1997 SLT (News) 175) that a mere right to prevent a child’s removal from the jurisdiction of its habitual residence amounted to a “right of custody” for Hague Convention purposes, and that analysis was accepted by the Inner House in J, Petr [2005] CSIH 36. That case in turn was followed by the House of Lords in the present case. In the event, since the father could not establish such a veto under Romanian law he had no rights of custody and the court did not, therefore, order the child to be returned there.

Consent issues

In HJAV the dispute concerned whether the mother’s actions amounted to a wrongful removal or a wrongful retention and whether the father’s actions amounted to acquiescence. Lord Uist held that there had been a wrongful removal since he found she always intended to come to Scotland permanently. On whether the father had acquiesced in that, Lord Uist was careful to point out that the father’s continuing to support the children financially even after that removal, and his attempts at reconciliation, provided no evidence of his acquiescence.

Consent was also at issue in RH v VH, where Lady Clark found that the father’s agreement to the child being brought to Scotland was given in the context of a continuing matrimonial relationship and could not be translated into the situation of marital breakdown.

Law and reality

All of these cases from the past year in the Court of Session have in common that the residence mother is overstepping her authority by removing or retaining the child from the jurisdiction of its habitual residence. The Hague Convention has not achieved a change in mindset as to the power balance between parents in relation to their children. Neither, of course, has the Children (Scotland) Act 1995. Both provisions envisage a sharing of upbringing, but until parents understand and accept the full consequences of this, the legal position will remain far from practical reality and these disputes will continue to be as common, and as unedifying, as they have been since the 1985 Act came into force.

Kenneth McK Norrie is a Professor of Law in the University of Strathclyde