D., Re, (2007) 367 N.R. 330 (HL)

• Case Date: November 16, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 367 N.R. 330 (HL)

D., Re (2007), 367 N.R. 330 (HL)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. SE.005

In Re D (A Child)

([2006] UKHL 51)

Indexed As: D., Re

House of Lords

London, England

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood

November 16, 2006.

Summary:

A young boy, who was born in Romania, was brought to England by his mother without the knowledge or consent of his father after his parents divorced. At issue was whether he should be returned to Romania almost four years after he left having regard to the articles of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The English courts had ordered the boy's return to Romania upon certain undertakings by the father, notwithstanding a determination by the Romanian courts at the request of the English court under s. 15 of the Convention that the child's removal was not wrongful. The mother appealed.

The Court of Appeal, in a decision reported [2006] EWCA Civ 830, dismissed the appeal. The mother appealed again. The boy, now aged eight, was granted leave to intervene through his litigation friend.

The House of Lords allowed the appeal and dismissed the father's proceedings to have the child returned. The court held that the child's removal to England was not wrongful.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - A young boy, who was born in Romania, was brought to England by his mother without the knowledge or consent of his father after his parents divorced - The father sought the child's return under the Hague Convention on the Civil Aspects of International Child Abduction 1980 - The English courts were unable to resolve a difference of opinion in the expert evidence presented and applied for a determination from the Romanian court pursuant to art. 15 of the Convention - The Romanian courts determined that the removal of the child from Romania had not been wrongful under Romanian law - However, when the case returned to the English courts further expert evidence was considered and the English court ordered that the child be returned to Romania almost four years after his removal - The mother appealed - The Court of Appeal dismissed the appeal - The mother appealed again - The House of Lords allowed the appeal and dismissed the father's proceedings to have the child returned - The court held that the child's removal to England was not wrongful within the meaning of art. 3 of the Convention - The court discussed the weight that should be given to a s. 15 determination by a requesting state - See paragraphs 1 to 84.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - The Hague Convention on the Civil Aspects of International Child Abduction 1980 provided that a parent whose child was wrongfully taken away without their consent could demand the automatic return of their child - Article 3 of the Convention provided that removal or retention of a child was only wrongful if it was "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 or retention" - Article 5(a) provided that "'rights of custody' shall 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" - The House of Lords discussed the phrase "rights of custody" as it was used in the Convention and discussed whether a parental right of veto amounted to "rights of custody" within the meaning of art. 5 - See paragraphs 1 to 84.

Family Law - Topic 1963

Custody and access - Child abduction legislation - Wrongful removal or retention - Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 provided that "the judicial or administrative authorities of a contracting state may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the state of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of article 3 of the Convention, where such decision or determination may be obtained in that state. The central authorities of the contracting states shall so far as practicable assist applicants to obtain such a decision or determination" - The House of Lords discussed this provision and whether a s. 15 determination by a foreign court was binding on the requesting state - See paragraphs 1 to 84.

Words and Phrases

Rights of custody - The House of Lords discussed the phrase "rights of custody" as it was used in art. 5 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 - See paragraphs 1 to 84.

Cases Noticed:

C. v. C., [1989] 1 W.L.R. 654; [1989] 2 All E.R. 465 (C.A.), refd to. [paras. 5, 13, 35].

Furnes v. Reeves (2004), 362 F.3d 702 (11th Cir.), refd to. [paras. 12, 35].

V.W. v. D.S., [1996] 2 S.C.R. 108; 196 N.R. 241, refd to. [paras. 13, 33].

Thomson v. Thomson, [1994] 3 S.C.R. 551; 173 N.R. 83; 97 Man.R.(2d) 81; 79 W.A.C. 81, refd to. [paras. 13, 34].

P., In re, [2004] EWCA Civ. 971; [2005] Fam. 293 (C.A.), refd to. [paras. 14, 43].

W., In re, [1999] Fam. 1, refd to. [para. 14].

J., Petitioner, Re, [2005] CSIH 36; 2005 GWD 15-251 (Ct. Sess.), refd to. [paras. 14, 31].

Croll v. Croll (2000), 229 F.3d 133 (2nd Cir.), cert. denied (2001), 534 U.S. 949 (C.A., 2nd Cir.), refd to. [paras. 16, 33, 74].

Gonzalez v. Gonzalez (2002), 311 F.3d 942 (C.A., 9th Cir.), refd to. [paras. 17, 33].

Fawcett v. McRoberts (2003), 326 F.3d 491 (C.A., 4th Cir.), cert. denied (2004), 540 U.S. 1068, refd to. [paras. 17, 33].

Sonderup v. Tondelli, 2001 (1) SA 1171 (S.A. Const. Ct.), refd to. [paras. 18, 35].

Bader v. Kramer (2006), 445 F.3d 346 (4th Cir.), refd to. [paras. 18, 33].

H., In re, [1998] A.C. 72, refd to. [para. 28].

W., In re; B., In re, [1998] 2 F.L.R. 146 (H.K.), refd to. [para. 31].

Director General, Department of Families, Youth and Community Care v. Hobbs, [1999] Fam. C.A. 2059, refd to. [para. 35].

G. v. B., [1995] N.Z.F.L.R. 49, refd to. [para. 35].

D. v. C., [1999] N.Z.F.L.R. 97, refd to. [para. 35].

Hunter v. Murrow, [2005] EWCA Civ. 976; [2005] 2 F.L.R. 1119, refd to. [paras. 35, 71, 81].

H., Re, [2000] 2 A.C. 291; 254 N.R. 305 (H.L.), refd to. [para. 37].

J., Re, [1990] 2 A.C. 562; 125 N.R. 145 (H.L.), refd to. [paras. 38, 83].

V.-B., In re, [1999] 2 F.L.R. 192, refd to. [para. 43].

R. v. Secretary of State for the Home Department; Ex parte Adan, [2001] 2 A.C. 477, refd to. [para. 44].

H., In re, [2006] EWCA Civ. 1247 (C.A.), refd to. [para. 61].

G., In re, [1993] Fam. 216, refd to. [para. 67].

T. et al., In re, [1993] 2 F.L.R. 617, refd to. [para. 67].

H., In re, [2003] EWHC 492; [2003] 2 F.L.R. 153, refd to. [para. 79].

Statutes Noticed:

Hague Convention - see United Nations Convention on the Civil Aspects of International Child Abduction.

United Nations Convention on the Civil Aspects of International Child Abduction, art. 3 [para. 24]; art. 5 [para. 3 et seq.]; art. 12 [para. 23]; art. 15 [para. 39].

Authors and Works Noticed:

Anton, A.E., The Hague Convention on International Child Abduction (1981), 30 Int'l & Comp. L.Q. 537, p. 546 [para. 12].

Lowe, Everall and Nicholls, International Movement of Children (2004), para. 15.9 [para. 44].

Silberman, Linda, Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence (2005), 38 U.C. Davis L. Rev. 1049, p. 1057 [para. 15].

Silberman, Linda, Patching up the Abduction Convention: A Call for a New International Protocol and a Suggestion for Amendments to ICARA (2003), 38 Tex. Int. L.J. 41, p. 46, fn. 34 [para. 12].

Counsel:

James Turner, Q.C., and Richard Harrison (Instructed by Garson & Co.), for the appellants;

Henry Setright, Q.C., and Marcus Scott-Manderson (Instructed by Russell-Cooke), for the respondents;

Charles Howard, Q.C., and Teertha Gupta (Instructed by Dawson Cornwell), for the intervenor.

Agents:

[Not disclosed.]

This appeal was heard before Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood of the House of Lords. The decision of the House was delivered on November 16, 2006, when the following opinions were filed:

Lord Nicholls of Birkenhead - see paragraph 1;

Lord Hope of Craighead - see paragraphs 2 to 19;

Baroness Hale of Richmond - see paragraphs 20 to 68;

Lord Carswell - see paragraphs 69 to 76;

Lord Brown of Eaton-under-Heywood - see paragraphs 77 to 84.