ZP v PS Submission - COMPARATIVE INTERNATIONAL LAW
Legal
IN THE HIGH COURT OF AUSTRALIA
AT MELBOURNE OFFICE OF THE REGISTRY
No. 12 of 1994
BETWEEN: Z.P.
AppellantAND: P .S.
Respondent
WRITTEN SUBMISSIONS BY COUNSEL FOR THE HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION (INTERVENING) AS TO COMPARATIVE
INTERNATIONAL LAW
- ENGLAND [including table of case summaries]
- CANADA
- NEW ZEALAND
- HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
COMPARATIVE INTERNATIONAL LAW POSITION: ENGLAND
1. The welfare jurisdiction
The English superior courts have taken the view that their inherent parens patriae powers, which include making the child a ward of the court, are invoked where the child has British nationality or is ordinarily resident in the jurisdiction: Nugent -v- Vetzera [1866] L.R. 704, at p.714; McKee -v- McKee [1951] AC 352, at p.360; In re P (An Infant) [1965] 1 Ch 568, at pp. 584, 587, 588 and 590.
2. The exercise of the discretion to decline jurisdiction
When confronted with proceedings invoking the parens patriae powers (such as wardship applications and writs of habeus corpus), it has repeatedly been held that a court should be slow to abdicate jurisdiction: McKee -v- McKee, at p.364.; In re Kernot (An Infant) [1965] 1 Ch 217, at pp. 222-223.
3. The need for the merits to be considered
3.1 Upon acceptance of jurisidiction, the Court of Chancery is obliged to form an independent judgment on the merits as to the best interests of the child, this being the paramount consideration required when exercising the parens patriae power: Mc Kee -v-McKee, at p.364; In re L (Minors)[1974] 1 WLR 250, at p.263; In re Kernot (An Infant), at p.222. In wardship proceedings, a party commits the child to the protection of the Court and asks the Court to make orders which acknowledge that the welfare of the child is the paramount consideration: In re B.(J. A.)(An Infant). [1965] Ch 1112, at p.1117; J -v-C [1970] AC 668, at p.69'7, p.710, p.724 and p.727.
3.2 In some circumstances, the Court has ordered the return of a child to the foreign jurisdiction without a full investigation of the merits: for example Re F [1990] 3 All ER 97 ; and In re H. (infants) [1966] 1 All ER 886. This reflects the view that in those instances, a full investigation of the merits was incompatible with the best interests of the child: In re H (infants), at p.889 and p.893; Re F, at pp.100-101; In re L (Minors), at p.259 and p.264 (explaining the logic of such an approach).
3.3 When considering the best interests of the child, the following factors require serious consideration, but are not, of themselves, determinative:
- the existence of a foreign custody order; and
- the fact that the child was removed from the foreign jurisdiction in contravention of such an order and/or without the consent of the custodial parent.
4. Some English judges have held that in an abduction case, the child should, without further inquiry, be returned to the foreign jurisdiction unless there is evidence that they will face obvious moral or physical danger or otherwise suffer harm: In re S (M.) (An Infant), at p.625; In re H.(infants.), at p.889. It is submitted that this approach is inappropriate in a welfare jurisdiction. The English Court of Appeal has expressly disapproved of this approach: In re C. (Minors) [1977] 3 WLR 561, per Lord Omrod at pp.567-568. Re R (Minors) [1981] 2 FLR 416, at p.425.
|
NAME of |
JURISDICTION |
HAGUE |
FACTS |
RESULT |
|
McKee -v- McKee [1951] AC 352 |
England Privy Council |
No |
Wife had Californian custody order. Husband took son to Ontario. Mother sought return of child via writ of habeus corpus. First instance judge said leave boy with father. Court of Appeal of Ontario agreed. Supreme Court of Canada reversed. |
Privy Council reversed Supreme Court of Canada: The child was resident in Ontario. Therefore, he was "within the King's allegiance and entitled to the protection of the courts...". That is, the parens patriae jurisidiction. Paramount concern is the welfare of the child - fact of Californian custody order in favour of mother and deliberate flouting of that order by father are but factors to be weighed in deciding what is in the best interests of the child. |
|
Babington and Babington [1955] Scots Law Times 170 |
Scotland First Division of the Court of Session |
No |
Mother unilaterally removed daughter from Scotland to England where she attended school and lived with mother. Father sought custody in Scottish courts. |
Was argued that England was convenient forum because less publicity and because child had been made a ward of the [English] Court of Chancery. Held that the Scottish court was the court of "domicile" and hence proceedings were properly commenced in that court. |
|
Nugent v Vetzera [1866] LR 704 |
England Chancery |
No |
Children's parents deceased. Guardian an Austrian citizen living in Constantinople. Children sent to England for education. Nugent appointed guardian of children while in England. Austrian Court ordered that the children be returned to Vienna to be educated and brought up in their father's religion. |
Page-Wood VC held that parens patriae is a right which all nations exercise over children within their authority and it is not usually for English courts to interfere with that authority. Comity of nations demands that the Austrian court order be respected. |
|
In re Kernot (An Infant). [1965] 1 Ch 217 |
England Chancery |
No |
Father is English, mother Italian. Married in Italy and child born there. Separation occurs with father getting custody and mother access. Father takes child to England and makes home there. Mother petitions Court for return of child to Italy, invoking the wardship jurisdiction of the Court. |
Buckley J holds that even where a foreign court makes an order on the merits, which was not the case here, the Court of Chancery is bound to consider what is in the best interests of the child, because the best interests of the child is the paramount consideration when the paternal jurisdiction of the court is invoked. Judge orders that the question of custody be examined in England. |
|
In re P (G.E.)(An Infant). [1965] 1 Ch 568 |
England Court of Appeal |
No |
Father stateless, mother Egyptian. Lived in England for a period, then father took boy to Israel. Mother petitions Court for return of child, but judge at first instance held that the court did not have jurisdiction over child physically in Israel. |
A child, even one not a British subject and not physically present in England, who is nevertheless ordinarily resident in England, is entitled to the protection of the Crown. Accordingly, the Court of Chancery can make orders for the custody, maintenance and education of such a child. Whether the child would be made a ward of the Court and what orders should be made as a consequence is a matter for other proceedings in which all the circumstances are before the Court. |
|
Inre S.(M.) (An Infant). [1971] 1 Ch 621 |
England Chancery |
No. |
Parents lived on and off in England and Scotland. Father took boy to Scotland and did not return. Mother causes boy to be made ward of the English Court and seeks return of boy for that court to decide custody. |
Goff J: I have the power to determine forum conveniens as a preliminary matter. Principles are: (1) that if ward in jurisdiction, court should be slow to abdicate repsonsibility; (2) if "kidnap" case, default position is that child should be returned to the country from whence it came; and (3) if ward not in country, court should be slow to exercise jurisdiction. The Court of Session (Scotland) is the most appropriate forum in this instance. |
|
Inre C.(Minors) [1977] 3 WLR 561 |
England Court of Appeal |
No. |
Father travels to United States, meets future wife. They have three children and they many. Family moves to England. Marriage falters. Wife, with agreement of husband, takes children back to California. Husband remarries. Wife remarries. Wife dies. Husband (father) comes to US, gets access to children and removes them to England. US stepfather commences proceedings in England. The children were made wards of the Court. The judge refused to order their summary return to US. |
Omrod LJ (with whom Stamp LJ and Sir David Cairns agreed): The welfare report from California strongly suggests that the step-father would not be granted custody in California. If that is so, there is the likelihood that the children, if returned to the U.S., would soon afterwards be returned to England. This is not in their best interest, so the Court should assume jurisdiction, refuse the request for a peremptory order, and grant custody to the father. The Court affirmed In re L (Minors), expressly disapproving of the trial judge's statement that a peremptory return of the children to the US was necessary in the absence of evidence that the children on their return would face obvious moral or physical danger. The children were made wards of the court for two years. |
|
In re L (Minors) [1974] 1 WLR 250 |
England Court of Appeal |
No. |
English woman living in Germany marries German national. The children grew up in Germany and speak German. Mother takes children to England indefinitely, using a ruse. Mother issued proceedings making children wards. Father sought custody and their return to Germany. |
Buckley L.T (with whom the other members of the Court agreed): Abduction of a child is just one of the factors to take into account. It may have great weight, depending on the surrounding circumstances. Even if an order has been made by a foreign court, the English court still has the option to decide against ordering the child to be summarily removed from Britain. A court may summarily return an abducted child if it believes that the best interests of the child dictate a speedy return to its familiar environment. Decision to send children back to Germany with father affirmed. |
|
Re R (A Minor: Abduction) [1992] 1 FLR 105 |
England Supreme Court Family Division |
Yes |
Plaintiff aunt had custody of child in Germany. Sister (and child's mother) abducted child to England. Aunt seeks child's return under the Convention. Convention requires child's return unless, inter alia, child objects and is mature enough to make those views worth considering. |
Child's views were very strong in favour of remaining in England and judge decided she was mature enough to understand the preference she was expressing and the ramifications. Accordingly, Article 13 of the Convention was invoked by the Court. Confirmed that the Convention does not have the welfare of the child as it's central tenet. |
|
Re H: Re S [1991] 3 All ER 230 |
England House of Lords |
Yes |
In both cases applications were made to invoke the Convention, but it was argued that removal of the children to England from Ontario and California as per Article 3 had occurred before the Convention came into force between England and canada and the U.S. The judge at first instance agreed and the applications were dismissed. |
"Removal" or "retention" as per Article 3 means "removal" or "retention" out of the jurisdiction of the courts of the country of the child's habitual residence rather than merely removal out of the care of the parent having the custodial rights within the country of the child's habitual residence. As the Convention did not apply, the appeals were dismissed. |
|
Ref [1990] 3 All ER97 |
United Kingdom Court of Appeal |
No. |
Parents both Israel citizens. Children grew up substantially in Israel. Parents separated and received Israel order for joint custody. Father brought one child to England. Mother obtained Israel order for return and sought order from English court to enforce. The judge at first instance refused to make the order without further evidence being made available. |
Lord Donaldson MR (with whom the other members of the Court agreed): In custody proceedings, the welfare of the child is the paramount consideration. This will usually mean that a child should be returned to the jurisdiction from whence it has been removed. Exceptions will arise in circumstances such as those in Article 13 of the Convention (grave risk of physical or psychological harm; mature child objects) or where there is the prospect of the child facing discrimination or persecution. The Court ordered the return of the child to his father in Israel. |
|
Re H.(infants) • [1966] 1 All ER 886 |
England Court of Appeal |
No |
Mother Scottish but long time U.S. resident. Married natural born American and 2 children born in U.S. Marriage broke up. New York court ordered by consent that children stay in NY in custody of mother. Later, mother covertly took children to England and had them made wards of the Court. The judge at first instance ordered the boys' return to NY., without conducting a full investigation of the facts. |
Wilmer LJ : It was in their interests to return the boys to the U.S. as soon as possible. The judge at first instance heard a "considerable body of evidence" and was entitled to refrain from an examination of all disputed questions of fact. McKee recognises that a summary order for return does not amount to an abdication of jurisdiction. Harman LJ : McKee does not mean that in all infant cases, the Court is bound to examine the whole of the circumstances surrounding the child's welfare before it acts. Russell LJ: The welfare of the child is the paramount, but not the only, consideration. Judge at first instance was entitled to order their return to NY before a full hearing on the merits had occurred. |
|
In re T.(Infants) [1968] Ch 704 (1968) 3 All ER 411 |
England Court of Appeal |
No |
Mother English. Moved to Alberta,Canada. Married a Canadian. Later, she removed the children to England and arranged for them to be made wards of the Court. The father sought their return to Canada. Both parties filed all the evidence they wished and were cross-examined. The father was granted the return of the children. |
The court affirmed the decision of the judge at first instance, noting that the orders made were not summary orders, as a full hearing on the merits had occurred. Based on that full hearing, the judge had decided that the best interests of the children would be served by their return to Canada and a subsequent Canadian determination as to custody. The Court should, all things being equal, set itself against the unilateral movement of children across borders. |
|
Re 0 (Minors) [1982] 3 FLR 146 |
England Court of Appeal |
No |
Parents both Nigerian but with British citizenship. The children were born in England. Family returned to Nigeria. Mother takes children unilaterally out of Nigeria and back to England. The children were made wards of the Court. At first instance the judge ordered that custody should go to the husband and that the children should be returned to Nigeria. |
The judge at first instance had certain affidavit evidence before him and the Court of Appeal received more evidence on behalf of both parties. The judge at first instance ordered the children's return "because he felt that it was in the interests of the children that they should return to Nigeria and that it was so plain that it was in their interests that the mother was prevented from delaying further by asking for further evidence...". (at p.149) As the trial judge felt that prima facie it was in the best interests of the children that they return to Nigeria, he had applied the correct test. Appeal dismissed. |
|
Re R (Minors) [1981] 2 FLR 416 |
England Court of Appeal |
No |
Parents married in England. Soon after, they moved to Israel and had three children. later, separated.No order for custody but order that children not be taken out of Israel.. Mother took children to England and had them made wards. Mother produced evidence to court but father refused, simply saying that Rabbinical Court order for children's return (which he had by now obtained) be recognised. |
The Court acknowledged that there had been confusion in the courts as to the principles to be applied in the "parental jurisidction" when dealing with so‑ called "kidnapping" cases. The Court affirmed that s.1 of the Guardianship of Minors Act 1971 ( UK) ‑ that in proceedings involving custody or upbringing of children, welfare is the paramount consideration - encapsulates the principle which has always guided Chancery. The Court disapproved of Re H because of its formulation that unless a child will be harmed, a summary order for its return to the foreign jurisdiction will usually be appropriate. The Court said: "It follows that the strength of an application for a summary order for the return of the child to the country from which it has been removed, must rest, not on the so-called "kidnapping" of the child, or an order of a foreign court, but on the assessment of the interests of the child....the discouragement [of kidnapping] must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his or her own country, but not the sacrifice of the child's welfare to some other principle of law." |
COMPARATIVE INTERNATIONAL LAW POSITION: CANADA
1. The welfare jurisdiction
1.1 A Canadian court has jurisdiction to determine the issue of the welfare and custody of a child within its territorial jurisdiction, either by virtue of specific guardianship/welfare legislation in the various Provinces and/or indirectly via the parens patriae power: McKee -v- McKee [1951] AC 352, at p.360; Charmasson -v- Charmasson (1982) 131 DLR (3d) 74, at p.79; Burgess -v- Burgess (1977) 75 DLR (3d) 486, at p.494 and pp.498-499; Re Lavitch and Lavitch (1986) 24 DLR (4th) 248, at p.252; Dalshaug -v- Dalshaug (1973) 41 DLR (3d) 475, at p.4'7'7; Menasce -v- Menasce 40 DLR (2d) 114, at p.116.
2. Exercise of the discretion to decline jurisdiction
2.1 When a court's parens patriae power is invoked, the paramount consideration becomes the welfare of the child. A court may in the exercise of its discretion decline to undertake a full investigation of the child's welfare and instead order the return of the child to the foreign jurisdiction. This can only occur, however, once the court has exercised its jurisdiction to the extent of determining that this course is in the best interests of the child: McKee, at pp.363-4; Burgess, at pp.493-494 and at p.506; Charmasson, at p.79, Menasce, at p.119; Re Hjorleifson and Gooch (1986) 28 DLR (4th) 134, at p.139.
3. The need for the merits to be considered
3.1 The position the Canadian courts begin with when exercising parens patriae powers (or their statutory equivalent) is that the paramount consideration (although not the only consideration) is the welfare of the child: McKee, at p.364; Re Loughran and Loughran (1972) 30 DLR (3d) 385, at p.386; Burgess, at p.494 and p.496; Charmasson, at p.76 and p.78; Re Hjorleifson and Gooch, at p.139.
3.2 A court should ordinarily undertake a full investigation of the merits of the situation: McKee, at pp.363-364; Menasce, at p.116 and p.119; Re Stalder and Wood (1975) 54 DLR (3d) 157.
3.3 In circumstances where there are extant orders of a foreign court or where proceedings have been initiated in the foreign jurisidiction in which the child was most recently resident, this will be a not insignificant factor in assessing what is in the best interests of the child and may consequently reduce the extent and scope of the merits investigation: Burgess, at p.493 and p.506; Charmasson, at p.79; McKee, at p.365; Dalshaug .-v Dalshaug, at p.4.77.
3.4 Although the best interests of the child is the paramount consideration, the proper or fair administration of justice is also a factor to be considered. A combination of these considerations may dictate an order for the return of the child, provided no harm or detriment would occur in so doing: Burgess, at p.495 and p.506; Dalshaug, at p.477; Re Hjorleifson, at p.139; and Re Loughran and Loughran, at p.386.
COMPARATIVE INTERNATIONAL LAW POSITION: NEW ZEALAND
1. The welfare jurisdiction
1.1 The Guardianship Act 1968 (NZ) (the "Act"), which came into effect on 1 January 1970, declares at s.33 that henceforth, "[E]xcept as otherwise expressly provided in this Act, the provisions of this Act shall have effect in place of the rules of common law and of equity relating to the guardianship and custody of children." The parens patriae power was not specifically preserved, although the High Court's wardship jurisdiction remains in tact: s.9 of the Act.
1.2 In any event, section 23 of the Act provides that in any proceedings involving the custody or guardianship of a child, the Court shall regard the welfare of the child as the first and paramount consideration. The Court shall have jurisdiction under the Act whenever the child is "present", resident or domiciled in New Zealand at the time of the application to the Court: s.5 of the Act.
2. Exercise of the discretion to decline jurisdiction
2.1 "Where an application for custody is made to a New Zealand court by a person who has abducted the child from another country for the purpose of defeating an order made in that country but not registered in New Zealand or for the purpose of preventing the exercise of access, the New Zealand court will normally assume jurisdiction and inquire into the merits rather than simply order the return of the child.": Family Law Guide, Professor PRH Webb et al, Butterworths, Wellington, 1991, at p.264; Re B (Infants) [1971] NZLR 143, at p.145.
3. The need for the merits to be considered
3.1 In Re B (Infants), the Court of Appeal affirmed that in view of s.23 of the Act, the judgment of Lord Simonds in McKee -v- McKee [1951] AC 352 described the proper approach for the New Zealand courts in child welfare cases involving abduction: at p.145. Once it is established that the Court has jurisdiction, the welfare of the child is the paramount consideration: E -v- F, at p.441; Howett -v- Howett (1988) 5 NZFLR 161; McGowan -v- Chorba (1989) 5 NZFLR 417. It has been held by the Court of Appeal [Re B (Infants)] that "... the statutory mandate to treat the welfare of the child as the first and paramount consideration applies in this situation [abduction] and requires an investigation into the merits unless in the circumstances it can be said that the best interests of the child will be served by simply giving effect to the overseas order.": Family Law, at pp.264- 265. See also E -v- F [1974] 2 NZLR 435, at p.438.
3.2 As the Privy Council explained in McKee, there will be situations where the best interests of the child dictate the speedy return to the place of most recent habitual residence of the child. C -v- C [1973] 1 NZLR 129 is one such example.
3.3 In C -v- C, the Court suggested that the weight to be accorded to a foreign court order is influenced by the status of that court, the nature of the hearing and the system of law employed in that country: at pp.130-131.
THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
- The "Convention on the Civil Aspects of International Child Abduction" (the "Convention") was adopted on 24 October 1980 at the 14th session of The Hague Conference on Private International Law. The vote was unanimous and Australia was one of the twenty-four States present. The Convention entered into force on 1 December 1983 although Australia delayed ratification until 25 October 1986. Australia ratified the Convention without making any reservations.
- Consequent upon ratification, the Family Law (Child Abduction Convention) Regulations (the "Regulations") were made pursuant to s.111B of the Family Law Act 1975 (Cth). The Regulations commenced operation on 1 January 1987. The text of the Convention appears as Schedule 1 of those Regulations.
- The Regulations (as amended) provide the practical framework and mechanisms for the implementation in Australia of the requirements of the Convention.
- Article 1 states that the objects of the Convention are to "secure the prompt return of children wrongfully removed to or retained in any Contracting State" and "to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." A child is defined as being no older than sixteen years: Article 4.
- A child is "wrongfully removed ... or retained ..." where the child, immediately before the alleged wrongful removal: was habitually resident in the Contracting State; that State attributed to the applicant rights of custody; and the applicant was exercising those rights at the time (Article 3).
- Each Contracting State is required to establish a "Central Authority": Article 6. A person may apply to that Central Authority for assistance in seeking the return of the child: Article 8. The Central Authority must first attempt to obtain the voluntary return of the child. If this fails, the Central Authority must institute or cause to be instituted administrative or judicial proceedings: Article 11.
- If a child has been in the Contracting State for less than one year from the date of the application to that State's Central Authority, the court (or other authority) must order the return of the child forthwith: Article 12. If the child has been in the Contracting State for more than one year, its return must still be ordered unless "the child is now settled in its new environment.": Article 12.
- There is an all-embracing exception in Article 13, which states that where there is a grave risk of the child being exposed to "physical or psychological harm" or an otherwise "intolerable situation" or where the child expresses a contrary view and has reached an age and degree of maturity at which it is appropriate to consider those views, he or she need not be returned.
- The Contracting States are listed in Schedule 2 of the Regulations (copy attached). In addition, but yet to be included in that list, are: The Commonwealth of the Bahamas; The Republic of Honduras; The Republic of Panama, The Republic of Chile; The Republic of Slovenia; The Czech Republic; and the Slovak Republic. There are presently 36 Contracting States.
Last updated 03 March 2006.