Wednesday July 7 1999
Child's welfare in own culture paramount
In re E (Children) (Abduction: Non-Convention Country) Before Lord Justice Stuart-Smith, Lord Justice Pill and Lord Justice Thorpe
[Judgment June 24]
In deciding whether or not to order the immediate return of children abducted by their mother from their habitual residence in the Sudan, the welfare of the children, which was the court's paramount consideration, had to be looked at in the context of Sudanese custom and culture which applied Islamic Sharia law.
It was not for the English court to criticise the standards of, or paramount principles applied by the family justice system in a country of the child's habitual residence which was not a member of the Hague Convention on the Civil Aspects of International Child Abduction 1980, save in exceptional circumstances such as persecution or ethnic, sex or other discrimination.
The Court of Appeal so held, dismissing a mother's appeal against an order made by Mr Justice Connell on June 18, 1999 in which he dismissed the mother's application, inter alia, for an interim residence order, granted the father's wardship application, and ordered that the three sons of their former marriage be returned to the Sudan forthwith.
The Sudanese mother, who was divorced from the Sudanese father, had brought their three sons from the Sudan to their father in England in defiance of an order of a Sudanese court, made in accordance with Islamic Sharia law, that the children should reside with their paternal grandmother after the mother's remarriage. The Sudanese order allowed the mother contact once a week and made provision for her to visit at any time.
Ms Geraldine More O'Ferrall for the mother; Mr Nicholas Carden for the father.
LORD JUSTICE THORPE said that the judge had found that the mother and father were practising Muslims. The father spent half his time in England and half in the Sudan where he intended to return shortly.
The children had been habitually resident in the Sudan until May 1999, when they were removed from familiar surroundings to the United Kingdom, speaking little English.
The judge had heard evidence that under Sudanese personal law the normal rule when the mother remarried was that the children would be cared for by the maternal grandmother and, if that was not possible by the paternal grandmother.
The mother, relying on In re J.A. (Child Abduction: Non-Convention Country) ( 1 FLR 231), submitted that the effect of the judge's order was to separate the children from both their parents and to return them to a country where there was no discretionary review of the circumstances, but a rigid application of Islamic law which deprived them of a natural upbringing, and whose regime was inimicable to the children's welfare.
The ease of international air travel had created the evil of international child abduction. The response of the international community had been the negotiation of the Hague Convention on the Civil Aspects of International Child Abduction 1980.
The 57 member states, including the United Kingdom, by and large derived their sense of law and justice from the Judaeo-Christian root.
No state that settled civil and family disputes according to Islamic law had yet joined the club. There was no requirement of minimum standards of the family justice system in the acceding state before accession was recognised.
The welfare principle as paramount had been the cornerstone of the family justice system in this jurisdiction for many years. It was regarded as a touchstone in measuring the quality of other family justice systems.
The United Nations charter on the rights of the child required no less, but what constituted the welfare of the child had to be subject to the cultural background and expectations of the jurisdiction striving to achieve it. It was not possible to regard it as an absolute standard.
It would be unrealistic to suppose that the concept of child welfare was equally understood and applied throughout the 57 member states of the Convention.
A recognition of that reality had to inform judicial policy with regard to the return of children abducted from non-member states.
The principles determining the outcome of applications for the return of children abducted from non-member states had been considered in a line of cases in the Court of Appeal culminating in In re J.A. in which Lord Justice Ward emphasised that the welfare consideration was always paramount and said (at p243):
"It is an abdication of the responsibility and an abnegation of the duty of this court to the ward under its protection to surrender the determination of its ward's future to a foreign court whose regime may be inimicable to the child's welfare. If driven to it I would reluctantly say that the decision of this court in In re M (Abduction: Peremptory return order) ( 1 FLR 478) was decided per incuriam."
His Lordship was in complete agreement with the first sentence, but he did not share Lord Justice Ward's view that In re M was decided per incuriam.
It could be woven into a legitimate place in the broad cloth of authority, bearing in mind that statements of judicial principle were always susceptible to the requirements of family cases.
Lord Justice Waite in In re M had said (at pp480-481):
"Underlying the whole purpose of the peremptory return order is a principle of international comity under which judges in England will assume that facilities for a fair hearing will be provided in the court of the other jurisdiction, and that due account will be taken by overseas judges of what has been said, ordered or undertaken to be done within the English jurisdiction.
"That is of course reciprocal. It has to be presumed that judges in other countries will make similar assumptions about the workings of our own judicial system."
As a general principle of private international law that was properly stated: see also In re S (Minors) (Abduction) ( 1 FLR 297), which held that it would not be appropriate to deny the Pakistan courts jurisdiction merely because they would try to give effect to what was the child's welfare from the Muslim point of view.
His Lordship was also attracted by a passage of Mr Justice Brennan in ZP v PS ((1994) 181 CLR 639, 665) which emphasised the importance of according to each state the liberty to determine the family justice system that it deemed appropriate to protect the child and to serve his best interests.
There was an obvious threat to comity if a state whose system derived from Judaeo-Christian foundations condemned a system derived from an Islamic foundation when that system was conceived by its originators and operators to promote and protect the interests of children within that society and according to its traditions and values.
The number and diversity of Hague Convention member states had made it impossible to formulate minimum standard requirements of other family justice systems before recognising accession.
As a matter of logic, if there was no investigation or criticism of the family justice systems operating in the member states, his Lordship was extremely doubtful of the wisdom of permitting the abducting parent, or enabling a judge in this jurisdiction, to criticise the standards or paramount principles applied by the family justice system in the non-member state of habitual residence, save in exceptional circumstances such as persecution or ethnic, sex or other discrimination: see In re F (a Minor) (Abduction: Custody rights) ( Fam 25, 31).
Lord Justice Pill delivered a concurring judgment and Lord Justice Stuart-Smith agreed.
Solicitors: Miles & Partners; Sally Morris, Edgware.
Copyright 1999, Times Newspapers Ltd.