b>Judgement of Solomon
By Gill Rivers, Collyer Bristow, London



The relative ease with which individuals are now able to cross borders and frontiers has led to an inevitable increase in disputes between parties and jurisdictions.



Solicitors are now frequently called on to advise in connection with the retention or possible unlawful removal of a child from a particular jurisdiction.



Several laws have been developed to assist and there is, perhaps most notably, the Hague Convention on the Civil Aspects of International Child Abduction 1980. The aim of the convention is to mitigate the damaging effects of wrongful parental removal of children in breach of custody rights. Its objectives &150; notwithstanding subsequent reviews &150; have remained faithful to Elisa's Pérez-Vera`s explanatory report. In that report, the principles of breach of 'custody rights' and determination of the issue in the state where the child had its 'habitual residence' prior to removal, have remained at the heart of the convention.



Last November, the fifth meeting of the special commission convened in Holland to review the operation of the convention. Each of the 76 contracting states was represented and several observer countries participated. Lords Justice Thorpe and Wall, together with representatives from the Department for Constitutional Affairs, the International Child Abduction and Contact Unit and the Foreign and Commonwealth Office represented the UK. Non-governmental organisations included the International Bar Association and the International Academy of Matrimonial Lawyers.



At the meeting, thoughts strayed to the passage in The First Book of Kings (chapter 3: 23-27): 'It shall be neither mine nor yours - divide it!' Solomon judged the true identity of the mother of the child who was the subject matter of the dispute, between two women, by an application of his belief that a mother's love would always act to protect her child. The mother considered making a sacrifice &150; separation from her child &150; to be preferable to allowing the poor wretch to be sliced in two.



Would that always be the case? Sadly, family lawyers are commonly presented with parents who, in apparent flagrant disregard for the best interests of their child, will do all they can to serve their own interests first.



The trend noticed by the fourth special commission meeting in 2001 commented that two-thirds of the taking parents were primary carers, most notably mothers. The incidence of wrongful removal is unabated, and parents continue to take the law into their own hands. Parents, in these cases, appear to pay little regard to the established conclusion that to do so will inevitably damage their children.



The Permanent Bureau of the Hague Conference on Private International Law will publish a detailed report setting out the conclusions of the meeting. Notwithstanding debate on the issue, it was decided that there would be no definition of parental responsibility within the convention, such that could be universally applied to the breach of rights of custody contained in article 3. Similarly, the issue of habitual residence will not be altered and will remain a matter of fact for the state charged with disposal of the issue to determine.



However, the special commission recognised the strength of arguments in favour of a protocol to the convention, which might clarify the obligations of states under article 21 (rights of access) and make clearer the distinction between 'rights of custody' and 'access rights'. But it was agreed that priority should be given to the efforts in relation to the implementation of the Protection Convention 1996.



Support was given for the continued publication of The Judges' Newsletter on International Child Protection.



The debate over the section 13(b) 'grave hardship' defence to return of the child concluded that it should be narrowly construed. It was also noted that in convention cases within the EU, article 11.4 of the Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003) provides that a court cannot refuse to return a child on the basis of the article 13(b) defence, if it is established that adequate arrangements have been made to secure the protection of the child after its return.



On 16 November 2006, the House of Lords handed down the judgment in Re D (a child) [2006] UKHL 51. This arrived, coincidentally, closely on the heels of the conclusions and recommendations from the special commission meeting.



The case concerned boy A, who was born in Romania on 17 July 1998. His parents were married in Romania in January 1998 and divorced there in November 2000. In December 2002, the mother brought the boy to England without the knowledge or consent of his father. Proceedings under the Child Abduction and Custody Act 1985 and the Hague convention were launched in February 2003.



The effects of orders made about A during the divorce proceedings were disputed between the parents, and each party was permitted to adduce expert evidence. The judge, unable to make a determination on the expert evidence before him, made a direction that a determination be obtained from a Romanian court, pursuant to article 15 of the convention. These proceedings were resolved on 9 June 2005, when the final court of appeal in Romania ruled that the removal of A to the UK had not been wrongful under Romanian law.



Notwithstanding this ruling, the parties were given an additional opportunity to obtain further evidence on Romanian law by way of joint instruction of an expert. The expert came to a different conclusion to that of an expert instructed in the Romanian action, and the parties were permitted to put further questions to him.



The case was eventually heard in February 2006 and A`s immediate return to Romania was ordered on certain undertakings being given by the father. The mother then issued proceedings in Romania, seeking permission to remain in the UK with A. Those proceedings have yet to be heard.



The mother also appealed against the English order. The child made an application to be joined in the proceedings, which was refused by the Court of Appeal. On 24 May 2006, the appeal court dismissed the mother's appeal (see [2006] EWCA Civ 830). She then appealed to the House of Lords. A, through his litigation friend from the Children's Legal Centre, was given leave to intervene in the appeal.



Baroness Hale stated: 'The simple question before us is whether A should now be returned to Romania, some three years and ten months after he left. But this depends on the answers to some more complex questions arising under the Hague convention. The first, and most important, is whether removing A from Romania to England was "wrongful" within the meaning of article 3 of the convention. Only then does the duty under article 12 to return him to his home country arise.



'Central to the answer to that question is whether the father has "rights of custody" or only "rights of access" within the meaning of article 5. In answering that question, the effect of the Romanian judgment under article 15 must be considered. If the conclusion is that the removal was wrongful, two further questions arise. Is the court entitled to refuse to return the child under article 13 - either because there is a grave risk that his return would place him in an intolerable situation or because he objects to his return and is he of an age and maturity where it would be appropriate to take account of his views?'



The conclusion reached by the judge and endorsed by Lords Nicholls, Hope, Carswell and Brown was that: 'The United Kingdom may be justifiably proud of its record in speedily returning abducted children to their home countries. However, the convention does not require the return of each and every child brought to this country without the consent of the other parent. There are some cases, albeit few in number, where this is not required. This was clearly one of them - the child's removal to this country was not wrongful.'



The appeal was allowed and the proceedings dismissed.