Where mother of minor child whose habitual residence is Saudi Arabia wishes to retain child with her in England indefinitely, House of Lords unanimously rules that trial court acted within its discretion in allowing them to remain in England since cardinal criteria for court to apply centers on welfare of child not on stricter provisions of Hague Abduction Convention since Saudi Arabia is not party thereto
J, the five-year-old boy in question, had a father (F) who was a Saudi Arabian citizen. The mother (M) had dual Saudi Arabian and British nationality, having been born in the U. K. to Iraqi Kurdish parents who had come there as refugees. F and M married in 1999 in Saudi Arabia, but were divorced there two years later. M bore J in April 2000 while in the United States for medical treatment, thus granting U.S. citizenship to J. The parties remarried in 2002. Later that year, M and J sojourned in England with F's concurrence. The visit started out as a holiday but F later went along with their staying in Britain so that M could complete a one year master's degree course.
During this period, M filed a petition for divorce in the English Family Court. She also applied to the Muslim Council in London to obtain a divorce according to Shariah law derived from the Koran. F then applied for a specific issue order to have J summarily sent back to Saudi Arabia. F did not deny that the marriage was over, and that M should continue to care for J. On the other hand, he urged that the court order both of them to live in Saudi Arabia.
The first instance judge held that, except for one factor, J's return to Saudi Arabia would seemingly be in his best interests in the sense that his future might best be determined according to the norms of his own society. The decisive contrary elements were (1) that F had raised (and then withdrawn) charges about M's having an affair with another man and (2) that these allegations would have a disastrous impact on M and J under Saudi Arabian Shariah law. The judge therefore exercised his discretion to decline to make the order F had asked for.
The Court of Appeal (Civil Division) held that there could be no criticism of the judge's flawless direction on the applicable legal principles. Nevertheless, it allowed F's appeal, ruling that the judge had a much greater concern that F might again bring up M's alleged misconduct in the Shariah court than the evidence warranted.
M appealed to the House of Lords. In an opinion by Baroness Hale of Richmond, the Lords of Appeal reverse the Court of Appeal and reinstate the trial judge's ruling.
In addition to the proper extent of the trial judge's discretion, the issue arose as to how, if at all, it was relevant that the laws and procedures in Saudi Arabia differed from those that would apply if an English court were to determine J's future. F argued for a strong presumption that it was very likely to be in the best interests of a child subject to unauthorized removal or retention to be sent back to his country of "habitual residence" so that its courts could determine any remaining issues.
Saudi Arabia, however, is not a party to the 1983 Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670]. Technically, had this been a Convention case, M's action would probably have amounted to a wrongful retention of J, though far removed from the popular picture of a "kidnaping" or even an "abduction."
The Lords of Appeal decide that the Court of Appeal had gone too far in tampering with the exercise of the trial judge's discretion. If there was a discretion in which various factors were relevant, the weighing of those factors rested upon the trial judge. Only if his decision was so plainly wrong that he had assigned far too much weight to a particular factor was the appellate court supposed to interfere.
If trial judges come to believe that, even if they directed themselves impeccably on the law and made findings of fact based on the evidence, an appellate court was liable to set aside their decisions unless they reached a particular conclusion, they will soon conclude that they did not in effect have any choice or discretion in the matter.
The Lords point out that under English statutes and common law, its courts should try to determine what is in the best interests of the child as the cardinal criterion in child custody matters. "[On the other hand] the application of the welfare principle may be specifically excluded by statute; one example is the Child Abduction and Custody Act 1985, passed to give effect in domestic law to two international treaties, the Hague Abduction Convention [cited above] ... and the European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children."
"Both treaties were motivated by the belief that it is in the best interests of children for disputes about their future to be decided in their home countries, and that one parent should not be able to take a child from one country to another, either in the hope of obtaining a tactical advantage in the dispute or to avoid the effects of an order made in the home country. Instead of deciding the dispute itself, therefore, the country to which the child was taken agreed that, with very few exceptions, it would either send the child back or enforce the order made in the home country."
"This necessarily meant that the receiving country might on occasion have to do something which was not in the best interests of the individual child involved. The States which became parties to these treaties accepted this disadvantage to some individual children for the sake of the greater advantage to children in general. Parents would be deterred from moving their children across borders without consent. States which sent other countries' children back could expect that other States would send their own children back in return. The obligations were mutual and reciprocal." [ΒΆ 20]
"The [Hague] Convention is widely regarded as a great success, particularly in combating the paradigm case which its authors had in mind: the child who was living with one parent but snatched or spirited away by the other. Currently the Convention is in force between the United Kingdom and the [United States and the 73 other] Contracting States listed in Schedule 2 to the Child Abduction and Custody (Parties to Convention) Order 1986 (SI 1986/1139), as amended."
"In at least three Contracting States, Turkey, Turkmenistan and Uzbekistan, the predominant religion practiced by their populations is Islam. Obviously, the cultures and legal systems of the Contracting States will differ widely from one another. All are prepared to accept these differences for the sake of the reciprocal benefits which membership can bring. But one group of States is conspicuous by its absence. These are States which adopt some form of Shariah law." [ΒΆ 21]
"There is no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which are not parties to it. Section 1(1) of the 1989 Act, ... is of general application. This is so even in a case where a friendly foreign state has made orders about the child's future." [ΒΆ 22]
"Hence, in all non Convention cases, the [English] courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration. ... Hence, the first two propositions set out by [the trial judge] in this case were entirely correct: the child's welfare is paramount and the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non Convention case." [ΒΆ 25]
Citation: Re J (a child), [2005] U.K.H.L. 40 [2005] All E.R. (D) 150 (Jun), (House of Lords, June 16)(Approved judgment).
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