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Published online by Cambridge University Press: 27 February 2017
Appellant applied to an English court for the return of his son Thomas under the Child Abduction and Custody Act, 1985 (ch. 60), which gave statutory force to provisions of the Hague Convention on Child Abduction. The lower court refused the application on the ground that removal of Thomas to Australia without his mother would create a grave risk of serious psychological harm to the child. On appeal, the Court of Appeal unanimously held that the mother’s removal of Thomas from Australia was wrongful under the Hague Convention as a violation of the father’s rights of custody; that the exception in the Convention permitting courts to decline to order return of children when return would create a grave risk of harm to the child does not apply when this risk would occur only if the mother refused to accompany the child back to Australia; and that an order of the court for return of the child to Australia would issue on condition that the father fulfill his offer to give undertakings to the English court and the Australian Family Court regarding provision for Thomas and his mother in Australia.
1 Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, S. Treaty Doc. No. 11, 99th Cong., 1st Sess. (1985), reprinted in 19 ILM 1501 (1980) (entered into force for the United States July 1, 1988) [hereinafter Hague Convention]; implemented by International Child Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat. 437 (1988) (to be codified at 42 U.S.C. §§11601 et seq.).
2 Because she found that the child had been wrongfully removed from Australia, the Lord Justice felt it unnecessary to reach the question whether retention of the child in England was also wrongful. The Convention applies when either removal or retention is wrongful. See Hague Convention, supra note 1, Art. 3.
3 LEXIS, slip op. at 12.
4 The supplemental undertakings related to support, accommodation, travel and medical expenses for the mother and Thomas, assurances that the father would make best efforts to get Thomas into a specific preparatory school, assurances that the father would not seek or support contempt of court proceedings in Australia against the mother or seek to have her passport impounded, and assurances that the father would not attempt to take custody of the child prior to full adjudication of guardianship issues by the Australian Family Court.
5 Slip op. at 17.
6 In his opinion, Lord Justice Neil stressed that the father’s right to give or refuse consent for Thomas to be removed from Australia is a “right to determine the child’s place of residence, and thus a right of custody within the meaning of Articles 3 and 5 of the Convention.” Id. at 20. Lord Donaldson’s opinion emphasized that the language of the Convention must be construed according to the ordinary meaning of the terms used. Since the father clearly had “rights of custody” as defined by Article 3 of the Convention, it was irrelevant whether his right to refuse to allow the mother to remove Thomas from Australia would be considered a custodial right under either English or Australian law. Lord Donaldson also noted that some psychological harm to a child is inevitable, given the Convention’s machinery, but that it was the concern of the “home” courts—in this case, Australia’s—to mitigate the harm. Id. at 24–25.
7 W. at 16.
8 Hague Convention, supra note 1, Art. 1.
9 A. E. Anton, Chairman of the commission of the Hague Conference on Private International Law that drafted the Convention, wrote that the “grave risk of harm” exception was intended to provide a narrow ground for refusing to return abducted children. He specifically noted that “it has to be established that the child itself, and not the abductor, would be placed in an intolerable situation.” Anton, The Hague Convention on International Child Abduction, 30 Int’l & Comp. L.Q. 537, 551 (1981).
10 Slip op. at 17.
11 Under Article 13, the grounds for refusing to return a child are narrow and include, besides the provision on which the Court of Appeal relied, only removal or retention when custody rights are not actually being exercised by the person or entity enjoying those rights, or acquiescence by such person or entity in the removal or retention. In addition, Article 20 of the Convention allows the authorities in the asylum state to refuse to order the return of the child if return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”