Hunter v Murrow

Under the Hague Convention on the Civil Aspects of International Child Abduction 1980, the court must first identify the applicant’s rights under the domestic law of the child’s habitual residence. It must then decide for itself whether those rights are rights of custody in the Convention’s autonomous sense.

An Article 15 determination by the habitual-residence state is persuasive only. It cannot bind the requested court on the Convention question. A request may assist in establishing domestic-law rights, but it should not be used solely to obtain another court’s view of autonomous Convention law where it will cause delay.

On the English authorities, simple contact arrangements do not alone amount to rights of custody. The distinction between custody and access therefore prevented a summary return remedy.

The mother removed her son from New Zealand to England. The father applied in England for a return order under the Hague Convention and, alternatively, under the court’s inherent jurisdiction.

By consent, Hedley J requested a New Zealand determination under Article 15. The New Zealand Family Court, upheld by the High Court, held that the father’s regular contact amounted to rights of custody and that the removal was wrongful. Singer J held that the New Zealand determination did not bind the English court and that the father had only rights of access under the Convention as interpreted in England and Wales.

The father appealed. The central issues were the effect of the Article 15 determination and whether regular contact arrangements constituted rights of custody.

Decision

1. The court unanimously dismissed the father’s appeal. Singer J was entitled to hold that the removal was not wrongful for Hague Convention purposes because the father had only simple contact arrangements, not rights of custody.

2. Thorpe LJ held that an Article 15 determination from the child’s state of habitual residence is not binding on the requested court. It is entitled to comity and may be persuasive, but the requested court must form its own view of the autonomous Convention question. The principle in Re J (a Minor) (Abduction: Custody Rights) [1990] 2 AC 562 applied even though the foreign declaration in that case had not been made following an Article 15 request.

3. Dyson LJ explained the required sequence. The court first identifies the applicant’s actual rights under the domestic law of the habitual-residence state. It then characterises those rights autonomously under Articles 3 and 5. Domestic labels are not decisive. The Convention must have an international and purposive meaning, informed by international jurisprudence.

4. Applying Re V-B (Abduction: Custody Rights) [1999] 2 FLR 192, the court maintained the English distinction between rights of custody and rights of access. A right to determine the child’s residence, such as a veto on removal, can be a custody right. Regular contact alone cannot be so characterised. The New Zealand approach, treating substantial intermittent possession and care as sufficient, was therefore incorrect for the Convention question before the English court.

5. An Article 15 request may nevertheless be useful where an authoritative and prompt determination of domestic-law rights is needed. Its suitability depends on the dispute, available expert or official evidence, alternative means of proving foreign law, and likely delay. It serves no useful purpose when directed solely to the autonomous Convention question.

The father’s inherent-jurisdiction application remained to be determined in the Family Division.

• Court of Appeal (Civil Division): dismissed the father’s appeal and upheld Singer J’s conclusion that the removal was not wrongful under the Hague Convention on the Civil Aspects of International Child Abduction 1980.

• High Court of Justice, Family Division: Singer J held on 26 April 2005 that the father had rights of access, not rights of custody, for Convention purposes.

• High Court of New Zealand: on 21 March 2005, dismissed the mother’s appeal from the New Zealand Family Court and upheld its determination that removal was wrongful.

• Family Court of New Zealand: on 21 February 2005, determined the Article 15 reference in the father’s favour.