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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 43
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P2862/06
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OPINION OF LADY
PATON
in the petition of
T
Petitioner;
for
An Order under the
Child Abduction and Custody Act 1985
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Burr, Advocate; Anderson Strathern
Respondent: Wylie, Advocate; J.K. Cameron;
Digby Brown
27 February 2007
Whether
Polish divorce decree gave father rights of custody within Hague Convention
[1] The
parties are Polish. They were married
and divorced in Poland on 30 October 1993 and 19 March 2004 respectively.
They have two children, both born in Poland, a daughter K and a son M,
born on 28 March 1993 and 1 June 1999 respectively.
[2] The
divorce decree granted by the Polish court as translated was in the following
terms:
"2. Rules that the respondent [the mother] shall
exercise the parental authority over the minor children: K born on March 28 1993 and M born on June 1
1999 and the petitioner's [the father's] parental authority shall be limited to
co-decision-making in choosing school and profession and choosing the method of
treatment in case of serious illness and that the respondent shall inform the
[petitioner] of the minor children at the petitioner's demand and give him
periodic information and shall give ready ear to the petitioner's remarks ...
4. Determines the access of the petitioner [the
father] to minor children K and M on Wednesday and Saturday each week from 4 p.m.
to 7 p.m. and every second week from Friday 4 p.m. to Sunday 7 p.m.; the petitioner is entitled to take the minor
children outside their place of residence ..."
[3] In
2006, the respondent came to Scotland seeking employment. She managed to find a job and
accommodation. She wished to remain in Scotland, and to have her children
live with her. On 17 August 2006, the children were brought to Scotland by their maternal
grandmother, to join their mother.
[4] The
children's father (the petitioner) continued to live in Poland. He complained that the children had been
wrongfully removed from Poland. He raised the present proceedings seeking the
return of the children in order that a Polish court could deal with the
parties' dispute. The respondent's
primary defence was that the petitioner had no "rights of custody" in terms of
the divorce decree, and did not qualify for the protection granted by Articles
3 and 5 of the Convention on the Civil Aspects of International Child Abduction
(the Hague Convention). Those Articles
provide:
"Article 3
The removal or the retention
of a child is to be considered wrongful where -
a) it is in breach of rights
of custody attributed to a person ... either jointly or alone, under the law of
the State in which the child was habitually resident immediately before the
removal or retention; and
b) at the time of removal or
retention those rights were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or retention.
The rights of custody
mentioned in sub-paragraph a) above, may arise in particular by operation of
law or by reason of a judicial or administrative decision, or by reason of an
agreement having legal effect under the law of that State ...
Article 5
For the purposes of this
Convention -
a) "rights of custody" shall
include rights relating to the care of the person of the child and, in
particular, the right to determine the child's place of residence;
b) "rights of access" shall
include the right to take a child for a limited period of time to a place other
than the child's habitual residence."
[5] After
sundry procedure, a debate on the question of rights of custody took place
before me at a continued first hearing on 26 January
2007.
Submissions
at the continued first hearing
Submissions
on behalf of the petitioner
[6] Counsel
for the petitioner stated that there was no dispute that the children's
habitual residence was in Poland. The question was whether the petitioner's
rights under the divorce decree, coupled with the Polish Family and
Guardianship Code, amounted to "rights of custody". Counsel referred to articles 93(1) and 97 of
the Polish Code. Those articles
(translated) provide:
"Article 93. 1. Parental authority shall be vested in both
parents ...
Article 97. 1. If parental authority has been vested in both
parents, each of them has the obligation and the right to exercise it.
2. However, important matters concerning the
child shall be decided upon by the parents jointly; in the case there is no agreement between them,
the decision shall be made by the guardianship court."
There had been no derogation or suspension of the petitioner's
rights under Articles 110, 111, or 112 of the Code. The opinion of a Polish lawyer Henryk Szulc,
dated 27 December 2006, supported the view that
the petitioner had rights of custody.
[7] The
ability to co-decide as to choice of school was of particular significance, and
indicated that the petitioner had rights of custody, as his parental authority
extended to such a vital issue. Thus,
quite apart from the Polish lawyer's opinion, it could be seen from the power
relating to the choice of school that the petitioner had rights of
custody. Even if there was a limitation
on the pursuer's parental authority, he still retained the right to make a
decision as to school.
[8] Counsel
invited the court to prefer the opinion of Mr Szulc to that of Magdalena
Guzewicz, a Polish lawyer instructed on behalf of the respondent. However even on the basis of the latter's
opinion, the right to choose a school meant that the petitioner had rights of
custody.
[9] The
term "rights of custody" should be construed in its widest sense: In re B (A Minor) (Abduction) [1995] 2
F.C.R. 505, Waite L.J. at page 517E to 518;
C v C (Minors) (Child
Abduction) [1992] 1 F.L.R. 163, at page 170E. Moreover it was of importance that the
petitioner's consent had been required for the children's passports. The clear implication was that the petitioner
had a right to decide the children's place of residence in terms of country.
Submissions on behalf of the respondent
[10] Counsel
for the respondent contended that the petitioner did not have rights of custody
which would bring him under the Convention.
There had therefore been no wrongful removal of the children from Poland.
[11] The
question at issue was the limitation of the petitioner's rights in terms of the
divorce decree. The court was faced with
conflicting opinions from two Polish lawyers.
It was always open to the court to seek a declarator from a Polish
court. Counsel submitted that the
Scottish court should prefer the opinion of Miss Guzewicz dated 23 January 2007. She had
construed the terms of the divorce decree, rather than importing additional
matters such as a reference to Article 97.2 of the Code (as had Mr Szulc). The divorce decree could have contained an
express provision empowering the petitioner to co-decide about the children
travelling abroad: but it was silent on
that matter.
[12] It was
true that the divorce decree gave the petitioner a right of co-decision-making
as to choice of school, profession, and treatment in the case of serious
illness. Nevertheless counsel submitted
that the petitioner did not have the right to decide the children's place of
residence. He had a right to be informed
about their place of residence, and perhaps consulted about it: but he had no right to decide on their place
of residence. Counsel accepted that the
phrase "rights of custody" in Article 5 of the Convention should be construed
in its widest sense. But in some
countries, rights of custody were more restricted than in the United Kingdom,
and those restrictions had to be respected:
cf. Hale L.J. at paragraph 24, 26, 39, 42, and 43 of In re D (A
Child) (Abduction: Rights of Custody) [2006] 3 WLR 989.
[13] The
apparent requirement by the authorities in Poland that the petitioner should
sign applications for the children's passports could not easily be
explained. A Polish statute applicable
at the relevant time (the Passport Act 1990, Article 7(4)) tended to suggest
that the consent of a father such as the petitioner was required "unless it
appears from the decision of the court that one of the parents does not longer
[sic] have the right to decide on such a matter". Article 7(4) further provided that "if the
parents fail or are unable to grant such a consent, it shall be replaced by the
decision of the guardianship court". As
a matter of fact, the petitioner had agreed to sign in respect of his daughter
K, but not in respect of his son M. As a
result, the respondent had been obliged to apply to a court in relation to M's
passport. Her application had been
granted, but it was not known whether the court acted on the view that the
petitioner "no longer had the right to decide on such a matter" (cf. Article
7(4) of the 1990 Act) or whether the court had stepped into his shoes as
guardian and decided in the particular circumstances of the case that the
application for M's passport should be granted.
Accordingly the information available about the children's passports was
perhaps not sufficiently clear to support an argument one way or the other.
[14] It was
noteworthy that Poland had no provision equivalent to section 2(3) of the
Children (Scotland) Act 1995, which had the effect that a parent who had a
right of contact could veto the child being taken abroad: cf. AJ v FJ, 2005 S.C. 428;
and dicta of Lord Hope at paragraph [8] of In re D
(Abduction: Rights of Custody) [2006] 3 WLR 989.
[15] No
authority precisely in point had been found to assist with the resolution of
the present case, but counsel submitted that the main thrust of Article 5 of
the Convention was the right to decide residence. All other rights were secondary. Thus co-decision-making powers about school,
profession, and medical treatment did not affect the child's place of
residence. The power in relation to
medical treatment would be inherent in the award of access: the parent would in effect be in the position
of negotiorum gestor. What was
being set out in the divorce decree did not therefore necessarily amount to a
right of custody. As for the power to
decide on profession, the Convention applied to children under the age of
16. It was difficult therefore to see
where co-decision-making about profession would have any force (unless a child
were to be sent to a special school for example, training a child for the
stage, or for ballet, or tennis, or the violin). Thus if choice of school were the only real
"right", there was nothing implicit in that right to determine where a child should
reside.
[16] Counsel
accordingly contended that the co-decision-making powers about school,
profession, and medical treatment were not enough to bridge the gap between
what the petitioner had, and a "right of custody" in the Convention sense. There had to be something specific to the
place of residence or the country of residence, whether by reason of a veto or
a requirement for consent. The principle
of the Convention was set out in the preamble, and Article 19 echoed the
importance of residence. In the present
case, the father did not have any rights relating to place of residence. The father had the choice of school, but
nothing in relation to residence. He
could make decisions about the child's school, profession and medical
treatment, regardless of which country the child was in. There was therefore no need for the courts of
the home state to take decisions in relation to the child, because it was
implicit in the divorce decree that the petitioner had no co-decision-making
right about the child's residence.
Counsel submitted that if the mother wanted a school in Warsaw, but the father wanted a
school in Nowa Ruda, and the child was resident in Warsaw, then the father had no
power to decide that the child should live in Nowa Ruda: inevitably the choice of school would be
restricted to Warsaw. In other
words, the power to co-decide about the school or profession was fettered,
qualified, and defined to some extent by the mother's unrestricted entitlement
to choose the child's residence. The entitlement
to choose medical treatment during access was in itself not a right of custody.
[17] As
stated, counsel had found no authorities precisely in point. Seroka v Bellah, 1995 S.L.T. 204 was cited for information
only. The opinion of Miss Guzewicz
should be preferred to that of Mr Szulc.
Discussion
[18] In
terms of Articles 3 and 5 of the Convention on the Civil Aspects of
International Child Abduction (the Hague Convention), the phrase "rights of
custody" includes rights relating to the care of the person of the child, and
in particular, the right to determine the child's place of residence. As Hale L.J. observed in In re D
(Abduction: Rights of Custody) [2006] 3 WLR 989, at paragraph [26]:
"... The question is, do the rights possessed under
the law of the home country by the parent who does not have the day to day care
of the child amount to rights of custody or do they not? States' laws differ widely in how they look
upon parental rights. They may regard
the whole bundle of rights and responsibilities which the law attributes to
parents as a cake which can be sliced up between the parents: one parent having the custody slice, with the
package of rights which that entails, and the other having the access slice,
with the different package of rights which that entails. This is by no means an unusual way of looking
at the matter. Alternatively, the state
may regard the whole bundle of parental right and responsibilities as inhering,
and continuing to inhere, in both parents save to the extent that they are
removed or qualified by the necessary effect of a court order or an enforceable
agreement between them ..."
[19] In the
present case, Article 93.1 of the Polish Code specifically provides that
"parental authority shall be vested in both parents". A parent may be deprived of parental
authority, or have his parental authority suspended, in terms of Articles 110,
111, and 112 (deprivation or suspension in a decree of divorce). Neither of the Polish legal experts in this
case suggests that such suspension or deprivation occurred when the parties
were divorced. On the contrary, the
divorce court simply limited the petitioner's parental authority as set out in
the decree of divorce (an illustration of Hale L.J.'s second category), for the
practical reason that the children are to live with their mother. The decree defines the petitioner's limited
parental authority as co-decision-making in choosing school and profession and
choosing the method of treatment in case of serious illness, with a further
right to information and to be readily listened to on other matters. Notably, the decree does not give the
respondent sole discretion to determine the domicile and/or legal residence of
the children: contrast with the decree
in Seroka v Bellah 1995
S.L.T. 204.
[20] It
seems to me that the right of co-decision-making in choosing school and
profession and choosing the method of treatment in case of serious illness by
definition amounts to "rights relating to the care of the person of the child",
and, in certain circumstances, to at least a share in the "right to determine
the child's place of residence": cf.
Miss Guzewicz's opinion dated 23 January 2007, Answer 1, third paragraph; and Answer 4.
The rights given are the rights to co-decide on those matters, not
simply the right to be readily listened to (granted in relation to other
matters). Choice of treatment in the
case of serious illness will not necessarily, in my view, arise only during
access when the petitioner is in the position of negotiorum gestor. A child may develop a protracted serious
illness or condition for which specialised treatment is available only in
certain cities or countries. In relation
to school or profession, it is in my view unrealistic to assert that
co-decision-making-powers relating to choice of school or profession cannot or
should not affect the child's place of residence. To adopt such a construction would relegate
the alleged co-decision-making power to the status of the right to be readily
listened to: but the divorce decree
specifically distinguishes that type of right from the co-decision-making
right. The opinion of Mr Szulc supports
such an approach to the construction of the decree, and Miss Guzewicz's opinion
does not detract from it.
[21] In my
opinion therefore the Polish divorce decree, properly construed against the
background of the Polish Family and Guardianship Code and the opinions of
Polish lawyers, gives the petitioner rights of custody in terms of Articles 3
and 5 of the Convention on the Civil Aspects of International Child
Abduction. Such a result is also in
accordance with authoritative guidance that the term "rights of custody" should
be construed in its widest sense: In
re B (A Minor) [1995] 1 F.C.R. 505 and C v C (Minors) (Child Abduction) [1992] 1 F.L.R. 163.
[22] In the
result, I find it unnecessary to form any concluded view about the implications
of the procedure adopted in relation to the children's passports.
Decision
[23] It is
my opinion therefore that the Polish decree of divorce, properly construed,
confers rights of custody upon the petitioner within the terms of the Hague Convention. That being so, I understand that the
respondent now has further arguments to present, relating to intolerable
situation, consent, and the views of the child K. A further continued first hearing will now be
arranged to enable those matters and any other relevant matters to be
discussed.
