§ Motion made, and Question proposed, that this House do now adjourn.—[Mr. John Stradling Thomas.]
§ 11.53 p.m.
§ Mr. Robert Hughes (Aberdeen, North)
I am grateful for the opportunity to discuss the problems of my constituent, Mrs. Sarah Campins, the difficulty that she is having in getting her children returned from Spain and the need for the Foreign Office to make representations on her behalf.
Mrs. Campins has two boys aged 8½ and 6½. She is worried about the welfare of her children. The enforced separation is causing her much mental anguish.
I regret that such cases are not unique—they are too familiar. They have been termed "tug-of-love" cases. They arise primarily because of the lack of international agreement and convention which would ensure that the awarding of custody by the courts of one country would be recognised by the courts of another.
This legal morass, for that is precisely what it is, leads to one parent engaging in what is termed child snatching in the hope that the domestic court in the country of his or her domicile will take a lenient view and legitimise the de facto custody which has taken place by an illegal act. This is sometimes known as legal kidnapping, which in my view is a grotesque contradiction if ever there was one.
I appreciate that attempts are being made to rationalise this matter and to regularise international law. For example, I am aware that in the Council of Europe a committee of experts is presently engaged in the preparation of a draft convention. I understand also that moves within the EEC are being made to produce some draft convention in a narrower sphere. But even if these were to be ready soon, and even if the draft convention were to be agreed, each country in turn would have to ratify the convention.
It is worth noting in passing that The Hague Convention of 1961 concerning the power of authorities and the law applicable to the protection of infants was signed only by Austria, France, West Germany, Luxembourg, the Netherlands, 1073 Portugal and Switzerland, and that that convention of 1961 has never been ratified by Britain. Therefore, for the likes of my constituent, Mrs. Campins, who is in immediate difficulty, a convention on jurisdiction and custody cases holds out no hope. It is for this reason that I raise her case tonight.
Mrs. Campins and her husband separated in late December 1974. In April 1977 she made an application to the ecclesiastical court at Tarragona, Spain, for a separation order. This separation order was granted and custody was awarded to her as she was adjudged to be the innocent party. I think it only fair to put on record that this separation order was later recalled by the court, but the point I wish to emphasise is that Mrs. Campins herself has done nothing illegal. Nor did she do anything illegal in returning to Scotland with the children.
On 12 August 1977 Mrs. Campins was awarded custody of the children in the Court of Session in Edinburgh, by Lord Stewart. On 28 December 1978 Senor Campins appealed by reclaiming motion to the Inner House of the Court of Session to have the custody determined. The Inner House confirmed the custody with Mrs. Campins but granted access in Spain, this access to commence at Easter 1979.
The children were returned to Spain. Once Senor Campins got them in Spain they were not sent back to Scotland, and he has publicly declared that he has no intention of ever sending them back.
To finalise the chronological order of court proceedings in Scotland, I should add that on I May this year the Inner House of the Court of Session, in effect, ordered Senor Campins to deliver the children immediately to Scotland, but this order has no effect in relation to the Spanish courts, I understand, and certainly the Court of Session has no means whereby it can compel Senor Campins to return the children to Mrs. Campins.
It is clear that, in arriving at the decision to allow Senor Campins access to his children in Spain on holiday, the court took seriously into account three undertakings which were given. The first of these was given in August 1977 before the notary to the metropolitan court of Tarragona, when under oath Mr. Campins agreed that he would return 1074 the children to Scotland if he got access in Spain.
In June 1978, in the presence of the presiding judge of the district No. 2 court in Tarragona and in the presence of the clerk of the court, Senor Campins swore an oath conceding that the children should normally reside with their mother, but he then sought to have them in Spain periodically and he accepted that there was an obligation to return the children to Scotland.
Lastly, a formal undertaking was given in person by Senor Campins to the Inner House of the Court of Session, before the Lord President of the Inner House, Lord Cameron and Lord Johnston, that if he was given residential access to the children in Spain he would return them. There is no doubt—this is borne out by the written judgment—that it was the giving of the three undertakings that influenced the court in awarding holiday access in Spain. It is clear beyond peradventure that Mr. Campins recognised the jurisdiction of the Court of Session by appealing to it for residential access in Spain. It is now clear that he used and abused the Scottish courts and obtained the children by an illegal act. That is a matter of great seriousness.
It is true to say that Mr. Campins used and abused his own Government's diplomatic services. One of the undertakings to return the children was lodged on his behalf by the Spanish Consul General in Liverpool. I have reason to believe that that has caused some concern within the Spanish Diplomatic Corps. I am taking the opportunity on Thursday, together with my hon. Friend the Member for Edinburgh, East (Mr. Strang), who has done a great deal of work in the past for Mrs. Campins, and my hon. Friend the Member for Dunbartonshire, Central (Mr. McCartney), who also has an interest in the case, to meet the chargé d'affaires of the Spanish embassy to emphasise and re-emphasise our great concern at what has happened.
Certainly Mr. Campins is in contempt of Scottish law, and I believe that he is in contempt of Spanish law. Mrs. Campins was always fearful that if the children went to Spain they would not be returned to her. It was for that reason that she initially resisted the children's going to Spain. As a result, she spent a 1075 week in prison. It now transpires that her fears were well-founded. Her worst fears have been confirmed. Mr. Campins has publicly stated that he has no intention of ever returning the children to their mother in Scotland.
Mr. Campins's scandalous behaviour may have wider repercussions. It may be that in future an innocent mother or father who applies for access in the British courts, and who has every intention of complying with court orders and returning the children after a holiday period, will be frustrated because of Mr. Campins's unprincipled actions. Surely British courts will take seriously the giving of three undertakings under oath under the Spanish judicial system. Apparently these can be brushed aside as though they are of no account.
How can a Foreign Office Minister help when the law on custody cases is clearly dealt with by either the Home Office or the Lord Chancellor? I accept that the Foreign Office cannot take any action legally. It is no part of my case that the Foreign Office should intervene in a matter that may yet appear before the Spanish courts. In any event, it is a matter of different domestic law.
As the Spanish diplomatic service was used and as British law has been flouted, surely it would be right and proper, and not without effect, for our ambassador in Spain to express grave disquiet to the Spanish authorities concerning Mr. Campins's reprehensible conduct, and to express concern that the Spanish legal authorities have not so far acted.
I am not an expert on British law, far less Spanish law. However, there should be some investigation into the failure of the Spanish courts to call Mr. Campins to account. He repeatedly gave assurances under oath. I am not familiar with the Spanish legal processes, but the fact that he appeared before a presiding judge of a metropolitan court cannot be considered to be of no account.
There is a great deal of public concern in Scotland, not only in my constituency. This concern is not solely about the legality of the matter. Nor is it concern about the problems that arise as a result of jurisdiction and custody orders not being recognised. The concern is for Mrs. Campins and her children. Very 1076 often in these matters—although not in this case—the children are not properly taken into account. Our primary concern is the welfare of the children. Mrs. Campins's concern for her children is genuine. It would be an act of humanity if every possible means were used to see that her children were returned to her.
The Foreign Office, engaged as it is in the affairs of state, must give weight to the problems which might arise later if it treads on toes. I realise that it may be hesitant to raise this matter and intervene in questions which are possibly thought to be the domestic legal prerogative of a friendly country. But our law and Spanish law have been flouted and abused. I cannot believe that the Foreign Office can be so inhumane and unfeeling as to fail to make the strongest possible representations. There is wide public concern. The least we can do is to see that the matter is thoroughly investigated and taken up with the Spanish authorities. If the Foreign Office can help in returning the children to Mrs. Campins it will have done a great service to my constituent and her children.
§ 12.7 a.m.
§ Mr. Gavin Strang (Edinburgh, East)
I congratulate my hon. Friend the Member for Aberdeen, North (Mr. Hughes) on raising this matter this evening. He rightly refers to the great concern that exists throughout Scotland about the case of Mrs. Campins, which has received wide publicity. That concern is reflected in the presence of my hon. Friends the Members for Dunbartonshire, Central (Mr. McCartney) and Berwick and East Lothian (Mr. Home Robertson), both of whom have relatives of Mrs. Campins in their constituencies. Many other Scottish Members of Parliament are involved in and concerned with this case.
I know Mrs. Campins through her relations in my constituency. She comes from the constituency of Edinburgh, East. Following approaches from her family last year I visited Mrs. Campins in prison. She was imprisoned for refusing to allow her children to go to Spain. I was tremendously impressed by Mrs. Campins on that occassion. She convinced me that she was going to prison, not because of her love for the children, important though that love was, but because she 1077 honestly believed that it was in the children's interests that they should remain in Scotland with her. She was utterly convinced that if the father did get the children to Spain he would renege on any undertakings that he had given and would not return the children. That latter view of Mrs. Campins has, regrettably, been fully vindicated by the subsequent turn of events.
The Government have no power to require the return of these children, but they must not wash their hands of this matter. They must do what they can. All the time Governments make representations to other Governments through various channels at official and ministerial levels on matters which do not come within their direct responsibility. Therefore, I strongly urge the Government to do everything that they can to achieve justice. There is no doubt that what the father is doing is quite reprehensible. It is to be hoped that there can be a satisfactory solution to the problem.
§ 12.8 a.m.
§ The Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Richard Luce)
The case that was raised by the hon. Member for Aberdeen, North (Mr. Hughes) and strongly supported by the hon. Member for Edinburgh, East (Mr. Strang) has caused considerable concern, not just in their own constituencies but throughout Scotland. Indeed, a number of hon. Members have written to me about this, including the hon. Member for Aberdeen, North, who has also been to see me about it. It is a most distressing case. There is no shadow of a doubt about that. All Members of Parliament will share my sympathy for Mrs. Campins in her sad and frustrating situation and fully understand her concern for her children.
The hon. Gentleman has also done a service in raising the wider international implications, in so far as he suggests that there is a strong case—indeed, there is a strong movement now—for some kind of international understanding on the question. If I have time, after I have dealt with the specific aspects of the case, I should like to develop the hon. Gentleman's points a little further.
On the specific case of Mrs. Campins, I have to say to the hon. Gentleman that 1078 it is a matter to me of deep regret, particularly in view of the circumstances, that I do not believe that the Foreign and Commonwealth Office is in a position where it can give the kind of practical help that he has suggested. I will now give the reasons to him.
The legal history of the marriage, separation, and particularly the parental dispute over the custody of Mrs. Campins's two sons is very complex, as the hon. Gentleman has made absolutely clear. The present position is equally difficult. One complication is, of course, that different legal actions in the case have taken place in both Spain and in Scotland. There has thus always been the possibility of differing or even conflicting outcomes, as is now in fact the case. The House will, I am sure, accept that there is nothing practical that I can do about that, given—and rightly so—the independence of the judiciary in both Spain and the United Kingdom.
The position is that Mr. Campins took his two sons to Spain for the Easter holiday, as the Scottish Court of Session had provided that he might. He gave a solemn undertaking to return them but failed deliberately to honour that undertaking, and the children have been retained in Spain. They were both born there and, I believe, have only Spanish nationality. They are not, as far as I am aware, British nationals, although their mother might be entitled to apply for their registration as British subjects, citizens of the United Kingdom and Colonies—a registration which could be subject to there being no well-founded objection by the father.
The Scottish Court of Session granted custody to the mother and, following Mr. Campins' action, ordered him to return the children to her, but those orders have validity only within the territorial jurisdiction of the court. I understand that the orders are not automatically enforceable even in England and Wales. Even less are they automatically enforceable in Spain or any other foreign country. Indeed, at present there is no means by which a custody order made by a court in the United Kingdom may be enforced in a foreign country—or, of course, vice versa. I should like to say more later, if I have time, about the international aspects.
If a parent obtains an order for custody of a child and the child is taken abroad 1079 by the other parent, the parent with the custody order cannot regain possession of the child except by bringing fresh proceedings in the courts of the foreign country. The original custody order will not be recognised by the foreign court, although it may have some persuasive force. It is perhaps because of this difficulty that the hon. Gentleman has urged the need for representations to the Spanish Government, and that I fully understand. Unfortunately, this suggestion would not help.
The Spanish Government have no more standing in this private dispute between the parents than the British Government had while the children were in this country. As in this country, the judiciary in Spain acts independently. Its independence is guaranteed by the Spanish constitution. Neither have the Spanish Government more power in Spain than the British Government have in the United Kingdom, in effect, to take the law into their own hands to determine by administrative action the future of these children in the absence of any court order valid in Spain. The Scottish order, as I have explained, is not valid there. The decision on their custody remains, nevertheless, a judicial matter. As the children are in Spain, it has become a matter for the Spanish courts. Nor can the British Government or our diplomatic representatives in Spain initiate action in those courts, as I think the hon. Gentleman has already acknowledged, because they are not party to the dispute over the custody of the children.
At present, therefore, in the absence of an amicable settlement between the parents, the only solution is for Mrs. Campins to seek an appropriate order through the legal process in Spain. I understand that her solicitors have instructed attorneys there on these lines. This is not only the correct way but the only way in which she can at present legally recover possession of her children.
I should like now to comment on the wider aspects, because the hon. Gentleman has raised a very important wider implication of this whole very sad problem—the number of cases where the dispute over the custody of the children involves several other countries. This is a cause for concern in many countries, and I should like to add a word about what is being done internationally to try to resolve the problem.
1080 The United Kingdom is already taking part in a number of international initiatives. Of these, the most advanced is being conducted in the Council of Europe, which has produced a draft convention to provide for the reciprocal recognition and enforcement of custody orders made in the contracting States. The draft convention is due to be considered this week by the Council of Europe's European Committee on Legal Co-operation. In fact, it started work today. The Committee will consider whether to approve the text of the convention, and whether to recommend the Committee of Ministers to adopt the text and open the convention for signature.
I cannot predict at this stage how this initiative will progress, but I hope that the House will find some reassurance from the fact that a great deal of work has already been done and that there are good prospects of an agreement being reached. We shall still have some way to go, and I should make clear that it is not likely that any agreement will be reached, or the provisions of the draft convention implemented, in time to provide an early solution to Mrs. Campins's problem. It is only fair that I should say that.
I hope that it will eventually provide the means to facilitate solutions to disputes of this kind, which cause distress to the parents and, more important, place the welfare and happiness of the children in jeopardy. As the hon. Gentleman has rightly said, it is the welfare of Mrs. Campins's children about which we are most concerned.
I am sorry that in some respects this may be disappointing, although on the wider aspects of the problem I hope that it will have been some encouragement to the hon. Gentleman. In his opening remarks, he said that he was making representations to the Spanish ambassador. I have no doubt that the Spanish ambassador and, indeed, the Spanish authorities will note the outcome of this debate. I hope that will be of some assurance to the hon. Gentleman.
§ Mr. Robert Hughes
Obviously I am disappointed that the Minister will not go as far as I would wish. I understand that this is a complex legal matter. However, I do not think that he answered the point with regard to the use of the 1081 Spanish diplomatic service in lodging one of the undertakings. Perhaps he thought that the consular official who lodged the application in the Scottish court was acting as a postman and that this was simply something that would be done for anyone. It is not possible for me to say how much weight or attention the Scottish courts gave to that aspect, but I believe that here there was a quite deliberate attempt by Mr. Campins—first, by his undertakings and, secondly, by the method by which these were delivered—to add some kind of respectability to the case. I hope that the Minister will at least reflect on this and perhaps write to me.
I hope that he will consider whether he should go as far as to express to the Spanish authorities his concern that before they should even act as postman they should satisfy themselves that the undertakings 1082 given had some legal validity. It is a very serious matter indeed that the Spanish judicial system should be so abused, and I shall certainly make that point very strongly on Thursday morning.
I hope that some investigations can be made by the Foreign Office into whether something can be done. For example, in Scotland we have that excellent institution, the procurator fiscal, who can intervene independently and investigate the facts, not necessarily on one side or the other. I hope that the Minister will look at this again to see whether he can help us, because this matter is of such importance to the welfare of the children, as well as the wider aspects, that it bears further examination.
§ Question put and agreed to.
§ Adjourned accordingly at eighteen minutes past Twelve o'clock.