HC Deb 05 July 1995 vol 263 cc355-62

2 pm

Sir Nicholas Scott (Chelsea)

I am grateful for the opportunity to draw the attention of the House to the case of Catherine Laylle, who holds dual British and French nationality and whose case has been raised in the press on more than one occasion in recent months. The importance of her case is underlined by the presence today of a number of right hon. and hon. Members on both sides of the House who have taken an interest in her case and who, I understand, may wish to intervene, albeit briefly, in this short debate. I will therefore seek to abbreviate my remarks on what is at once a complicated and a highly emotional case.

At the outset, I would like to express my gratitude to my hon. Friend the Minister and to the Lord Chancellor for seeing me and my constituent on this matter and for dealing courteously with my written representations. Alas, despite many efforts, no way has yet been found of satisfying what I believe to be the legitimate grievances of my constituent.

I shall paint in some background to the case. Catherine was 29 years old when he she met her husband, Peter Volkmann, a German citizen. She had a well-paid job in the City of London and he was studying medicine while doing his military service. They married in 1984 and lived in her Kensington flat while he studied and she worked. Their son Alexander was born in the following year.

After a while, Peter Volkmann abandoned his studies, found a job with a German company in London and then transferred his employment to Germany. Ms Laylle left her career in the City and went with her husband to Germany where a second son, Constatin, was borne. Alas, by 1992 the marriage was in difficulty and the couple agreed to separate. An agreement was then drawn up, and verified by a German notary, which provided that Catherine should return to London to live with the children and that Alexander and Constatin should spend much of their holidays with their father.

The arrangement went well until last summer when, four days before the children were due to be returned to Catherine, she received a letter from her husband saying that the children would not be coming back to London. My constituent was understandably devastated by that appalling breach of faith and the negation of a mutual agreement. Her pleas were dismissed by her husband with, I understand, abusive language and much disdain. She therefore took action to make the children wards of court and obtained a High Court order for their return under the terms of article 3 of the Hague convention. That decision was subsequently endorsed by the German court in Verden.

Alas, Catherine's joy was to be short-lived. During the half-hour that she allowed her husband to say goodbye to the boys, the children were abducted by members, I understand, of Peter Volkmann's family. The court order, I am told, empowered the court bailiff, with police support and physical force if necessary, to ensure the return of children to their mother but no one knew the whereabouts of the children.

The bailiff became unavailable and her husband's lawyer likewise. It transpired that her husband gone to Celle, a town nearby with a higher court where he had lodged an ex parte appeal. That court ruled that he could keep the children until the case could be heard. A month later, at a hearing which neither took evidence from Catherine nor interviewed her or her witnesses, the court ruled that the boys should stay in Germany.

It is now a year since my constituent effectively lost her sons. Some would say that she had had her sons stolen from her. She has spent all her savings on legal fees and visits to Germany. She has had much sympathy but little action to redress the situation. Not surprisingly, she is in a state of considerable despair. She feels that a process designed to alienate her children from her has been followed. Her visiting rights have been tightly circumscribed—she gets three hours a month in Germany, under supervision. The current situation is little short of outrageous. Germany and the United Kingdom are senior partners in the European Union. The provincial German court has, in effect, closed its doors to the pleas of my constituent when all she wants is justice.

Since the Celle ruling, Catherine has had access to her sons only under the supervision of German social workers and such access is limited to a few hours each month in her husband's home. On one visit, I understand, her children were removed as she arrived, put into a car and driven away by her husband. That underlines that the situation is nothing short of outrageous.

There are, however, perhaps two openings of which I hope advantage will be taken. First, I understand that the European Commission of Human Rights will be examining her case in its next session, which it will hold very shortly. Catherine is compiling and submitting evidence under three separate articles of the convention. However, as we all know, a considerable period may elapse before any decisions are forthcoming. Meanwhile, she is actively deprived of her undoubted rights of access to her sons.

There is perhaps a second chink of light in this sad case. I understand that at the meeting of European Union Justice Ministers last week, the question of a pattern of law in this area was raised and consideration may be given to the need for fresh legislation. It is my understanding that the French Justice Minister, Jacques Toubon, threw his weight behind the idea. I hope that I can be reassured by my hon. Friend that our Ministers will take the same robust approach.

I would be grateful if my hon. Friend would clarify to me and the House the role of the child abduction unit and say what success it may have had in the case so far. We all know that legislation, especially European legislation, could take a very long time to be put into effect. Catherine is looking for early action by the British and German authorities and I believe that she deserves it.

In conclusion, it is now seven months since Catherine last saw her children. She thought that she would have three hours with them this month but has now been told that their father is taking them on holiday to an undisclosed destination. She will not abandon her sons. She is a fighter and loves her children too much. She believes, rightly in my view, that she is the victim of a gross miscarriage of justice. She has fought long and hard for her rights. The French Government are giving her support. I hope that she can count on the help and support of our Government, too. I trust that the Government will find they have the fullest co-operation of the German authorities as well.

2.7 pm

Mr. Bernard Jenkin (Colchester, North)

I rise with the permission of my right hon. Friend the Member for Chelsea (Sir N. Scott) to take part in this short debate about a vital matter.

I wish to raise only one point. My involvement is as a result of a personal approach by Ms Laylle. I wish to draw attention to the fact that both Britain and Germany are signatories to the Hague convention, which in article 1(a) states that it exists to secure the prompt return of children wrongfully removed to or retained in any Contracting State". There seems to be no question that, under British law, the children were wrongfully detained. I ask my hon. Friend the Minister whether he can advise about why the German Government and judiciary are not adhering to the Hague convention to allow international law to take its proper course.

2.9 pm

Miss Kate Hoey (Vauxhall)


Madam Deputy Speaker (Dame Janet Fookes)

Order. The hon. Lady may speak on the understanding that she has the permission of the right hon. Member for Chelsea (Sir N. Scott) and the Minister.

Miss Hoey

I shall be brief. I congratulate the right hon. Member for Chelsea (Sir N. Scott) on raising this important issue of human rights. I am speaking as someone who has also had some involvement with the case and as the Secretary of the all-party group on child abduction which has worked very hard with Reunite, the organisation that co-ordinates work to help mothers and fathers in similar positions.

In this case, we are dealing with a European country, one which, like us, is supposedly part of the great new European movement which is meant to bring people together. However, the way in which the German Government, the German courts and, indeed, individuals in the German provincial town in question have behaved makes me despair about any future co-operation within the European Union. What has happened is disgraceful.

The Hague convention has been blatantly broken by the German Government. One can imagine what would have happened if it had been the other way around. If the British Government or British courts had behaved in the same way, there would have been a great uproar and much lobbying by the German Government.

I want to ask the Minister exactly what has been done. What pressure has been brought to bear? How high up the political agenda is this case in the discussions about European unity and a single currency? If we cannot help someone like Catherine Laylle get her children back, the road to European union and co-operation with Germany might as well be abandoned now.

2.11 pm
Mr. William Cash (Stafford)


Madam Deputy Speaker

Order. Again, the hon. Gentleman may speak with the same restrictions.

Mr. Cash

I speak with the permission of my right hon. Friend the Member for Chelsea (Sir N. Scott) and the Minister. I have known Catherine Laylle for many months now and I have been deeply disturbed about the case since the beginning. I agree with my right hon. Friend.

Justice is to be found, as they say, in the interstices of procedure. The procedures that have been followed and my knowledge of the way in which the case has been conducted in Germany has filled me with a sense of despair. I cannot believe that someone like Catherine Laylle could be so effectively abandoned by the process of justice in Germany. I have made representations to the German ambassador, to other representatives of the German Government in the United Kingdom and to other members of Chancellor Kohl's private office. I have begged them to consider the case.

In the interests of a coherent and sensible Europe, it cannot be right that such situations should prevail. There is no doubt that the matter can and should be resolved in the interests of the children and of Catherine Laylle. I plead with the Minister to consider every conceivable means that can be employed—be it through the Foreign Office or any other channel—to redress this absolutely unforgivable injustice.

2.12 pm
Sir John Stanley (Tonbridge and Malling)

I, too, am an officer of the all-party group on child abduction. Ms Laylle has been to see me and given me certain papers. I am most grateful to my right hon. Friend the Member for Chelsea (Sir N. Scott) for allowing me to participate briefly in the debate.

I shall make just two points. First, Ms Laylle is partly of British citizenship; her two children are partly of British citizenship and are also wards of court in Britain. Against that nationality and wardship background, it is indefensible that so far it is the German courts which have reserved to themselves sole and exclusive rights of jurisdiction.

Under the terms of the Hague convention, it is the Lord Chancellor's Department that is the designated "Central Authority" through which the British Government discharges their duty under that convention. I draw the House's attention to the duty outlined in article 7(f), which states that it is incumbent on the "Central Authority"—the Lord Chancellor's Department—to take all appropriate measures … to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access". I hope that the Minister will explain why the duty clearly placed on his Department under the Hague convention does not yet appear to have been discharged. I hope that he will assure me that it will be discharged in future.

Secondly, in a reply given to me on 26 June the Home Office said: Where a child is successfully abducted to a country which is a signatory to the Hague convention, an extradition warrant may be issued."—[Official Report, 26 June 1995; Vol. 262, c. 494.] It is evident in this case that Ms Laylle's two sons have been successfully abducted to Germany and Germany is a signatory to the Hague convention, so the issue for the Home Office is why extradition warrants have not so far been issued. I hope that the Minister will be able to explain why no extradition procedures have so far been initiated and to tell us whether they will be in future.

2.15 pm
The Parliamentary Secretary, Lord Chancellor's Department (Mr. John M. Taylor)

I should like to thank my right hon. Friend the Member for Chelsea (Sir N. Scott) for raising the issue and for his courtesy in giving me advance notice of his line of argument. I also thank my hon. Friend the Member for Colchester, North (Mr. Jenkin) for his contribution, the hon. Member for Vauxhall (Miss Hoey) likewise, my hon. Friend the Member for Stafford (Mr. Cash) and my right hon. Friend the Member for Tonbridge and Malling (Sir J. Stanley).

Towards the end of his comments, my right hon. Friend the Member for Chelsea said that the French Government were giving Ms Laylle support. I must make it clear that, within the proper constitutional limits which define judicial and executive boundaries, the Government have also done and are doing as much as they can.

For the benefit of the House, I shall outline the role which the Lord Chancellor's Department and other Departments play in relation to child custody cases before foreign courts. I shall then deal with the specific case that my right hon. Friend has raised. It might be convenient for the House if I say that the case has thus far been dealt with entirely within the strictures of the Hague convention. However, the House should know that within the Hague convention there is a limited discretion not to return children in certain circumstances. One of those circumstances is when the children themselves have made their views known.

Questions relating to child abduction and custody are governed by the Hague and European conventions of 1980 on this subject. The Child Abduction and Custody Act 1985 enabled the United Kingdom to ratify both conventions. The purpose of the conventions is to prevent international child abduction and to promote the exercise of rights of contact with children.

Mr. Iain Duncan Smith (Chingford)

The Minister said that, under the Hague convention, if the children expressed a particular view, that view had to be taken into consideration. Is he saying that if children are kept with one parent for a period of time that does not have a bearing on their eventual view? Children are ultimately fairly malleable and therefore speed is of the essence. Something should have been done earlier. Does he agree that that fact should have a huge bearing on his comments?

Mr. Taylor

As one who practised as a family lawyer for many years, I have to tell my hon. Friend that hardly any two cases are the same. I have no reason to doubt that the German judicial authorities were able sensitively to seek the views of the boys whose ages—[Interruption.] I hear comments from behind me, but I suspect that the House would like me to continue with my remarks.

I was referring to the purpose of the Hague convention in preventing international child abduction, and the promotion of the exercise of rights of contact with children. The Hague convention does that by requiring a contracting state to return children who have been wrongly removed from another contracting state in breach of rights of custody. The European convention does so by the mutual recognition and enforcement of orders made in contracting states.

In each contracting state there is an administrative body known as the "Central Authority", which is responsible for administering the work of the conventions. In England and Wales, the "Central Authority" is the Lord Chancellor's Department, and the work is carried out by its child abduction unit, which is part of the official solicitor's office. The unit does all that it can to help in achieving the objects of the convention, which are, essentially, to safeguard and promote the interests of children on an international basis. In doing that, it sends and receives applications for the return of children, or the recognition and enforcement of custody orders. It communicates with parents, lawyers and other central authorities and instructs solicitors to act on behalf of applicants in other countries wanting to take proceedings in England and Wales.

It is not, however, the unit's role to intervene in private law custody disputes that are being contested in foreign courts. Those are matters to be resolved through the courts concerned.

I should at this point mention the part that is played by the Foreign and Commonwealth Office. In general terms, the consular department is responsible for the protection of British nationals overseas. In the area of child abduction, a variety of types of practical assistance can be offered, including providing details of local lawyers who correspond in English and who can provide background information on the family law system in the relevant country; approaching the local authorities for help in tracing the child, where appropriate; drawing the local authorities' attention to any English court orders that exist, and encouraging the speedy resolution of any legal proceedings; and providing informal help with matters such as the translation of documents and finding cheap accommodation.

I hope that my right hon. Friend will forgive me for going into detail about the Government's responsibilities in such matters, but I consider that a clear understanding of the extent and limits of those responsibilities is vital in looking at the unfortunate situation that his constituent, Ms Laylle, is in.

As my right hon. Friend has explained, his constituent and her husband, who is of German nationality, separated in February 1992. Their sons, aged 8 and 10, have British, French and German nationality. Ms Laylle and her husband entered into a separation agreement with the assistance of a German lawyer, which included the provisions that "parental custody" of their two sons should be entrusted to Ms Laylle, that she and the children should live in London, and that the father should have generous contact with the children. That arrangement was a written agreement between the father and mother and not a judicial order giving custody to Ms Laylle. The children left England on 6 July 1994 to spend the summer holidays with their father.

On 22 August, the father wrote to Ms Laylle to say that both boys had said that they wanted to live and go to school in Germany rather than England, and that he had applied for the right to keep them.

On 26 August, Ms Laylle applied to the child abduction unit for the return of the children under the Hague convention on the basis that they had been wrongfully retained away from their habitual residence in breach of her rights of custody. She also applied to the high court on an ex parte basis for a wardship order, and that was granted on 30 August. The application under the Hague convention and the wardship order were transmitted to the German central authority, and were referred to the family court at Verden, which considered the matter on 20 September. The court ordered that the children be returned, but the father successfully appealed to the higher regional court. Ms Laylle engaged lawyers in Germany to represent her.

It is important at this point for me to emphasise that proceedings under the Hague convention do not determine custody issues but are intended to restore children to the jurisdiction of their habitual residence so that decisions about their future can be made there. This reflects a generally accepted principle of private international law that decisions about the future care and welfare of children are best made in the country with which they have the closest connection. However, the convention acknowledges that there may be circumstances in which children should not be returned, and therefore gives courts a limited discretion to refuse to make a return order.

One of the reasons for refusing a return order is that the child concerned objects to be returned and has reached an age and degree of maturity at which it is appropriate to take account of his or her views. It was on that ground, after talking to the children, that the higher regional court upheld the father's appeal against the return order made by the family court in Verden. Ms Laylle has complained that she was not allowed to give evidence or speak at that hearing or present her own psychological evidence in respect of the children. It is generally accepted that proceedings under the Hague convention are summary in nature, and oral evidence is discouraged. In this instance, the only grounds of the father's appeal were the wishes of the children, and for that reason the main concern was to discover the children's wishes.

The issue of custody then came before the family court at Verden on 23 February this year. The decision of the court, given on 30 March, was that the children should be placed in the "temporary" custody of their father, and that Ms Laylle should be allowed limited contact with them: specifically, there was to be no contact for a period of three months, following which supervised contact at the father's home was ordered, initially for three hours a month, and from October 1995 for one day a month. Ms Laylle was represented by her two German lawyers at the hearing on 23 February and received assistance from the British consulate in attending the hearing. I understand that the wardship proceedings in this country were discharged on Ms Laylle's application on 4 April.

During the period leading up to the hearing on 23 February, the child abduction unit provided Ms Laylle with as much assistance as it was able within the limitations of its statutory role. Following the court's decision on 30 March, a further meeting took place between the unit's solicitor and Ms Laylle, at which it was explained that there was no basis on which the Government could intervene on the general grounds that German proceedings relating to children are intrinsically unjust or improper.

The procedure in such cases in Germany is substantially similar to our own. In family proceedings in Germany, both parents can be professionally represented, and the judge, who is independent of the Government, can call on the services of the local youth court to provide a report on the children and see them. In making a decision, he or she has, like a British judge, wide discretion in weighing up all the circumstances of the case. However, the unit's solicitor undertook to write to Ms Laylle's lawyers in this country and in Germany to ask whether in their view the order was unusual or represented the sort of order that a German court might make in a case such a this; whether there were any grounds for appeal on the basis that the judge was plainly wrong or wrongly exercised her discretion; and whether there was any material irregularity in the proceedings, which could form the foundation of a formal complaint or an application to set aside the judgment.

A separate point which had by this stage arisen was that divorce proceedings had been instituted both in this country by Ms Laylle and in Germany by her husband. It appears that the proceedings begun by Ms Laylle were first in time. However, I understand that Ms Laylle's husband has applied for a stay of the English proceedings, and that a jurisdictional dispute exists about the competence of the family court at Verden to entertain the divorce proceedings in Germany. This is a matter that must properly be resolved under German law; it would not be appropriate for the British Government to intervene in the process.

It is understood that there are grounds for appeals against the court's decisions on custody and contact, and that appeals have in fact already been lodged against both decisions. It is also understood that the decisions made about the children to date are of an essentially temporary nature pending the final resolution of the divorce proceedings, and that the appeals against those decisions will be based on evidential matters before the court and not on any fundamental defect of procedure or denial of process.

I also understand that Ms Laylle has a case against Germany pending before the European Commission of Human Rights in respect of her situation. Naturally I am unable to comment on these proceedings, and we must await the outcome.

Thus, while I sympathise with the difficulties in which Ms Laylle finds herself, I do not consider that there is any more substantive assistance that the British Government can provide. It is particularly important to recognise that the children have British, French and German nationality. The matters at issue are the subject of appeal under the German legal system, and the outcome of those appeals must be awaited. As I have said, there is no basis in procedural terms, in what is essentially a private law dispute, on which the British Government could properly intervene.

It being half past Two o'clock, the motion for the Adjournment of the House lapsed, pursuant to Order [19 December]