HC Deb 22 April 1999 vol 329 cc1132-8

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Jamieson.]

6.15 pm
Mr. David Lidington (Aylesbury)

I am grateful for this opportunity to raise in the House this evening the case of my constituent, Mr. Lawrence Horne, his experience of the Hague convention on child abduction, and the lessons that that constituency case presents for the application of the convention to this country and to other signatories to it.

The Minister will know that this sort of case inevitably involves family tragedy and much personal heartbreak. I know that, in responding to the debate, he will be aware both of that fact and of his duty to explain the Government's policy and the workings of the convention as a matter of public policy.

Mr. Lawrence Horne first came to see me about the abduction of his son some 18 months ago. Robert Horne is now three years old; his father is British and his mother is Portuguese. Robert is a British citizen born in Portugal: his certification as a British national was required when his birth was registered in that country. In May 1996, the family moved to England. Sadly, there were difficulties in the marriage, and Robert's parents separated in November 1996 when his mother took Robert from the family home to live with her. Divorce proceedings commenced in the English courts and, as is customary, the courts would have been involved in deciding about the care and control of Robert.

In the meantime, while divorce and care and control decisions were pending, the English courts granted my constituent Mr. Horne regular access to his son. The confidence that the courts demonstrated in Mr. Horne's wish to exercise fully his rights and responsibilities as a father can be seen in successive decisions by the county court to grant him increased regular access. Those decisions culminated in August 1997 in a ruling by Slough county court to grant Mr. Horne continuous access to Robert each week from Wednesday at 5 pm until Saturday at 5 pm.

However, in the same month, Slough county court allowed Mrs. Horne to take Robert for a holiday to her native country of Portugal. At the time, the court stipulated that the holiday should be no more than five weeks maximum in duration. Mrs. Horne did not return from that holiday, and she has held Robert in Portugal ever since, in defiance of repeated court orders made by Slough county court. The first of those orders was made in October 1997, and the matter was reviewed in March 1998, July 1998 and, most recently, March this year.

In October 1997, when Mrs. Horne failed to return within the time stipulated by the county court, Mr. Home alerted the child abduction unit in the Lord Chancellor's Department, which then initiated proceedings under the Hague convention and alerted the central authorities in Portugal responsible for the enforcement of the convention to the nature of the case. In Portugal, Mrs. Horne commenced proceedings to secure custody of Robert under Portuguese law.

On 30 October 1997, the Portuguese courts gave interim guardianship to the mother, despite articles 16 and 17 of the Hague Convention explicitly providing that that

should not have been done, and that the initiation of proceedings under that international convention should rather have led to a stay in any proceedings commenced in Portugal. In his letter to me of 10 March 1998, the Minister expressed concern about that action by the Portuguese courts.

One of the main points of the Hague convention is that it exists to allow such distressing tug-of-love cases to be settled quickly so that there is the minimum possible disruption to the life and routine of vulnerable children at an early stage in their life. That objective of the Hague convention has certainly not been secured in this case. First, the Portuguese courts asked for a copy of a commentary on the convention by Professor Perez. They then asked for a translation of that commentary into Portuguese. When that was eventually done, they requested a social inquiry report into Robert's life style with his mother and her family.

In October 1998, a full year after the convention proceedings were initiated, the Portuguese family court finally came to a decision. Much to the horror and distress of my constituent and his family, the Lisbon court decided that Robert should not be returned to this country despite the UK court orders requiring his mother to make sure that he was returned and despite the clear intentions of the Hague convention.

In its judgment, the Lisbon court cited article 13(b) of the convention, declaring that to return Robert to England would be to put him in an intolerable position. The court declared that he was settled in Portugal, and referred, as one of the reasons for its judgment, to the fact that an interim custody order had been granted by the Portuguese courts to Mrs. Horne. On my reading of the convention, the citation in the judgment of the interim custody order seems to be a clear and flagrant breach of the clear duties imposed on Portugal by articles 16 and 17 of the convention. As the Minister's Department knows, my constituent has sought to appeal against that first decision by the Lisbon court.

I am afraid that my dealings with Mr. Horne and my experience of his case have led me to have serious doubts about the effectiveness of the convention. The House will know that those doubts are shared by others and have, for example, recently been expressed by Lady Meyer, the wife of Her Majesty's ambassador in Washington, and prompted considerable coverage in the national media.

The language of the convention is perfectly clear. Article 1 states: The objects of the present Convention are£ to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and£ to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. That article has been breached in this case.

Article 2 states: Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. It appears to me, from my experience of the case, that article 2 has also been breached.

Article 3 states: The removal or the retention of a child is to be considered wrongful where£ it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention". There is no doubt that young Robert Horne was habitually resident in the United Kingdom immediately before his removal to Portugal. There is also no doubt that the English courts had determined that Mr. and Mrs. Home were to share the rights of custody under the law, pending the resolution of their divorce proceedings and a final judicial decision in this country about what should happen to their son.

It has always seemed to me that the purpose of the convention is to avoid long-drawn-out and traumatic battles over children. However, it has failed my constituent in that respect. Surely the purpose of the convention also is to prevent any party from gaining an advantage in an application for care and custody by abducting a child to another country. Once again, it seems that the convention has manifestly failed my constituent.

I appreciate the constraints which the Minister is bound to observe in commenting in detail on judicial proceedings that are still under way. However, I hope that he will be able to offer some words of hope and comfort to my constituent to the effect that the Government will do whatever lies within their power to help Mr. Horne to secure the rights that he believes he is given under the convention to which both the United Kingdom and Portugal are signatories.

I hope also that the Minister will be able to refer specifically to the questions of parental access and legal aid, which are covered in the text of the convention. I deal first with access for Mr. Horne to Robert pending the final outcome of proceedings within Portugal. Article 7(f) of the convention provides that there shall be a duty upon the central authorities of the signatory countries not only to initiate or facilitate the institution of proceedings

"with a view to obtaining the return of the child"

but

"to make arrangements for organizing or securing the effective exercise of rights of access."

More is said about that principle in article 21, which states: The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The convention states: The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. It adds: The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject. Mr. Horne has more than once made application to the Portuguese central authorities for assistance to him in having access to his son. That access has never been granted and my constituent tells me that the Portuguese authorities have never acknowledged his repeated requests.

The articles of the convention impose clear duties on the central authorities of signatory countries. I hope that the Lord Chancellor's Department, as the relevant authority in the United Kingdom, will bring appropriate pressure to bear on the Portuguese central authorities so that Mr. Horne is able once again to have access to Robert, the son whom he loves a great deal and whom he has not seen since the autumn of 1997.

According to the text of the convention, legal aid involves duties on the part of the contracting states. In article 7(g), the convention requires that the central authorities should

"provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers."

Article 25 states: Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State. My constituent informs me that, once again, he has received neither acknowledgement nor action from the Portuguese authorities with regard to his repeated applications for legal aid, as provided for by the convention, within that country. I hope that the Minister can tell me what his Department can do to bring appropriate pressure to bear on the Portuguese central authorities.

It is ironic that, although my constituent has apparently been unable to obtain assistance in Portugal, his wife, who is holding Robert Horne in that country, is still in receipt of legal aid here, with which she has attempted in recent months to seek the striking out of the court orders requiring the boy's return to the United Kingdom.

It is not my constituent who abducted his son. The Minister will understand why Mr. Horne feels, to put it mildly, that he has been penalised for sticking to the law while his wife has been rewarded for acting in defiance of the convention. I have to ask, "Would my constituent have been better off had he tried to snatch Robert back from Portugal illegally and return him to his home jurisdiction?" On the basis of his experience, it appears to my constituent that those who seek to evade the duties imposed by the convention are able to get away with it.

That leads me to questions of the effectiveness of the convention as a whole. Is the Minister satisfied that Portugal is carrying out its obligations under the Hague convention or is this case an example of the state of affairs in which the British courts enforce international treaties to the letter, while other countries, which are happy to put their names to a piece of paper, in practice do precious little to carry out their obligations?

Behind the case lies a personal tragedy—a father denied access to a much-loved son, and a sister who cannot understand why her adored little brother has gone away from home and has not told her the reason. My constituent has not had the justice to which I believe he is entitled under the treaty to which this country and Portugal are signatories. I hope that the Minister will be able to give him some comfort.

6.33 pm
The Minister of State, Lord Chancellor's Department (Mr. Geoffrey Hoon)

I am grateful to the hon. Member for Aylesbury (Mr. Lidington) for raising the subject of international parental child abduction. He and I have corresponded on the case of his constituent, Mr. Lawrence Horne. I hear of similar cases from other hon. Members. I can well understand the anxiety and distress experienced by the left-behind parent, as well as the trauma suffered by the children who become the unwilling victims of their parents' mutual hostility.

Hon. Members who write to me about such cases ask me, as a Minister with responsibility for the judicial system in England and Wales, to intervene directly on behalf of their constituents. That I simply cannot do. I have to remind hon. Members of the fundamental principle that the judiciary must be, and must be seen to be, fully independent of Government. That principle applies just as much when a case is proceeding before a court abroad as it does to proceedings before our own domestic courts.

The hon. Gentleman has already told the House the facts of Mr. Horne's case, which is currently the subject of an appeal in the Portuguese courts. I must tell him that it would be inappropriate, and quite possibly counter-productive, for the Government at this stage to seek in any way to influence or constrain the judicial process in another jurisdiction.

That said, I should explain to the House how the Government tackle the problem of international child abduction, through international co-operation. The principal vehicle for that is the 1980 Hague convention on the civil aspects of international child abduction. The main provisions of the 1980 convention were brought into force in the United Kingdom in 1986, under the Child Abduction and Custody Act 1985. That domestic legislation allows cases in England and Wales to be heard only in the High Court, which means that the senior judiciary has developed a high level of experience and expertise in such work. It also enables cases to be heard with the minimum of delay.

The convention establishes a legal framework for the speedy return of children who have been abducted from one member state to another. Its history is one of the major success stories of international judicial co-operation. There are more than 44 member states, and others are continuously applying to the Hague conference to accede to the convention.

The convention is brought into force bilaterally between member states. For example, it has recently come into force between the United Kingdom and South Africa, between the UK and Turkmenistan and between the UK and Venezuela.

There are a number of ways in which cases brought under the convention can be resolved. Judicial decisions in a court case are only one means. A proportion of Hague convention applications that are made are subsequently withdrawn. In some, when we know the reason for the withdrawal of the application, the case has been resolved by agreement between the parents. In some cases, we know that the abducting parent has agreed to return the child voluntarily. In fact, some countries prefer to encourage voluntary returns rather than formal applications to the court. All that makes it impossible to produce complete and accurate statistics on the total number of cases dealt with under the convention, but what is beyond question is that the convention has had a very significant effect on the ease and speed with which abducted children are returned.

The convention requires member states to set up an effective mechanism for the handling of cases. In particular, each country must designate a central authority to deal with both incoming and outgoing applications for the return of children. In the United Kingdom, there is a separate central authority for each of the three legal jurisdictions: Northern Ireland, Scotland, and England and Wales. The Lord Chancellor is the central authority for England and Wales. His functions under the convention are carried out by the child abduction unit, which is a specialist unit within the Official Solicitor's office. Staff in the unit, which includes an in-house lawyer, send and receive applications for the return of children, communicate with parents, lawyers and other central authorities and instruct solicitors to act on behalf of applicants in other countries wanting to take proceedings in England and Wales. Their expertise is highly valued by all their contacts, both in this country and in other contracting states.

A parent whose child has been abducted to a convention country may, with the help of the relevant central authorities, make an application to the court in the distant country for the return of the child to his or her country of habitual residence. Convention cases are heard under a summary court procedure. The court must decide, under the terms of the convention, whether a child has been wrongfully removed from, or retained away from, the country of habitual residence, in breach of a right of custody. If so, the court must decide whether the child should be returned to the country of habitual residence.

The convention does not, and cannot, guarantee the return of the child in every case. The courts of each contracting state operate under their own internal procedures. It is for them to decide, applying the principles of the convention, whether or not a child should be returned in a particular case. When a return is ordered, it will be for the courts in the country of habitual residence to decide issues about the child's longer-term future. If a return is not ordered, it is open to the left-behind parent to apply under the convention for assistance in obtaining access to the child by means of domestic proceedings. In relevant countries, the Council of Europe custody and access convention can also be used.

I pay tribute to the work of the voluntary sector, which plays a significant role. We are fortunate in this country to have the Reunite National Council for Abducted Children, which offers impartial help and support to parents of abducted children, and makes an especially significant contribution to the prevention of abduction. It provides assistance by way of an advice line to parents whose children have been abducted, or who are in fear of abduction. For those parents and for other people with an interest, it provides advice by way of a child abduction prevention pack. It does extensive work with parents whose cases involve non-convention countries. By means of its contacts with lawyers in both convention and non-convention countries, it can help parents who need to take proceedings abroad to find a lawyer. It is frequently involved in international conferences on child abduction, which have recently included conferences organised by the South African Government as they proceed with the implementation of the convention. The Government recognise Reunite's work by making a contribution to its funding. The Reunite advice line is also helped by the BBC's "Children in Need" programme.

Despite that, however, Reunite is heavily dependent on the good will and commitment of its staff, volunteers and friends. It provides an excellent example of how a small voluntary agency can work effectively, not only in individual cases but by fostering understanding and co-operation throughout the national and international community.

The hon. Gentleman asked me about steps that the UK Government can take to secure the better operation of the convention between contracting states. The Government are generally satisfied with the legal principles underlying the convention. However, I recognise that the operation of international conventions involves the difficult alignment of different jurisdictions and different traditions of law and society. That inevitably involves problems. There is always scope for operational improvement through better co-ordination and co-operation among contracting states.

In addition to the action taken in individual cases by the central authority, the Government participate fully in mechanisms for reviewing the operation of the convention internationally. Discussions on specific problems take place regularly with other contracting states through judicial and administrative channels.

The hon. Gentleman has suggested in the past that the UK Government should disapply the 1980 Hague convention in relation to other contracting states that do not comply with its requirements. The Government do not consider that there would be any advantage to this country or to its citizens in disapplying the operation of the convention. Our experience has shown that, when problems arise, because of the mechanisms between contracting states under the Hague convention, there is a much higher success rate in securing returns from those countries than in cases in which a child has been abducted to a non-convention country.

The hon. Gentleman also raised with me two specific points: parental access under the Hague convention and legal aid. Parental access is dealt with under article 21 of the convention. As the hon. Gentleman set out clearly the way in which that article operates, I shall not repeat his efforts. Parental access is an issue in domestic proceedings within the competent jurisdiction. The application of the convention is governed by those internal domestic proceedings.

The availability of legal aid to applicants under the convention in other jurisdictions is a matter for those jurisdictions. There is no uniform application, as the hon. Gentleman suggested.

I am grateful for the hon. Gentleman's concern and interest. The Government will continue to seek practical improvements in the way in which the law in this area operates. I am particularly grateful that the hon. Gentleman has not only raised the important individual case of his constituent, but has taken a clear interest in the general question of how this mechanism can be improved for the benefit of everyone.

Question put and agreed to.

Adjourned accordingly at eighteen minutes to Seven o'clock.