Kayla Alyce Miller-Gorce, a four-year-old girl, had been living in Australia since birth (1999). In 2002, Kayla was brought by her mother (an Australian citizen) to Fiji and then Tonga where they have resided without the knowledge of the father. The father (Mr Gorce, a French citizen) filed an application for custody of Kayla in 2003 before the court in Tonga, while the mother filed a similar application with the court. The court issued an urgent order to proceed to hear the applications.

As the court states: "The facts are far removed from the usual type of custody application that comes before the courts in the Kingdom. Neither party is Tongan nor do they have any established connection with Tonga. The court has jurisdiction, however, because the respondent is presently residing in Vava'u with Kayla and an older child, Korey, aged 13, and she has indicated to the court that her intention is to continue residing in Tonga indefinitely."

Court ruling:

The court ruled that while the Kingdom of Tonga was not a party to the 1980 Hague Convention (Convention on the Civil Aspects of International Child Abduction), it had to order the return of the child to Australia and to live with her father there as this was in the best interest of the child based on the findings of court-appointed government officials who investigated the situation of Kayla.

Excerpts of the decision:

The relevant legal principles the court is required to have regard to in cases of this nature are, as I apprehend it, those embodied in the common-law prior to 1985 in which year the United Kingdom ratified the 1980 Hague Convention. In this context, the welfare of the child is the paramount consideration.

Had the Kingdom of Tonga been a party to the Hague Convention then this court would have had no discretion in the matter. Provided proceedings to recover the child had been commenced within 12 months of her abduction (which they were), then I would have been obliged to order Kayla's immediate return to Australia. As Balcombe L.J. expressed it in Re A and another (minors) [1992] 1 All ER 929, 936:

"The scheme of the Convention is thus clearly that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they had been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return."

The convention itself was the agreed international response to a problem that had become all too prevalent. It was identified by Cross J. in re H (infants) [1965] 3 All ER 906, 912 where His Honour said:

"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and, as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing."


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