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Mrs Manchanayake (Children)

Volume 131: debated on Friday 15 April 1988

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

2.47 pm

I welcome this opportunity to bring to the attention of the House the case of my constituent, Mrs. Manchanayake and her two children, and I am grateful to my hon. Friend the Minister for giving up his Friday afternoon to reply. I know that he has taken a close personal interest in this case.

Mrs. Manchanayake was born in Sri Lanka in 1954, but came to England in 1965 and has lived here ever since. Sadly, she was born deaf and therefore depends to a large extent on others to be her advocates. She is now a British Citizen. In 1974, she married and had two sons, now aged nine and eight, and called, somewhat confusingly, Alick and Alex. The marriage was not a success, and, again sadly, there was violence—both to Mrs. Manchanayake and to the children. I understand that her husband has a conviction for carrying an offensive weapon. In November 1986, her husband left the family home in Acton to live with another woman in Perivale. In February 1987, Mrs. Manchanayake applied to the courts for interim custody of the children, which she was awarded. Her husband appealed against the interim custody, but lost. Both the school report and social services report supported the mother's application. A neighbour gave evidence at the hearing and supported allegations of violence by the husband. None the less, the husband was granted access to the children every other weekend. The interim custody order was challenged by the husband and was due to be heard in September last year. In the meantime, the children were made wards of court. The father made no financial contribution to the children's upkeep during this period. He exercised his right of access to the children on 18 July, but never brought them back. Probably using illegal documents, he took them to Sri Lanka. The older boy's passport is still here; the younger one never had one. They have remained in Sri Lanka ever since.

The children do not speak the language. Their education has, of course, been wholly .disrupted, and severe emotional damage has been done as a result of their forcible separation from the parent with whom they were living. For her part, the only meaningful relationships that the mother had have ended and she is even more isolated than she was.

To the mother's credit, she has done all that she can to get her children back. She flew to Sri Lanka in October, returning in January. I have seen her on several occasions since her return and the news is depressing. It is likely to be four to eight years before the action that she has initiated in the Sri Lankan courts is heard. Friends and relatives are paying for the barrister and her air fares. The children are not living with their father any more, but now live in what their mother describes as "digs" with strangers—70 miles from their father. They seem to have the minimum of supervision, and certainly lack the love and affection of a close relative. They desperately want to come back here. The father is out of work and apparently also unhappy at living in Sri Lanka. He dare not come back here in case he is arrested and is contemplating going to Canada. What will happen to the boys if he does is not clear.

Until January, the boys attended no school in Sri Lanka. They are now attending school, but, of course, this is in Sri Lankan. If too much times elapses before their return to their home country, they will have lost valuable time at our schools. In cases such as this, children are often told by their fathers that the mother has abandoned them and does not want to see them again. After a time, in this case, that propaganda may come to be believed. Children of this age—eight and nine—become bewildered, distressed, aggressive and simply do not know who to believe or what is happening.

Mrs. Manchanayake has turned to me as her Member of Parliament for help. I have been in touch with the Lord Chancellor to see whether we can get legal aid for her case in Sri Lanka, with the Home Secretary because of the offence of child abduction in breach of the court order, and with the Foreign Office, which represents the interests of British citizens overseas.

Again, it is not, I fear, a happy story. Let us remember that we are talking of two British citizens taken against their will from the only country that they have known, in breach of the order of a British court. Surely Her Majesty's Government can help.

Legal aid is not available to British citizens to pursue a case such as this one in a foreign court. The Home Secretary might be able to do something if the father returned to this country, but he is not going to do so. The Foreign Office reaction is best captured by a quote from the letter that my hon. Friend the Minister wrote to me on 23 December last year:
"I am afraid that the Foreign and Commonwealth Office cannot intervene in what is primarily a family dispute."
My hon. Friend went on to say that Mrs. Manchanayake must apply for custody through the courts in Sri Lanka because that is where the children are. But the children may be adults before that case is heard, and in many countries, the local laws give all rights to the father. The only action that my hon. Friend mentioned in his letter was an unofficial approach through our high commission out there for a welfare report. He said that he would let me know the outcome of such an approach, but nearly four months later, I have heard no more, so I assume that nothing has happened.

My hon. Friend will know that I expressed disappointment at what I described as a feeble response. In his last letter, dated 26 January, in reply my hon. Friend simply confirmed the rather depressing news that he had already conveyed. The Sri Lankans regard the children as Sri Lankans as well as Britons, so we cannot intervene officially . Sri Lanka has not ratified the relevant Hague and European conventions on child abduction, so the procedure set up under that protocol cannot be activated.

I have also approached the Sri Lankan authorities, contacting a contemporary of mine at Oxford, who was deputy Foreign Secretary there, as well as the Justice Ministry and the Supreme Court to see whether the case might be expedited, but I have had no reply from any of them.

Is my hon. Friend really saying that, confronted with this manifest injustice and the human suffering that goes with it, there is no action that Her Majesty's Government can take but to ask for a welfare report? Why cannot our high commissioner in Sri Lanka take the issue up at a senior level with the Sri Lankan Government instead of just asking for an unofficial welfare report? Sri Lanka is a friendly Commonwealth country with close links with the United Kingdom and behind whose Government we have firmly stood in their present difficulties. Why cannot my hon. Friend talk to the high commissioner here about the case? The Foreign Office rightly gets upset about the flouting of our car-parking laws in London. How about some protests about shielding child abducters? The crime simply does not seem to rate a high priority. What pressure are we putting on Sri Lanka to do as other civilised countries are doing and to ratify the relevant convention? Why can we not ask for the case in the courts to be expedited on humanitarian grounds?

I am sure that if—perish the thought—my hon. Friend's children were illegally abducted, he would be jumping up and down until they were returned, and rightly so. These are British children, too, and their mother, who cannot plead their case herself, looks to me and to this House to get her children back. In a moving article on this subject in The Guardian last month, Polly Toynbee made it clear that political pressure can be and has been used, and with success. I hope to be in touch with Mrs. Manchanayake later today. What can I tell her that the British Government are doing for her children?

2.56 pm

The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs
(Mr. Tim Eggar)

It is especially appropriate that we debate this particularly sad case with you in the Chair, Madam Deputy Speaker, in view of your long connection with Sri Lanka, and I very much respect and admire the way in which my hon. Friend the Member for Ealing, Acton (Sir G. Young) has followed this case through so closely on behalf of his constituent.

It is an extremely sad case and I have every sympathy with Mrs. Manchanayake. Sadly, it is not the only such case that has come to our attention. I hasten to add that the others relate not to Sri Lanka but to various other countries. I have to deal with almost all the consular cases which come to the Government's attention, and there is no doubt that cases which involve the splitting of families, often in circumstances similar to those described by my hon. Friend today, are tragic in their consequences, both for the parent who often is left in this country, and for the children.

If it were possible to take action to alter the circumstances in this or any of the cases at present on my desk, should immediately seek to do so. I shall consider carefully the detailed points made by my hon. Friend today and look again to see whether there are areas that he has pinpointed in which we can take action. I shall write to my hon. Friend on the subject early next week.

Sadly, we must recognise that there are an increasing number of marriages between British and foreign nationals that go wrong. The increase in marriages between people of different nationalities may result, in part, from the rapid growth and ease of international travel. Where marriages cross national boundaries, the partners may have different cultural and religious backgrounds and different traditions which can lead to strains and stresses in the family unit. The break-up of a marriage, as with other domestic disputes, is essentially a family matter. Similarly, the decision about the custody of any children should primarily be a family decision. If the family cannot reach a mutually agreeable solution, it is for the British courts, not the Government, to decide what should happen to the children.

While the children are in the United Kingdom they are, naturally, subject to British legislation and the jurisdiction of British courts. Once abroad, the children are removed from British jurisdiction and are subject to the jurisdiction of the country in which they find themselves. The children's return to the United Kingdom can then be achieved only through the courts of the country to which they have been taken. We are constrained, however regrettably, by the basic fact that courts in one country have no obligation to recognise custody orders made by the courts of another country. That is the very real and fundamental problem that we cannot overcome.

That problem has been recognised by the international community, and two conventions have recently been brought into being to remedy the problem. They are the Hague convention on the civil aspects of international child abduction and the European convention on recognition and enforcements of decisions concerning custody of children and on the restoration of the custody of children. These were implemented in the United Kingdom, when the Child Custody Act 1985 came into force, as recently as 1 August 1986.

These conventions are a major step forward. Of course, they apply only to those countries that are signatories to them and they are mainly, but not all, Western nations. We are using our best efforts to persuade other countries to become signatories to these important instruments. For example, in 1986, at the Commonwealth Law Minister's conference in Harare, the United Kingdom presented a paper on the conventions. It was agreed at that meeting that they represented the best way forward. We have also prompted discussion in the European Community. Our embassies abroad make regular inquiries of host Governments about ratification of the conventions. We hope that eventually as many countries as possible will become signatories. Of course, the conventions also cover children who are abducted to this country.

These two conventions provide that each country that ratifies them must establish at least one central authority to be responsible for the administration of the conventions. The 1985 Act provides for the establishment of two central authorities in the United Kingdom: for Scotland, it is the Secretary of State for Scotland, and for England, Wales and Northern Ireland it is, as my hon. Friend has said, the Lord Chancellor.

Since the 1985 Act and when the conventions came into force in the United Kingdom, the Lord Chancellor's Department has become a focal point for people requiring information, advice and assistance about child abduction. I am told that the Department has received details of about 150 cases involving children who have been abducted or who are in danger of being abducted both to and from the United Kingdom. My hon. Friend the Member for Ealing, Acton may be interested to know that so far 17 children have been returned to the United Kingdom. They have come from Portugal, France, Australia, Switzerland and Cyprus. In the Cyprus case, it took a year simply to find the child.

Can my hon. Friend say whether the welfare report to which he referred in his letter to me of 23 December was ever received by the high commission, and whether the high commission has been in touch with the children in any way since they arrived? Has my hon. Friend any up-to-date information on their condition? Is his Department in touch with them?

I shall return to that specific case towards the end of my speech.

In the Cyprus case, for example, it took a year to find the child. In addition, 18 children have been returned to their homes abroad from this country. A number of cases did not go to court because the parents were able to resolve their differences amicably.

The Hague convention was drafted to deal with the immediate problem of abduction. It requires the summary return of the child to the country of its usual habitual residence so that custody can then be decided in the courts of that country. Under the Hague convention, a court order does not need to be in place for legal procedures to start, although that can expedite processes.

Under the European convention, an enforceable order issued by a court must exist for the legal process to begin. It can be made subsequent to the child's abduction. A number of countries have already signed the two conventions and West Germany, Greece, Italy, Norway, Sweden, the Netherlands and the United States have said that they intend to ratify either one or both of the conventions.

Signatories to the convention, however, may make reservations and sometimes they can be significant. Spain—where a number of British children are involved—has made the reservation that it is not bound to recognise custody orders made after the date of the abduction.

When children are taken to countries such as Sri Lanka, which are not signatories, no international framework exists within which the return of children can be pursued. That is one reason why we urged, at the Commonwealth Law Ministers meeting, that all Commonwealth countries should become signatories. Action can only be taken through the courts of that country, which may or may not take account of the existence of any British court order in respect of the child. Diplomacy or the work of consular officers abroad have, sadly, a limited role only in the fate of a contested child. Just as the British Government have no influence on the workings of the judiciary of the United Kingdom, so we cannot be expected to have influence on the workings of a court in a foreign country. Indeed, it would be improper for the British Government to seek to interfere in the administration of justice in a foreign sovereign state.

There is a further complication. Most children of a marriage between people of different nationalities acquire the nationalities of both parents. In those cases where children have dual nationality and are in the country of their second nationality, as in the case in Sri Lanka, we and our embassies or high commissions are prevented by international law from making formal—I stress formal—representations to the Government of that country. Such children are viewed as being in their own country and are subject to their own country's law. There is a note to that effect at the back of all British passports.

I would not wish to paint too negative a picture in setting before the House constraints on the type of assistance that we can offer. Ratification of the Hague and European conventions is just one of the positive steps that we have taken to provide a framework for the return of abducted children. Our consular officials will try to be as helpful as possible in practical ways to a parent separated from a child. It is possible that they can act informally on behalf of a parent.

Consular officials are under instructions in such cases to provide lists of local lawyers to enable a parent to pursue their case through local channels; secondly, if asked, as they have been in the case described by my hon. Friend the Member for Ealing, Acton, to try to obtain a report on the child's welfare from the local authorities. I should add that that can often be a difficult and lengthy process and is solely dependent on the co-operation of the loyal authorities. Thirdly, consular officials are instructed to give any assistance that they can in connection with granting access to children including, if necessary, offering a room where a meeting with the children can take place; fourthly, officially or unofficially, to draw to the attention of the local authorities information about British court orders affecting the children; fifthly, to do what they properly can to help to bring about a speedy conclusion to any legal proceedings dealing with the child's custody; and, sixthly, to approach the local authorities for help in tracing abducted minors.

I shall now return to the particular case that has been raised by my hon. Friend. The two children find themselves caught up in just the sort of situation that I have described. They are wanted in two homes by their separated parents, and those parents are 5,000 miles apart.

As my hon. Friend said, despite a court order in favour of Mrs. Manchanayake, their father took them to Sri Lanka in July 1987. Our high commission in Colombo reported to us on 31 August that Mr. Manchanayake had taken the children, allegedly on false documents, as my hon. Friend mentioned. Our high commission cannot take action formally—I stress formally—with the Sri Lankan authorities for the return of Alick and Alex. They will have acquired Sri Lankan nationality by descent from their father. Therefore, they are citizens of Sri Lanka and subject to the laws of Sri Lanka. They are, of course, subject to the jurisdiction of Sri Lankan courts. Unfortunately, Sri Lanka is not one of the signatories to the relevant conventions, despite the fact that, at Harare, we brought to its attention the desirability of signing such conventions. Mrs. Manchanayake must therefore continue to pursue custody through the Sri Lankan courts. Only the courts can decide the issue. A local lawyer is best placed to advise Mrs. Manchanayke on local procedures and how she can best present her case.

My hon. Friend is aware also that we cannot make legal aid available for legal proceedings that take place outside the United Kingdom. That is because the significant number of arrests and detentions involving British nationals worldwide would involve us in considerable expense. For instance, in 1987, 1,400 Britons were in detention at any one time. We could not contemplate taking on the considerable financial burden that would be entailed in making legal aid available overseas.

I sympathise with Mrs. Manchanayake and the many other families who find themselves in similar circumstances. Our high commission has approached the Sri Lankan authorities informally on Mrs. Manchanayake's behalf to obtain a welfare report on her two children. The reason why I have not followed up my December letter with further information is that we have not had a reply to our request for a welfare report, despite the fact that we have reminded the authorities about that request.

I shall ensure that the record of the debate is made available to the relevant officials in the Ministry of Foreign Affairs in Colombo. I shall also write to our high commissioner in Colombo, reinforcing the need that he and his staff should follow up the case on every available opportunity with the Sri Lankan authorities.

I am grateful to my hon. Friend for giving way and for the fullness of his explanation. Is he saying that the high commission authorities have not visited the boys and that they do not know where they are?

I shall recheck the matter and if I am incorrect, write to my hon. Friend, but my understanding is that they have not been directly in touch with the boys; they have had contact, in so far as there has been contact, only through the Sri Lankan authorities. I am afraid that that flows directly from the point that I made earlier. They are of dual nationality, they are in the country of their second nationality, and, therefore, our consular officials have no authority and no standing to intervene. I am afraid that that is a problem that we get into throughout the world.

My hon. Friend said that they are Sri Lankan citizens. They were born here, they are British citizens, they were at school here, and they have been taken out of this country illegally, in defiance of a British court order, yet the British high commission in Sri Lanka, whose job it is to look after the interests of British citizens, has not made contact.

I tried to explain to my hon. Friend that, when in Sri Lanka, they are regarded by the Sri Lankans and, indeed, by the British Government, because of the international conventions, as being not British citizens but Sri Lankan citizens. If the two boys had been taken to any country other than Sri Lanka and we were asked to contact them and take up their case directly we could do so. That procedure has been agreed internationally and must be adhered to.

I stress again that we will do everything that we can on an informal basis. I will ask our high commission to take a personal interest in the case, and a record of this debate will be passed to the Sri Lankan authorities. I shall keep my hon. Friend in touch with matters as, I hope, they develop.

Question put and agreed to.

Adjourned accordingly at fifteen minutes past Three o'clock.