CASE

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Case Name

Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997)

INCADAT reference

HC/E/USf 105

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States District Court for the Eastern District of Michigan

Level

First Instance

Judge(s)
Cohn D.J.

States involved

Requesting State

FRANCE

Requested State

UNITED STATES - FEDERAL JURISDICTION

Decision

Date

11 February 1997

Status

Final

Grounds

Settlement of the Child - Art. 12(2)

Order

Return refused

HC article(s) Considered

12(2) 12(1)

HC article(s) Relied Upon

12(2)

Other provisions
42 U.S.C. 11603
Authorities | Cases referred to
Hemard v. Hemard, No. 7-94CV-119-X (N.D. Tex. Feb. 15, 1995); Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).

INCADAT comment

Exceptions to Return

Settlement of the child
Settlement of the Child
Commencement of Convention Proceedings

SUMMARY

Summary available in EN | FR | ES

Facts

The children, two girls, were aged a little over 6 and 3 ½ at the date of the alleged wrongful retention. They had spent the majority of their lives in France. The parents were married. On 13 October 1994 the mother took the children to the United States on vacation. On 1 November she informed the father that she did not intend to return.

On 1 July 1995 the father filed a return application with the French Central Authority. On 17 July the request was forwarded to the United States Central Authority, with receipt being acknowledged the next day.

On 30 January 1996 the State Department forwarded the father's application to the National Council for Missing and Exploited Children. On 27 March 1996 the father's application was filed in the District Court.

Ruling

Return refused; the District Court ruled that the retention of the children was wrongful but declined to order their return on the grounds that they were now settled in their new environment, eighteen months having elapsed between the retention and the commencement of judicial / administrative proceedings.

Grounds

Settlement of the Child - Art. 12(2)

The father argued that the proceedings before ‘judicial or administrative authorities’ commenced when he filed his application with the United States Central Authority, this having occurred within one year of the wrongful retention. This view was rejected by the court. It affirmed that the Convention employed the term ‘administrative authority’, not to include Central Authorities, but merely to reflect the fact that in certain jurisdictions it was administrative and not judicial authorities which were entrusted with the general protection of children. The court noted that eighteen months had elapsed prior to the commencement of proceedings, and found that the children were now settled in their new environment.

INCADAT comment

The issue of identifying the precise date of the "commencement of proceedings before the judicial or administrative authority of the Contracting State where the child [was]" was considered in the Canadian appellate case: V.B.M. v. D.L.J. [2004] N.J. No. 321; 2004 NLCA 56 [INCADAT Reference: HC/E/CA 592].

In that case the Newfoundland and Labrador Supreme Court - Court of Appeal came to the identical conclusion that Article 12 referred to the time between the wrongful removal and the commencement of the civil action for the return of the child.

Settlement of the Child

A uniform interpretation has not emerged with regard to the concept of settlement; in particular whether it should be construed literally or rather in accordance with the policy objectives of the Convention.  In jurisdictions favouring the latter approach the burden of proof on the abducting parent is clearly greater and the exception is more difficult to establish.

Jurisdictions in which a heavy burden of proof has been attached to the establishment of settlement include:

United Kingdom - England & Wales
Re N. (Minors) (Abduction) [1991] 1 FLR 413 [INCADAT cite: HC/E/UKe 106]

In this case it was held that settlement is more than mere adjustment to surroundings. It involves a physical element of relating to, being established in, a community and an environment. It also has an emotional constituent denoting security and stability.

Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT cite: HC/E/UKe 598]

For academic criticism of Re N. see:

Collins L. et al., Dicey, Morris & Collins on the Conflict of Laws, 14th Edition, Sweet & Maxwell, London, 2006, paragraph 19-121.

However, it may be noted that a more recent development in England has been the adoption of a child-centric assessment of settlement by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937].  This ruling may impact on the previous case law.

However there was no apparent weakening of the standard in the non-Convention case Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649,[INCADAT cite: HC/E/UKe 982].

United Kingdom - Scotland
Soucie v. Soucie 1995 SC 134 [INCADAT cite: HC/E/UKs 107]

For Article 12(2) to be activated the interest of the child in not being uprooted must be so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place.

P. v. S., 2002 FamLR 2 [INCADAT cite: HC/E/UKs 963]

A settled situation was one which could reasonably be relied upon to last as matters stood and did not contain indications that it was likely to change radically or to fall apart. There had therefore to be some projection into the future.

C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]

United States of America
In re Interest of Zarate, No. 96 C 50394 (N.D. Ill. Dec. 23, 1996) [INCADAT cite: HC/E/USf  134]

A literal interpretation of the concept of settlement has been favoured in:

Australia
Director-General, Department of Community Services v. M. and C. and the Child Representative (1998) FLC 92-829 [INCADAT cite: HC/E/AU 291];

China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825].

The impact of the divergent interpretations is arguably most marked where very young children are concerned.

It has been held that settlement is to be considered from the perspective of a young child in:

Austria
7Ob573/90 Oberster Gerichtshof, 17/05/1990 [INCADAT cite: HC/E/AT 378];

Australia
Secretary, Attorney-General's Department v. T.S. (2001) FLC 93-063 [INCADAT cite: HC/E/AU 823];

State Central Authority v. C.R [2005] Fam CA 1050 [INCADAT cite: HC/E/AU 824];

Israel
Family Application 000111/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 938];

Monaco
R 6136; M. Le Procureur Général contre M. H. K., [INCADAT cite: HC/E/MC 510];

Switzerland
Präsidium des Bezirksgerichts St. Gallen (District Court of St. Gallen) (Switzerland), decision of 8 September 1998, 4 PZ 98-0217/0532N, [INCADAT cite: HC/E/CH 431].

A child-centric approach has also been adopted in several significant appellate decisions with regard to older children, with emphasis placed on the children's views.

United Kingdom - England & Wales
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937];

France
CA Paris 27 Octobre 2005, 05/15032, [INCADAT cite: HC/E/FR 814];

Québec
Droit de la Famille 2785, Cour d'appel de  Montréal, 5 December 1997, No 500-09-005532-973 [INCADAT cite: HC/E/CA 653].

In contrast, a more objective assessment was favoured in the United States decision:

David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991) [INCADAT cite: HC/E/USs 208]
The children, aged 3 and 1 1/2, had not established significant ties to their community in Brooklyn; they were not involved in school, extra-curricular, community, religious or social activities which children of an older age would be.

Commencement of Convention Proceedings

For the purposes of Art 12(1) the obligation on Contracting States to return children ‘forthwith' exists where less than 12 months has elapsed between the wrongful removal / retention and ‘the commencement of the proceedings before the judicial or administrative authority' in the Contracting State of refuge.

Courts in several Contracting States have considered the issue of the precise date of the commencement of such proceedings and have concluded that it is not enough for the purposes of Article 12(1) for the return application to have been filed with the relevant Central Authority in the State of refuge, rather civil return proceedings must have been initiated.  In this it has been noted that the reference to administrative authorities in Art 12 refers to States where administrative tribunals have jurisdiction for return petitions.

Canada
V.B.M. v. D.L.J. [2004] N.J. No. 321; 2004 NLCA 56 [INCADAT cite: HC/E/CA 592].

United States of America
Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997) [INCADAT cite: HC/E/USf 105].

The issue has been accepted without argument in both England & Wales and Scotland:

Re M. (Abduction: Acquiescence) [1996] 1 FLR 315, [INCADAT cite: HC/E/UKe 21];

Perrin v. Perrin 1994 SC 45, 1995 SLT 81, 1993 SCLR 949, [INCADAT cite: HC/E/UKs 108].