CASE

Download full text FR

Case Name

J.M. c. C.C., Droit de la Famille 093056, Cour supérieure de Hull, 7 décembre 2009, 2009 QCCS 5812

INCADAT reference

HC/E/CA 1094

Court

Country

CANADA

Name

Cour supérieure de Hull

Level

First Instance

Judge(s)
Tessier JCS

States involved

Requesting State

FRANCE

Requested State

CANADA

Decision

Date

7 December 2009

Status

Final

Grounds

Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Order

Return refused

HC article(s) Considered

3 12 13(2)

HC article(s) Relied Upon

3 13(2)

Other provisions
L.R.Q. chapitre A 23.01 (Loi sur les aspects civils de l'enlèvement international et interprovincial d'enfants)
Authorities | Cases referred to

-

Published in

-

INCADAT comment

Article 12 Return Mechanism

Rights of Custody
What is a Right of Custody for Convention Purposes?

Exceptions to Return

Child's Objection
Nature and Strength of Objection
Requisite Age and Degree of Maturity

SUMMARY

Summary available in EN | FR | ES

Facts

The case concerned two children aged 14 and 15. The parents had separated after 15 years of marriage in 2005. The separation was contentious. According to the French divorce judgment delivered in 2008, the children's habitual residence would be with their mother while the father would have a right of access, parental authority being shared. This system had operated without major problems for years; the parents as well as the children lived in France.

In 2008, the mother proposed to move to Quebec; the children agreed but the father objected. The mother and children nevertheless moved on 28 December 2008.On 6 January 2009, the father applied for the children's return.

Ruling

Return refused; the removal was wrongful but the children validly objected to their return.

Grounds

Rights of Custody - Art. 3

The Court pointed out that the right of custody is determined as a matter of principle by the law of the State of the children's habitual residence (W. (V.) v. S. (D.) [1996] 2 R.C.S).

It added that another Superior Court had had occasion to find that a French order awarding parental authority to both parents had resulted in granting a right of custody "not only to the mother, but also to the father", within the meaning of the Convention. Hence, the decision setting the children's residence abroad had to be made by both parents, and the mother could not act alone. The Court concluded that the removal was wrongful since the father objected to it.

Objections of the Child to a Return - Art. 13(2)

Stating that the defence of the child's objection was to be interpreted strictly, the Court quoted the Pérez-Vera report and observed that it was to "determine, having regard to the evidence, whether the child [had] reached an age and degree of maturity making it appropriate to take into account its opinion relating to its return to the State of its habitual residence". It also stressed the importance of not confusing preference with objection to a return.

In the case in point, it found that the children, interviewed separately, were familiar with the court process. It broached the issue with the elder aged 15 and 11 months in a "candid and direct manner" and the child had displayed great maturity for his age to reply in the same tone that he categorically objected to his return to France. The Court considered, having regard to his age and great maturity, that his opinion should not be disregarded.

As for the sister aged 14, the Court, on the basis of the principles laid down by Ward L.J in the English case of Re T. (Abduction: Child's Objections to Return) [2000] 2 FLR 192 [INCADAT Reference: HC/E/UKe 270], had sought to understand whether she was able to make decisions in a genuinely independent and mature manner.

It had found that the child displayed "as much maturity as her brother and [was] able to state nuances and distinctions suited to her choice" and to understand her decision's impact on her mother and father. The Court found it appropriate to take the children's objections to their return into account, having regard to their age and maturity.

Procedural Matters

The Court did not award the father the damages he claimed having regard to the specific features of the case, "though without condoning the mother's behavior".

Author of the summary: Aude Fiorini, United Kingdom

INCADAT comment

What is a Right of Custody for Convention Purposes?

Courts in an overwhelming majority of Contracting States have accepted that a right of veto over the removal of the child from the jurisdiction amounts to a right of custody for Convention purposes, see:

Australia
In the Marriage of Resina [1991] FamCA 33, [INCADAT cite: HC/E/AU 257];

State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232];

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU 294];

Austria
2 Ob 596/91, OGH, 05 February 1992, Oberster Gerichtshof [INCADAT cite: HC/E/AT 375];

Canada
Thomson v. Thomson [1994] 3 SCR 551, 6 RFL (4th) 290 [INCADAT cite: HC/E/CA 11].

The Supreme Court did draw a distinction between a non-removal clause in an interim custody order and in a final order. It suggested that were a non-removal clause in a final custody order to be regarded as a custody right for Convention purposes, that could have serious implications for the mobility rights of the primary carer.

Thorne v. Dryden-Hall, (1997) 28 RFL (4th) 297 [INCADAT cite: HC/E/CA 12];

Decision of 15 December 1998, [1999] R.J.Q. 248 [INCADAT cite: HC/E/CA 334];

United Kingdom - England & Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465, [1989] 1 FLR 403, [1989] Fam Law 228 [INCADAT cite: HC/E/UKe 34];

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [INCADAT cite: HC/E/UKe 880];

France
Ministère Public c. M.B. 79 Rev. crit. 1990, 529, note Y. Lequette [INCADAT cite: HC/E/FR 62];

Germany
2 BvR 1126/97, Bundesverfassungsgericht, (Federal Constitutional Court), [INCADAT cite: HC/E/DE 338];

10 UF 753/01, Oberlandesgericht Dresden, [INCADAT cite: HC/E/DE 486];

United Kingdom - Scotland
Bordera v. Bordera 1995 SLT 1176 [INCADAT cite: HC/E/UKs 183];

A.J. v. F.J. [2005] CSIH 36, 2005 1 SC 428 [INCADAT cite: HC/E/UKs 803];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Switzerland
5P.1/1999, Tribunal fédéral suisse, (Swiss Supreme Court), 29 March 1999, [INCADAT cite: HC/E/CH 427].

United States of America
In the United States, the Federal Courts of Appeals were divided on the appropriate interpretation to give between 2000 and 2010.

A majority followed the 2nd Circuit in adopting a narrow interpretation, see:

Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313];

Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493];

Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494];

Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008), [INCADAT cite: HC/E/USf 989].

The 11th Circuit however endorsed the standard international interpretation.

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT cite: HC/E/USf 578].

The matter was settled, at least where an applicant parent has a right to decide the child's country of residence, or the court in the State of habitual residence is seeking to protect its own jurisdiction pending further decrees, by the US Supreme Court endorsing the standard international interpretation. 

Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].

The standard international interpretation has equally been accepted by the European Court of Human Rights, see:

Neulinger & Shuruk v. Switzerland, No. 41615/07, 8 January 2009 [INCADAT cite: HC/E/ 1001].

Confirmed by the Grand Chamber: Neulinger & Shuruk v. Switzerland, No 41615/07, 6 July 2010 [INCADAT cite: HC/E/ 1323].


Right to Object to a Removal

Where an individual does not have a right of veto over the removal of a child from the jurisdiction, but merely a right to object and to apply to a court to prevent such a removal, it has been held in several jurisdictions that this is not enough to amount to a custody right for Convention purposes:

Canada
W.(V.) v. S.(D.), 134 DLR 4th 481 (1996), [INCADAT cite: HC/E/CA17];

Ireland
W.P.P. v. S.R.W. [2001] ILRM 371, [INCADAT cite: HC/E/IE 271];

United Kingdom - England & Wales
Re V.-B. (Abduction: Custody Rights) [1999] 2 FLR 192, [INCADAT cite: HC/E/UKe 261];

S. v. H. (Abduction: Access Rights) [1998] Fam 49 [INCADAT cite: HC/E/UKe 36];

United Kingdom - Scotland
Pirrie v. Sawacki 1997 SLT 1160, [INCADAT cite: HC/E/UKs 188].

This interpretation has also been upheld by the Court of Justice of the European Union:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].

The European Court held that to find otherwise would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the sole custodian.

For academic commentary see:

P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford, OUP, 1999, p. 75 et seq.;

M. Bailey The Right of a Non-Custodial Parent to an Order for Return of a Child Under the Hague Convention; Canadian Journal of Family Law, 1996, p. 287;

C. Whitman 'Croll v Croll: The Second Circuit Limits 'Custody Rights' Under the Hague Convention on the Civil Aspects of International Child Abduction' 2001 Tulane Journal of International and Comparative Law 605.

Nature and Strength of Objection

Australia
De L. v. Director-General, NSW Department of Community Services (1996) FLC 92-706 [INCADAT cite: HC/E/AU 93].

The supreme Australian jurisdiction, the High Court, advocated a literal interpretation of the term ‘objection'.  However, this was subsequently reversed by a legislative amendment, see:

s.111B(1B) of the Family Law Act 1975 inserted by the Family Law Amendment Act 2000.

Article 13(2), as implemented into Australian law by reg. 16(3) of the Family Law (Child Abduction) Regulations 1989, now provides not only that the child must object to a return, but that the objection must show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

See for example:

Richards & Director-General, Department of Child Safety [2007] FamCA 65 [INCADAT cite: HC/E/UKs 904].

The issue as to whether a child must specifically object to the State of habitual residence has not been settled, see:

Re F. (Hague Convention: Child's Objections) [2006] FamCA 685 [INCADAT cite: HC/E/AU 864].

Austria
9Ob102/03w, Oberster Gerichtshof (Austrian Supreme Court), 8/10/2003 [INCADAT: cite HC/E/AT 549].

A mere preference for the State of refuge is not enough to amount to an objection.

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles, 27/5/2003 [INCADAT cite: HC/E/BE 546].

A mere preference for the State of refuge is not enough to amount to an objection.

Canada
Crnkovich v. Hortensius, [2009] W.D.F.L. 337, 62 R.F.L. (6th) 351, 2008, [INCADAT cite: HC/E/CA 1028].

To prove that a child objects, it must be shown that the child "displayed a strong sense of disagreement to returning to the jurisdiction of his habitual residence. He must be adamant in expressing his objection. The objection cannot be ascertained by simply weighing the pros and cons of the competing jurisdictions, such as in a best interests analysis. It must be something stronger than a mere expression of preference".

United Kingdom - England & Wales
In Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKs 87] the Court of Appeal held that the return to which a child objects must be an immediate return to the country from which it was wrongfully removed. There is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.

In Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKs 56] it was, however, accepted that an objection to life with the applicant parent may be distinguishable from an objection to life in the former home country.

In Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159 [INCADAT cite: HC/E/UKe 270] Ward L.J. set down a series of questions to assist in determining whether it was appropriate to take a child's objections into account.

These questions where endorsed by the Court of Appeal in Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].

For academic commentary see: P. McEleavy ‘Evaluating the Views of Abducted Children: Trends in Appellate Case Law' [2008] Child and Family Law Quarterly, pp. 230-254.

France
Objections based solely on a preference for life in France or life with the abducting parent have not been upheld, see:

CA Grenoble 29/03/2000 M. v. F. [INCADAT cite: HC/E/FR 274];

TGI Niort 09/01/1995, Procureur de la République c. Y. [INCADAT cite: HC/E/FR 63].

United Kingdom - Scotland
In Urness v. Minto 1994 SC 249 [INCADAT cite: HC/E/UKs 79] a broad interpretation was adopted, with the Inner House accepting that a strong preference for remaining with the abducting parent and for life in Scotland implicitly meant an objection to returning to the United States of America.

In W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805] the Inner House, which accepted the Re T. [INCADAT cite: HC/E/UKe 270] gateway test, held that objections relating to welfare matters were only to be dealt with by the authorities in the child's State of habitual residence.

In the subsequent first instance case: M. Petitioner 2005 S.L.T. 2 OH [INCADAT cite: HC/E/UKs 804], Lady Smith noted the division in appellate case law and decided to follow the earlier line of authority as exemplified in Urness v. Minto.  She explicitly rejected the Re T. gateway tests.

The judge recorded in her judgment that there would have been an attempt to challenge the Inner House judgment in W. v. W. before the House of Lords but the case had been resolved amicably.

More recently a stricter approach to the objections has been followed, see:  C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]; upheld on appeal: C v. C. [2008] CSIH 34, [INCADAT cite: HC/E/UKs 996].

Switzerland
The highest Swiss court has stressed the importance of children being able to distinguish between issues relating to custody and issues relating to return, see:

5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 795];

5P.3/2007 /bnm; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 894].

A mere preference for life in the State of refuge, even if reasoned, will not satisfy the terms of Article 13(2):

5A.582/2007 Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 986].

For general academic commentary see: R. Schuz ‘Protection or Autonomy -The Child Abduction Experience' in  Y. Ronen et al. (eds), The Case for the Child- Towards the Construction of a New Agenda,  271-310 (Intersentia,  2008).

Requisite Age and Degree of Maturity

Article 13(2) does not include a minimum age from which the objections of a child must be ascertained, rather it employs the formula that the child must have ‘attained an age and degree of maturity at which it is appropriate to take account of its views.'  Nevertheless it was the intention of the drafters that the exception would be primarily directed towards teenagers who were not prepared to go back to their home State.

Undoubtedly influenced by domestic family law practice, different patterns emerged in Contracting States as to the manner in which this exception has been applied.  Moreover those patterns may have evolved in jurisdictions during the life span of the application of the Convention, particularly as greater recognition has been paid to children as legal actors in their own right.  Indeed in the European Union, at least as regards intra-EU abductions, there is now an obligation that a child is given an opportunity to be heard, unless this appears inappropriate having regard to his age or maturity: Council Regulation 2201/2003, Art. 11(2).

The issue of age and maturity is also closely inter-related with the threshold applied to the exception, that is to say the criteria used to determine the circumstances in which it may be appropriate to take a child's objections into account, see for example: Re T. (Abduction: Child's Objections to Return) [2000] 2 FLR 192 [INCADAT cite HC/E/UKe 270]; Zaffino v. Zaffino [2006] 1 FLR 410 [INCADAT cite HC/E/UKe 813]; W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805]; White v. Northumberland [2006] NZFLR 1105, [INCADAT cite: HC/E/NZ 902].

Australia

H.Z. v. State Central Authority [2006] Fam CA 466, INCADAT cite: HC/E/AU 876

8 year old expressed objections which went beyond the mere expression of a preference or of ordinary wishes, however, in the light of her age and degree of maturity it would not be appropriate to take account of her views.

Director-General, Department of Families, Youth and Community Care v. Thorpe (1997) FLC 92-785 INCADAT cite: HC/E/AU 212]

Objections of 9 year old upheld

Germany

4 UF 223/98, Oberlandesgericht Düsseldorf, [INCADAT cite: HC/E/DE 820]

No fixed age limit.  The 8 year old concerned lacked sufficient maturity.

93 F 178/98 HK, Familengericht Flensburg (Family Court), 18 September 1998, [INCADAT cite: HC/E/DE 325]

Objections of 6 year old gathered, but not upheld. 

Ireland

In the Matter of M. N. (A Child) [2008] IEHC 382, [INCADAT cite: HC/E/IE 992

Detailed assessment of the age at which the views of a child should be heard in the light of Article 11(2) of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).  Order made that the views of a 6 year old be ascertained.

New Zealand

U. v. D. [2002] NZFLR 529, INCADAT cite: HC/E/NZ 472

Objections of 7 year old considered, but not upheld.

Switzerland

5P.1/2005 /bnm, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 795

No minimum age.  Children aged 9 1/2 and 10 ½ heard, but their objections were not upheld.

5P.3/2007 /bnm, Bundesgericht, II. Zivilabteilung, [INCADAT cite: HC/E/CH 894

A child would have the requisite maturity if he was able to understand the nature of the return proceedings. It was not possible to give general guidance as to the minimum age from which a child would be able to deal with such an abstract issue. The Court noted however that research in the field of child psychology suggested a child would only be capable of such reasoning from the age of 11 or 12.  The court of appeal had therefore been entitled not to gather the views of children, then aged 9 and 7.

United Kingdom - England & Wales

Re W (Minors) [2010] EWCA 520 Civ, [INCADAT cite: HC/E/UKs 1324

Objections of siblings aged 8 and almost 6 upheld.

The Court accepted that the objections of a child of 6 falling within the exception would have been outside the contemplation of the drafters.  However, Wilson L.J. held that: "...over the last thirty years the need to take decisions about much younger children not necessarily in accordance with their wishes but at any rate in the light of their wishes has taken hold... ."

United Kingdom - Scotland

N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571, [INCADAT cite: HC/E/UKs 996

Views of 9 ½ year old not gathered; objections of her 15 and 11 year old siblings not upheld.

W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805]

9 year old not of sufficient maturity to have her views considered - decision of trial judge reversed.

United States

Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) INCADAT cite: HC/E/USf 585]

No minimum age at which objections of a child can be ascertained.  Objections of 8 year old, within the context of an Art. 13(1)b) assessment, upheld.

Escobar v. Flores 183 Cal. App. 4th 737 (2010), [INCADAT cite: HC/E/USs 1026]

No minimum age at which objections of a child can be ascertained.  Objections of 8 year old upheld.