South Gauteng High Court, Johannesburg
20 March 2012
Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Acquiescence - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | Procedural Matters
The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.
Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.
United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.
Child Centred Focus
The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:
Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].
Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].
Combined Child's Connection / Parental Intention Focus
The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.
The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].
Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].
In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.
Parental Intention Focus
The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.
This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:
Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;
Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;
Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.
The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:
Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];
Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].
It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.
There are variations of approach in other jurisdictions:
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).
8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].
In the Province of Quebec, a child centred focus is adopted:
In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.
A child centred, factual approach is also evident in German case law:
2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].
This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:
Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998 [INCADAT Reference: HC/E/DE 233].
The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:
Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];
Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].
However, reference has been made to a more child centred approach in other cases. See:
decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;
FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See
S.K. v. K.P.  3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].
A child centred, factual approach is evident in Swiss case law:
5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.
Re J. (A Minor) (Abduction: Custody Rights)  2 AC 562,  2 All ER 961,  2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:
R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;
R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.
Where there is clear evidence of an intention to commence a new life in another State then the existing habitual residence will be lost and a new one acquired.
In common law jurisdictions it is accepted that acquisition may be able to occur within a short period of time, see:
DeHaan v. Gracia  AJ No.94 (QL),  ABQD 4, [INCADAT cite: HC/E/CA 576];
United Kingdom - England & Wales
Re J. (A Minor) (Abduction: Custody Rights)  2 AC 562 [INCADAT cite: HC/E/UKe 2];
Re F. (A Minor) (Child Abduction)  1 FLR 548, [INCADAT cite: HC/E/UKe 40].
In civil law jurisdictions it has been held that a new habitual residence may be acquired immediately, see:
Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P.367/2005 /ast, [INCADAT cite : HC/E/CH 841].
Where parental agreement as regards relocation is conditional on a future event, should an existing habitual residence be lost immediately upon leaving that country?
The Full Court of the Family Court of Australia answered this question in the negative and further held that loss may not even follow from the fulfilment of the condition if the parent who aspires to relocate does not clearly commit to the relocation at that time, see:
Kilah & Director-General, Department of Community Services  FamCAFC 81, [INCADAT cite: HC/E/AU 995].
However, this ruling was overturned on appeal by the High Court of Australia, which held that an existing habitual residence would be lost if the purpose had a sufficient degree of continuity to be described as settled. There did not need to be a settled intention to take up ‘long term' residence:
L.K. v. Director-General Department of Community Services  HCA 9, (2009) 253 ALR 202, [INCADAT cite: HC/E/AU 1012].
Preparation of INCADAT case law analysis in progress.
The classification of consent has given rise to difficulty. Some courts have indeed considered that the issue of consent goes to the wrongfulness of the removal or retention and should therefore be considered within Article 3, see:
In the Marriage of Regino and Regino v. The Director-General, Department of Families Services and Aboriginal and Islander Affairs Central Authority (1995) FLC 92-587 [INCADAT cite: HC/E/AU 312];
Re P.-J. (Children)  EWCA Civ 588, [INCADAT cite: HC/E/UKe 1014].
Although the issue had ostensibly been settled in English case law, that consent was to be considered under Art 13(1) a), neither member of the two judge panel of the Court of Appeal appeared entirely convinced of this position.
Reference can equally be made to examples where trial courts have not considered the Art 3 - Art 13(1) a) distinction, but where consent, in terms of initially going along with a move, has been treated as relevant to wrongfulness, see:
F.C. c. P.A., Droit de la famille - 08728, Cour supérieure de Chicoutimi, 28 mars 2008, N°150-04-004667-072, [INCADAT cite: HC/E/CA 969];
U/EU970069, Bezirksgericht Zürich (Zurich District Court), [INCADAT cite: HC/E/CH 425];
United Kingdom - Scotland
Murphy v. Murphy 1994 GWD 32-1893 [INCADAT cite: HC/E/UKs 186].
The case was not considered in terms of the Art 3 - Art 13(1) a) distinction, but given that the father initially went along with the relocation it was held that there would be neither a wrongful removal or retention.
The majority view is now though that consent should be considered in relation to Article 13(1) a), see:
Director-General, Department of Child Safety v. Stratford  Fam CA 1115, [INCADAT cite: HC/E/UKe 830];
United Kingdom - England & Wales
Re C. (Abduction: Consent)  1 FLR 414, [INCADAT cite: HC/E/UKe 53];
T. v. T. (Abduction: Consent)  2 FLR 912;
Re D. (Abduction: Discretionary Return)  1 FLR 24, [INCADAT cite: HC/E/UKe 267];
Re P. (A Child) (Abduction: Acquiescence)  EWCA CIV 971,  Fam. 293, [INCADAT cite: HC/E/UKe 591];
B.B. v. J.B.  1 ILRM 136; sub nom B. v. B. (Child Abduction)  1 IR 299, [INCADAT cite: HC/E/IE 287];
United Kingdom - Scotland
T. v. T. 2004 S.C. 323, [INCADAT cite: HC/E/UKs 997];
For a discussion of the issues involved see Beaumont & McEleavy, The Hague Convention on International Child Abduction, OUP, 1999 at p. 132 et seq.
The issue of how to respond when a taking parent who is a primary carer threatens not to accompany a child back to the State of habitual residence if a return order is made, is a controversial one.
There are examples from many Contracting States where courts have taken a very strict approach so that, other than in exceptional situations, the Article 13(1)(b) exception has not been upheld where the non-return argument has been raised, see:
4Ob1523/96, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 561]
M.G. v. R.F., 2002 R.J.Q. 2132 [INCADAT Reference: HC/E/CA 762]
N.P. v. A.B.P., 1999 R.D.F. 38 [INCADAT Reference: HC/E/CA 764]
In this case, a non-return order was made since the facts were exceptional. There had been a genuine threat to the mother, which had put her quite obviously and rightfully in fear for her safety if she returned to Israel. The mother was taken to Israel on false pretences, sold to the Russian Mafia and re-sold to the father who forced her into prostitution. She was locked in, beaten by the father, raped and threatened. The mother was genuinely in a state of fear and could not be expected to return to Israel. It would be wholly inappropriate to send the child back without his mother to a father who had been buying and selling women and running a prostitution business.
United Kingdom - England and Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad)  1 WLR 654 [INCADAT Reference: HC/E/UKe 34]
Re C. (Abduction: Grave Risk of Psychological Harm)  1 FLR 1145 [INCADAT Reference: HC/E/UKe 269]
However, in a more recent English Court of Appeal judgment, the C. v. C. approach has been refined:
Re S. (A Child) (Abduction: Grave Risk of Harm)  3 FCR 43,  EWCA Civ 908 [INCADAT Reference: HC/E/UKe 469]
In this case, it was ruled that a mother's refusal to return was capable of amounting to a defence because the refusal was not an act of unreasonableness, but came about as a result of an illness she was suffering from. It may be noted, however, that a return order was nevertheless still made. In this context reference may also be made to the decisions of the United Kingdom Supreme Court in Re E. (Children) (Abduction: Custody Appeal)  UKSC 27,  1 A.C. 144 [INCADAT Reference: HC/E/UKe 1068] and Re S. (A Child) (Abduction: Rights of Custody)  UKSC 10,  2 A.C. 257 [INCADAT Reference: HC/E/UKe 1147], in which it was accepted that the anxieties of a respondent mother about return, which were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable, could in principle meet the threshold of the Article 13(1)(b) exception.
Oberlandesgericht Dresden, 10 UF 753/01, 21 January 2002 [INCADAT Reference: HC/E/DE 486]
Oberlandesgericht Köln, 21 UF 70/01, 12 April 2001 [INCADAT: HC/E/DE 491]
Previously a much more liberal interpretation had been adopted:
Oberlandesgericht Stuttgart, 17 UF 260/98, 25 November 1998 [INCADAT Reference: HC/E/DE 323]
5P_71/2003/min, II. Zivilabteilung, arrêt du TF du 27 mars 2003 [INCADAT Reference: HC/E/CH 788]
5P_65/2002/bnm, II. Zivilabteilung, arrêt du TF du 11 avril 2002 [INCADAT Reference: HC/E/CH 789]
5P_367/2005/ast, II. Zivilabteilung, arrêt du TF du 15 novembre 2005 [INCADAT Reference: HC/E/CH 841]
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]
5A_479/2012, IIe Cour de droit civil, arrêt du TF du 13 juillet 2012 [INCADAT Reference: HC/E/CH 1179]
K.S. v. L.S.  3 NZLR 837 [INCADAT Reference: HC/E/NZ 770]
United Kingdom - Scotland
McCarthy v. McCarthy  SLT 743 [INCADAT Reference: HC/E/UKs 26]
United States of America
Panazatou v. Pantazatos, No. FA 96071351S (Conn. Super. Ct., 1997) [INCADAT Reference: HC/E/USs 97]
In other Contracting States, the approach taken with regard to non-return arguments has varied:
In Australia, early Convention case law exhibited a very strict approach adopted with regard to non-return arguments, see:
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT Reference: HC/E/AU 294]
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]
In State Central Authority v. Ardito, 20 October 1997 [INCADAT Reference: HC/E/AU 283], the Family Court of Australia at Melbourne did find the grave risk of harm exception to be established where the mother would not return, but in this case the mother had been denied entry into the United States of America, the child's State of habitual residence.
Following the judgment of the High Court of Australia (the highest court in the Australian judicial system) in the joint appeals DP v. Commonwealth Central Authority; J.L.M. v. Director-General, NSW Department of Community Services  HCA 39, (2001) 180 ALR 402 [INCADAT Reference HC/E/AU 346, 347], greater attention has been focused on the post-return situation facing abducted children.
In the context of a primary-carer taking parent refusing to return to the child's State of habitual residence see: Director General, Department of Families v. RSP.  FamCA 623 [INCADAT Reference HC/E/AU 544].
In French case law, a permissive approach to Article 13(1)(b) has been replaced with a much more restrictive interpretation. For examples of the initial approach, see:
Cass. Civ 1ère 12. 7. 1994, S. c. S.. See Rev. Crit. 84 (1995), p. 96 note H. Muir Watt; JCP 1996 IV 64 note Bosse-Platière, Defrénois 1995, art. 36024, note J. Massip [INCADAT Reference: HC/E/FR 103]
Cass. Civ 1ère, 22 juin 1999, No de RG 98-17902 [INCADAT Reference: HC/E/FR 498]
And for examples of the stricter interpretation, see:
Cass Civ 1ère, 25 janvier 2005, No de RG 02-17411 [INCADAT Reference: HC/E/FR 708]
CA Agen, 1 décembre 2011, No de RG 11/01437 [INCADAT Reference HC/E/FR 1172]
In Israeli case law there are contrasting examples of the judicial response to non-return arguments:
Civil Appeal 4391/96 Ro v. Ro [INCADAT Reference: HC/E/IL 832]
in contrast with:
Family Appeal 621/04 D.Y v. D.R [INCADAT Reference: HC/E/IL 833]
Decision of the Supreme Court, 7 October 1998, I CKN 745/98 [INCADAT Reference: HC/E/PL 700]
The Supreme Court noted that it would not be in the child's best interests if she were deprived of her mother's care, were the latter to choose to remain in Poland. However, it equally affirmed that if the child were to stay in Poland it would not be in her interests to be deprived of the care of her father. For these reasons, the Court concluded that it could not be assumed that ordering the return of the child would place her in an intolerable situation.
Decision of the Supreme Court, 1 December 1999, I CKN 992/99 [INCADAT Reference: HC/E/PL 701]
The Supreme Court specified that the frequently used argument of the child's potential separation from the taking parent, did not, in principle, justify the application of the exception. It held that where there were no objective obstacles to the return of a taking parent, then it could be assumed that the taking parent considered his own interest to be more important than those of the child.
The Court added that a taking parent's fear of being held criminally liable was not an objective obstacle to return, as the taking parent should have been aware of the consequences of his actions. The situation with regard to infants was however more complicated. The Court held that the special bond between mother and baby only made their separation possible in exceptional cases, and this was so even if there were no objective obstacles to the mother's return to the State of habitual residence. The Court held that where the mother of an infant refused to return, whatever the reason, then the return order should be refused on the basis of Article 13(1)(b). On the facts, return was ordered.
Solicitud conforme al Convenio de La Haya sobre los Aspectos Civiles de la Sustracción Internacional de Menores - Casación, IUE 9999-68/2010 [INCADAT Reference: HC/E/UY 1185]
European Court of Human Rights (ECrtHR)
There are decisions of the ECrtHR which have endorsed a strict approach with regard to the compatibility of Hague Convention exceptions and the European Convention on Human Rights (ECHR). Some of these cases have considered arguments relevant to the issue of grave risk of harm, including where an abductor has indicated an unwillingness to accompany the returning child, see:
Ilker Ensar Uyanık c. Turquie (Application No 60328/09) [INCADAT Reference: HC/E/ 1169]
In this case, the ECrtHR upheld a challenge by the left-behind father that the refusal of the Turkish courts to return his child led to a breach of Article 8 of the ECHR. The ECrtHR stated that whilst very young age was a criterion to be taken into account to determine the child's interest in an abduction case, it could not be considered by itself a sufficient ground, in relation to the requirements of the Hague Convention, to justify dismissal of a return application.
Recourse has been had to expert evidence to assist in ascertaining the potential consequences of the child being separated from the taking parent
Maumousseau and Washington v. France (Application No 39388/05) of 6 December 2007 [INCADAT Reference: HC/E/ 942]
Lipowsky and McCormack v. Germany (Application No 26755/10) of 18 January 2011 [INCADAT Reference: HC/E/ 1201]
MR and LR v. Estonia (Application No 13420/12) of 15 May 2012 [INCADAT Reference: HC/E/ 1177]
However, it must equally be noted that since the Grand Chamber ruling in Neulinger and Shuruk v. Switzerland, there are examples of a less strict approach being followed. The latter ruling had emphasised the best interests of the individual abducted child in the context of an application for return and the ascertainment of whether the domestic courts had conducted an in-depth examination of the entire family situation as well as a balanced and reasonable assessment of the respective interests of each person, see:
Neulinger and Shuruk v. Switzerland (Application No 41615/07), Grand Chamber, of 6 July 2010 [INCADAT Reference: HC/E/ 1323]
X. v. Latvia (Application No 27853/09) of 13 December 2011 [INCADAT Reference: HC/E/ 1146]; and Grand Chamber ruling X. v. Latvia (Application No 27853/09), Grand Chamber [INCADAT Reference: HC/E/ 1234]
B. v. Belgium (Application No 4320/11) of 10 July 2012 [INCADAT Reference: HC/E/ 1171]
In this case, a majority found that the return of a child to the United States of America would lead to a breach of Article 8 of the ECHR. The decision-making process of the Belgian Appellate Court as regards Article 13(1)(b) was held not to have met the procedural requirements inherent in Article 8 of the ECHR. The two dissenting judges noted, however, that the danger referred to in Article 13 should not consist only of the separation of the child from the taking parent.
(Author: Peter McEleavy, April 2013)
Preparation of INCADAT case law analysis in progress.
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)  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  EWCA CIV 1330,  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)  UKHL 55,  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)  EWCA Civ. 842,  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.  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:
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.  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:
7Ob573/90 Oberster Gerichtshof, 17/05/1990 [INCADAT cite: HC/E/AT 378];
Secretary, Attorney-General's Department v. T.S. (2001) FLC 93-063 [INCADAT cite: HC/E/AU 823];
State Central Authority v. C.R  Fam CA 1050 [INCADAT cite: HC/E/AU 824];
Family Application 000111/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 938];
R 6136; M. Le Procureur Général contre M. H. K., [INCADAT cite: HC/E/MC 510];
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)  UKHL 55,  1 AC 1288, [INCADAT cite: HC/E/UKe 937];
CA Paris 27 Octobre 2005, 05/15032, [INCADAT cite: HC/E/FR 814];
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.
Preparation of INCADAT commentary in progress.