CASE

Download full text EN

Case Name

BDU v BDT [2014] SGCA 12

INCADAT reference

HC/E/SG 1286

Court

Country

SINGAPORE

Name

Court of Appeal

Level

Superior Appellate Court

Judge(s)
Sundaresh Menon CJ, Chao Hick Tin JA, Andrew Phang Boon Leong JA

States involved

Requesting State

GERMANY

Requested State

SINGAPORE

Decision

Date

17 February 2014

Status

Final

Grounds

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Undertakings | Role of the Central Authorities - Arts 6 - 10 | Procedural Matters

Order

Appeal dismissed, return ordered with undertakings offered

HC article(s) Considered

1 3 7 13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
De L v Director-General, New South Wales Department of Community Services and Another (1996) 187 CLR 640; DP v Commonwealth Central Authority (2001) 206 CLR 401; El Sayed v Secretary for Justice [2003] 1 NZLR 349; C v C (Abduction: Rights of Custody) [1989] 1 WLR 654; A v Central Authority for New Zealand [1996] 2 NZLR 517; Re M (Abduction: Undertakings) [1995] 1 FLR 1021; In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144; In re S (A Child) (Abduction: Rights of Custody) [2012] 2 AC 257; Thomson v Thomson (1994) 119 DLR (4th) 253; Clarke v Carson [1996] 1 NZLR 349; Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478; McCarthy v McCarthy [1994] SLT 743; D v D (Child Abduction: Non-Convention Country) [1994] 1 FLR 137; In the Marriage of McOwan (1993) 17 Fam LR 377; Re G (Abduction: Psychological Harm) [1995] 1 FLR 64; Armstrong v Evans [2000] NZFLR 984; Director-General, Department of Families v RSP [2003] FamCA 623; Director-General, Department of Families, Youth and Community Care v Bennett [2000] FamCA 253; In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619; Re O (Child Abduction: Undertakings) [1994] 2 FLR 349; Re M and J (Abduction: International Judicial Collaboration) [2000] 1 FLR 803; S v C [2011] EWCA Civ 1385.

INCADAT comment

Aims & Scope of the Convention

Convention Aims
Convention Aims

Exceptions to Return

Grave Risk of Harm
Primary Carer Abductions

Implementation & Application Issues

Measures to Facilitate the Return of Children
Safe Return / Mirror Orders
Undertakings
Procedural Matters
Requirement of Expedition (art. 11)

SUMMARY

Summary available in EN | ES

Facts

The proceedings concerned a child born in April 2010 to a Singaporean mother and a German father. The parents, after meeting on the internet, married in Denmark in October 2009 and thereafter lived in Germany. Initially the parents lived by themselves, but subsequently they moved in with the maternal grandparents. The mother did not work in Germany and had a difficult relationship with the father and the paternal grandmother.

In late 2010, the mother took the child to Singapore to visit her family. After the stay was extended, the mother and the child returned after the father travelled to Singapore. In January 2012, the family travelled together to Singapore. Only the father returned as scheduled on 17 February 2012. The mother gave birth to a second child in August 2012.

On 2 March 2012, the father obtained an order from a German court awarding him sole parental authority and authorizing him to take the child back to Germany. The mother refused to hand over the child when the father came to Singapore in April, and she commenced custody proceedings. The father's Hague Convention petition was filed in Singapore on 31 May, leading to the mother's custody petition being stayed.

On 21 August 2012, the District Court ordered the return of the child, subject to certain undertakings: BDT v BDU [2012] SGDC 363. The child was to be handed over to the father and the mother was to have twice weekly contact. On the same day, the mother gave birth to the couple's second child. No return proceedings were brought in respect of this child.

On 15 May 2013, the High Court dismissed the mother's appeal: BDU v BDT [2013] 3 SLR 535.

The mother appealed to the Court of Appeal. She argued that the child would face a grave risk of harm if a return order were made, because this would lead to his separation from the mother and younger sibling due to her inability for medical (in particular, psychological) reasons to return to Germany. In this the mother relied upon:
(a) the alleged physical and emotional violence inflicted on her by the father during the marriage;
(b) her difficulties in adapting to life in Germany and her difficult relations with the father's family, and in particular, paternal grandmother; and
(c) the alleged risk that she would commit suicide in Germany if she returned with the child.

The allegations of physical and emotional violence were disputed by the father who alleged that the mother was the aggressor during these incidents. He contested the mother's medical evidence and submitted that she was in fact unwilling, as opposed to unable, to return to Germany.

The Court appointed an independent expert to provide a psychiatric report on the mother. She concluded that the mother, inter alia, had certain delusional beliefs, but did not have a depressive disorder. The mother's ability to provide physical care for the children was not impaired in any way, though the decisions she might have to make for them could be affected by poor judgment and delusional beliefs. She was more likely to become disruptive and grow worse in Germany, and could become functionally impaired and incapable of managing herself or the first born child.

However, general indicators showed that the risk of suicide was low. The expert recommended that the mother start treatment in Singapore in order to minimise the risk of non-adherence to treatment and achieve some symptom control, were she to go back to Germany.

Ruling

Appeal dismissed and return ordered subject to undertakings by both parents; the retention of the child had been wrongful, and the grave risk of harm exception had not been established.

Grounds

Aims of the Convention - Preamble, Arts 1 and 2


The Court noted that the Hague Child Abduction Convention embodied a compromise between the need to have regard on an individual level to the paramount interests of the individual abducted child concerned, and the need on a more general policy level to ensure that abducted children were returned swiftly to their respective countries of habitual residence. Given that the entire raison d'être of the Convention was to ensure the latter (see Art. 1 of the Convention), it was of no surprise that the Convention focused instead on the general concept of jurisdiction selection.

The Court held moreover that adhering to the concept of jurisdiction selection in the general situation pursuant to the spirit of the Hague Child Abduction Convention itself, was not necessarily inconsistent with the paramount interests of the individual child concerned. The relationship between the general and the specific was, in the usual situation, more often than not complementary (as opposed to contradictory) in nature.

The Court held that there was no unfairness to the child concerned inasmuch as the Hague Child Abduction Convention ensured that the issues of custody were adjudicated upon in the appropriate forum, whilst simultaneously depriving the taking parent of any juridical or other advantage which he / she had unfairly sought to gain through the abduction. The Court further noted the presumption underlying the Convention, that the court of the country to which the child would be returned would consider the paramount interests of the child when deciding upon the substantive merits in the context of issues relating to that child's custody.

Grave Risk - Art. 13(1)(b)


The Court noted that care must be taken in order to ensure that the exception did not "swallow up" the general rule, but referring to Australian and English appellate authorities, also noted that there was merit in the assessment that courts should not go out of their way to give Art. 13(1)(b) a narrow construction, rather it was to be given the meaning its words required.

The Court sought to identify strands of legal principle. The first, which it considered to be "logical, commonsensical and fair", was that the taking parent should not seek to rely upon his or her own conduct in order to create a situation of grave risk of physical and / or psychological harm to the child concerned in order thereby to rely upon that alleged risk to argue against the return of that child pursuant to Art. 13(1)(b). This was based on the broader rationale to the effect that a person cannot take advantage of his or her own wrong.

The Court accepted however that the situation would not always be clear-cut, and that there could be reasons why the abductor could not return. Where the taking parent had medical (especially psychological) problems which were alleged to prevent him / her from returning to the requesting State with the child, this was relevant though only in so far as it impacted upon the child concerned. However, where the child was very young, the situation of the mother was often critical. The relationship between mother and child was not only fluid but also organic and symbiotic in nature.

The Court held that it was often the case that the taking parent's medical situation was - in the nature of things - involuntary in nature and beyond his / her control. However, if the taking parent could in fact be treated for his or her medical condition but refused to be so treated, then (particularly if the prognosis was that treatment might lead to a cure or an improvement such that the parent was no longer a danger or threat to the child concerned) it could be persuasively argued that the taking parent was attempting to take advantage of his or her own wrong. The Court noted that treatment was a factor that had seldom been considered in detail in case law.

Turning to the facts, the Court noted that the mother had significant psychological problems. It accepted that any physical separation of the child from his mother at this particular stage of his life would not have been in his best interests. However, the mother had undertaken to undergo appropriate treatment not only in Singapore but also in Germany. Had this not been the case, the Court noted that an extremely difficult situation would have been posed.

Nevertheless, it would have been wholly unacceptable to have permitted the mother to take advantage of her own wrong by refusing the appropriate treatment and then relying upon such wrong to create the very separation used to challenge the return order in respect of the child. The Court would therefore have been prepared to assume that the child would have received adequate care by the father and his parents were he to return to Germany.

Undertakings

The Court held that not only were undertakings by the parent seeking the return of the child a sign of good faith on his or her part, they were also important in ensuring that the return of the child would not (as far as possible) adversely impact upon the child and / or the taking parent. It noted the importance of ensuring that undertakings were complied with as well as enforceable in the requesting State, and to this end that practical solutions were imperative.

The Court required undertakings to be given by both parties, which differed from those in the courts below. These were intended to take into account the mother's psychological condition, as well as to ensure that the substantive custody proceedings in Germany proceeded on a level playing field. To this end, the father was required, inter alia, to pay for all return airfares, provide accommodation and maintenance, as well as ensure the mother's legal and medical expenses were met.

The mother was required to undergo medical (including psychiatric treatment) with immediate effect in Singapore and continue such treatment in Germany. The father was further required to apply to the competent German court to incorporate the parents' undertakings as an order of that court prior to the mother and children returning.

The Court held that far from usurping the function of the German court, the undertakings would clear away unnecessary logistical and other obstacles and set the legal stage for the more efficient resolution by the German court of the substantive issues of custody and / or care and control of the child.

Role of the Central Authorities - Arts 6 - 10


The Court held that the present proceedings highlighted the need to develop further and refine collaboration with respect to, inter alia, the smooth and effective implementation of the Hague Child Abduction Convention across jurisdictions - particularly pursuant to Art. 7.

Procedural Matters


The Court noted the importance of expedition in the conduct of Hague Convention proceedings and recommended that a system for monitoring the progress of such proceedings by way of tracking and co-ordination ought to be implemented by the Subordinate Courts and the Supreme Court in Singapore.

The Court endorsed the view of the United Kingdom Supreme Court that potential reference to mediation ought always to be borne in mind, whilst recognizing that this would not work if one party were allowed to dominate or bully the other, or in cases of alleged domestic violence or abuse.

Author of the summary: Peter McEleavy

INCADAT comment

Convention Aims

Courts in all Contracting States must inevitably make reference to and evaluate the aims of the Convention if they are to understand the purpose of the instrument, and so be guided in how its concepts should be interpreted and provisions applied.

The 1980 Hague Child Abduction Convention, explicitly and implicitly, embodies a range of aims and objectives, positive and negative, as it seeks to achieve a delicate balance between the competing interests of the central actors; the child, the left behind parent and the abducting parent, see for example the discussion in the decision of the Canadian Supreme Court: W.(V.) v. S.(D.), (1996) 2 SCR 108, (1996) 134 DLR 4th 481 [INCADAT Reference: HC/E/CA 17].

Article 1 identifies the core aims, namely that the Convention seeks:
"a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
 b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

Further clarification, most notably to the primary purpose of achieving the return of children where their removal or retention has led to the breach of actually exercised rights of custody, is given in the Preamble.

Therein it is recorded that:

"the interests of children are of paramount importance in matters relating to their custody;

and that States signatory desire:

 to protect children internationally from the harmful effects of their wrongful removal or retention;

 to establish procedures to ensure their prompt return to the State of their habitual residence; and

 to secure protection for rights of access."

The aim of return and the manner in which it should best be achieved is equally reinforced in subsequent Articles, notably in the duties required of Central Authorities (Arts 8-10) and in the requirement for judicial authorities to act expeditiously (Art. 11).

Article 13, along with Articles 12(2) and 20, which contain the exceptions to the summary return mechanism, indicate that the Convention embodies an additional aim, namely that in certain defined circumstances regard may be paid to the specific situation, including the best interests, of the individual child or even taking parent.

The Pérez-Vera Explanatory Report draws (at para. 19) attention to an implicit aim on which the Convention rests, namely that any debate on the merits of custody rights should take place before the competent authorities in the State where the child had his habitual residence prior to its removal, see for example:

Argentina
W., E. M. c. O., M. G., Supreme Court, June 14, 1995 [INCADAT Reference: HC/E/AR 362]
 
Finland
Supreme Court of Finland: KKO:2004:76 [INCADAT Reference: HC/E/FI 839]

France
CA Bordeaux, 19 janvier 2007, No de RG 06/002739 [INCADAT Reference: HC/E/FR 947]

Israel
T. v. M., 15 April 1992, transcript (Unofficial Translation), Supreme Court of Israel [INCADAT Reference: HC/E/IL 214]

Netherlands
X. (the mother) v. De directie Preventie, en namens Y. (the father) (14 April 2000, ELRO nr. AA 5524, Zaaksnr.R99/076HR) [INCADAT Reference: HC/E/NL 316]

Switzerland
5A.582/2007 Bundesgericht, II. Zivilabteilung, 4 décembre 2007 [INCADAT Reference: HC/E/CH 986]

United Kingdom - Scotland
N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571 [INCADAT Reference: HC/E/UKs 996]

United States of America
Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) [INCADAT Reference: HC/E/USf 125]
 
The Pérez-Vera Report equally articulates the preventive dimension to the instrument's return aim (at paras. 17, 18, 25), a goal which was specifically highlighted during the ratification process of the Convention in the United States (see: Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986)) and which has subsequently been relied upon in that Contracting State when applying the Convention, see:

Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) [INCADAT Reference: HC/E/USf 741]

Applying the principle of equitable tolling where an abducted child had been concealed was held to be consistent with the purpose of the Convention to deter child abduction.

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

In contrast to other federal Courts of Appeals, the 11th Circuit was prepared to interpret a ne exeat right as including the right to determine a child's place of residence since the goal of the Hague Convention was to deter international abduction and the ne exeat right provided a parent with decision-making authority regarding the child's international relocation.

In other jurisdictions, deterrence has on occasion been raised as a relevant factor in the interpretation and application of the Convention, see for example:

Canada
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT Reference: HC/E/CA 754]

United Kingdom - England and Wales
Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 [INCADAT Reference: HC/E/UKe 50]

Aims and objectives may equally rise to prominence during the life of the instrument, such as the promotion of transfrontier contact, which it has been submitted will arise by virtue of a strict application of the Convention's summary return mechanism, see:

New Zealand
S. v. S. [1999] NZFLR 625 [INCADAT Reference: HC/E/NZ 296]

United Kingdom - England and Wales
Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716 [INCADAT Reference: HC/E/UKe 60]

There is no hierarchy between the different aims of the Convention (Pérez-Vera Explanatory Report, at para. 18).  Judicial interpretation may therefore differ as between Contracting States as more or less emphasis is placed on particular objectives.  Equally jurisprudence may evolve, whether internally or internationally.

In United Kingdom case law (England and Wales) a decision of that jurisdiction's then supreme jurisdiction, the House of Lords, led to a reappraisal of the Convention's aims and consequently a re-alignment in court practice as regards the exceptions:

Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]

Previously a desire to give effect to the primary goal of promoting return and thereby preventing an over-exploitation of the exceptions, had led to an additional test of exceptionality being added to the exceptions, see for example:

Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260 [INCADAT Reference: HC/E/UKe 901]

It was this test of exceptionality which was subsequently held to be unwarranted by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]

- Fugitive Disentitlement Doctrine:

In United States Convention case law different approaches have been taken in respect of applicants who have or are alleged to have themselves breached court orders under the "fugitive disentitlement doctrine".

In Re Prevot, 59 F.3d 556 (6th Cir. 1995) [INCADAT Reference: HC/E/USf 150], the fugitive disentitlement doctrine was applied, the applicant father in the Convention application having left the United States to escape his criminal conviction and other responsibilities to the United States courts.

Walsh v. Walsh, No. 99-1747 (1st Cir. July 25, 2000) [INCADAT Reference: HC/E/USf 326]

In the instant case the father was a fugitive. Secondly, it was arguable there was some connection between his fugitive status and the petition. But the court found that the connection not to be strong enough to support the application of the doctrine. In any event, the court also held that applying the fugitive disentitlement doctrine would impose too severe a sanction in a case involving parental rights.

In March v. Levine, 249 F.3d 462 (6th Cir. 2001) [INCADAT Reference: HC/E/USf 386], the doctrine was not applied where the applicant was in breach of civil orders.

In the Canadian case Kovacs v. Kovacs (2002), 59 O.R. (3d) 671 (Sup. Ct.) [INCADAT Reference: HC/E/CA 760], the father's fugitive status was held to be a factor in there being a grave risk of harm facing the child.

Author: Peter McEleavy

Primary Carer Abductions

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:

Austria
4Ob1523/96, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 561]

Canada
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) [1989] 1 WLR 654 [INCADAT Reference: HC/E/UKe 34]

Re C. (Abduction: Grave Risk of Psychological Harm) [1999] 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) [2002] 3 FCR 43, [2002] 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) [2011] UKSC 27, [2012] 1 A.C. 144 [INCADAT Reference: HC/E/UKe 1068] and Re S. (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 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.

Germany
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]

Switzerland
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]

New Zealand
K.S. v. L.S. [2003] 3 NZLR 837 [INCADAT Reference: HC/E/NZ 770]

United Kingdom - Scotland
McCarthy v. McCarthy [1994] 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:

Australia
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 [2001] 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. [2003] FamCA 623 [INCADAT Reference HC/E/AU 544]. 

France
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]

Israel
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]

Poland
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.

Uruguay
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)

Safe Return / Mirror Orders

A practice has arisen in a number of Contracting States for return orders to be made subject to compliance with certain specified requirements or undertakings. To ensure that such protective measures are enforceable, the applicant may be required to have these measures registered in identical or equivalent terms in the child's State of habitual residence. These replica orders are commonly referred to as ‘safe return' or ‘mirror orders'.

Return orders have been made subject to the enactment of safe return /mirror orders in the following jurisdictions:

Australia
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];

United Kingdom - England & Wales
Re W. (Abduction: Domestic Violence) [2004] EWHC 1247, [2004] 2 FLR 499  [INCADAT cite: HC/E/ UKe 599];

Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982];

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

Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

A request by the English High Court for protective measures ancillary to an order for international contact to be registered in the State of visitation was upheld by the Panama Second Court of Childhood and Adolescence, see:

Ruling Nº393-05-F, [INCADAT cite: HC/E/PA 872].

A request that a return order be made subject to the implementation of mirror orders was turned down in:

Israel 
Family Application 8743/07 Y.D.G. v T.G., [INCADAT cite: HC/E/IL 983].

The Jerusalem Family Court ruled that since accusations against the father had not been upheld there was no basis to impose conditions to ensure the children's safety, other than deposit of money to secure the father's undertaking that they could live in his apartment. There was no need to obtain a mirror order from the US courts as the delay in so doing would harm the children.

Undertakings

Preparation of INCADAT case law analysis in progress.

Requirement of Expedition (art. 11)

Preparation of INCADAT commentary in progress.