CASE

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Case Name

Brooke v. Willis, 907 F. Supp. 57 (S.D.N.Y. 1995)

INCADAT reference

HC/E/USf 147

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States District Court for the Southern District of New York

Level

First Instance

Judge(s)
Scheindlin D.J.

States involved

Requesting State

UNITED KINGDOM - ENGLAND AND WALES

Requested State

UNITED STATES - FEDERAL JURISDICTION

Decision

Date

2 August 1995

Status

Final

Grounds

Habitual Residence - Art. 3 | Procedural Matters

Order

-

HC article(s) Considered

3

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to
Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993); Meredith v. Meredith, 759 F. Supp. 1432 (D. Ariz. 1991); Currier v. Currier, 845 F. Supp. 916 (D.N.H. 1994).

INCADAT comment

Aims & Scope of the Convention

Habitual Residence
Habitual Residence
Can a Child have more than one Habitual Residence?

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a girl, was 6 1/2 at the date of the alleged wrongful retention. She had lived in the United States for the majority of her life. The parents were divorced and had joint rights of custody.

On 9 July 1990 the Superior Court of California ordered that the child spend fifty percent of her time with each parent and that half of the child's education would be in the United Kingdom.

In July 1990 the father returned to England permanently. The child accompanied her father to England and lived there throughout the summer. On 20 August 1990 the child returned to California.

In December 1990 the mother failed to return the child to England in breach of the agreement.

The mother filed an ex parte restraining order against the father in California state court and fled the state with the child. State misdemeanour warrants were issued for the mother's arrest in both California and Virginia.

On 5 October 1994 the father filed a return application in the District Court. By the time of the hearing the child had still not been located.

Ruling

Writ of habeas corpus issued ordering the mother to produce the child in court within fourteen days and show cause why the child was removed.

Grounds

Habitual Residence - Art. 3

The court noted that the place of habitual residence is determined more by a state of being than by any specific period of time; technically habitual residence could be established after only one day as long as there was some evidence that the child had become 'settled' into the location in question. In the instant case, the child had spent two months in England, and the court found sufficient evidence to conclude that England was the child's habitual residence in July 1990. The court also suggested that due to the peculiar circumstances of the case it was arguable that the child was also a habitual resident of the United States.

Procedural Matters

The court noted that several attempts were made by Federal Marshalls and the father to personally serve the mother. Relying on inter-state custody cases the court held that although there was no personal service, the mother was actually aware of the pending litigation. The court ordered that the child's name be entered into the national police computer system (N.C.I.C.) missing persons section in order to aid in identifying her whereabouts.

INCADAT comment

The interpretation given to the acquisition of habitual residence in the present case is in marked contrast to that adopted by appellate courts not only in the United States, but also England, Scotland and Australia. See Beaumont P.R. and McEleavy P.E., "The Hague Convention on International Child Abduction" OUP, Oxford, 1999 at p. 108.

Habitual Residence

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.

General Trends:

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].

See also:

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].

See also:

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.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
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].

Canada
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.

Germany
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.

Israel
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].

New Zealand
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. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
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].

United Kingdom
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) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 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.

Can a Child have more than one Habitual Residence?

Academic commentators have long held that if the factual nature of the connecting factor is to be respected then situations may arise where an individual is habitually resident in more than one place at a particular time, see in particular:

Clive E. M. ‘The Concept of Habitual Residence' Juridical Review (1997), p. 137.

However, the Court of Appeal in England has accepted in the context of divorce jurisdiction that it is possible for an adult to be habitually resident in two places simultaneously, see:

Ikimi v. Ikimi [2001] EWCA Civ 873, [2002] Fam 72.

Courts in Convention proceedings have though held to the view that a child can only have one habitual residence, see for example:

Canada
SS-C c GC, Cour supérieure (Montréal), 15 août 2003, n° 500-04-033270-035, [INCADAT cite: HC/E/CA 916];

Wilson v. Huntley (2005) A.C.W.S.J. 7084; 138 A.C.W.S. (3d) 1107 [INCADAT cite: HC/E/CA 800];

United Kingdom - England & Wales
Re V. (Abduction: Habitual Residence) [1995] 2 FLR 992, [INCADAT cite: HC/E/UKe 45].

In this case where the children's lives alternated between Greece and England the court held that their habitual residence also alternated.  The court ruled out their having concurrent habitual residences in both Greece and England.

United Kingdom - Northern Ireland
Re C.L. (A Minor); J.S. v. C.L., transcript, 25 August 1998, High Court of Northern Ireland, [INCADAT cite: HC/E/UKn 390];

United States of America
Friedrich v. Friedrich, 983 F.2d 1396, (6th Cir. 1993), [INCADAT cite: HC/E/USf 142].