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Case Name

Re N. (Child Abduction: Habitual Residence) [1993] 2 FLR 124

INCADAT reference

HC/E/UKe 205

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal

Level

Appellate Court

Judge(s)
Balcombe, Mann and Leggatt L.JJ.

States involved

Requesting State

SWEDEN

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

3 December 1992

Status

Final

Grounds

Procedural Matters

Order

-

HC article(s) Considered

3 12

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 3 WLR 492, sub nom C. v. S. (A Minor) (Abduction) [1990] 2 FLR 442, [1990] 2 All ER 961.
Published in
http://www.hcch.net/incadat/fullcase/0205.htm

INCADAT comment

Aims & Scope of the Convention

Jurisdiction Issues under the Hague Convention
Jurisdiction Issues under the Hague Convention

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a girl, was nearly 5 at the date of the alleged wrongful retention. She had lived in Sweden all of her life. The parents were never married but had joint rights of custody. In 1989 the parents separated and thereafter the child lived principally with the mother.

On 15 April the District Court of Eskilstuna granted interim custody to the mother with access to the father. On 2 May 1992 with leave of the court the mother took the child to England to visit her new husband's family. She did not return.

On 22 July 1992 the Court of Appeal in Sweden granted interim custody to the father. The father applied for the return of the child.

On 28 October 1992 the High Court dismissed the father's application. The father appealed.

Ruling

Appeal allowed; the child was habitually resident in Sweden at the relevant date. The case was remitted to the High Court for a hearing to determine if an Article 13 exception applied.

Grounds

Procedural Matters

Litigation arising under the Hague Convention is neither adversarial nor inquisitorial, rather such litigation is sui generis. In determining where a child is habitually resident the court must come to a decision on the basis of all the evidence before it.

INCADAT comment

Jurisdiction Issues under the Hague Convention

Jurisdiction Issues under the Hague Convention (Art. 16)

Given the aim of the Convention to secure the prompt return of abducted children to their State of habitual residence to allow for substantive proceedings to be convened, it is essential that custody proceedings not be initiated in the State of refuge. To this end Article 16 provides that:

"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."

Contracting States which are also party to the 1996 Hague Convention are provided greater protection by virtue of Article 7 of that instrument.

Contracting States which are Member States of the European Union and to which the Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels II a Regulation) applies are provided further protection still by virtue of Article 10 of that instrument.

The importance of Article 16 has been noted by the European Court of Human Rights:

Iosub Caras v. Romania, Application No. 7198/04, (2008) 47 E.H.R.R. 35, [INCADAT cite: HC/E/ 867];
 
Carlson v. Switzerland no. 49492/06, 8 November 2008, [INCADAT cite: HC/E/ 999].

When should Article 16 be applied?

The High Court in England & Wales has held that courts and lawyers must be pro-active where there is an indication that a wrongful removal or retention has occurred.

R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].
 
When a court becomes aware, expressly or by inference that there has been a wrongful removal or retention it receives notice of that wrongful removal or retention within the meaning of Article 16. Moreover, it is the duty of the court to consider taking steps to secure that the parent in that State is informed of his or her Convention rights. 

Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, [INCADAT cite: HC/E/UKe 478]

Lawyers, even those acting for abducting parents, had a duty to draw the attention of the court to the Convention where this was relevant.

Scope and Duration of Article 16 Protection?

Article 16 does not prevent provisional and protective measures from being taken:

Belgium
Cour de cassation 30/10/2008, CG c BS, N° de rôle: C.06.0619.F, [INCADAT cite : HC/E/BE 750]. 

However, in this case the provisional measures ultimately became final and the return was never enforced, due to a change in circumstances.

A return application must be made within a reasonable period of time:

France
Cass Civ 1ère 9 juillet 2008 (N° de pourvois K 06-22090 & M 06-22091), 9.7.2008, [INCADAT cite : HC/E/FR 749]

United Kingdom - England & Wales
R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].

A return order which has become final but has not yet been enforced is covered by Article 16:

Germany
Bundesgerichtshof, XII. Zivilsenat Decision of 16 August 2000 - XII ZB 210/99, BGHZ 145, 97 16 August 2000 [INCADAT cite: HC/E/DE 467].

Article 16 will no longer apply when a return order cannot be enforced:

Switzerland
5P.477/2000/ZBE/bnm, [INCADAT cite : HC/E/CH 785].