CASE

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Case Name

Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997)

INCADAT reference

HC/E/USf 237

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States Court of Appeals for the Tenth Circuit

Level

Appellate Court

Judge(s)
Broby, Barett, Murphy, C.JJ.

States involved

Requesting State

SWEDEN

Requested State

UNITED STATES - FEDERAL JURISDICTION

Decision

Date

3 June 1997

Status

Final

Grounds

Interpretation of the Convention

Order

-

HC article(s) Considered

3 12(2)

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to

-

INCADAT comment

Aims & Scope of the Convention

General Approach to Interpretation
Interpretation
Removal & Retention
Nature of Removal and Retention

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a girl, was almost 7 months old at the date of the first alleged wrongful retention. She had at that time lived in the United States since her birth. The parents were married and had joint rights of custody.

In December 1990 the family travelled to Sweden to visit the mother's family. Upon arrival the mother hid the child and severed contact with the father. The father returned to the United States alone in mid-January 1991. In June 1991 the mother returned to the United States with the child. On 13 January 1992 the mother returned with the child to Sweden without the father's consent.

In November 1993 the father took the nearly three-year old child to the United States without the mother's consent.

In January 1994 the mother initiated Convention proceedings in the United States District Court for the District of Utah. Pending the hearing of the Convention application the mother succeeded in getting the child placed into her care. However, she was prohibited from removing the child from Utah. The father delivered the child to the mother on 30 January 1994. On 1 February 1994 the mother took the child to Sweden.

In August 1994 the District Court ordered the return of the child within 30 days. The mother failed to comply. In October 1994 the father filed a Convention application with the US Central Authority for the child's return from Sweden.

The mother subsequently filed a motion to dismiss her District Court petition. The United States District Court denied the mother's motion finding she was in contempt of its order not to remove the child from Utah.

Following the decision of the United States District Court, the Supreme Administrative Court of Sweden refused to order the return of the child, finding her habitual residence had changed from Utah to Sweden after having spent twelve months in Sweden following the January 1992 abduction.

The mother made further applications to the District Court both to stay the enforcement of the original District Court order and to set it aside. These applications were dismissed. The mother appealed.

Ruling

Appeal allowed; the District Court had abused its discretion in denying the motion to set aside.

Grounds

Interpretation of the Convention

The District Court was obligated to consider the unique circumstances surrounding the case. The District Court should have considered the importance of a proper, uniform interpretation of the Convention, along with a consideration of the Convention's purpose when evaluating the merits of the mother's motion to dismiss. When the District Court considered whether the mother's removal of the child from Utah was wrongful, it misconstrued the Convention's contemplated procedures. Once a petition is filed under the Convention a court should consider only whether a respondent's actions in removing or retaining are wrongful. In the instant case the court considered whether the petitioner's actions were wrongful. The United States District Court had knowledge that the child had been taken to Sweden and that Convention proceedings initiated by the father were pending there, where all the parties, including the child, were present. Failing to grant a motion to dismiss in such circumstances would be contrary to the intention of the Hague Convention. Furthermore, it could create a new incentive for parents to flee Convention proceedings in the hope of obtaining a second more favourable Convention determination in another country.

INCADAT comment

The decision of the Supreme Administrative Court (Regeringsrätten) (Sweden), decision of 20 December 1995, case number 4936-1995 may be found at [INCADAT Reference: HC/E/SE 448].

For commentary see: J Schiratzki, "Friends at Odds - Construing Habitual Residence for Children in Sweden and the United States", International Journal of Law, Policy and the Family (2001), 297 - 326.

For other cases dealing with the problems associated with re-abductions see: Re S (A Child) [2002] EWCA Civ 1941 [INCADAT Reference: HC/E/UKe 490]; Re R. (Wardship: Child Abduction) (No. 2) [1993] 1 FLR 249, [1993] Fam Law 216 [INCADAT Reference: HC/E/UKe 118].

Interpretation

Preparation of INCADAT case law analysis in progress.

Nature of Removal and Retention

Preparation of INCADAT commentary in progress.