CASE

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Case Name

S. v. S., 25 May 1998, transcript (Unofficial Translation), Austrian Regional Civil Court, Graz

INCADAT reference

HC/E/AT 245

Court

Country

AUSTRIA

Name

Austrian Regional Civil Court at Graz

Level

Appellate Court

Judge(s)
Lackner, Prisching, Gindra-Vady JJ.

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

AUSTRIA

Decision

Date

25 May 1998

Status

Final

Grounds

Rights of Access - Art. 21

Order

-

HC article(s) Considered

21

HC article(s) Relied Upon

21

Other provisions

-

Authorities | Cases referred to

-

INCADAT comment

Access / Contact

Protection of Rights of Access
Protection of Rights of Access

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a girl, was 1 at the date of the alleged wrongful removal. She had until then lived only in the United States. The parents were married and had joint rights of custody. On 30 October 1995 the mother went to Austria, her State of origin, with the child.

In January 1996 an American court ordered the mother to return the child to the United States. In April 1997 an Austrian court refused to order the return of the child. In December 1997 an Austrian court awarded the mother sole custody. On 31 March 1998 the Austrian Supreme Court upheld this decision.

The father then applied under the Convention for the enforcement of two periods of access: 10-12 April 1998 and 27 June-4 July 1998. On 22 April 1998 the District Civil Court of Graz rejected the father's application on the basis that the Convention did not apply. The father appealed.

Ruling

Appeal allowed and case remitted to the District Civil Court of Graz to rule on the father's application for access.

Grounds

Rights of Access - Art. 21

Article 21 places Central Authorities under an obligation to co-operate in the implementation or exercise of access rights both in situations where the access rights already exist and in cases both involving the implementation of already granted rights of access and in cases in which rights of access have yet to be granted. The court emphasized that it must be recognized that the Convention did not attempt to exhaustively regulate the right to contact. Indeed it would suffice for the Convention's purposes to ensure co-operation between Central Authorities. In the instant case an application for future rights of access was still pending in the District Civil Court of Graz. The court stated that on the one hand the District Civil Court of Graz had jurisdiction for ruling on the application for access rights, on the other, Austrian law was to be applied pursuant to the 1961 Hague Convention for the Protection of Minors because Article 21 of the 1980 Hague Abduction Convention only provided the minimum framework for granting rights of access. The court of first instance was therefore ordered to conduct hearings and rule on the pending application for access rights.

INCADAT comment

On 27 July 1998 the District Civil Court, Graz entered an order for a specific visitation schedule and for contact over Christmas 1998 to be conducted in the presence of the child's mother at her home. However, the mother successfully appealed that order on the basis that contact hearings were not conducted by the court of first instance.

Protection of Rights of Access

Article 21 has been subjected to varying interpretations.  Contracting States favouring a literal interpretation have ruled that the provision does not establish a basis of jurisdiction for courts to intervene in access matters and is focussed on procedural assistance from the relevant Central Authority.  Other Contracting States have allowed proceedings to be brought on the basis of Article 21 to give effect to existing access rights or even to create new access rights.

A literal interpretation of the provision has found favour in:

Austria
S. v. S., 25 May 1998, transcript (official translation), Regional civil court at Graz, [INCADAT cite: HC/E/AT 245];

Germany
2 UF 286/97, Oberlandesgericht Bamberg, [INCADAT cite: HC/E/DE 488];

United States of America
Bromley v. Bromley, 30 F. Supp. 2d 857, 860-61 (E.D. Pa. 1998). [INCADAT cite: HC/E/USf 223];

Teijeiro Fernandez v. Yeager, 121 F. Supp. 2d 1118, 1125 (W.D. Mich. 2000);

Janzik v. Schand, 22 November 2000, United States District Court for the Northern District of Illinois, Eastern Division, [INCADAT cite: HC/E/USf 463];

Wiggill v. Janicki, 262 F. Supp. 2d 687, 689 (S.D.W. Va. 2003);

Yi Ly v. Heu, 296 F. Supp. 2d 1009, 1011 (D. Minn. 2003);

In re Application of Adams ex. rel. Naik v. Naik, 363 F. Supp. 2d 1025, 1030 (N.D. Ill. 2005);

Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005), [INCADAT cite: HC/E/USf 828];

Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006), [INCADAT cite: HC/E/USf 827]. 

In Cantor, the only US appellate decision on Article 21, there was a dissenting judgment which found that the US implementing act did provide a jurisdictional basis for federal courts to hear an application with regard to an existing access right.

United Kingdom - England & Wales
In Re G. (A Minor) (Enforcement of Access Abroad) [1993] Fam 216 [INCADAT cite: HC/E/UKs 110].

More recently however the English Court of Appeal has suggested that it might be prepared to consider a more permissive interpretation:

Hunter v. Murrow [2005] [2005] 2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].

Baroness Hale has recommended the elaboration of a procedure whereby the facilitation of rights of access in the United Kingdom under Article 21 could be contemplated at the same time as the return of the child under Article 12:

Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51[INCADAT cite: HC/E/UKe 880].

Switzerland
Arrondissement judiciaire I Courterlary-Moutier-La Neuveville (Suisse) 11 October 1999, N° C 99 4313 [INCADAT cite: HC/E/CH 454].                        

A more permissive interpretation of Article 21 has indeed been adopted elsewhere, see:

United Kingdom - Scotland
Donofrio v. Burrell, 2000 S.L.T. 1051 [INCADAT cite: HC/E/UKs 349].

Wider still is the interpretation adopted in New Zealand, see:

Gumbrell v. Jones [2001] NZFLR 593 [INCADAT cite: HC/E/NZ 446].

Australia
The position in Australia has evolved in the light of statutory reforms.

Initially a State Central Authority could only apply for an order that was ‘necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia', see:

Director-General, Department of Families Youth & Community Care v. Reissner [1999] FamCA 1238, (1999) 25 Fam LR 330, [INCADAT cite: HC/E/AU 278].

Subsequently it acquired the power to initiate proceedings to establish access rights:

State Central Authority & Peddar [2008] FamCA 519, [INCADAT cite: HC/E/AU 1107];

State Central Authority & Quang [2009] FamCA 1038, [INCADAT cite: HC/E/AU 1106].