HC/E/AT 245
AUSTRIA
Austrian Regional Civil Court at Graz
Appellate Court
UNITED STATES OF AMERICA
AUSTRIA
25 May 1998
Final
Rights of Access - Art. 21
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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.
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.
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].