HC/E/CA 334
CANADA
Cour Superieure
First Instance
FRANCE
CANADA
15 December 1999
Final
Rights of Custody - Art. 3 | Objections of the Child to a Return - Art. 13(2)
Return ordered
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The court embarked upon a detailed analysis of the nature of the father's rights in respect of his daughter. It concluded that the order of 3 January 1995 included no territorial limitation on the mother's rights. However, it found that the joint exercise of parental responsibility did confer the father with rights of custody for the purposes of the Convention. The court found that this was not affected by the mother being granted actual care of the child. It noted that the mother was not granted sole custody as such. Consequently she was not entitled to unilaterally relocate to Canada. The court further found that the father was actually exercising his rights. The court noted that in the Convention context the requirement that custody rights be actually exercised was satisifed by the fact of the father exercising custodial rights on those occasions when he had actual care of his daughter.
The court found that a child who was almost 8 at the date of the hearing was too young to have her views taken into account.
Courts in an overwhelming majority of Contracting States have accepted that a right of veto over the removal of the child from the jurisdiction amounts to a right of custody for Convention purposes, see:
Australia
In the Marriage of Resina [1991] FamCA 33, [INCADAT cite: HC/E/AU 257];
State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232];
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU 294];
Austria
2 Ob 596/91, OGH, 05 February 1992, Oberster Gerichtshof [INCADAT cite: HC/E/AT 375];
Canada
Thomson v. Thomson [1994] 3 SCR 551, 6 RFL (4th) 290 [INCADAT cite: HC/E/CA 11].
The Supreme Court did draw a distinction between a non-removal clause in an interim custody order and in a final order. It suggested that were a non-removal clause in a final custody order to be regarded as a custody right for Convention purposes, that could have serious implications for the mobility rights of the primary carer.
Thorne v. Dryden-Hall, (1997) 28 RFL (4th) 297 [INCADAT cite: HC/E/CA 12];
Decision of 15 December 1998, [1999] R.J.Q. 248 [INCADAT cite: HC/E/CA 334];
United Kingdom - England & Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465, [1989] 1 FLR 403, [1989] Fam Law 228 [INCADAT cite: HC/E/UKe 34];
Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [INCADAT cite: HC/E/UKe 880];
France
Ministère Public c. M.B. 79 Rev. crit. 1990, 529, note Y. Lequette [INCADAT cite: HC/E/FR 62];
Germany
2 BvR 1126/97, Bundesverfassungsgericht, (Federal Constitutional Court), [INCADAT cite: HC/E/DE 338];
10 UF 753/01, Oberlandesgericht Dresden, [INCADAT cite: HC/E/DE 486];
United Kingdom - Scotland
Bordera v. Bordera 1995 SLT 1176 [INCADAT cite: HC/E/UKs 183];
A.J. v. F.J. [2005] CSIH 36, 2005 1 SC 428 [INCADAT cite: HC/E/UKs 803];
South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];
Switzerland
5P.1/1999, Tribunal fédéral suisse, (Swiss Supreme Court), 29 March 1999, [INCADAT cite: HC/E/CH 427].
United States of America
In the United States, the Federal Courts of Appeals were divided on the appropriate interpretation to give between 2000 and 2010.
A majority followed the 2nd Circuit in adopting a narrow interpretation, see:
Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313];
Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493];
Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494];
Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008), [INCADAT cite: HC/E/USf 989].
The 11th Circuit however endorsed the standard international interpretation.
Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT cite: HC/E/USf 578].
The matter was settled, at least where an applicant parent has a right to decide the child's country of residence, or the court in the State of habitual residence is seeking to protect its own jurisdiction pending further decrees, by the US Supreme Court endorsing the standard international interpretation.
Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].
The standard international interpretation has equally been accepted by the European Court of Human Rights, see:
Neulinger & Shuruk v. Switzerland, No. 41615/07, 8 January 2009 [INCADAT cite: HC/E/ 1001].
Confirmed by the Grand Chamber: Neulinger & Shuruk v. Switzerland, No 41615/07, 6 July 2010 [INCADAT cite: HC/E/ 1323].
Right to Object to a Removal
Where an individual does not have a right of veto over the removal of a child from the jurisdiction, but merely a right to object and to apply to a court to prevent such a removal, it has been held in several jurisdictions that this is not enough to amount to a custody right for Convention purposes:
Canada
W.(V.) v. S.(D.), 134 DLR 4th 481 (1996), [INCADAT cite: HC/E/CA17];
Ireland
W.P.P. v. S.R.W. [2001] ILRM 371, [INCADAT cite: HC/E/IE 271];
United Kingdom - England & Wales
Re V.-B. (Abduction: Custody Rights) [1999] 2 FLR 192, [INCADAT cite: HC/E/UKe 261];
S. v. H. (Abduction: Access Rights) [1998] Fam 49 [INCADAT cite: HC/E/UKe 36];
United Kingdom - Scotland
Pirrie v. Sawacki 1997 SLT 1160, [INCADAT cite: HC/E/UKs 188].
This interpretation has also been upheld by the Court of Justice of the European Union:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].
The European Court held that to find otherwise would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the sole custodian.
For academic commentary see:
P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford, OUP, 1999, p. 75 et seq.;
M. Bailey The Right of a Non-Custodial Parent to an Order for Return of a Child Under the Hague Convention; Canadian Journal of Family Law, 1996, p. 287;
C. Whitman 'Croll v Croll: The Second Circuit Limits 'Custody Rights' Under the Hague Convention on the Civil Aspects of International Child Abduction' 2001 Tulane Journal of International and Comparative Law 605.
Courts in a variety of Contracting States have afforded a wide interpretation to what amounts to the actual exercise of rights of custody, see:
Australia
Director General, Department of Community Services Central Authority v. J.C. and J.C. and T.C. (1996) FLC 92-717 [INCADAT cite: HC/E/AU 68];
Austria
8Ob121/03g, Oberster Gerichtshof, 30/10/2003 [INCADAT cite: HC/E/AT 548];
Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003 [INCADAT cite: HC/E/BE 545];
United Kingdom - England & Wales
Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37];
France
Ministère Public c. M.B. Cour d'Appel at Aix en Provence (6e Ch.) 23 March 1989, 79 Rev. crit. 1990, 529 note Y. Lequette [INCADAT cite: HC/E/FR 62];
CA Amiens 4 mars 1998, n° 5704759 [INCADAT cite: HC/E/FR 704];
CA Aix en Provence 8/10/2002, L. v. Ministère Public, Mme B et Mesdemoiselles L (N° de rôle 02/14917) [INCADAT cite: HC/E/FR 509];
Germany
11 UF 121/03, Oberlandesgericht Hamm, [INCADAT cite: HC/E/DE 822];
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491];
New Zealand
The Chief Executive of the Department for Courts for R. v. P., 20 September 1999, Court of Appeal of New Zealand [INCADAT cite: HC/E/NZ 304];
United Kingdom - Scotland
O. v. O. 2002 SC 430 [INCADAT cite: HC/E/UKs 507].
In the above case the Court of Session stated that it might be going too far to suggest, as the United States Court of Appeals for the Sixth Circuit had done in Friedrich v Friedrich that only clear and unequivocal acts of abandonment might constitute failure to exercise custody rights. However, Friedrich was fully approved of in a later Court of Session judgment, see:
S. v S., 2003 SLT 344 [INCADAT cite: HC/E/UKs 577].
This interpretation was confirmed by the Inner House of the Court of Session (appellate court) in:
AJ. V. FJ. 2005 CSIH 36, 2005 1 S.C. 428 [INCADAT cite: HC/E/UKs 803].
Switzerland
K. v. K., Tribunal cantonal de Horgen [INCADAT cite: HC/E/CZ 299];
449/III/97/bufr/mour, Cour d'appel du canton de Berne, [INCADAT cite: HC/E/CH 433];
5A_479/2007/frs, Tribunal fédéral, IIè cour civile, [INCADAT cite: HC/E/CH 953];
United States of America
Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir) [INCADAT cite: HC/E/USf 82];
Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004), [INCADAT cite: HC/E/USf 779];
Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].
See generally Beaumont P.R. and McEleavy P.E., 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 84 et seq.
Australia
De L. v. Director-General, NSW Department of Community Services (1996) FLC 92-706 [INCADAT cite: HC/E/AU 93].
The supreme Australian jurisdiction, the High Court, advocated a literal interpretation of the term ‘objection'. However, this was subsequently reversed by a legislative amendment, see:
s.111B(1B) of the Family Law Act 1975 inserted by the Family Law Amendment Act 2000.
Article 13(2), as implemented into Australian law by reg. 16(3) of the Family Law (Child Abduction) Regulations 1989, now provides not only that the child must object to a return, but that the objection must show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.
See for example:
Richards & Director-General, Department of Child Safety [2007] FamCA 65 [INCADAT cite: HC/E/UKs 904].
The issue as to whether a child must specifically object to the State of habitual residence has not been settled, see:
Re F. (Hague Convention: Child's Objections) [2006] FamCA 685 [INCADAT cite: HC/E/AU 864].
Austria
9Ob102/03w, Oberster Gerichtshof (Austrian Supreme Court), 8/10/2003 [INCADAT: cite HC/E/AT 549].
A mere preference for the State of refuge is not enough to amount to an objection.
Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles, 27/5/2003 [INCADAT cite: HC/E/BE 546].
A mere preference for the State of refuge is not enough to amount to an objection.
Canada
Crnkovich v. Hortensius, [2009] W.D.F.L. 337, 62 R.F.L. (6th) 351, 2008, [INCADAT cite: HC/E/CA 1028].
To prove that a child objects, it must be shown that the child "displayed a strong sense of disagreement to returning to the jurisdiction of his habitual residence. He must be adamant in expressing his objection. The objection cannot be ascertained by simply weighing the pros and cons of the competing jurisdictions, such as in a best interests analysis. It must be something stronger than a mere expression of preference".
United Kingdom - England & Wales
In Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKs 87] the Court of Appeal held that the return to which a child objects must be an immediate return to the country from which it was wrongfully removed. There is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.
In Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKs 56] it was, however, accepted that an objection to life with the applicant parent may be distinguishable from an objection to life in the former home country.
In Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159 [INCADAT cite: HC/E/UKe 270] Ward L.J. set down a series of questions to assist in determining whether it was appropriate to take a child's objections into account.
These questions where endorsed by the Court of Appeal in Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].
For academic commentary see: P. McEleavy ‘Evaluating the Views of Abducted Children: Trends in Appellate Case Law' [2008] Child and Family Law Quarterly, pp. 230-254.
France
Objections based solely on a preference for life in France or life with the abducting parent have not been upheld, see:
CA Grenoble 29/03/2000 M. v. F. [INCADAT cite: HC/E/FR 274];
TGI Niort 09/01/1995, Procureur de la République c. Y. [INCADAT cite: HC/E/FR 63].
United Kingdom - Scotland
In Urness v. Minto 1994 SC 249 [INCADAT cite: HC/E/UKs 79] a broad interpretation was adopted, with the Inner House accepting that a strong preference for remaining with the abducting parent and for life in Scotland implicitly meant an objection to returning to the United States of America.
In W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805] the Inner House, which accepted the Re T. [INCADAT cite: HC/E/UKe 270] gateway test, held that objections relating to welfare matters were only to be dealt with by the authorities in the child's State of habitual residence.
In the subsequent first instance case: M. Petitioner 2005 S.L.T. 2 OH [INCADAT cite: HC/E/UKs 804], Lady Smith noted the division in appellate case law and decided to follow the earlier line of authority as exemplified in Urness v. Minto. She explicitly rejected the Re T. gateway tests.
The judge recorded in her judgment that there would have been an attempt to challenge the Inner House judgment in W. v. W. before the House of Lords but the case had been resolved amicably.
More recently a stricter approach to the objections has been followed, see: C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]; upheld on appeal: C v. C. [2008] CSIH 34, [INCADAT cite: HC/E/UKs 996].
Switzerland
The highest Swiss court has stressed the importance of children being able to distinguish between issues relating to custody and issues relating to return, see:
5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 795];
5P.3/2007 /bnm; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 894].
A mere preference for life in the State of refuge, even if reasoned, will not satisfy the terms of Article 13(2):
5A.582/2007 Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 986].
For general academic commentary see: R. Schuz ‘Protection or Autonomy -The Child Abduction Experience' in Y. Ronen et al. (eds), The Case for the Child- Towards the Construction of a New Agenda, 271-310 (Intersentia, 2008).