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Case Name

Janzik v. Schand, 2000 WL 1745203 (N.D.Ill.)

INCADAT reference

HC/E/USf 463

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States District Court for the Northern District of Illinois, Eastern Division

Level

First Instance

Judge(s)
Darrah, D.J.

States involved

Requesting State

GERMANY

Requested State

UNITED STATES - FEDERAL JURISDICTION

Decision

Date

22 November 2000

Status

Final

Grounds

Rights of Access - Art. 21

Order

Application dismissed

HC article(s) Considered

21

HC article(s) Relied Upon

21

Other provisions

-

Authorities | Cases referred to
State Department Legal Analysis of Convention, 51 Fed. Reg. 10,514; Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Penn. 1998); Viragh v. Foldes, 415 Mass. 96, 612 N.E.2d 241 (Mass. 1993).
Published in
http://www.hcch.net/incadat/fullcase/0463.htm

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 boy, was nearly 12 years old at the date of the decision. His parents divorced in 1993. His mother, who lived in Illinois, was granted sole custody. His father, who lived in Germany, was granted rights of access, with the right to see his son twice a year.

In October 1999 the father filed a petition for access under the Convention, seeking a right of access from 25 November 1999 to 28 November 1999. In July 2000 the District Court ruled that it lacked jurisdiction and allowed the petitioner time to present arguments on this issue.

Ruling

Application dismissed; there was no cause of action under the Convention to enforce access rights absent the wrongful removal or retention of the child.

Grounds

Rights of Access - Art. 21

The court adopted the approach taken in Bromley v. Bromley, which held that the Convention provided no remedy where there had been a breach of access rights unless there had also been a wrongful removal. Taking this approach the court found that there was no cause of action under the Convention since no wrongful removal had been alleged. In addition, it noted that while Article 21 permits a party seeking a right of access to present a petition to the Central Authority, it does not provide a remedy for enforcement of access rights in the courts of the requested state. It therefore dismissed the case for lack of subject matter jurisdiction. The court noted, however, that the Convention did not preclude the petitioner from requesting relief for breach of access under other applicable laws of the requested state.

INCADAT comment

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].