CASE

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Case Name

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003)

INCADAT reference

HC/E/USf 530

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States Court of Appeals for the Eighth Circuit

Level

Appellate Court

Judge(s)
Loken, Chief Judge, Heaney, McMillian, Bowman, Wollman, Beam, Morris Sheppard Arnold, Murphy, Bye, Riley, Melloy, Smith, Circuit Judges

States involved

Requesting State

ISRAEL

Requested State

UNITED STATES - FEDERAL JURISDICTION

Decision

Date

8 May 2003

Status

-

Grounds

Habitual Residence - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Order

Appeal allowed, return ordered

HC article(s) Considered

3 13(1)(b) 13(2)

HC article(s) Relied Upon

3 13(1)(b)

Other provisions

-

Authorities | Cases referred to
Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995); Freier v. Freier, 969 F. Supp. 436, 439 (E.D. Mich. 1996) ; Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001); Feder v. Evans-Feder, 63 F.3d 217, 220 (3d Cir. 1995); Cohen v. Cohen, 158 Misc. 2d 1018, 602 N.Y.S.2d 994, 998-99 (Sup. Ct. 1993); In re Bates, No. CA122.89 at 9-10, High Court of Justice, Fam. Div'n Ct. Royal Court of Justice, United Kingdom (1989); Levesque v. Levesque, 816 F. Supp. 662, 665 (D. Kan. 1993); Ponath v. Ponath, 829 F. Supp. 363 (D. Utah 1993); Nunez-Escudero v. Tice-Menley, 58 F.3d at 379; Tsarbopoulos v. Tsarbopoulos, 176 F. Supp. 2d. 1045, 1056 (E.D. Wash. 2001); Blondin v. Dubois, 238 F.3d 153, 163-68 (2d Cir. 2001); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Cerit v. Cerit, 188 F. Supp. 2d 1239 (D. Haw. 2002); Mendez Lynch v. Mendez Lynch 220 F. Supp. 2d 1347, 1365-66 (M.D. Fla. 2002); Egervary v. Young, 159 F. Supp. 2d 132, 138-39 (E.D. Pa. 2001).

INCADAT comment

Aims & Scope of the Convention

Habitual Residence
Habitual Residence
Can a Child be left without a Habitual Residence?
Can a Child have more than one Habitual Residence?
Relocations
Open-Ended Moves
Time Limited Moves

Exceptions to Return

Grave Risk of Harm
Risks associated with the child's State of habitual residence

SUMMARY

Summary available in EN | FR | ES

Facts

The children were 8 and 5 at the date of the alleged wrongful retention. The parents were married and the family had lived together in the United States until August 1999 when they moved to Israel. The family stayed there for 10 months when the mother took the children back to the United States for a 2 month vacation. However, in August 2000 the mother informed the father that she would not be returning and she commenced divorce and custody proceedings in a Minnesota state court.

The father immediately contacted the United States Central Authority, the National Center for Missing and Exploited Children, and on 5 October his return application was filed in the United States District Court for the District of Minnesota, a federal court.

On 10 October the father filed a motion in the Minnesota state court seeking the dismissal or a stay of the custody proceedings. This was refused. On 17 October the state court granted the mother temporary custody and found that the move to Israel had only been a temporary absence and that Minnesota was the children's home state.

The mother then issued an application in the federal court to have the father's return petition dismissed. She argued that there were on-going state court proceedings, the state had a significant interest in matters of child custody, and the father had the opportunity to present the Hague issue in the state court.

On 7 November the federal District Court granted the mother's motion and dismissed the return petition on the basis that the father had failed to show that the state courts would afford him adequate opportunity to litigate his petition under the Hague Convention.

The father appealed to the United States Court of Appeals for the Eighth Circuit. The appeal was allowed and the case was remitted to the District Court (federal jurisdiction) for a ruling to be made on the merits of the return application, see: Silverman v. Silverman, 267 F.3d 788 (8th Cir. 2001) [INCADAT Reference: HC/E/USf 412].

On 9 May 2002 the District Court dismissed the father's application, see: Silverman v. Silverman, 2002 U.S. Dist. LEXIS 8313 [INCADAT Reference: HC/E/USf 481]. This decision was upheld by a majority verdict by the United States Court of Appeals for the Eighth Circuit on 11 December 2002, see: Silverman v. Silverman 312 F.3d 914 (8th Cir. 2002) [INCADAT Reference: HC/E/USf 483].

The father appealed to the United States Court of Appeals for the Eighth Circuit sitting en banc (i.e. the full court, a 12 judge bench).

The father had also brought proceedings in a rabbinical court in Israel. The latter ruled on 16 November 2000 that the children were habitually resident in Israel and that the retention of the children was wrongful. This decision was upheld by a further decision on 30 October 2001.

Ruling

Appeal allowed and return ordered; the children were habitually resident in Israel at the time of the retention and Article 13(1)(b) had not been proved to the standard required under the Convention.

Grounds

Habitual Residence - Art. 3

With regard to the issue of habitual residence 7 judges supported the judgment given by Beam C.J., who had delivered the dissenting judgment in the appeal of 11 December 2002. In considering the standard of review applicable in the appeal the majority held that if habitual residence were treated as being purely factual, to be decided by an individual judge in individual circumstances unique to each case, parents would never be able to determine whether they were at risk of losing custody by allowing their children to visit overseas or in allowing them to make international trips with an estranged spouse. Consequently they concluded that habitual residence was a legal determination and could be subject to de novo review. The majority held that the District Court had erred in its determination, it should have looked at the habitual residence of the children at the time the mother removed them from Israel, keeping in mind that they could only have one habitual residence. The District Court should have determined the degree of settled purpose from the children's perspective, including the family's change in geography along with their personal possessions and pets, the passage of time, the family abandoning its prior residence and selling the house, the application for and securing of benefits only available to Israeli immigrants, the children's enrolment in school, and, to some degree, both parents' intentions at the time of the move to Israel. The majority held that unlike the cases In re Ponath, 829 F. Supp. 363 (D. Utah 1993) [INCADAT cite: HC/E/USf 144] and Tsarbopoulos v Tsarbopoulos 176 F. Supp. 2d 1045; 2001 U.S. Dist [INCADAT cite: HC/E/USf 482], there was no abuse prior to the move and there was no coercion in getting the mother to move to Israel. The mother intended to move to Israel and intended to make that country her home. Her subsequent, post-move desire to return to the United States, and the finding by the district court that she was subjected to coercion and abuse beginning two months after her arrival, did not change the legal conclusion that the habitual residence of the children had moved from Minnesota to Israel. The two judges who had delivered the majority verdict on 11 December 2002 and two additional judges dissented on the interpretation given to habitual residence. The dissent held that the District Court had done precisely what was required of it under the Hague Convention, it examined all of the circumstances and determined that the Silvermans did not have a mutual, settled intent to abandon the United States as the habitual residence of their children. The dissenting judges argued that the majority had selectively emphasized a few facts that might have led the District Court to a contrary conclusion, particularly that the Silvermans had sold their house and moved their belongings to Israel. However, the majority glossed over those points that weakened its position: the family was only away from the United States for a short time (even shorter if it is considered that ten of the eleven months mother and children spent there were under duress); they never bought real property while in Israel; and, they maintained that Minnesota was their home in two separate proceedings, both of which occurred while they were living in Israel. Consequently the District Court was well within its discretion in finding that the father had not discharged his burden in proving that the children were not habitually resident in Israel.

Grave Risk - Art. 13(1)(b)

The majority noted that the evidence presented centred on general regional violence that threatened everyone in the country. It ruled that this was not sufficient to establish a "zone of war" which would put the children in "grave risk of physical or psychological harm". 4 of the 12 judges argued however that it was for the District Court to determine whether the children would be subjected to psychological harm if they were separately or collectively removed from their mother's home in the United States and returned to Israel.

Objections of the Child to a Return - Art. 13(2)

5 of the 12 judges argued that the case should be remitted to the District Court for further proceedings to determine the views, if any, of the children, and for a further determination as to whether either, now aged 11 ½ and 8 were of an age and degree of maturity for which it would be appropriate to take into consideration their views.

Procedural Matters

The Court noted that there was a potential Rooker-Feldman question in the instant case, namely whether the state court judgment of 4 May 2001 had divested the lower federal courts of subject matter jurisdiction to consider and review the Hague Convention matters raised by the father in the federal district court. The Court unanimously found the Rooker-Feldman doctrine to be inapplicable to the claims in the case.

INCADAT comment

On 28 August 2003 the United States District Court for the District Of Minnesota made an order specifying the modalities of the children's return: Silverman v. Silverman, 2003 U.S. Dist. LEXIS 15788 (D. Minn., Aug. 28, 2003).

US Supreme Court certiorari denied by Schuster v. Silverman, 157 L. Ed. 2d 893, 2004 U.S. LEXIS 87 (U.S., 2004).

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.

Can a Child be left without a Habitual Residence?

In early Convention case law there was a clear reluctance on the part of appellate courts to find that a child did not have a habitual residence.  This was because of the concern that such a conclusion would render the instrument inoperable, see:

United Kingdom - England & Wales
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548 [INCADAT cite: HC/E/UKe 40];

Australia
Cooper v. Casey (1995) FLC 92-575 [INCADAT cite: HC/E/AU 104].

However, in more recent years there has been a recognition that situations do exist where it is not possible to regard a child as being habitually resident anywhere:

Australia
D.W. & Director-General, Department of Child Safety [2006] FamCA 93, [INCADAT cite: HC/E/AU 870].

In this case the majority accepted that their decision could be said to deny the child of the benefit of the Convention. However, the majority argued that the interests of children generally could be adversely affected if courts were too willing to find that a parent who had attempted a reconciliation in a foreign country, was to be found, together with the child, to have become "habitually resident" in that foreign country.

United Kingdom - England & Wales
W. and B. v. H. (Child Abduction: Surrogacy) [2002] 1 FLR 1008 [INCADAT cite: HC/E/UKe 470];

United Kingdom - Scotland
Robertson v. Robertson 1998 SLT 468 [INCADAT cite: HC/E/UKs 194];

D. v. D. 2002 SC 33 [INCADAT cite: HC/E/UKs 351];

New Zealand
S.K. v. K.P. [2005] 3 NZLR 590, [INCADAT cite: HC/E/NZ 816];

United States of America
Delvoye v. Lee, 329 F.3d 330 (3rd Cir. 2003) [INCADAT cite: HC/E/USf 529];

Ferraris v. Alexander, 125 Cal. App. 4th 1417 (2005) [INCADAT cite: HC/E/US 797].

Can a Child have more than one Habitual Residence?

Academic commentators have long held that if the factual nature of the connecting factor is to be respected then situations may arise where an individual is habitually resident in more than one place at a particular time, see in particular:

Clive E. M. ‘The Concept of Habitual Residence' Juridical Review (1997), p. 137.

However, the Court of Appeal in England has accepted in the context of divorce jurisdiction that it is possible for an adult to be habitually resident in two places simultaneously, see:

Ikimi v. Ikimi [2001] EWCA Civ 873, [2002] Fam 72.

Courts in Convention proceedings have though held to the view that a child can only have one habitual residence, see for example:

Canada
SS-C c GC, Cour supérieure (Montréal), 15 août 2003, n° 500-04-033270-035, [INCADAT cite: HC/E/CA 916];

Wilson v. Huntley (2005) A.C.W.S.J. 7084; 138 A.C.W.S. (3d) 1107 [INCADAT cite: HC/E/CA 800];

United Kingdom - England & Wales
Re V. (Abduction: Habitual Residence) [1995] 2 FLR 992, [INCADAT cite: HC/E/UKe 45].

In this case where the children's lives alternated between Greece and England the court held that their habitual residence also alternated.  The court ruled out their having concurrent habitual residences in both Greece and England.

United Kingdom - Northern Ireland
Re C.L. (A Minor); J.S. v. C.L., transcript, 25 August 1998, High Court of Northern Ireland, [INCADAT cite: HC/E/UKn 390];

United States of America
Friedrich v. Friedrich, 983 F.2d 1396, (6th Cir. 1993), [INCADAT cite: HC/E/USf 142].

Relocations

Where there is clear evidence of an intention to commence a new life in another State then the existing habitual residence will be lost and a new one acquired.

In common law jurisdictions it is accepted that acquisition may be able to occur within a short period of time, see:

Canada
DeHaan v. Gracia [2004] AJ No.94 (QL), [2004] ABQD 4, [INCADAT cite: HC/E/CA 576];

United Kingdom - England & Wales
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT cite: HC/E/UKe 2];

Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548, [INCADAT cite: HC/E/UKe 40].

In civil law jurisdictions it has been held that a new habitual residence may be acquired immediately, see:

Switzerland
Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P.367/2005 /ast, [INCADAT cite : HC/E/CH 841].

Conditional Relocations 

Where parental agreement as regards relocation is conditional on a future event, should an existing habitual residence be lost immediately upon leaving that country? 

Australia
The Full Court of the Family Court of Australia answered this question in the negative and further held that loss may not even follow from the fulfilment of the condition if the parent who aspires to relocate does not clearly commit to the relocation at that time, see:

Kilah & Director-General, Department of Community Services [2008] FamCAFC 81, [INCADAT cite: HC/E/AU 995].

However, this ruling was overturned on appeal by the High Court of Australia, which held that an existing habitual residence would be lost if the purpose had a sufficient degree of continuity to be described as settled.  There did not need to be a settled intention to take up ‘long term' residence:

L.K. v. Director-General Department of Community Services [2009] HCA 9, (2009) 253 ALR 202, [INCADAT cite: HC/E/AU 1012].

Open-Ended Moves

Where a move is open ended, or potentially open ended, the habitual residence at the time of the move may also be lost and a new one acquired relatively quickly, see:

United Kingdom - England and Wales (Non-Convention case)
Al Habtoor v. Fotheringham [2001] EWCA Civ 186, [INCADAT cite: HC/E/UKe 875];

New Zealand
Callaghan v. Thomas [2001] NZFLR 1105 [INCADAT cite: HC/E/NZ 413];

United Kingdom - Scotland
Cameron v. Cameron 1996 SC 17, 1996 SLT 306, 1996 SCLR 25 [INCADAT cite: HC/E/UKs 71];

Moran v. Moran 1997 SLT 541 [INCADAT cite: HC/E/UKs 74];

United States of America
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].

Time Limited Moves

Where a move abroad is time limited, even if it is for an extended period of time, there has been acceptance in certain Contracting States that the existing habitual residence can be maintained throughout, see:

Denmark
Ø.L.K., 5. April 2002, 16. afdeling, B-409-02 [INCADAT cite: HC/E/DK 520];

United Kingdom - England & Wales
Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294; [2000] 3 FCR 412 [INCADAT cite: HC/E/UKe 478];

United States of America
Morris v. Morris, 55 F. Supp. 2d 1156 (D. Colo., Aug. 30, 1999) [INCADAT cite: HC/E/USf 306];

Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT cite: HC/E/USf 301].

However, where a move was to endure for two years the United States Court of Appeals for the Third Circuit found that a change of habitual residence occurred shortly after the move, see:

Whiting v. Krassner 391 F.3d 540 (3rd Cir. 2004) [INCADAT cite: HC/E/US 778].

In an English first instance decision it was held that a child had acquired a habitual residence in Germany after five months even though the family had only moved there for a six month secondment, see:

Re R. (Abduction: Habitual Residence) [2003] EWHC 1968 [INCADAT cite: HC/E/UKe 580].

The Court of Appeal of China (Hong Kong SAR) found that a 21 month move led to a change in habitual residence:

B.L.W. v. B.W.L. [2007] 2 HKLRD 193, [INCADAT cite: HC/E/HK 975].

Risks associated with the child's State of habitual residence

Article 13(1)(b) has on occasion been raised not with regard to a specific risk directed at the individual child, but as the result of general circumstances prevailing in the State of habitual residence.

In the well-known US appellate case of Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) [INCADAT Reference: HC/E/USf 82], it was held, inter alia, that a grave risk could only exist when the return would put the child in imminent danger prior to the resolution of a custody dispute, e.g. by returning the child to a war zone or famine area.

This argument has been raised most frequently with regard to Israel.

Return to Israel

Courts have been divided over whether a return to Israel would expose a child to a grave risk of harm, but a clear majority has taken the view that it would not, see:

Argentina
A. v. A. [INCADAT Reference: HC/E/AR 487]

Australia
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT Reference: HC/E/AU 995]

Belgium
No 03/3585/A, Tribunal de première instance de Bruxelles [INCADAT Reference: HC/E/BE 547]

Canada
Docket No 1 F 3709/00; C., 4 December 2001, Superior Court of Justice, Ontario, Court File No 01-FA-10575

Denmark
V.L.K., 11. januar 2002, 13. afdeling, B-2939-01 [INCADAT Reference: HC/E/DK 519]

United Kingdom - England and Wales
Re S. (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 [INCADAT Reference: HC/E/UKe 469]

France
CA Aix en Provence, 8 octobre 2002, No de RG 02/14917 [INCADAT Reference: HC/E/FR 509]

Germany
1 F 3709/00, Familiengericht Zweibrücken, 25 January 2001 [INCADAT Reference: HC/E/DE 392]

United States of America
Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) [INCADAT Reference: HC/E/USf 133]

However, the argument has been upheld on several occasions:

Australia
Janine Claire Genish-Grant and Director-General Department of Community Services [2002] FamCA 346 [INCADAT Reference: HC/E/AU 458]

United States of America
Silverman v. Silverman, 2002 U.S. Dist. LEXIS 8313 [INCADAT Reference: HC/E/USf 481] (see however: Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/US 530])  

Return to Zimbabwe

The highest jurisdiction in the United Kingdom, the House of Lords, rejected in 2008 a submission that the moral and political climate in Zimbabwe was such that any child would be at grave risk of psychological harm, or should not be expected to tolerate having to live there.

Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]

Return to Mexico

CA Rennes, 28 juin 2011, No de RG 11/02685 [INCADAT Reference: HC/E/FR 1129]

The mother mentioned the pollution of Mexico City, the insecurity due to crime in the Mexico City metropolis, and earthquake risks. She did not, however, show how these risks affected the children personally and directly. She had not mentioned those factors as justification for her decision to move to France, in a document sent to the father in 2010, but had referred to financial and family difficulties. In addition, the Court of Appeal noted that these factors had not deterred her from living in Mexico from 1998 to 2010 and raising two children there. It further noted that the mother had not seen fit to apply to the Mexican authorities for permission to move to France with the children, without explaining the reasons which in her view could jeopardise her right to a fair trial in Mexico.

The Court of Appeal made it clear that it did not affirm that the pleas raised by the mother were groundless. They might be used in connection with the issue of custody, but were not a sufficient proof of a grave risk.

(Author: Peter McEleavy, April 2013)