HC/E/USf 578
UNITED STATES - FEDERAL JURISDICTION
United States Court of Appeals for the Eleventh Circuit
Appellate Court
NORWAY
UNITED STATES - FEDERAL JURISDICTION
3 October 2004
Final
Rights of Custody - Art. 3 | Settlement of the Child - Art. 12(2)
Appeal allowed, return ordered
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The Court of Appeals noted that the core issue was whether the father’s rights under Norwegian law were such to entitle him to the return of his child under the Hague Convention. Considering the meaning of ‘rights of custody’ the Court of Appeals noted that American courts tended to think of the concept primarily in the sense of the physical custody of a child. However, the Court of Appeals recognised that in applying the Hague Convention reference must be made to the Convention definition, in particular the fact ‘rights of custody’ will include "rights relating to the care of the person of the child," and, "the right to determine the child's place of residence." The Court held that the father’s right to make certain "decisions for the child in personal matters" might of itself grant him a right of custody for the purposes of the Convention. However, the latter need not be determinative because the father’s right of veto over the removal of his daughter from the jurisdiction constituted a right of custody. The Court considered the justification for such an interpretation in detail. It concluded that the father’s right under Norwegian law, however it was defined, established a right to affect the child’s place of residence and as such was a right of custody for the purpose of the Convention. The Court further noted that the majority of international case law accorded with this view. The Court acknowledged that in a line of authority stemming from Croll v. Croll, 229 F.3d 133 (2d Cir. 2000) [INCADAT cite: HC/E/USf 313] United States Courts of Appeals had come to the opposite view. However, in a detailed evaluation, it dismissed the latter interpretation, finding that there was no need or justification to diminish the nature of a ne exeat right.
It was argued for the mother that the trial court had erred in ruling that the father’s return application had been made within the one year time limit specified by Article 12(1) of the Convention. The child had been retained in the summer of 2001 whilst the return application was issued on 4 November 2002. The Court of Appeals rejected this submission. Referring to the judgment of the US Supreme Court in Young v. United States, 535 U.S. 43, 122 S. Ct. 1036, 1040, 152 L. Ed. 2d 79 (2002) it noted that in the USA limitation periods were customarily subject to the principle of ‘equitable tolling’, unless tolling would be inconsistent with the text of the relevant statute. In accordance with this principle the one year time limit was only deemed to commence from the date that the father located his daughter. The rationale being that otherwise an abducting parent who concealed children for more than a year would be rewarded for their misconduct by creating eligibility for an affirmative defence which was not otherwise available.
An application (04-157) for leave to have the case heard before the United States Supreme Court was denied on 8 November 2004. The consensual removal of the child to the USA in the Summer of 2001 would suggest that the mother's wrongful act was in fact a retention and not a removal.
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.
In accordance with this principle the one year time limit in Article 12 is only deemed to commence from the date of the discovery of the children. The rationale being that otherwise an abducting parent who concealed children for more than a year would be rewarded for their misconduct by creating eligibility for an affirmative defence which was not otherwise available.
Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 578].
The principle of 'equitable tolling' in the context of the time limit specified in Article 12 has been rejected in other jurisdictions, see:
United Kingdom - England & Wales
Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT Reference: HC/E/UKe 598];
China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT Reference: HC/E/HK 825];
New Zealand
H.J. v. Secretary for Justice [2006] NZFLR 1005 [INCADAT Reference: HC/E/NZ 1127].