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Case Name
Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008)
INCADAT reference
HC/E/US 741
Court
UNITED STATES - FEDERAL JURISDICTION
United States Court of Appeals for the Ninth Circuit
Appellate Court
Bright, Pregerson, Bea (Circuit Judges)
States involved
MEXICO
UNITED STATES OF AMERICA
Decision
20 May 2008
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Settlement of the Child - Art. 12(2) | Procedural Matters
Appeal allowed, return refused
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Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995); Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004); Gaudin v. Remis, 415 F.3d 1028 (9th Cir. 2005); Furnes v. Reeves, 362 F.3d 702 (11th Cir.), cert. denied, 543 U.S. 978, 125 S. Ct. 478, 160 L. Ed. 2d 355 (2004); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004); Belay v. Getachew, 272 F. Supp. 2d 553 (D. Md. 2003); Bocquet v. Ouzid, 225 F. Supp. 2d 1337 (S.D. Fla. 2002); Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (M.D. Fla. 2002); Anderson v. Acree, 250 F. Supp. 2d 872 (S.D. Ohio 2002); Toren v. Toren, 26 F. Supp. 2d 240 (D. Mass. 1998), vacated on other grounds, 191 F.3d 23 (1st Cir. 1999); Lops v. Lops, 140 F.3d 927 (11th Cir. 1998); Koc v. Koc, 181 F. Supp. 2d 136 (E.D.N.Y. 2001).
INCADAT comment
Exceptions to Return
Settlement of the Child
Commencement of Convention Proceedings
Concealment
Equitable Tolling
SUMMARY
Summary available in
EN
Facts
On 8 July 2003, the mother took the two younger children to Tijuana, Mexico to visit the father. The father then removed the children to California.
In September 2003, the mother filed a Hague petition with the Mexican Central Authority. This was transferred to the United States Central Authority one month later. In December 2003, the petition was turned over to the San Diego District Attorney's Office and in August 2004 was assigned to a Deputy District Attorney. For reasons unknown, the petition was not filed in the California Superior Court until April 2005.
A hearing was scheduled for 25 April 2005. The mother appeared without counsel and the proceedings were continued. The mother failed to attend two subsequent hearings and the petition was removed and the father awarded sole custody. The mother appealed to the California Court of Appeal. This appeal was stayed when on 23 January 2006 the mother filed a return petition in the United States District Court for the Southern District of California.
The mother did not attend the hearing scheduled by the Federal District Court on 1 September 2006. She had been unable to enter the United States of America after her passport and visa were stolen. The District Court failed to accept the mother's evidence for her non-appearance and entered final judgment, denying her petition.
On 29 September 2006, the mother filed a motion to alter or amend the judgment of the District Court. The court acknowledged that the basis underlying its original judgment was wrong, but rather than set the judgment aside, it proceeded to rule on the merits of the Hague petition, ruling that it did not entitle her to any relief: Duarte v. Bardales, 2006 U.S. Dist. LEXIS 79518 (S.D. Cal., Oct. 19, 2006).
The mother appealed the District Court's order denying her motion to set aside the judgment.
Ruling
Grounds
Settlement of the Child - Art. 12(2)
The 9th Circuit noted that the one-year filing period was of particular importance under the Convention because the "well settled" affirmative defence in Article 12(2) was only available if a return petition was filed more than a year after the alleged wrongful removal.
The potentially prejudicial effect of failing to file within a year from removal had led American courts to apply equitable principles to toll the one-year period, notwithstanding the fact that both the Convention and the International Child Abduction Remedies Act (ICARA) were silent as to whether such principles applied.
The Majority expressed its agreement with the 11th Circuit in Furnes v. Reeves 362 F.3d 702 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 578] that equitable principles may be applied to toll the one-year period when circumstances suggested that the abducting parent had taken steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return.
The Majority added that while it recognized the serious concerns with uprooting a child who was well settled, significant consideration had to be given to the overarching intention of the Convention, namely deterring child abduction. Logic and equity dictated that awarding an abducting parent an affirmative defence if that parent had hidden the child, would not only encourage child abductions, but also encourage hiding the child from the parent seeking return.
Bea J. agreed with the majority on equitable tolling, noting that where an abductor had hidden the location of the children, and the parent or guardian did not know where to file a petition under the Hague Convention, the one-year period should not run.
Procedural Matters
In a majority ruling, the 9th Circuit held the District Court had abused its discretion by denying the mother's motion to vacate the judgment and had also erred in proceeding to hear the merits of the return petition when the only issue before it was whether the previously entered final judgment should be vacated.
The case was remitted to the District Court to determine whether equitable tolling was available under the Hague Child Abduction Convention and ICARA, 42 U.S.C. ss 11601-11610.
Bea J. dissented in this ruling. He held that the case record contained ample evidence to support the findings of the District Court, rendering the mother's presence at the hearing immaterial. In this he noted that the evidence supported the finding that the father did not hide the children from the mother and thus she was not entitled to equitable tolling of the one year time period to file the petition.
Moreover, although the District Court did not give the mother a hearing on the issue of whether the children were well-settled, she did not raise this issue on appeal, and had waived it. In any event, there was sufficient evidence in the record to support the District Court's finding the children were well-settled in San Diego.
Author of the summary: Peter McEleavy
INCADAT comment
Rehearing, en banc, denied: Duarte v. Bardales, 530 F.3d 1151 (9th Cir. Cal., 2008): <http://cdn.ca9.uscourts.gov/datastore/opinions/2008/06/30/0656808o.pdf>.
Settlement of the Child
A uniform interpretation has not emerged with regard to the concept of settlement; in particular whether it should be construed literally or rather in accordance with the policy objectives of the Convention. In jurisdictions favouring the latter approach the burden of proof on the abducting parent is clearly greater and the exception is more difficult to establish.
Jurisdictions in which a heavy burden of proof has been attached to the establishment of settlement include:
United Kingdom - England & Wales
Re N. (Minors) (Abduction) [1991] 1 FLR 413 [INCADAT cite: HC/E/UKe 106]
In this case it was held that settlement is more than mere adjustment to surroundings. It involves a physical element of relating to, being established in, a community and an environment. It also has an emotional constituent denoting security and stability.
Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT cite: HC/E/UKe 598]
For academic criticism of Re N. see:
Collins L. et al., Dicey, Morris & Collins on the Conflict of Laws, 14th Edition, Sweet & Maxwell, London, 2006, paragraph 19-121.
However, it may be noted that a more recent development in England has been the adoption of a child-centric assessment of settlement by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937]. This ruling may impact on the previous case law.
However there was no apparent weakening of the standard in the non-Convention case Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649,[INCADAT cite: HC/E/UKe 982].
United Kingdom - Scotland
Soucie v. Soucie 1995 SC 134 [INCADAT cite: HC/E/UKs 107]
For Article 12(2) to be activated the interest of the child in not being uprooted must be so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place.
P. v. S., 2002 FamLR 2 [INCADAT cite: HC/E/UKs 963]
A settled situation was one which could reasonably be relied upon to last as matters stood and did not contain indications that it was likely to change radically or to fall apart. There had therefore to be some projection into the future.
C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]
United States of America
In re Interest of Zarate, No. 96 C 50394 (N.D. Ill. Dec. 23, 1996) [INCADAT cite: HC/E/USf 134]
A literal interpretation of the concept of settlement has been favoured in:
Australia
Director-General, Department of Community Services v. M. and C. and the Child Representative (1998) FLC 92-829 [INCADAT cite: HC/E/AU 291];
China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825].
The impact of the divergent interpretations is arguably most marked where very young children are concerned.
It has been held that settlement is to be considered from the perspective of a young child in:
Austria
7Ob573/90 Oberster Gerichtshof, 17/05/1990 [INCADAT cite: HC/E/AT 378];
Australia
Secretary, Attorney-General's Department v. T.S. (2001) FLC 93-063 [INCADAT cite: HC/E/AU 823];
State Central Authority v. C.R [2005] Fam CA 1050 [INCADAT cite: HC/E/AU 824];
Israel
Family Application 000111/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 938];
Monaco
R 6136; M. Le Procureur Général contre M. H. K., [INCADAT cite: HC/E/MC 510];
Switzerland
Präsidium des Bezirksgerichts St. Gallen (District Court of St. Gallen) (Switzerland), decision of 8 September 1998, 4 PZ 98-0217/0532N, [INCADAT cite: HC/E/CH 431].
A child-centric approach has also been adopted in several significant appellate decisions with regard to older children, with emphasis placed on the children's views.
United Kingdom - England & Wales
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937];
France
CA Paris 27 Octobre 2005, 05/15032, [INCADAT cite: HC/E/FR 814];
Québec
Droit de la Famille 2785, Cour d'appel de Montréal, 5 December 1997, No 500-09-005532-973 [INCADAT cite: HC/E/CA 653].
In contrast, a more objective assessment was favoured in the United States decision:
David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991) [INCADAT cite: HC/E/USs 208]
The children, aged 3 and 1 1/2, had not established significant ties to their community in Brooklyn; they were not involved in school, extra-curricular, community, religious or social activities which children of an older age would be.
Commencement of Convention Proceedings
For the purposes of Art 12(1) the obligation on Contracting States to return children ‘forthwith' exists where less than 12 months has elapsed between the wrongful removal / retention and ‘the commencement of the proceedings before the judicial or administrative authority' in the Contracting State of refuge.
Courts in several Contracting States have considered the issue of the precise date of the commencement of such proceedings and have concluded that it is not enough for the purposes of Article 12(1) for the return application to have been filed with the relevant Central Authority in the State of refuge, rather civil return proceedings must have been initiated. In this it has been noted that the reference to administrative authorities in Art 12 refers to States where administrative tribunals have jurisdiction for return petitions.
Canada
V.B.M. v. D.L.J. [2004] N.J. No. 321; 2004 NLCA 56 [INCADAT cite: HC/E/CA 592].
United States of America
Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997) [INCADAT cite: HC/E/USf 105].
The issue has been accepted without argument in both England & Wales and Scotland:
Re M. (Abduction: Acquiescence) [1996] 1 FLR 315, [INCADAT cite: HC/E/UKe 21];
Perrin v. Perrin 1994 SC 45, 1995 SLT 81, 1993 SCLR 949, [INCADAT cite: HC/E/UKs 108].
Concealment
Where children are concealed in the State of refuge courts are reluctant to make a finding of settlement, even if many years elapse before their discovery:
Canada (7 years elapsed)
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT cite: HC/E/CA 754];
See however the decision of the Cour d'appel de Montréal in:
Droit de la Famille 2785, Cour d'appel de Montréal, 5 December 1997, No 500-09-005532-973 [INCADAT cite: HC/E/CA 653].
United Kingdom - Scotland (2 ½ years elapsed)
C. v. C. [2008] CSOH 42, 2008 S.C.L.R. 329 [INCADAT cite: HC/E/UKs 962];
Switzerland (4 years elapsed)
Justice de Paix du cercle de Lausanne (Magistrates' Court), decision of 6 July 2000, J 765 CIEV 112E [INCADAT cite: HC/E/CH 434];
United States of America
(2 ½ years elapsed)
Lops v. Lops, 140 F. 3d 927 (11th Cir. 1998) [INCADAT cite: HC/E/USf 125];
(3 years elapsed)
In re Coffield, 96 Ohio App. 3d 52, 644 N.E. 2d 662 (1994) [INCADAT cite: HC/E/USs 138].
Non-return orders have been made where notwithstanding the concealment the children have still been able to lead open lives:
United Kingdom - England & Wales (4 years elapsed)
Re C. (Abduction: Settlement) (No 2) [2005] 1 FLR 938 [INCADAT cite: HC/E/UKe 815];
China - (Hong Kong Special Administrative Region) (4 ¾ years elapsed)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825].
Equitable Tolling
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].