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Case Name
Auto Audiencia Provincial Nº 133/2006 Pontevedra (Sección 1ª), Recurso de apelación Nº 473/2006
INCADAT reference
HC/E/ES 887
Court
SPAIN
Audiencia Provincial de Pontevedra, Sección 1ª
Appellate Court
Almenar Belenguer, Manuel, Rodríguez González, María Begoña, Menéndez Estébanez, Francisco Javier
States involved
FRANCE
SPAIN
Decision
7 May 2006
Final
Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2) | Procedural Matters
Appeal dismissed, return ordered
Art 11 of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
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INCADAT comment
Article 12 Return Mechanism
Actual Exercise
Exceptions to Return
Nature and Strength of Objection
Parental Influence on the Views of Children
SUMMARY
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Facts
The decision to keep the child in care was continued for a year on 14 March 2002 by a court of first instance in Bobigny. This decision was upheld by the Paris Court of Appeal on 17 September 2002. The parents were each granted a right of access to the child.
In the summer of 2002 the parents were to share access, the mother having access for the first half of the vacation, the father for the second half. On 6 August the mother failed to give the child to the father and on 3 September she failed to return the child to the institution for the start of the school year. At some date during the summer vacation the mother took the child to Spain.
On 14 January 2003 proceedings were started in Spain for the return of the child at request of the father and the French public institution. A court was seised in Barcelona but this court temporarily set aside the case on 10 September 2004 when the location of the mother and the child could not be determined.
The mother was arrested in Vigo on 1 October 2005, and the boy was taken into care. A court of first instance at Pontevedra ordered the return of the child on 10 May 2006. The mother appealed this order.
Ruling
Grounds
Removal and Retention - Arts 3 and 12
The court noted that a year had not elapsed between the date of the wrongful removal in August 2002 and the commencement of return proceedings in January 2003. Consequently a prompt return was still to be made. The Court further rejected arguments that the child had become settled in his new environment during the four years he had spent in the country, noting that he had been under the care of the Spanish social services for part of that time.
Rights of Custody - Art. 3
The court found that the removal of the child in August 2002 was wrongful. It was irrelevant that the French public institution which had custody of the child did not have physical care at the moment of the removal for it was still effectively exercising custody on that date.
Grave Risk - Art. 13(1)(b)
The Court noted there was no proof to substantiate the allegations that a return would expose the child to a grave risk of psychological or physical harm. The Court further noted that pursuant to Article 11(4) of Council Regulation 2201/2003 the grave risk of harm exception could not be upheld if it was proved that adequate measures had been taken to guarantee the protection of the child after his return. In this the fact the French authorities had previously taken the boy into care was a sufficient guarantee of his future protection.
Objections of the Child to a Return - Art. 13(2)
The boy, who was aged 14, stated that he did not wish to return to France or to have a relationship with his father. Whilst the Court acknowledged these objections it also noted that the boy had been subjected to undue influence by the mother.
Settlement of the Child - Art. 12(2)
The court noted that a year had not elapsed between the date of the wrongful removal in August 2002 and the commencement of return proceedings in January 2003. Consequently a prompt return was still to be made. The Court further rejected arguments that the child had become settled in his new environment during the four years he had spent in the country, noting that he had been under the care of the Spanish social services for part of that time.
Procedural Matters
The mother was ordered to pay the costs of the procedure and the expenses associated with the return of the child.
INCADAT comment
Actual Exercise
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.
Nature and Strength of Objection
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).
Parental Influence on the Views of Children
Courts applying Article 13(2) have recognised that it is essential to determine whether the objections of the child concerned have been influenced by the abducting parent.
Courts in a variety of Contracting States have dismissed claims under Article 13(2) where it is apparent that the child is not expressing personally formed views, see in particular:
Australia
Director General of the Department of Community Services v. N., 19 August 1994, transcript, Family Court of Australia (Sydney) [INCADAT cite: HC/E/AU 231];
Canada
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT cite: HC/E/CA 754];
United Kingdom - England & Wales
Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKe 87].
Although not at issue in the case, the Court of Appeal affirmed that little or no weight should be given to objections if the child had been influenced by the abducting parent or some other person.
Finland
Court of Appeal of Helsinki: No. 2933 [INCADAT cite: HC/E/FI 863];
France
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947].
The Court of Appeal of Bordeaux limited the weight to be placed on the objections of the children on the basis that before being interviewed they had had no contact with the applicant parent and had spent a long period of time with the abducting parent. Moreover the allegations of the children had already been considered by the authorities in the children's State of habitual residence.
Germany
4 UF 223/98, Oberlandesgericht Düsseldorf, [INCADAT cite: HC/E/DE 820];
Hungary
Mezei v. Bíró 23.P.500023/98/5. (27. 03. 1998, Central District Court of Budapest; First Instance); 50.Pkf.23.732/1998/2. 16. 06. 1998., (Capital Court as Appellate Court) [INCADAT cite: HC/E/HU 329];
Israel
Appl. App. Dist. Ct. 672/06, Supreme Court 15 October 2006 [INCADAT cite: HC/E/IL 885];
United Kingdom - Scotland
A.Q. v. J.Q., 12 December 2001, transcript, Outer House of the Court of Session (Scotland) [INCADAT cite: HC/E/UKs 415];
Spain
Auto Audiencia Provincial Nº 133/2006 Pontevedra (Sección 1ª), Recurso de apelación Nº 473/2006 [INCADAT cite: HC/E/ES 887];
Restitución de Menores 534/1997 AA [INCADAT cite: HC/E/ES 908].
Switzerland
The highest Swiss court has held that the views of children could never be entirely independent; therefore a distinction had to be made between a manipulated objection and an objection, which whilst not entirely autonomous, nevertheless merited consideration, see:
5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT cite: HC/E/CH 795].
United States of America
Robinson v. Robinson, 983 F. Supp. 1339 (D. Colo. 1997) [INCADAT cite: HC/E/USf 128].
In this case the District Court held that it would be unrealistic to expect a caring parent not to influence the child's preference to some extent, therefore the issue to be ascertained was whether the influence was undue.
It has been held in two cases that evidence of parental influence should not be accepted as a justification for not ascertaining the views of children who would otherwise be heard, see:
Germany
2 BvR 1206/98, Bundesverfassungsgericht (Federal Constitutional Court) [INCADAT cite: HC/E/DE 233];
New Zealand
Winters v. Cowen [2002] NZFLR 927 [INCADAT cite: HC/E/NZ 473].
Equally parental influence may not have a material impact on the child's views, see:
United Kingdom - England & Wales
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].
The Court of Appeal did not dismiss the suggestion that the child's views may have been influenced or coloured by immersion in an atmosphere of hostility towards the applicant father, but it was not prepared to give much weight to such suggestions.
In an Israeli case the court found that the child had been brainwashed by his mother and held that his views should therefore be given little weight. Nevertheless, the Court also held that the extreme nature of the child's reactions to the proposed return, which included the threat of suicide, could not be ignored. The court concluded that the child would face a grave risk of harm if sent back, see:
Family Appeal 1169/99 R. v. L. [INCADAT cite: HC/E/IL 834].