CASE

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Case Name

CA Lyon, 17 janvier 2008, No de RG 06/05749

INCADAT reference

HC/E/980

Court

Country

FRANCE

Name

Cour d'appel de Lyon (deuxième chambre civile)

Level

Appellate Court

Judge(s)
Raguin Gouverneur (conseillère, faisant fonction de présidente); Lacroix (conseillère); Bardoux (conseiller)

States involved

Decision

INCADAT comment

Access / Contact

Protection of Rights of Access
Protection of Rights of Access

SUMMARY

Summary available in EN | FR | ES

Facts

The application concerned a child born in France of a French father and Peruvian mother in 2000. The family apparently lived in Peru. In 2006, the father started divorce proceedings in France.

On June 7, 2006, a Lyon tribunal found that the parents exercised joint parental authority over the minor child and set his habitual residence with his mother and determined that the father would exercise his contact rights freely, and in default of agreement, 10 days per quater, when staying in Peru.

The father appealed this decision with a view to obtaining the child's residence and the mother raised the issue of incompetence of the French authorities in matters of parental responsibility on the grounds that the family had its habitual residence in Peru.

Ruling

Parties urged to resort to mediation in order to solve the dispute involving visitation rights within the context of Article 21 of the 1980 Hague Child Abduction Convention.

Grounds

Role of the Central Authorities - Arts 6 - 10


Having found that neither the competence rules of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003), nor the common law rules conferred jurisdiction upon the French tribunals in matters of parental authority, the Appeal Court observed that France and Peru were parties to the Hague Convention.

It indicated that the purpose of the Convention was to ensure compliance with custody and visitation rights in other contracting States existing in a contracting State. Under articles 7 and 21 of the Convention, the central authorities of France and Peru were liable to collaborate to organize, promote and protect visitation rights, as well as to remove all obstacles that would disconnect children from their international roots.

It explained that a mediator could organize confidential meetings of which the objective was to help the parents, who lived in different states and who were involved in a dispute, to re-establish a communication link and conclude an agreement that was mutually acceptable while taking into account the child's best interest.

Considering the disagreement between the parents about the child's best interest, and considering the procedural difficulties owing primarily to the transboundary nature of the dispute, the Court invited the parties to resort to international mediation and particularly the father to call upon the Bureau d'Aide à la Médiation Internationale pour les Familles [international fammily mediation aid bureau], connected with the Bureau de l'Entraide Civile et Commerciale Internationale [international civil and commercial assistance bureau] with the Direction des Affaires Civiles et du Sceau du Ministère de la Justice [civil affairs and the seal of the department of justice division], with a view to calling on central Peruvian authorities to protect or organize his visitation rights in application of article 21 of the Convention.

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].