HC/E/AU 113
Australia
Full Court of the Family Court of Australia at Sydney
Tribunal de Apelaciones
Nueva Zelanda
Australia
10 June 1993
Definitiva
Finalidad del Convenio - Preámbulo, arts. 1 y 2 | Traslado y retención - arts. 3 y 12 | Grave riesgo - art. 13(1)(b) | Cuestiones relativas a la restitución | Interpretación del Convenio
Restitución ordenada
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The court held that the Hague Convention was not inconsistent with the 1989 UN Convention on the Rights of the Child insofar as the former was itself predicated upon the paramountcy of the rights of the child.
The court followed the House of Lords in the English case Re H.; Re S. (Abduction: Custody Rights) [1991] 2 AC 476, [1991] 3 All ER 230, [1991] 2 FLR 262, [1991] Fam Law 427 ][INCADAT cite: HC/E/UKe 115] in finding that the terms removal and retention referred to alternative and discrete past events.
In the face of evidence that the mother might face violence were she to return to Dunedin, the court noted that it was open to her and the children to return to a different part of New Zealand. The court also noted that mother and children could seek protection from the New Zealand courts.
The Court drew attention to the flexibility of the concept of 'return' when suggesting that mother and children need not return to the region of New Zealand where they previously resided, simply New Zealand.
Reference was made to several different aids to interpretation: foreign case law, the Perez-Vera Report and academic articles.
Australia
In Australia a very strict approach was adopted initially with regard to Article 13(1) b), see:
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@];
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT cite: HC/E/AU @293@].
However, following the judgment of the High Court in the joint appeals:
D.P. v. Commonwealth Central Authority; J.L.M. v. Director-General, New South Wales Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081), [INCADAT cite HC/E/AU @346@, @347@], where a literal interpretation of the exception was advocated, greater attention has now been focused on the risk to the child and the post return situation.
In the context of a primary carer abducting parent refusing to return to the child's State of habitual residence, see:
Director General, Department of Families v. R.S.P. [2003] FamCA 623, [INCADAT cite HC/E/AU @544@].
With regard to a child facing a grave risk of psychological harm see:
J.M.B. and Ors & Secretary, Attorney-General's Department [2006] FamCA 59, [INCADAT cite HC/E/AU 871].
For recent examples of cases where the grave risk of harm exception was rejected see:
H.Z. v. State Central Authority [2006] FamCA 466, [INCADAT cite HC/E/AU 876];
State Central Authority v. Keenan [2004] FamCA 724, [INCADAT cite HC/E/AU @782@].
New Zealand
Appellate authority initially indicated that the change in emphasis adopted in Australia with regard to Article 13(1) b) would be followed in New Zealand also, see:
El Sayed v. Secretary for Justice, [2003] 1 NZLR 349, [INCADAT cite: HC/E/NZ 495].
However, in the more recent decision: K.S. v. L.S. [2003] 3 NZLR 837 [INCADAT cite: HC/E/NZ 770] the High Court of New Zealand (Auckland) has affirmed, albeit obiter, that the binding interpretation in New Zealand remained the strict interpretation given by the Court of Appeal in:
Anderson v. Central Authority for New Zealand [1996] 2 NZLR 517 (CA), [INCADAT cite: HC/E/NZ 90].
Preparation of INCADAT commentary in progress.
Primarily this will be a factual question for the court seised of the return petition. The issue may be of relevance where there is doubt as to whether the 12 month time limit referred to in Article 12(1) has elapsed, or indeed if there is uncertainty as to whether the alleged wrongful act has occurred before or after the entry into force of the Convention between the child's State of habitual residence and the State of refuge.
International Dimension
A legal issue which has arisen and been settled with little controversy in several States, is that as the Convention is only concerned with international protection for children from removal or retention and not with removal or retention within the State of their habitual residence, the removal or retention in question must of necessity be from the jurisdiction of the courts of the State of the child's habitual residence and not simply from the care of holder of custody rights.
Australia
Murray v. Director, Family Services (1993) FLC 92-416, [INCADAT cite: HC/E/AU 113].
State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567, [INCADAT cite: HC/E/AU 232]; Kay J. confirmed that time did not run, for the purposes of Art. 12, from the moment the child arrived in the State of refuge.
State Central Authority v. C.R. [2005] Fam CA 1050, [INCADAT cite: HC/E/AU 232]; Kay J. held that the precise determination of time had to be calculated in accordance with local time at the place where the wrongful removal had occurred.
United Kingdom - England & Wales
Re H.; Re S. (Abduction: Custody Rights) [1991] 2 AC 476, [1991] 3 All ER 230, [1991] 2 FLR 262, [INCADAT cite: HC/E/UKe 115].
United Kingdom - Scotland
Findlay v. Findlay 1994 SLT 709, [INCADAT cite: HC/E/UKs 184].
However in a very early Convention case Kilgour v. Kilgour 1987 SC 55, 1987 SLT 568, 1987 SCLR 344, [INCADAT cite: HC/E/UKs 116], the parties were at one in proceeding on the basis that the relevant removal for the purposes of the Convention was a removal in breach of custody rights rather than a removal from the country where the child previously lived.
Agreement on the issue of the commencement of return was not reached in the Israeli case Family Application 000111/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 938]. One judge accepted that the relevant date was the date of removal from the State of habitual residence, whilst the other who reached a view held that it was the date of arrival in Israel.
Communication of Intention Not to Return a Child
Different positions have been adopted as to whether a retention will commence from the moment a person decides not to return a child, or whether the retention only commences from when the other custody holder learns of the intention not to return or that intention is specifically communicated.
United Kingdom - England & Wales
In Re S. (Minors) (Abduction: Wrongful Retention) [1994] Fam 70, [INCADAT cite: HC/E/UKe 117], the English High Court was prepared to accept that an uncommunicated decision by the abductor was of itself capable of constituting an act of wrongful retention.
Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682, [INCADAT cite: HC/E/UKe 50]: the moment the mother unilaterally decided not to return the child was not the point in time at which the retention became wrongful. This was no more than an uncommunicated intention to retain the child in the future from which the mother could still have resiled. The retention could have originated from the date of the aunt's ex parte application for residence and prohibited steps orders.
United States of America
Slagenweit v. Slagenweit, 841 F. Supp. 264 (N.D. Iowa 1993), [INCADAT cite: HC/E/USf 143].
The wrongful retention did not begin to run until the mother clearly communicated her desire to regain custody and asserted her parental right to have the child live with her.
Zuker v. Andrews, 2 F. Supp. 2d 134 (D. Mass. 1998) [INCADAT cite: HC/E/UKf 122], the United States District Court for the District of Massachusetts held that a retention occurs when, on an objective assessment, a dispossessed custodian learns that the child is not to be returned.
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].
The Court of Appeals held that ultimately it was not required to decide whether a child was not retained under the Convention until a parent unequivocally communicated his or her desire to regain custody, but it assumed that this standard applied.
Courts in all Contracting States must inevitably make reference to and evaluate the aims of the Convention if they are to understand the purpose of the instrument, and so be guided in how its concepts should be interpreted and provisions applied.
The 1980 Hague Child Abduction Convention, explicitly and implicitly, embodies a range of aims and objectives, positive and negative, as it seeks to achieve a delicate balance between the competing interests of the central actors; the child, the left behind parent and the abducting parent, see for example the discussion in the decision of the Canadian Supreme Court: W.(V.) v. S.(D.), (1996) 2 SCR 108, (1996) 134 DLR 4th 481 [INCADAT Reference: HC/E/CA 17].
Article 1 identifies the core aims, namely that the Convention seeks:
"a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."
Further clarification, most notably to the primary purpose of achieving the return of children where their removal or retention has led to the breach of actually exercised rights of custody, is given in the Preamble.
Therein it is recorded that:
"the interests of children are of paramount importance in matters relating to their custody;
and that States signatory desire:
to protect children internationally from the harmful effects of their wrongful removal or retention;
to establish procedures to ensure their prompt return to the State of their habitual residence; and
to secure protection for rights of access."
The aim of return and the manner in which it should best be achieved is equally reinforced in subsequent Articles, notably in the duties required of Central Authorities (Arts 8-10) and in the requirement for judicial authorities to act expeditiously (Art. 11).
Article 13, along with Articles 12(2) and 20, which contain the exceptions to the summary return mechanism, indicate that the Convention embodies an additional aim, namely that in certain defined circumstances regard may be paid to the specific situation, including the best interests, of the individual child or even taking parent.
The Pérez-Vera Explanatory Report draws (at para. 19) attention to an implicit aim on which the Convention rests, namely that any debate on the merits of custody rights should take place before the competent authorities in the State where the child had his habitual residence prior to its removal, see for example:
Argentina
W., E. M. c. O., M. G., Supreme Court, June 14, 1995 [INCADAT Reference: HC/E/AR 362]
Finland
Supreme Court of Finland: KKO:2004:76 [INCADAT Reference: HC/E/FI 839]
France
CA Bordeaux, 19 janvier 2007, No de RG 06/002739 [INCADAT Reference: HC/E/FR 947]
Israel
T. v. M., 15 April 1992, transcript (Unofficial Translation), Supreme Court of Israel [INCADAT Reference: HC/E/IL 214]
Netherlands
X. (the mother) v. De directie Preventie, en namens Y. (the father) (14 April 2000, ELRO nr. AA 5524, Zaaksnr.R99/076HR) [INCADAT Reference: HC/E/NL 316]
Switzerland
5A.582/2007 Bundesgericht, II. Zivilabteilung, 4 décembre 2007 [INCADAT Reference: HC/E/CH 986]
United Kingdom - Scotland
N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571 [INCADAT Reference: HC/E/UKs 996]
United States of America
Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) [INCADAT Reference: HC/E/USf 125]
The Pérez-Vera Report equally articulates the preventive dimension to the instrument's return aim (at paras. 17, 18, 25), a goal which was specifically highlighted during the ratification process of the Convention in the United States (see: Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986)) and which has subsequently been relied upon in that Contracting State when applying the Convention, see:
Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) [INCADAT Reference: HC/E/USf 741]
Applying the principle of equitable tolling where an abducted child had been concealed was held to be consistent with the purpose of the Convention to deter child abduction.
Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 578]
In contrast to other federal Courts of Appeals, the 11th Circuit was prepared to interpret a ne exeat right as including the right to determine a child's place of residence since the goal of the Hague Convention was to deter international abduction and the ne exeat right provided a parent with decision-making authority regarding the child's international relocation.
In other jurisdictions, deterrence has on occasion been raised as a relevant factor in the interpretation and application of the Convention, see for example:
Canada
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT Reference: HC/E/CA 754]
United Kingdom - England and Wales
Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 [INCADAT Reference: HC/E/UKe 50]
Aims and objectives may equally rise to prominence during the life of the instrument, such as the promotion of transfrontier contact, which it has been submitted will arise by virtue of a strict application of the Convention's summary return mechanism, see:
New Zealand
S. v. S. [1999] NZFLR 625 [INCADAT Reference: HC/E/NZ 296]
United Kingdom - England and Wales
Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716 [INCADAT Reference: HC/E/UKe 60]
There is no hierarchy between the different aims of the Convention (Pérez-Vera Explanatory Report, at para. 18). Judicial interpretation may therefore differ as between Contracting States as more or less emphasis is placed on particular objectives. Equally jurisprudence may evolve, whether internally or internationally.
In United Kingdom case law (England and Wales) a decision of that jurisdiction's then supreme jurisdiction, the House of Lords, led to a reappraisal of the Convention's aims and consequently a re-alignment in court practice as regards the exceptions:
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
Previously a desire to give effect to the primary goal of promoting return and thereby preventing an over-exploitation of the exceptions, had led to an additional test of exceptionality being added to the exceptions, see for example:
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260 [INCADAT Reference: HC/E/UKe 901]
It was this test of exceptionality which was subsequently held to be unwarranted by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
- Fugitive Disentitlement Doctrine:
In United States Convention case law different approaches have been taken in respect of applicants who have or are alleged to have themselves breached court orders under the "fugitive disentitlement doctrine".
In Re Prevot, 59 F.3d 556 (6th Cir. 1995) [INCADAT Reference: HC/E/USf 150], the fugitive disentitlement doctrine was applied, the applicant father in the Convention application having left the United States to escape his criminal conviction and other responsibilities to the United States courts.
Walsh v. Walsh, No. 99-1747 (1st Cir. July 25, 2000) [INCADAT Reference: HC/E/USf 326]
In the instant case the father was a fugitive. Secondly, it was arguable there was some connection between his fugitive status and the petition. But the court found that the connection not to be strong enough to support the application of the doctrine. In any event, the court also held that applying the fugitive disentitlement doctrine would impose too severe a sanction in a case involving parental rights.
In March v. Levine, 249 F.3d 462 (6th Cir. 2001) [INCADAT Reference: HC/E/USf 386], the doctrine was not applied where the applicant was in breach of civil orders.
In the Canadian case Kovacs v. Kovacs (2002), 59 O.R. (3d) 671 (Sup. Ct.) [INCADAT Reference: HC/E/CA 760], the father's fugitive status was held to be a factor in there being a grave risk of harm facing the child.
Author: Peter McEleavy
Preparation of INCADAT case law analysis in progress.
Preparation of INCADAT commentary in progress.
Article 12 of the Convention does not prescribe the place to which the child should be returned. The drafters wished for the provision to be left sufficiently wide to allow for a return to a State other than that of the child's habitual residence. However, the Preamble makes clear that the general intention is that a return should be to the latter State. Of course a return to the State of habitual residence does not of itself require the child to be placed into the care of the applicant parent or indeed of a State agency; very often the child will remain in the care of the abducting parent pending the determination of the substantive custody case. Furthermore a return need not mean a return to the particular place in the State where the child previously lived.
Courts have taken advantage of the flexibility in the drafting of Article 12 when dealing with return applications, see:
Australia
Murray v. Director, Family Services (1993) FLC 92-416 [INCADAT cite: HC/E/AU 113].
The Full Court suggested that mother and children return to a different part of New Zealand from that where they previously lived in order to avoid danger at the hands of the applicant father.
Israel
G. v. B., 25 April 2007, Court for Family Matters, Beersheva [INCADAT cite: HC/E/IL 910].
Child ordered to be returned to Belgium, the country where he was to live, although it was not his State of habitual residence prior to the removal.
Where a court considered that the applicant father had no intention of actually remaining in the State of habitual residence with the child, but was actually seeking to bring about a relocation to a non-Convention State, it decided not to make a return order.
Canada
Espiritu v. Bielza, [2007] O.J. No. 1587; 2007 ONCJ 175; 39 R.F.L. (6th) 218; 2007 CarswellOnt 2546, [INCADAT cite: HC/E/CA 728].
For discussion of the drafting of Article 12 see:
P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford OUP, 1999.
Preparation of INCADAT commentary in progress.