Descargar texto completo
EN
Buscador de jurisprudencia
Nueva búsquedaCASO
Nombre del caso
Krishna v. Krishna 1997 WL 195439 (N.D.Cal.)
Referencia INCADAT
HC/E/US 1143
Tribunal
Estados Unidos de América - Competencia Federal
Primera Instancia
Estados involucrados
Australia
Estados Unidos de América
Fallo
11 April 1997
Definitiva
Finalidad del Convenio - Preámbulo, arts. 1 y 2 | Consentimiento - art. 13(1)(a) | Grave riesgo - art. 13(1)(b) | Cuestiones relativas a la restitución
Restitución denegada
-
-
INCADAT comentario
Excepciones a la restitución
Factores económicos
SUMARIO
Sumario disponible en
EN
|
FR
Facts
The mother alleged that she had suffered domestic violence at the hands of the father. However, there was relatively little evidence and only one statement alleging a direct threat to the child. The father applied for the return of the child to Australia.
Ruling
Grounds
Aims of the Convention - Preamble, Arts 1 and 2
The United States District Court for the Northern District of California cited the Court of Appeals for the Sixth Circuit in Friedrich, where it stated that "[t]he affirmative defences...offer an opportunity, in extraordinary cases, for a court in the country of flight to consider the practical realities of the situation".
However, in Friedrich it was noted "that in most cases the duty of that court, when the niceties of the Convention are met, is to return the child to the country of habitual residence for resolution of the custody dispute under the laws of that country". See Friedrich v. Friedrich, 983 F.2d 1396 at 1403 (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142].
Consent - Art. 13(1)(a)
The Court found that the father had either implicitly or explicitly consented to the child's removal to the United States of America by giving the child's passport to the mother with the knowledge that she intended to take him to the United States of America.
One of his wife's relatives had informed him of this intention prior to the transfer of the passport. The Court found that by this action the father had acceded to the child's removal from Australia, as it would be unreasonable to give the child's passport to the mother for any other reason.
Grave Risk - Art. 13(1)(b)
A return to Australia would expose the child to grave psychological harm arising from the discord and alleged abuse between the parties.
Although there was little evidence to suggest a risk of physical harm, the tempestuous relationship between the parents meant that a return would reinstate the child into a highly stressful and psychologically damaging environment. This was particularly the case because the mother had relatively little familial support in Australia.
Issues Relating to Return
The mother had argued that a return order would render her completely reliant on her estranged husband or the Australian state for support throughout the custody proceedings.
Authors of the summary: Jamie Yule and Peter McEleavy
INCADAT comment
Economic Factors
Article 13(1)(b) and Economic Factors
There are many examples, from a broad range of Contracting States, where courts have declined to uphold the Article 13(1)(b) exception where it has been argued that the taking parent (and hence the children) would be placed in a difficult financial situation were a return order to be made.
Australia
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]
The fact that the mother could not accompany the child to England for financial reasons or otherwise was no reason for non-compliance with the clear obligation that rests upon the Australian courts under the terms of the Convention.
Canada
Y.D. v. J.B. [1996] R.D.F. 753 (Que. C.A.) [INCADAT Reference: HC/E/CA 369]
Financial weakness was not a valid reason for refusing to return a child. The Court stated: "The signatories to the Convention did not have in mind the protection of children of well-off parents only, leaving exposed and incapable of applying for the return of a wrongfully removed child the parent without wealth whose child was so abducted."
France
CA Lyon, 19 septembre 2011, No de RG 11/02919 [INCADAT Reference: HC/E/FR 1168]
The existence of more favourable living conditions in France could not be taken into consideration.
Germany
7 UF 39/99, Oberlandesgericht Bamberg [INCADAT Reference: HC/E/DE 821]
New Zealand
K.M.A. v. Secretary for Justice [2007] NZFLR 891 [INCADAT Reference: HC/E/NZ 1118]
Financial hardship was not proven on the facts; moreover, the Court of Appeal considered it most unlikely that the Australian authorities would not provide some form of special financial and legal assistance, if required.
United Kingdom - England and Wales
In early case law, the Court of Appeal repeatedly rejected arguments that economic factors could justify finding the existence of an intolerable situation for the purposes of Article 13(1)(b).
Re A. (Minors) (Abduction: Custody Rights) [1992] Fam 106 [INCADAT Reference: HC/E/UKe 48]
In this case, the court decided that dependency on State benefits cannot be said in itself to constitute an intolerable situation.
B. v. B. (Abduction: Custody Rights) [1993] Fam 32, [1993] 2 All ER 144, [1993] 1 FLR 238, [1993] Fam Law 198 [INCADAT Reference: HC/E/UKe 10]
In this case, it was said that inadequate housing / financial circumstances did not prevent return.
Re M. (Abduction: Undertakings) [1995] 1 FLR 1021 [INCADAT Reference: HC/E/UKe 20]
The Court suggested that the exception might be established were young children to be left homeless, and without recourse to State benefits. However, to be dependent on Israeli State benefits, or English State benefits, could not be said to constitute an intolerable situation.
United Kingdom - Scotland
Starr v. Starr, 1999 SLT 335 [INCADAT Reference: HC/E/UKs 195]
IGR, Petitioner [2011] CSOH 208 [INCADAT Reference: HC/E/UKs 1154]
Switzerland
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]
Zimbabwe
Secretary For Justice v. Parker 1999 (2) ZLR 400 (H) [INCADAT Reference: HC/E/ZW 340]
There are some examples where courts have placed emphasis on the financial circumstances (or accommodation arrangements) that a child / abductor would face, in deciding whether or not to make a return order:
Australia
Harris v. Harris [2010] FamCAFC 221 [INCADAT Reference: HC/E/AU 1119]
The financially precarious position in which the mother would find herself were a return order to be made was a relevant consideration in the making of a non-return order.
France
CA Paris, 13 avril 2012, No de RG 12/0617 [INCADAT Reference : HC/E/FR 1189]
In this case, inadequate housing was a relevant factor in the consideration of a non-return order.
Netherlands
De directie Preventie, optredend voor zichzelf en namens Y (de vader /the father) against X (de moeder/ the mother) (7 February 2001, ELRO nr.AA9851 Zaaknr:813-H-00) [INCADAT Reference: HC/E/NL 314]
In this case, financial circumstances were a relevant factor in the consideration of a non-return order.
United Kingdom - Scotland
C. v. C. 2003 S.L.T. 793 [INCADAT Reference : HC/E/UKs 998]
An example where financial circumstances did lead to a non-return order being made.
A, Petitioner [2011] CSOH 215, 2012 S.L.T. 370 [INCADAT Reference: HC/E/UKs 1153]
In this case, adequate accommodation and financial support were relevant factors in the consideration of a non-return order.
European Court of Human Rights (ECrtHR)
Šneersone and Kampanella v. Italy (Application No 14737/09) [INCADAT Reference: HC/E/ 1152]
The ECrtHR, in finding that there had been a breach of Article 8 of the European Convention on Human Rights (ECHR) in the return of a child from Latvia to Italy, noted that the Italian courts exercising their powers under the Brussels IIa Regulation, had overlooked the fact that it was not financially viable for the mother to return with the child: she spoke no Italian and was virtually unemployable.
(Author: Peter McEleavy, April 2013)