CASO

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Nombre del caso

Central Authority, RSA v. OCI [2010] JOL 25947 (GSJ)

Referencia INCADAT

HC/E/ZA 1202

Tribunal

País

Sudáfrica

Nombre

Tribunal Superior de Gauteng Sur, Johannesburgo

Instancia

Primera Instancia

Juez(ces)

Mbha J.

Estados involucrados

Estado requirente

Irlanda

Estado requerido

Sudáfrica

Fallo

Fecha

27 August 2010

Estado

Definitiva

Fundamentos

Residencia habitual - art. 3 | Derechos de custodia - art. 3 | Integración del niño - art. 12(2) | Cuestiones procesales

Fallo

Restitución ordenada

Artículo(s) del Convenio considerados

3 13(1)(b) 13(2) 12(2)

Artículo(s) del Convenio invocados en la decisión

3

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

INCADAT comentario

Objetivos y ámbito de aplicación del Convenio

Residencia habitual
Residencia habitual

Dificultades en la implementación & aplicación

Cuestiones procesales
Requisito de tramitación con celeridad (artículo 11)

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The proceedings concerned a child born in Ireland in May 2002. The Nigerian father and South African mother had married in South Africa in May 2000. Thereafter the mother emigrated to Ireland, acquiring permanent residence status, whilst the father remained in South Africa. The child acquired Irish citizenship. In 2007, the parents divorced, and within this, a settlement agreement provided that the mother would have custody, the father access.

The child saw the father twice (in July 2002 and July 2006) before being sent to South Africa in April 2009 to see the father. The purpose of this trip was the subject of dispute as between the parents; for the mother it was a one-month visit, for the father it was a permanent move.

It was the mother's case that she sought to persuade the father to return the child voluntarily. Thereafter she contacted the Irish Central Authority. On 14 January 2010, the Irish Central Authority submitted a return application to the South African Central Authority, which then initiated mediation proceedings with a view to securing the voluntary return of the child.

Thereafter court proceedings for return under the 1980 Hague Child Abduction Convention were initiated.

Ruling

Retention wrongful and return ordered; none of the exceptions under the 1980 Hague Child Abduction Convention had been established.

Grounds

Habitual Residence - Art. 3

The Court found that prior to his retention the child's habitual residence was in the Republic of Ireland - the child had only left the country once, for a month in 2006. In this finding, the Court referred to the earlier decision of Central Authority (South Africa) v A 2007 (5) SA 501 (W) in which Jajbhay J. had held that:

"where a child's parents shared the same intention regarding the child's habitual residence, such intention determined the child's habitual residence; but where they had different intentions, the child's habitual residence is determined with reference to whether the child had a factual connection to the State concerned and knew something of it, culturally, socially and linguistically. If the child is too young to know anything about any State, culturally, socially and linguistically, his habitual residence followed that of the parent with whom he had a home at the time of his removal or retention."

Rights of Custody - Art. 3


The Court rejected the father's submission that the settlement agreement had been varied or amended in his favour.

Settlement of the Child - Art. 12(2)


The father submitted that child had settled in his new environment, and proposed that a family advocate should investigate the child's well-being and furnish a report. The Court found that the child's performance at school was poor and held that since his entire life had previously been in Ireland, it was highly unlikely he could have adjusted to his new environment.

Procedural Matters


In rejecting the father's application for a family advocate's report, the Court noted that it should be guided by the Convention's primary objective of prompt return and the expeditious restoration of the status quo ante.

Author of the summary: Peter McEleavy

INCADAT comment

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.

Requirement of Expedition (art. 11)

Preparation of INCADAT commentary in progress.